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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 notMr. 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 Presi. dent.

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 :)

ARTHUR D. LITTLE, INC.

Washington, D.C., March 22, 1971. Hon. San J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C.

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 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.

lly 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,

JAMES B. ALLEN.

R. R. MCBRYDE, M.D..

Montgomery, Ala., March 22, 1971. Hon. SAM ERVIN, Chairman, 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.

Since your hearings are scheduled for March 23, 24, and 25, I am taking the liberty of sending directly by Special Delivery, the attached correspondence which was reviewed at the annual meeting of the Regional Advisory Group of the Alabama Regional Medical Program now in progress.

The Regional Advisory Group felt that Mr. Laitin's answer to my letters to President Nixon and Mr. George Shultz was unsatisfactory and incomplete, and directed me to write again requesting specific answers to the following questions:

1. Why is RMPS restricted to $70.3 million for grants in fiscal 1971 if the appropriation was $106.5 million?

2. Who made this decision?
3. On what grounds was the decision made?
4. By whom was this “major shift in emphasis" authorized ?
5. What is the justification for this occasion?

We thought you might be able to pose the same questions to representatives of the Executive Office of the President, for they apply to all 55 Regional Medical Programs as well as to the Regional Medical Program Services in the Department of Health, Education, and Welfare. Sincerely yours,

R. R. McBRYDE, M.D.,
Chairman, Regional Advisory Group,

Alabama Regional Medical Program.
EXHIBITS

R. R. McBRYDE, M.D.,

Montgomery, Ala., February 19, 1971. President RICHARD M. Nixon, The White House. Washington, D.C.

DEAR PRESIDENT Nixon : Your recent speeches acknowledge that you recognize your responsibility to every citizen regarding better health care. You stated on November 18th that your goal was "not merely to finance a more expensive medical system but to organize a more efficient one." On February 15th, in your health message to Congress, you said, "I believe that our government and our people, business and labor, the insurance industry and the health profession, can work together in a national partnership to achieve our health objectives."

Certainly the purpose of Regional Medical Programs is in line with your "health objectives." In Alabama, RMP has taken the leadership in bringing together the health provider, the recipient of health services, the federal and state governments with their myriad subdivisions and resources, industry in general and the insurance industry in particular, for purposes of exploring better ways to deliver quality medical service to all citizens. There can be no doubt that a partnership as you described must be formed throughout America-and that the nation has a mechanism in Regional Medical Programs to form this partnership. Yet, the $34.5 million hold-back to this year's budget imposed by your Administration's Office of Management and Budget and a projected $52 million release for fiscal 1972 makes it virtually impossible for this most viable and efficient organization to function.

The Alabama Regional Medical Program concept of involving regional citizenry in exploring needs and solutions to health problems with emphasis on activities which will achieve future independent financial status was, to say the least, a most refreshing deviation from the usual national approach. It is, therefore, inconceivable to us, a group numbering approximately sixty individuals representing a cross section of almost three million Alabamians. that your Administration has imposed such extreme fiscal curta ilment of this program.

Health care is a vital issue recognized by both national and state governments. It will continue to achieve more political prominence at all levels. But more importantly, continued and consistent support must be made available for those activities such as RMP which can immediately move toward actions to reduce the “deepening crisis" which threatens all of our citizens.

The Alabama Regional Advisory Group, a highly concerned and dedicated

group of volunteer workers, appeals directly to you as President for reconsider-
ation and directed action to preserve the integrity of the Regional Medical
Programs.
Respectfully,

R. R. MCBRYDE, M.D.,
Chairman, Regional Advisory Group,

Alabama Regional Medical Program.

EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,

Washington, D.C., March 9, 1971.
Dr. R. Ross McBRYDE,
Chairman, Regional Advisory Group,
Alabama Regional Medical Program,
Montgomery, Ala.

DEAR DR. McBRYDE: On behalf of the President and Mr. George Shulz, I would like to respond to your recent letters expressing concern about the level of funding for Regional Medical Programs in 1971 and 1972.

The 1971 appropriation provides that RMP funds may remain available for use through fiscal 1972. This is in contrast to the general pattern applicable to most appropriation acts where money appropriated in a fiscal year expires if it is not obligated in that year. Thus, the Department of Health, Education, and Welfare plans to utilize all of the 1971 appropriation of $106.5 million but will obligate some of it in fiscal year 1972. This will permit a slight increase in program level for RMP grants from $70.3 million in 1971 to $75.0 million in 1972.

We appreciate your interest in this subject and hope that you will maintain your active participation in the Alabama Regional Medical Program, working towards the “national partnership" in our health care system which the President stressed in his message of February 18, 1971. Sincerely,

JOSEPH LAITIN, Assistant to the Director.

March 22, 1971. Mr. JOSEPH LAITIN, Assistant Director, Office of Management and Budget, Washington, D.C.

DEAR MR. LAITIN: Your answer of March 9, 1971 to my letters to President Nixon and Mr. George Shultz was read today to the annual meeting of the Regional Advisory Group of the Alabama Regional Medical Program and was considered unsatisfactory and incomplete.

You state that "the 1971 appropriation provides that RMP funds may remain available for use through fiscal 1972. This is in contrast to the general pattern applicable to most appropriation acts where money appropriated in a fiscal year expires if it is not obligated in that year. Thus, the Department of Health, Education, and Welfare plans to utilize all of the 1971 appropriation of $106.5 million but will obligate some of it in fiscal year 1972. This will permit a slight increase in program level for RMP grants from $70.3 million in 1971 to $75.0 million in 1972.

You thus imply that RMPS was not able to obligate $36.2 million of appropriated funds in fiscal 1971. Yet the ARMP has $1.31 million of projects which were approved by the National Advisory Council and yet remain unfunded. Nation-wide there must be in excess of $40 million approved but unfunded projects. We consider these "obligated" funds. The Regional Advisory Group has directed me to request from you specific answers to the following questions:

1. Why is RMPS restricted to $70.3 million for grants in fiscal 1971 if the appropriation was $106.5 million?

2. Who made this decision?
3. On what grounds was the decision made?

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