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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 says, "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. ABRAMSON. You said a few moments ago that we should look at the language of the appropriations. And I proffered the example of

"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

gentlemen and to Dr. Corrin some language that did work and it is not like you are talking about, Professor Winter, and Mr. Abramson, I do not think. This is an amendment to the Hill-Burton Act. the Hospital and Medical Facilities Construction Amendment of 1970. Congress said the funds "shall remain available for obligation and expenditure until the end of such fiscal year."

The President thought that worked, because he said. "I am going to veto this thing because it compels me to spend it." And here is part of his wording in his message of veto. It will "significantly restrict presidential options in managing Federal expenditures.` In other words, he could not

Mr. ABRAMSON. What was the language of the appropriation? Mr. EDMISTEN. The language was "shall remain available for obligation and expenditure until the end of such fiscal year." Mr. ABRAMSON. There is the word "shall."

Mr. EDMISTEN. That would have worked according to the President.

Professor CORRIN. I tried to suggest that as an option.
Mr. EDMISTEN. It did.

Mr. ABRAMSON. He was arguing separation of powers.

Professor WINTER. It is now well known how the President is going to react to this kind of appropriation. It is certainly well known throughout the Congress that if they use that kind of language, the President will treat it as mandatory and they did it in the statute you mentioned. If Congress knows that, even if you think the President does not read well, if Congress knows it, it can change the language and make it more mandatory.

Mr. ABRAMSON. Mr. Chief Counsel, if I can make just one last comment for the purpose of setting the record straight on the Republican side of this subcommittee? Separation of powers by its very definition implies some power and some authority by the executive branch.

Professor MILLER. That is what we are afraid of, Mr. Abramson. Professor WINTER. I will withhold my withering comment for

now.

Mr. EDMISTEN. Professor Corrin, on behalf of Senator Ervin and Senator Mathias, our ranking minority member, I want to thank you and your assistant for helping us conclude what I think have been a very fruitful 3 days of discussions. We find that we normally reach the truth a little better if we have discussions rather than inquisitions.

I will now direct that the record remain open for 10 days for anyone who desires to submit applicable material.

At this time, I will submit some material for the record. I have a letter from Mr. William D. Carey of Arthur D. Little, Inc.; a letter requested to be placed in the record by Senator James B. Allen, of Alabama; a memorandum, published in the Congressional Record of January 20, 1970, by Mr. William Rehnquist; a Library of Congress publication entitled "Impoundment by the Executive Department of Funds Which Congress Has Authorized It To Spend or Obligate," and an addendum to that which you have, Mr. Abramson, entitled "Legislation To Require Spending of Appropriated Funds," a statement of the Honorable Clement J. Zablocki, of Wis

consin; a statement of the Honorable Joe L. Evins, of Tennessee; a law review article appearing in the North Carolina Law Review by our distinguished consultant, Arthur Selwyn Miller, entitled "Presidential Power To Impound Appropriated Funds: An Exercise In Constitutional Decision-Making;" a law review article appearing in the Stanford Law Review, written by the Honorable Frank Church, entitled "Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion;" and an article from the Inter-University Case Program entitled "The Impounding of Funds by the Bureau of the Budget." (The articles and statements referred to follow:)

Hon. SAM J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
Committee on the Judiciary,

U.S. Senate,

Washington, D.C.

ARTHUR D. LITTLE, INC. Washington, D.C., March 22, 1971.

DEAR MR. CHAIRMAN: I regret that I will be unable to testify personally at your hearings on executive impoundment of funds. In lieu of an appearance, I will offer some comments based on my previous experience as Assistant Director of the Bureau of the Budget. (I have no personal knowledge of the policy of the present administration regarding the impoundment of funds.) In the five administrations in which I served, the practice of placing appropriated funds in budgetary "reserve" was not regarded as unusual or inappropriate. The basic authority was the Anti-Deficiency Act, which I need not recite here. Beyond the statutory authority, however, was an implied constitutional power as President and Commander-in-Chief to withhold funds. These authorities, explicit or implied, were employed only after careful examination of the legal and political basis for such actions.

It was the generally accepted doctrine of the Bureau, sanctioned by utterances of past Chairmen of appropriations committees, that an appropriation is not a mandate to spend but an authorization to do so, in the absence of an explicit legislative directive which leave no room for discretion. The presumption was that the Congress expected the Executive to use intelligence and judgment in managing appropriated funds. Several kinds of circumstances I could lead to placing a portion of appropriated funds in reserve.

