outrage what they are doing to the cities, let's put some pressure on the President.

Because the President always has his own things that are very urgent. He is sending up requests for supplementary appropriations and Congress can simply say, "We are not even going to consider these until you start spending this money that we consider very vital," and indicating its own sense of priorities. This would be doing something Congress has not done previously. But I think they ought to do it, quite frankly.

Mayor ALIOTO. I would like to comment on that, sir. I think you have put your finger on a very important issue. There are at least. two kinds of appropriations. I have a little background and experience in connection with agricultural appropriations. In that area, unquestionably, what they were doing was setting ceilings, because they did not know what economic factors were going to be involved, what production factors were going to be involved in such variables as the weather, for example, or blight or anything like that in agriculture. So they say, in effect, you are authorized to spend up to a certain amount and to the extent you can spend less than that, we would like it; but nevertheless, these are the objectives we want you to serve. That is one kind of appropriation where, manifestly, the executive branch has been given, under congressional standards, some discretion.

There is anothed kind of appropriation. That is when a group of mayors, who are like the voice crying in the wilderness, come to Washington to plead for a special situation which carries with it not a sense of urgency but an actual sense of emergency. And it is very clear from the legislative history that that is the basis on which Congress considered the appropriation. When Congress makes that kind of appropriation and some of the executive branch says, "We are not going to spend the money," then it does seem to me an unconstitutional frustration of the will of Congress.

I do not think those two types of appropriations are too difficult to ascertain in which category they fall. I really do not. I think the legislative history would show it.

But you have talked about the notion of a mechanism so that the White House and the Congress, perhaps, can confer on the matter. I suggest to you that there is a mechanism, for example, by which the Senate and the House confers to iron out difficulties. I do not know why a simple conference method, for example, could not clearly indicate to the White House that this is manifestly an appropriation that we want spent because it is based upon an emergency and the other is an appropriation predicated upon a ceiling where you do have a measure of discretion. I really do not think those two types of appropriations are that difficult to distinguish.

Mr. UDALL. There is an enormous deference. The thing that concerns Senator Ervin and is the center of these hearings is why congressional power has eroded, I think it is because of an excess of congressional restraints. There has been an enormous deference by the Congress, and I think this is really what is at the root of it.

Now, if, for example, you feel as I do that the money for San Francisco and these other cities is probably more important than replacing the helicopters in Vietnam and the Appropriations Com

mittee said to the President-this is an extreme case- "We are not going to give you the helicopters or money to replace the helicopters until you spend the money in the cities and help us solve these social problems," you would have a very interesting confrontation. This is what I meant when I used the term "whipsaw." Congress could do it, but it has for some reason considered that it was not proper to do it.

Professor BICKEL. Let me just add that Congress could do it if it wanted to address the issue of priorities in connection with its appropriations process. It could do it ahead of time. It has from time to time done so.

For example, the administration itself concedes that the impacted area school aid statute and title I, at least, of the Elementary and Secondary Education Act of 1965, are mandatory because they use the word "shall" not "may" and because they name recipients of the funds. Those, incidentally are statutes under which, in my judgment, you probably could sue and get the thing into court.

But if the Congress, as a result of hearings like this, took more care in the future in its appropriations to address the question of whether it wishes to say "may" or "shall," whether it wishes to direct the expenditure of funds or authorize the expenditure of funds-you may recall that when President Kennedy put the arm on the late Chairman Vinson to have him omit the word "direct," the chairman considered the issue and they omitted the word "direct" and the administration then took the consequences-that was the RS-70 bomber-and exercised its discretion and did not spend the money. Well, Congress ought to make that decision. It ought to decide. whether it thinks the model cities program or impacted area school aid or whatever it is is a mandatory priority and when it thinks so, it flags it as such. Then we would only be left with the abstract constitutional issue which few will now argue, I think, that the President has some inherent power, even when ordered to spend the money, not to spend it, which I do not think is an argument which anybody will be willing to make for too long.

