tainly our role is to help the subcommittees and to help the Congress in any way that we can. We are certainly making every effort to do that.

Senator MATHIAS. Well, while we are all cognizant of the President's constitutional duties and his management responsibilities. I think we should not neglect our oversight responsibilities for they too are important.

Let me say before we let you go that I personally have always found that GAO was very responsive to the inquiries that I have made and I think if we can bring this kind of cooperative approach and responsiveness to the prospective business of oversight and management, we can perhaps get on top of some of these runaway problems of government that have been so disturbing to all of us. We thank you very much for being here.

Mr. EDMISTEN. Senator, I note that we have the pleasure of hearing from our next witness, being Prof. Brownlee Sands Corrin of the department of political science of Goucher College, which is in your home State. We wish to welcome him.

Senator MATHIAS. I am very happy personally to welcome Professor Corrin. I think it is very appropriate that we reached him on the witness list on Maryland Day. So this is the committee's celebration of the 337th birthday of the founding of Maryland.

STATEMENT OF PROFESSOR BROWNLEE SANDS CORRIN, DEPARTMENT OF POLITICAL SCIENCE, GOUCHER COLLEGE; ACCOMPANIED BY DOROTHY WATSON

Professor CORRIN. Thank you, Senator. May I add, too, it is my birthday. I do not know whether that augurs well or evil.

Senator MATHIAS. We will make official note that we welcome you and extend birthday congratulations and hope that you make the record of Maryland and we are all together on your 337th.

Professor CORRIN. Fine.

Mr. Chairman, I have with me one of my senior majors in international relations and a person who has been doing research with me and for me in environmental affairs, Miss Dorothy Watson. She comes here more to hold my hand than to do anything else.

Senator MATHIAS. The subcommittee is very happy to welcome Miss Watson.

Professor CORRIN. What is your pleasure, sir? I sort of feel like Senator Dirksen who said he who hesitates is torn between vice and versa. Do you wish me to read my statement, sir?

Senator MATHIAS. If you would like to do it, we can accept your statement in full for the record, together with the accompanying article entitled "Political Parties and Democratic Values," which appeared in the Goucher Alumni Quarterly. Then we might discuss this problem a little bit.

Let me say I think you were not in the room when I announced that Senator Ervin was called out of town today and asked me to get the meeting going, but I am to extend his regrets that he was not here to hear your testimony.

Professor CORRIN. Thank you.

Perhaps I could highlight some points since all of you have copies, rather than take the subcommittee's time.

Senator MATHIAS. I think that would be helpful.

Professor CORRIN. I find myself in a position where I feel that there is no clear position with regard to the doctrine of separation of powers which, as you know, even going back as far as the Federalist papers, suggested that separation of powers was not a clear division of the executive, judicial, and legislative branches, but is an interweaving and an intertwining. On executive impoundment. I really, after some thought, came to the view that it is difficult to say that the Executive may not impound. He may impound funds. And when he does, you are then caught with the problem of remedies.

I drew some comfort, or perhaps the President may draw some comfort from the role of Congress as expressed by Mr. Justice Roberts in U.S. v. Butler. He was commenting about-and it has been repeated elsewhere (I am not enumerating at length, simply suggesting examples) "the power of Congress to authorize expenditures of public money." Authorization does not usually include within it the meaning of the term "requirement" and thus you may exercise a mandate the Congress may say, you spend this money for this purpose, and if the Executive chooses not to, he has, of course, exercised a political judgment. If he exercises the wrong judgment, he is going to have certain political repercussions, not only on the Hill but in the country at large.

But what is available to stop the Executive? I think perhaps getting to the heart of that, I might read from my written commentary. On page 3, Item 10, I try to list a number of options to combat what you may choose to call executive encroachment or executive impoundment or a combination of these things. First, the obvious one, is impeachment of the Executive. This has such manifest difficulty and is so simplistic as a statement that I merely mention it.

Second, is the referral to the Supreme Court. By way of option limitation I was dragged back to Mississippi v. Johnson in 1867, where the Court confessed to an inability to enjoin the President from exceeding his constitutional powers or ordering him to perform his constitutional duties.

Professor MILLER. Let me interrupt you, sir. You are not saying that Congress had asked the Court to rule or give an advisory opinion, are you?

