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of a presidential prerogative—as a matter of right on the part of the Executive?

Professor CORRIN. I think, sir, it happens in a number of ways. I think it occurs, and I have tried to note this in my written statement, intentionally through action of the Congress by or through the device of delegated legislation, where the Executive options for use of funds or program directions are given by the Congress to him or to his departments to fill in the details. And the intent of Congress may be purposely vague. The Executive then, has a judgment, or under the Executive, persons have judgments which they may make which may result in impoundment. We have, I think, an accepted consideration that impoundment may occur for certain reasons. The reserves for contingency concept, effecting savings through improved efficiency; holdings where subsequent changes take place after an appropriation, or where there are changes in a requirement. Now, you may exercise impounding, or someone may exercise it, and again, that may be reasonable.

A third way it may take place is where the language is not clear. The words themselves may have definition with a multiplicity of meanings, or the underlying presuppositions behind those words may be different, and you can have an honest difference in interpretation; or you may have an interpretation where you use this as a rationalization to get what you wish on the executive side. This may or may not be justifiable.

Senator MATHIAS. Let's suppose there are no imaginable justifications. Does the President still have a right to do it as a matter of policy?

Professor CORRIN. All right. If I can answer you directly. I think he has the right to do it because he says he has the right to do it. I do not think, personally, that he has the right to do itam I weasling with you?

Professor MILLER. I must say that you just threw the Constitution out the window.

Senator MATHIAS. Let me ask you this question. Let us accept that statement for the moment and ask you whether that disturbs you as a scholar of American political science.

Professor CORRIN. Well, it sort of disturbs me as a citizen, Senator.

Senator MATHIAS. What do you think of the future if this trend continues, and particularly if it continues on the curve of the last few years? What do you see as the future role of the Congress in the appropriation process?

Professor CORRIN. I think that the Congress has ways to counteract impoundment. I think that, maybe thus far, we have had presidents who have exercised some degree of restraint. And you know, if the Executive pushes too hard, Congress has enormous power, even if one follows Rossiter's view of the strength in the Executive. Executive power does not detract from the fact that Congress has enormous power and authority, and a role to play which, in many ways, is more than legislative; just as the executive and the judiciary have more than their specific constitutional roles to play.

There are other checks on the Executive. We are not dealing, I hope, in an unforeseeable future, and I am playing Herman

Professling with you, personally

of fessor Coruman. It was as alsop

Kahn here, I suppose, in a way. We are not dealing with an executive type that has occurred occasionally in Central and South America; we are dealing with an Executive who has risen through a system, who recognizes certain interrelationships that must take place, recognizes also that he must stand, possibly, for reelection, or choose not to do so in 4 year's time. And the Executive surely has increasing power, but also, Senator, he has more limited power, because there are so many operations at work and so many agencies at work, that he no longer can exercise effective control over them. I think he has an enormous problem of exercising his power.

Professor WINTER. Professor Corrin, I would just like to ask you, in view of the fact that the testimony before the subcommittee has indicated that there is not a single instance of any President refusing to spend funds in the face of mandatory language from Congress that he spend them, if that fact is true, it is a little hard to make this a very serious constitutional issue, is it not? I mean there has not ever been a case, apparently, in which Congress has said, you shall, you must spend this money, and the President has said, no, I will not?

Senator Mathias. Before Professor Corrin answers that question, I have an off-the-record remark. Let me express my very deep appreciation for your coming, particularly on your birthday. I appreciate it very much. I hope I have already indicated on the record that you have given us a fresh approach and one that is very helpful.


Professor CORRIN. Refresh my mind. Was the legislation at the time of Mr. Truman mandatory or permissive?

Professor WINTER. It was permissive. In the case of President Kennedy and the B-70, it was also permissive. This is important. It is not an accident that this happens, because there have been several attempts in the Congress of the United States to insert mandatory language in appropriation bills which have been vetoed, either vetoed or killed somewhere in Congress, or be passed and obeyed by the President.