The situation might arise where inflationary pressures in the economy were so strong that the Executive would feel a responsibility to manage the government's fiscal impact on the economy by restraining or rationing obligational authority. In such a situation, the Bureau would obtain the President's approval to sequester obligational authority on a temporary basis.

In another type of situation, the Congress might enact appropriations in excess of the President's budget. There, a given President might choose to hold back the excess appropriation authority rather than take the drastic action of exercising a veto on the appropriation act. However, practices varied. Where the statutory power to put overappropriations in reserve seemed doubtful, the Cabinet officer concerned might himself exercise restraint in requesting the Bureau of the Budget to apportion the appropriation; or alternatively, if the Bureau did make a full apportionment, he himself would hold the excess funds in an informal or administrative reserve.

In still another kind of situation, the Congress might vote funds through the usual procedures but top off its actions by enacting a general ceiling on expenditures and directing the President to stay within the ceiling. That would require hard choices to be made in apportioning controllable accounts so as to say on the right side of the expenditure limitation. The budgetary reserve procedure would be an appropriate tool to employ in such a situation. In a fourth case, Congress might add money on its own initiative for the construction of facilities (such as hospitals) which were not in the President's budget. The Bureau's view there might be that it would set the money in a temporary reserve until the agency came forward with detailed plans and drawings adequate to ensure the prudent use of the funds.

Finally, the Congress might appropriate a very large lump sum to an agency like the Office of Economic Opportunity, and in order to exercise some restraining influence over the future year buildup which would escalate higher continuation costs, the Bureau might hold back a portion of the appropriation pending receipt of an acceptable program and financial plan.

Mr. Chairman, it seems to me that when more than 70 percent of annual budget outlays are classified as "relatively uncontrollable" in a budget that is now growing by 8 percent annually-which translates into a "doubling time" of about eight years-some discretion to manage appropriations is needed by the Executive. Looking back, it is my opinion that the powers of the Executive to manage financial operations are inadequate rather than excessive. There are too many open-ended programs and too many mandatory appropriations to give either the Congress or the President the means to control budget outcomes. I have never thought that across-the-board "ceilings" on expenditures accomplished anything except the creation of chaos and bad management. The problem before you is essentially one of relations between the Congress and the President: it is one aspect of the question of encroachment by one branch upon another. I think this is unfortunate. What is important, I think, is to recognize that the President is the trustee for funds appropriated by the Congress, and as trustee he should be given the tools to enable him to act as a prudent financial manager within the oversight of the legislative body. My suggestion, therefore, is that no action be taken to diminish the discretion now afforded the President to impound funds, but that the rule of disclosure be applied and enforced. That rule, in this situation, would require the President (through the Director of the Office of Management and Budget) to immediately report to the Speaker and the President of the Senate any action involving impoundment, with the reasons for the action, just as the Director must now report every apportionment action which creates a potential deficiency and the need for a makeup appropriation. If either House by simple majority resolution objected to a specific impoundment action, the Executive would release the funds. In this way the Executive and the Congress could operate on a partnership principle in fiscal management.

Sincerely,

WILLIAM D. CAREY.

U.S. SENATE,

COMMITTEE ON RULES AND ADMINISTRATION,
Washington, D.C., April 6, 1971.

Hou. SAM J. ERVIN, Jr., Chairman,
Subcommittee on Separation of Powers,
Senate Judiciary Committee,

Washington, D.C.

DEAR SENATOR ERVIN: Dr. Ross McBryde of Montgomery, Alabama, tells me that he has written you with reference to the recent hearings held by your Subcommittee concerning the Executive Branch's policy of impounding funds previously appropriated by the Congress.

Dr. McBryde is Chairman of the Regional Advisory Group, which heads up the Regional Medical Program in Alabama. This program is among the many whose level of funding has been adversely affected by the Nixon Administration's selective withholding of funds.

I commend Dr. McBryde's letter to you and I do hope that it can be made a part of the printed record of the hearings by your Subcommittee in this area. With kindest personal regards, I am

Sincerely,

Hon. SAM ERVIN, Chairman,

JAMES B. ALLEN.

R. R. MCBRYDE, M.D.. Montgomery, Ala., March 22, 1971.

Senate Subcommittee, Separation of Powers,
Washington, D.C.

DEAR SENATOR ERVIN: Senator James B. Allen of Alabama has written that he intends to bring to your attention the adverse effect on the Alabama Regional Medical Program caused by the executive impoundment of funds appropriated by the Congress.

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