Professor MILLER. Just a brief comment and a small question. It seems to me we are faced here with an example of the rise of power in the executive which the Senator has been exploring in his other subcommittee so far as privacy and surveillance is concerned. We are seeing also the assertion of power by the Attorney General to wiretap without court approval or legislative approval. The basic question which arises is executive power within government. This is one example. That is the first point I would like to make.

I do not see also, as a second comment, how this habit of withholding funds fits in with the President's program of revenue sharing which he has announced only a few weeks ago. If he is going to share the revenue, I think he has to send the money out.

Mayor ALIOTO. We are calling that a promise of those "two birds in the bush," while they are removing the bird in the hand.

Professor MILLER. One or two small questions, Mr. Mayor, and Mr. Udall.

One, Mr. Mayor, is this: You talk about $21 million being withheld and so on. Just as a matter of interest, who told you that it would not be spent?

Mayor ALIOTO. The area director of HUD, the man with the power to do it. And I must say for him that he came over with some embarrassment to tell us. This is a regular outlay. This is not an additional thing or a supplemental thing, but a regular outlay to keep the overhead going, justt o keep the plant going.

Professor MILLER. Did you aks him for his authority to say that? Mayor ALIOTO. Oh, yes, his authority is right from the Secretary of HUD. No question about his authority. He acknowledged it. As a matter of fact, I went directly to the Secretary and made the point that we just were not going to dash theseh opes in these ghetto areas, that this was too desperate a situation for all of us. He finally indicated that maybe he did not have the authority on the $200 million. This is why we are going to be before the President at 3 o'clock today.

Professor MILLER. All right. Do you know of any instances where the Governor of thee State or any State has failed to transmit funds to your city or any other city?

Mayor ALIOTO. Well, to begin with, on urban renewal, of course, those funds come directly to the cities. We have lots of arguments, but this is a congressional policy that we are fighting out in many areas, we have lots of arguments about whether or not the Governor is a proper party to distribute funds to the cities that urgently need these funds, or wheether in the process, the suburbs and some of the richer communities, like Beverly Hills, for example, do a little better than perhaps they should. But we have no specific example of where the Governor has withheld specific urban renewal funds.

Now, we do have a situation where a State body has refused to submit an application for funds for the city and where we have gone submit an application for funds for the city and where we have gone Professor MILLER. Well, I was made aware of this last week out in Iowa, where apparently the Governor there is withholding Federal funds from local areas. I do not know the details of it.

One other point seems to me should be made. I really fail to see, Mr. Mayor and also Mr. Udall, that Congress should say that if they appropriate it, or, two, if they really mean it, they have to say, we really mean it, go out and spend it. It seems to me that an appropriation carries the authority of the Congress behind it and that we do not have to get mandatory direct language in the statute if the power of the purse is in Congress. That is really by way of a comment.

The idea of priorities, which Mr. Bickel spoke about a moment ago, seems to me to indicate that judgments have been made. Congress has made judgments about the priorities. They have appropriated the money. They say this should be spent.

Now, Mr. Udall, and this is really my question, you say that there is some breakdown in the governmental structure whereby Congress has appropriated too much money or is not doing its job properly. I would like to hear your remedy for improving the congressional process. I take it this is your point, sir.

Mr. UDALL. Yes. I do not think it is enough, irrespective of what semantics are used in an appropriation bill or authorization bill, for Congress to simply be passive, as I believe it presently is. And let me say in aside here, because of my own admiration for the Senator who is the chairman of this subcommittee, because I think he is

ahead of the country in his concern on many important issues, that the people who really ought to be in this room are the Appropriations Committee. They are the ones whose legislative intent has been flouted. They are the ones who should be deeply concerned about it. Because I think Congress must do more than simply go through the regular process thate it does of passing appropriations bills with language about how money is to be spent. They have to police it. They have to follow through. This is what I am asking for, that in situations such as Mayor Alioto has described, the Congress ought to be outraged by this and it ought not to be simply a couple of Congressmen from San Francisco putting something in the Congressional Record. The leaders of the Appropriations Committee ought to sit down and say, look, the White House is flouting the will of Congress and we ought to do something about it. I believe there are remedies.

Professor MILLER. What would you have Congress do? I think this is the question.

