clarify this language or, at least, to explain fully in the committee report what is intended. In a letter to the Chairman of the House Committee on Government Operations urging favorable consideration of these bills, Senator Mansfield cited an instance where the major portion of an appropriation had not been released until a subsequent fiscal year as evidence of the need for such legislation. In 1943, Senator McKellar had proposed an amendment to the First Supplemental National Defense Appropriations Act for the fiscal year ending June 30, 1944, 89 Congressional Record 10358 (1943), which provided that: no appropriation or part of any appropriation heretofore, herein, or hereafter made available for any executive department or independent establishment to construct any particular project shall be impounded, or held as a reserve, or used for any other purpose, except by direction of the Congress, and any part of such appropriation not needed to complete such project, or the part thereof for which appropriation has been made, shall be retained by the Treasury: Provided further, That section 3 of the Military Appropriation Act, 1944, approved July 1, 1943, is hereby repealed. This amendment was adopted by the Senate, id. at 10419, but the House refused to concur in it, id. at 10781 and it was deleted by a second conference committee, id. at 10871. Bills and joint resolutions have frequently been introduced in Congress to prevent the withholding of funds for particular purposes. Most of these have been defeated but a few have been enacted into law. The Rural Port Roads Act of 1943, 57 Stat. 560, stipulated that: No part of any appropriation authorized in this Act shall be impounded or withheld from obligation or expenditure by any agency or official, unless the War Production Board shall certify that the use of critical material for additional highway construction would impede the conduct of the war. In 1947, a series of Joint Resolutions were introduced to prevent withholding of funds appropriated for public works. One of these, H.J. Res. 176, 80th Congress, read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding any moratorium or curtailment policy heretofore put into effect at the direction of the President, it shall be the duty of all officers, departments, and agencies of the Government to proceed, to the full extent authorized by law and the limit of present appropriations, with all Federal public works projects and programs coming under their jurisdiction. No action was taken on any of these measures. As passed by the House of Representatives H.R. 7764, 81st Congress, authorized and directed the President to undertake construction of certain naval vessels. 96 Congressional Record 7544 (1950). The word "directed" was deleted by the Senate; id. at 11022. In 1966, Congress authorized by Public Law 89-501, 80 Stat. 275 an appropriation for construction of naval vessels, of which amount: $130,500,000 is authorized only for the construction of the nuclear powered guided missile frigate for which funds were authorized under Public Law 89-37; and $20,000,000 is authorized only for the procurement of long leadtime items for an additional nuclear powered guided missile frigate. The contract for the construction of the nuclear powered guided missile frigate for which funds were authorized under Public Law 89-37, and for which funds are authorized to be appropriated during fiscal year 1967, shall be entered into as soon as practicable unless the President fully advises the Congress that its construction is not in the national interest. This was adopted in lieu of an amendment added in the House which declared that "the Secretary of the Navy shall proceed with the design, engineering and construction of the two-nuclear powered guided missile frigates as soon as possible." 112 Congressional Record 13051 (1966). A similar provision was included in the Authorization Act for 1968. Public Law 90-22, 81 Stat. 52. When H.R. 9751, 87th Congress, authorizing procurement of aircraft for fiscal year 1963 was reported to the House, the House Armed Services Committee recommended an amendment by which the Secretary of the Air Force was "directed" to utilize not less than $491,000,000 during fiscal year 1963 to proceed with production, planning and long leadtime procurement for a RS-70 weapon system. The President took strong exception to the use of the word "directed" and the House yielded to his request that it be deleted. 108 Congressional Record 4694, 4714, 4720 (1962). Section 601 of H.R. 11102, 91st Congress, provided that notwithstanding any other provision of law, unless enacted after the enactment of this Act expressly in limitation of the provisions of this section, funds appropriated for any fiscal year to carry out any program for which appropriations are authorized by certain designated acts should remain available for obligation and expenditure until the end of such fiscal year. The President vetoed this bill, Daily Congressional Record H5899 (June 23, 1970), because it would interfere with his ability to comply with the limitation on total 1971 spending which had already passed the House and which was subsequently enacted as Title IV of the Second Supplemental Appropriations, 1970, P.L. 91-305. Section 601 itself does not forbid the impoundment of funds. The laws to which it refers provide for formula grants to the states which the President regards as mandatory in the absence of other legislation authorizing him to withhold funds appropriated for that purpose. The expenditure limitation of Title IV of P.L. 91-305 would give him that authority. The intended effect of Section 601 of H.R. 11102 was to negative the authority given by the law imposing the expenditure ceiling and thus leave in operation the mandate to spend funds appropriated to carry out the programs authorized by the designated statutes. Previously, the President had vetoed H.R. 11311, 91st Congress because of the size of appropriations for formula grant programs which he would be required to spend because at that time there was no expenditure ceiling in effect which would permit him to withhold funds. Daily Congressional Record H. 344 (January 27, 1970). Two memoranda from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, expressed the opinion that Congress had made mandatory