Professor CORRIN. No, no, goodness!

Professor MILLER. Then what are you saying?

Professor CORRIN. An action, could it not, Professor Miller, be taken from the outside, outside the Congress, to request this?

Professor MILLER. But your statement speaks to what Congress' options are. That is the only thing I am asking.

Professor CORRIN. Yes, but Congress can lead to that. I am sorry I made an assumption not to state it. So you caught me in a position where I ought not to be trapped.

Professor WINTER. Excuse me.

You were saying that Congress could establish a framework in which somebody could bring a law suit and force the President to spend?

Professor CORRIN. Well, if Congress as a body or as a group of individuals finds this sufficiently unsatisfactory, some party involved could attempt an action, could they not, sir?

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Professor WINTER. Yes.

Professor MILLER. If they have the requisite standing.

Professor CORRIN. They have to have the requisite standing.

Professor MILLER. You have a tough problem there and there is a question whether Congress can even invest litigants with the requisite standing. I think you are in a very uncertain area.

Professor WINTER. In Youngstown Sheet and Tube v. Sawyer. Congress not only found they were able to invest somebody with the necessary standing, they did it.

Professor CORRIN. That is correct. They did it in another area. As you know perhaps far better than I, the Supreme Court has adjusted over the years its concepts of what are to be considered as political questions. And they have gradually broadened their view here and broadened their view as to what they can say about the Executive and what he can do and what he cannot do. I am not sure that they are ready to move into this area. Again, I mention this; I do not think that it is a likely course of action.

There is, thirdly, the possibility of passage of an appropriation bill authorizing the President to eliminate or reduce specific items subject to congressional reversal by concurrent resolution within a specified number of days. This proposal does not originate with me and it is not a new one. However, you run into the problem of whether a concurrent resolution, which does not go before the President for signature, can have standing. And I am not sure whether that is settled or not.

You have another kind of option where you have restrictive legislation, which would revoke appropriation authorization if mandatory requirements in terms of intent, purpose, or expenditure are not fulfilled within specified time frameworks.

I have a feeling that Senator Mathias was asking the previous witness a question along this line. I think that is a possible course of action. And of course, you have enormous quid pro quo legislative action as an option, sort of counterpunitive measures. If the President is going to act in this way, the Congress has other ways of being equally or more irritating. That goes in the regular flow and play of political discourse which takes place.

I have two other options. One involves publicity and education through hearings, media reporting, party conference action, and so on, which could dramatize this problem, which is not one easily understood by the general public or appreciated. It is not developed in any way like you can make a picture about the Vietnam War or make a picture about the Middle East or about urban problems. It is a difficult subject to discuss and retain interest in the face of crabgrass on lawns and other interests which citizens have. And we do need education on it. I think that this sort of option might allow the problem to be placed in a priority which is higher than it seems to occupy in the public domain at this time, although it is high in the thinking of Members of Congress. But it is not going to get that way unless Congress takes on, in my opinion, its educational role, both internally and externally.

Lastly, as an option, it seems to me that we could well engage in some research and analysis of conflict resolution alternatives regarding impoundment which would include improved methods of

data retrieval and communication patterns within and between branches. We have, I think, some great difficulties in this area. If there is a confrontation of impoundment, both the executive branch and the Congress are caught. Where do they go from there? That is one of the reasons we are in session now.

You know, we have made, I think, some considerable strides in examining conflict resolution in theory and in practice at the international level. We are not doing as much as we could do, possibly, within the society. I do not have a bag of answers or responses for you. I have done some work in this area, others much more. But I am led to believe by what I have done that it is possible through this approach of conflict resolution to view and to come up with alternative patterns which do not block out further communications and further action between the concerned parties so that there may be accommodation or resolution in a way that is mutually satisfactory to the Executive and to the Congress.

I think, I suppose as a sort of summary, that the problem which which we are considering today is one piece. It is an incremental approach. It is in a framework of a larger problem of massive government. And there are conditions which prevail which make it difficult, not merely for the Congress but for the Executive as well, to perceive and control the operations of the governmental system. Impoundment may well occur and be established as an action without the desire of the Executive and occur without the knowledge of the Congress.