Mr. ABRAMSON. Mr. Winter, isn't it a question of what is meant by the words “mandatory language”? In the example we had yesterday with the fisheries-it was very clear that the President was directed to spend the money; it stated, "shall spend” the money. I cannot see anything more mandatory than that.

Professor WINTER. Mr. Abramson, we have different degrees of mandatory language, and that is well known to Congress. It is not by accident that these things happen. In addition to that, it strikes me that the constitutional separation of powers question begins to fade away so long as the President has any argument at all as to why he is not spending in view of the fact that there is mandatory language that Congress knows of, that Congress can lay its hand on and that Congress can use. So far as I know, there is no case where it is absolutely clear, as it would have been had Chairman Vinson of the House Armed Services Subcommittee had his way, where Congress says, we are appropriating this money and we mean the President to spend it, no matter what other legislation they face.

Mr. ABRAMSON. Don't you consider "shall spend”—

Professor WINTER. No. Mr. ABRAMSON. You mean Congress has to put in "and we mean it?"

Professor WINTER. No, there is a whole list of things we have in our files here of attempts to put in mandatory language which is far more specific than that.

Mr. ABRAMSON. Such as? Can you give me some examples ?

Professor WINTER. Why don't we have inserted in the record the document.

Mr. EDMISTEN. I have it. In just a moment, I will insert it in the record.

Professor CORRIN. I think you can put in mandatory language. As you know, some of it has been killed in veto, killed in the committee process, killed along the way. So there has never been a direct confrontation there. And you can argue this from both points of view. It is great cocktail conversation. So we have not been confronted with it. If the President chooses not to act, all right, can he not do that? And then what do you do about it?

Professor WINTER. I would say in that case, he has to act.

Professor CORRIN. You can say it, but if the President says he is not going to do it

Professor WINTER. I am not sure that if Congress writes that kind of language, a law suit would not hold. As long as it is clear who it is who will receive the money, what entity, what individual, it seems to me that you probably could bring a law suit to enforce Congress' direction to the President. There are enormous problems, not only in that anti-deficiency statute. Congress has found it appropriate to have a debt ceiling, to have a limit on expenditures in the fiscal year, and things like that which compel the President not to spend where it is appropriated.

Yesterday we had a number of such instances reported to us by representatives of the OMB.

I think I agree with your assertion that the President has the power. On the other hand, I probably also disagree with the proposition that he is exercising that power very often.

Professor CORRIN. We can disagree here and neither one of us can prove our case. And I do not think that if it came up, I do not think that at least within the immediate future time framework, that the Supreme Court, if it got over there, would help in any resolution of it.

But maybe since it is hypothetical in your mind, it is not worth pursuing

Professor WINTER. I think in terms of conflict of resolution, some of the things you are talking about, the situation now may be an instance of a way of resolving the conflicts in that nobody wants the political liability of deciding whether Mayor Alioto's urban renewal funds or Senator Spong's flood control funds are the funds that are not spent in order to comply with a conflicting direction that expenditures shall not be above a certain limit. No one wants the political liability for having to make that decision, so we have this present kind of structure in which the President, in effect, decides but does it under the guise of a number of other things he-he makes policy under the guise of a number of other kinds of decisions. He makes policy decisions and shares some of the political liability with Congress. But there is not the slightest doubt in my mind that if Congress wants to take the responsibility and share in the political liability by beginning to direct all of these things, it can do it. But I think Congress might find it bought itself some trouble if it did it.

Professor CORRIN. Yes, probably, and I think the Executive buys himself a bag of trouble, too, if he were to directly repudiate a mandate, which he would have to defend.

Professor MILLER. I think that we have a little difference of opinion on whether or not there is a constitutional problem here. Mr. Winter and I are disagreeing in general on the gravity of $12 billion which the President or the OMB is not spending at any one given point in time. That is a rather large sum of money. Now, whether or not you can parse it out in precise language for the Supreme Court to deal with is quite a different thing. But the question, it seems to me, is Who is running the ball game? Does Congress have to go through this type of thing when it appropriates money?