the expenditure of funds appropriated for assistance to federally impacted schools and certain other Office of Education programs, and that the President had no authority to impound funds in the face of a Congressional directive that they be spent. Such statutes usually give the administering officer some discretion in determining whether, or to what extent, an applicant qualifies for a grant, but the Assistant Attorney General concluded that such limited discretion does not authorize withholding for budgetary reasons. Although the phraseology of different measures providing formula grants varies somewhat, they are similar in stating the conditions to be met by the grantee, the method of computing the amount of the grant, and in stipulating that a designated officer "shall" allot or pay to the grantee the sum to which it is entitled. For example, the statute providing federal assistance for areas affected by impacted activities, 20 USC 236-244, declares that local educational agencies shall be "entitled" to federal contributions in stated circumstances and provides that "The Commissioner shall *** from time to time pay to each local educational agency, in advance or otherwise, the amount which he estimates such agency is entitled to receive under this chapter," 20 USC 240(b). We enclose herewith copies of the following materials: 1. Bureau of the Budget Bulletin 70-5, September 12, 1969. 2. Title II of Revenue and Expenditure Act of 1968. 3. BOB (OMB) Circular A-34. 4. Section 3679 of Revised Statutes as amended, 31 USC 665. 5. House Committee on Government Operations, 91st Congress, 1st session, "The Budget Process in the Federal Government." 6. Bibliography. 7. Memorandum dated December 1, 1969, from William H. Rehnquist. Assistant Attorney General, Office of Legal Counsel on "Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools." 8. Memorandum dated December 1, 1969, from William H. Rehnquist. Assistant Attorney General, Office of Legal Counsel, on "Presidential Authority to Impound Funds Appropriated for Office of Education Programs." MARY L. RAMSEY, STATEMENT OF HON. CLEMENT J. ZABLOCKI OF WISCONSIN Mr. Chairman, I would like to personally, commend you and the other members of the Subcommittee for scheduling these hearings on the implications of President Nixon's impoundment of funds appropriated by Congress. My testimony may not be particularly unique within the context of your knowledge of what the Administration is doing. However, I believe that the principles involved in this question are so important that it is my duty as the Representative from the Fourth Congressional District of Wisconsin to add to the record of these hearings my personal experience in this matter. It is my sincere hope that these hearings and the numerous other expressions of opposition which have been made by Members of Congress, public officials and private individuals across the nation will convince the Administration to immediately release appropriated funds which have been impounded and not resort to such actions in the future. If this is not done, I strongly urge the Subcommittee to recommend appropriate remedial action. In view of the seriousness of this matter, I feel that such action would receive an overwhelming reception in Congress. Apparently, this Administration has arrogated unto itself some kind of exalted power to decide what is best for the American people-the actions of Congress notwithstanding. If this attitude is based on a lack of knowledge that it is the legislature in a democracy that controls the power of the purse, it would appear that Administration officials in positions of power have spent too much time studying how to win elections and far too little time studying the workings of a democratically constituted government. If, on the other hand, this attitude is simply based on a refusal to accept the clear mandates of Congress, it is destructive of our Constitutional separation of powers and detrimental to established procedures and social goals. Further, it should be offensive to every Congressman. The Administration's insistence on making its will prevail upon Congress in certain matters has become distressingly clear in the Congressional District which I represent. One example is the case of the City of Cudahy, Wisconsin, in my District. This community lost virtually all chance of obtaining Federal funds for a needed water intake project when the Administration withheld $200 million of the $350 million appropriated by Congress for water and sewer facilities projects in fiscal 1971. This was done despite the fact that Congress had registered its strong support for this vital program by overwhelming approval of a previous bill appropriating $500 million for water and sewer facilities construction-a bill which was vetoed by the President. In an effort to help obtain the release of these funds, I wrote to officials in the Office of Management and Budget. In that letter I expressed my deep concern about the fact that this withholding of water and sewer facilities funds was completely contrary to the expressed intent of Congress and was having a detrimental effect on a city in my District. Further, I said that I share the belief of many of my colleagues in Congress that it was highly illogical to pursue this policy in hopes of gaining approval for the proposed community development revenue sharing plan in lieu of programs which had already received the overwhelming approval of Congress. The reply from Mr. Caspar Weinberger, Deputy Director of the Office of Management and Budget, which I received in response was both startling and alarming in its reflection of the Administration's determination to persist in withholding funds. I was told that "... the President firmly believes that revenue sharing represents a much more effective way of helping local governments provide for local needs than the narrowly focused categorical grant programs which now exist." After a short exposition of the so-called merits of the President's revenue sharing programs, I was told that ".. some (emphasis added) of the categorical grant programs such as water and sewer will continue to be funded" and that such money ". . . is being provided to facilitate transition to general and special revenue sharing." Mr. Chairman, how blatant this letter shows