One of our problems, I think, in working with this society is that we do not know quite how to deal with a large scale system; and just as we are confined in many of our communications to the printed page, which sticks us back with Guttenberg, our operations are confined to patterns we have learned and used rather successfully over many years in the past, but which are not going to permit us to retain a control over our system in the future if we simply continue to utilize them as we have in the present and the past. We are caught in problems of time, and time has foreshortened and we are caught in the problems of fragmentation of government as well as society.

All right, that is very philosophical and I am sure you do not need that. But it does represent some of the underpinnings of my thoughts on this subject.

(Prepared statement follows:)

GOUCHER COLLEGE, DEPARTMENT OF POLITICAL SCIENCE, Baltimore, Md., March 25, 1971.

STATEMENT OF BROWNLEE SANDS CORRIN, PROFESSOR OF POLITICAL SCIENCE AT GOUCHER COLLEGE

Hon. SAM J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
U.S. Senate,

Washington, D.C.

DEAR SENATOR ERVIN: I have been asked to respond to the subject of Presidential or executive impoundment of appropriated funds as a problem within the American government system . . . a problem which the Subcommittee on Separation of Powers has determined as an appropriate subject for examination

with a view toward "ascertaining the proper roles of the Congress and Executive." The views, stated below, represent my personal-professional opinions.

1. In my opinion, executive impoundment of appropriated funds becomes of particular concern to the Congress and to the society:

(a) if it should be exercised as a general and regular pattern of conduct outside and beyond a framework permitting establishment of reserves for contingencies, affecting savings through improved efficiency, holding due to condition changes subsequent to appropriation date, or reserving due to changes in requirements;

(b) if such impoundment is a part of a design to nullify the appropriate roles of the Congress;

(c) if it exceeds the bounds of reasonable political interaction between the Executive and the Congress; and

(d) if its exercise appears to produce a harmful deterioration in the viability of the interweaving complex of values which appear to express the purposes of this society and the methods by which such purposes are, in the main, to be realized. (See, attached article on "The Political Parties and Our Democratic Values.")

2. Executive impoundment has been threatened or enacted on occasion by both Democratic and Republican Presidents (e.g., President Harding, in 1923, advising the Congress that he would order the War Department to keep rivers and harbors expenditures within the amount fixed by the Budget Bureau and ignore an additional Congressional appropriation; President Truman, in 1948, impounding funds beyond the amount recommended by him for the procurement build-up of the Air Force).

3. Executive impoundment appears to be within those powers which may be exercised by the Executive. Its exercise on any or many occasions may produce reactions and charges ranging from approval to illegal conduct. The same reactions and charges may be applied to those members of Congress supporting appropriations which become subject to impoundment.

4. The practice of Executive impoundment appears to occur most frequently when the Presidential recommendations of programs and their funding are materially altered by the Congress. In support of such actions, he might well draw comfort from the following points:

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(a) The phrase in Mr. Justice Roberts' opinion (U.S. vs. Butler, 297 US 66, 1936) the power of Congress to authorize expenditures of public money for public purposes .". Authorization does not usually include the concept of requirement.

(b) As Senator Norris stated in 1938, "if power is to be given to anybody to do anything under a government, it is possible for him to misuse and abuse the power and make it disreputable and destructive." The appropriation action which produced impoundment may represent a position that there has been an abuse of Congressional power.

(c) By impoundment, the Executive is not violating the separation of powers doctrine. It is quite clear that this doctrine does not possess a precise meaning, that "the degree of separation required by the maxim can never in practice be duly maintained" (#48 Federalist Papers), and that historic practice demonstrates the interconnecting and blending of the three branches of government in terms of powers and functions. 5. It would appear that Executives have and must make judgments of the political consequences of impoundment. It seems reasonable that such judgments have and will continue to impose limitations as to how far a President may go in altering legislative appropriations.

6. There have been occasions when the intent of the Congress with respect to specific aspects of programs, their purposes and limits, and their funding, have lacked precision in definition as well as clarity. In some instances, such non-specificity or imprecision has been intentional. We may classify these actions as delegated legislation (which could be considered as a self-generated exception to or violation of the separation of powers doctrine) or as appropriations allowing discretionary executive action. Such purposeful action by the Congress does add to Executive branch responsibilities, but it is considered justifiable and necessary given limited consideration, time, expertise, and experience in the many topics with which the Congress must concern itself.