Mr. UDALL. Create a confrontation with the President.

Professor MILLER. In what way? Would you be a little more specific?

Mr. UDALL. No, I tried to describe it earlier. I would have a showdown with the President and have Congress indicate its concern with regard to the expenditure of these funds and if it had different feelings about different funds-it might feel differently about these funds than the Highway Trust Fund moneys. I do not know that it does. It might. But it ought to have the right to insist that the funds that it feels are very urgent and vital be spent and be spent on

schedule.

The appropriations committees have great power. They have their own ways of challenging the President, of boycotting his request. The President has urgent things that must be done. He is coming to them all the time. And this is where what we call comity enters in. Professor BICKEL. But, Mr. Secretary, we surely do not want to exchange one locus of relatively irresponsible and uncontrollable power for another. Appropriations committees are not Congress. They in the end tend to be, as you yourself indicated, two or three ranking men on the committee who wield the power of the committee as a whole. I would feel we had gone from the fire into the frying pan if we exchanged the power of the Bureau of the Budget and the President for that of half a dozen senior congressmen who would then, themselves, make, because it is unavoidable, these priority judg

ments.

It may offend my colleague's sense of the seemliness of things for the Congress to say in the statute "and we mean it" but the fact is in order to change an appropriation into a high priority appropriation, you have to say "and we mean it." And you can make it mandatory. If you make it sufficiently mandatory, you can enable Mayor Alioto's people to sue.

Mr. UDALL. I have no quarrel with you, and I am not suggesting that just a few people do this. The way it could be done is that the appropriations committees could sit tomorrow morning and consider this problem. And they could pass a resolution which the Congress would vote upon. And they could demand to see the President. I

mean, he should not be going down with the mayors. If the will of Congress is being flouted, the leaders of Congress ought to be going down to the President, you see.

Professor WINTER. That is a very different kind of confrontation than one in which you simply refuse to consider a request for supplemental appropriations. I think what my colleague, Professor Bickel, was thinking about was a confrontation in which the Appropriation Committee brings pressure to bear on the executive branch to arrange some kind of priorities for spending. That is one way to do it.

Another way to do it is for Congress to pass appropriations with appropriate language directing the President to spend.

Professor BICKEL. What we do not want to have is confrontations among oligarchs, so Mr. Shultz has to please some congressional oligarch and between the two of them, neither one being in a constitutional sense responsible, they make the decision. It ought to be made by the Congress itself.

Mr. UDALL. But this could be politics in the best sense, the rational discussion of issues, and the Congress would be making an issue to the country, namely that the cities need the money and it is not being spent.

I frankly would like to see Congress exert itself. I would like to see it be more powerful. I think it has been too passive. That is my argument.

Professor MILLER. Let me pose one further question to both of you. Rather than Congress, do you see a role, as lawyers, for the GAO in this type of situation to investigate and report, and to publicize instances of this on a periodic basis? At least to get the press to talk about it. You know, people get talked about in the press and that energizes the Congress as well as perhaps the people at large.

Mr. UDALL. My own feeling is that GAO is essentially a post-audit operation. They are, I think, one of the best arms that Congress has. In fact, many times they do the work that congressional committees ought to do but do not do, like the recent investigation by GAO of the cost overruns in the Pentagon. The congressional committees should have been boring in on this. But they do not. That is another story that we could talk about.

But for GAO to be the organization that throws the spotlight on this type of problem-I think it ought to be the Congress. I think it ought to be in the political arena and I think these issues ought to be raised in terms of national priorities, national needs, and that Congress itself ought to do it.

Mayor ALIOTO. This is exactly what we are doing on our own. The reason for the meeting of a special group of big city mayors is simply to publicize the problems we are having because of this holdback. And we are getting the press to comment on the fact that this ought not to be done. The reason for this kind of confrontation with the President this afternoon is-it is not going to be an unfriendly thing, because we are going in, for example, on revenue sharing, in which we agree with the President's position. We agree with the President's position in many of the things he has said. But on this holdback, we simply want him to know how desperate the situation is and we hope by this means to create the kind of publicity that will force some kind of action.