It seems astonishing to me and, I think, to most people in the country to think that when Congress appropriates money, it does not really mean it. I think it would probably astonish most people up here on the Hill. It may not astonish other people such as constitutional scholars or political science scholars and so on. But nevertheless, it is a general impression.

Professor WINTER. What does Congress mean when it puts a limit on the amount the President may spend? It goes through all the process of appropriations, and if it really thinks all that money is going to be spent, then there is no need for it to pass another statute which in effect says to the President, do not spend all that money. If we are to understand Mr. Weinberger or Mr. Cohn correctly, that is precisely the situation that we are in now.

Mr. ABRAMSON. I got the impression from the day before that you were not agreeing but rather were disagreeing with the testimony that appropriations by themselves are not mandatory rather than that they are permissive. Is that correct?

Professor WINTER. Well, I do not know what you mean. Is an appropriation mandatory, one that will force the President to violate

Mr. ABRAMSON. It is a very simple question. When the Congress, for instance, appropriates $5 million for the XYZ Canal, is that permissive or mandatory in terms of whether or not the Chief Executive must spend that money? I got the impression that

Professor WINTER. I have a problem when the President savs, “Well, I am just not going to spend any of the money, I do not like the project." But I am not sure when there is something like the anti-deficiency statute or the debt ceiling or the expenditure limitations or indeed, even the Employment Act of 1946. I do not know how we can say that spending is mandatory. We have to look at the whole statutory framework. You cannot take a statute out of the United States Code and pretend that the rest of the United States Code does not exist. There is no way you can do it.

Mr. İBRAMSON. You said a few moments ago that we should look at the language of the appropriations. And I proffered the example of

expendissor Winthlon are talle repealed the

"shall spend." And in response you said that is not mandatory enough.

Now you have asked to insert in the record this document which I have before me. Here it uses the words "promptly used.” Is this supposed to be stronger than “shall spend”? Perhaps we should publish a book as to what words mean "and we mean it” and which ones do not.

Professor WINTER. I would think that that would be a little bit stronger. But it still strikes me in the light of other laws and of something like the anti-deficiency statute, that where you have the President under the mandate of conflicting legislation, you have to say something about the legislation or you have to indicate in some way whether the law you are now passing takes precedence over the conflicting legislation.

You surely are not taking the position that the first appropriation after the anti-deficiency statute repealed the anti-deficiency statute.

Mr. ABRAMSON. You are talking about the 1951 act?

Professor WINTER. The anti-deficiency statute, the debt ceiling, the expenditure limitation.

Mr. ABRAMSON. I have not given it any statutory interpretation. I am just trying to understand your reasoning that the wording "shall spend, subject to the conditions of the Interior Department" is not mandatory. This all started with your statement that thisthat the President has never contravened any mandatory intent of Congress. I do not think that is the case. The words “shall spend" are very mandatory and in fact more mandatory than the words “promptly used” which implies some intervention of time.

Professor WINTER. You are, of course, looking at only one statute. I am trying to look at all the different laws.

But in addition to that, as far as just becoming a separation of powers questions is concerned, I am saying, because it may be that I would agree with you upon looking into a number of statutes, that it was more mandatory than the President thought. But what I am saying is that as long as the President has a colorable argument other than the assertion of independent power, executive power, to decline to spend-as long as he is doing this under the color of some other law from Congress-it seems to me the separation of powers question is much less important. He is not asserting an independent right to decline. Congress can then turn around if it really wants the money spent, pick out a number of very mandatory things, give somebody the right to bring a law suit, and it is clear that the Supreme Court will enforce that, will enjoin the government to pay the money out.

Professor CORRIN. I would not agree with you. I do not think the Court will touch it with a 10-foot pole.

Professor WINTER. It has.
Professor CORRIN. Not in this area, sir.

Professor WINTER. It says Congress can make contracts or shall hire somebody to carry the mails and shall then pay it per letter. That fellow can sue.

Professor CORRIN. We are in a different subject area, though. Mr. EDMISTEN. The Chairman has directed me to recess the hearings at 3:15. Before we do that, though, I want to read to you two

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