the Administration to be in its attitude that supposedly it alone has the power to decide whether one type of program is better for the American people than another and which, if any, of the programs approved and funded by Congress are to be allowed to continue to operate. How much it reminds us of the actions of an errant and arbitrary king in the early days of developing representative government-a king against whom the elected representatives' only defense was stringent control of the power of the purse. How arrogant and destructive of our Constitutional processes it is. The logical extension of the Administration's contention that it has the power to withhold funds already appropriated by Congress for use in programs proposed by the President, or to combat inflation, is that the Administration no longer needs the approval of Congress for any proposals and that it will not implement the program approved and funded by Congress. Mr. Chairman, today the basic issue is the diversion by the Administration of millions of dollars in appropriated funds for future use in the general and special revenue sharing proposals, which may or may not be approved by Congress. However, I submit that if Congress does not reassert itself to prevent the Executive branch from acting without Congressional approval or from acting contrary to the expressed will of Congress, the issue will be even more serious in the future. To further demonstrate that it is not only in the area of impoundment of appropriated funds for important urban programs that the Administration has determined to work its will upon Congress, I would like to recount another experience I have had with the Executive branch in this area. Through my contacts with veterans in my Congressional District, I became aware of the fact that the Veterans Administration's allotment of funds for the community nursing home program at the Wood, Wisconsin, Veterans Hospital had been exhausted by the middle of fiscal 1971. As you know, this program is designed to place veterans in nursing homes in the community when they no longer need hospital care and there is no room for them in VA nursing care facilities. The program frees VA hospital beds for those in need of critical hospital care and enables the government to provide nursing home care to veterans at a lower cost than is possible in a VA facility. The effects of the Veterans Administration's not making sufficient fiscal 1971 funds available to the Wood VA hospital for the community nursing home care program have been serious. Veterans who became eligible for this program after January, 1971, could not participate in it because funds were not available. To their credit, medical officers at the Wood VA hospital tried to make use of other resources to care for these veterans. Namely, to the extent possible, they kept them in VA hospital beds longer than they normally would have or they tried to obtain medicare or medicaid coverage for them. In some cases, none of these alternatives was available. Well-intentioned as they may have been, these makeshift solutions were unfair to the veterans for whom Congress designed the community nursing home care program. Further, they were unfair to the American taxpayer. since they so often resulted in additional and unnecessary expense either to the Veterans Administration or to the medicare or medicaid programs. Last year Congress expressed its concern about veterans' medical care by appropriating an additional $105 million for this purpose which was not requested by the Administration. In view of this fact and because it has been my experience that supplemental budget requests are traditionally made if more funds than were anticipated are needed to fully implement veterans' programs authorized by Congress, I registered my astonishment with the Veterans Administration that needed funds for the community nursing home program did not appear to be forthcoming from VA officials and that a supplemental budget request for this purpose had not been submitted to the House Appropriations Committee by these officials. To this day, Mr. Chairman, I have been unable to learn from the VA if a part of that $105 million in extra funds for veterans' medical care was used in the community nursing home program, although we are now finding out that some of it was used for VA salary increases rather than medical care, which is a clear violation of the intent of Congress. VÁ Administrator Johnson appeared unconcerned about my regard for what was happening at the Wood VA hospital because of insufficient funding of the community nursing home program and he replied in his correspondence that "We do not plan to seek a supplemental appropriation for the program." Further, he asserted, "We have allocated funds for community nursing home care as equitably as possible among our hospitals on the basis of anticipated patient demand." My question, Mr. Chairman, is this: How can Congress expect to act prudently in providing adequate funds for veterans' medical care when the very Executive agency responsible for administering our veterans' programs fails to admit to an individual Congressman-and, judging from the VA report on H.R. 460, to the Veterans Affairs Committee itself-deficiencies in our veterans' programs? It is my understanding that, because of my strenuous and continued complaints about the situation at the Wood VA hospital, VA officials in Washington have finally decided to make some additional money available to the hospital-to be specific, one-fifth of what is needed to allow the program to operate at full capacity until June. However, the problem remains unsolved without an appropriate long-term solution which would be consistent with the expressed intent of Congress that our nation's veterans be provided with adequate medical care. Mr. Chairman, I am not sure who within the Administration is ultimately responsible for these and numerous other incidents of high-handed treatment of Congressional intent. However, the arguments from officials of the Office of Management and Budget for Presidential impoundment of funds are singularly unconvincing. Whether the initiative for this Administration position comes from OMB officials, Presidential advisers, or the President himself, I repeat that remedial action is long overdue. I am enclosing correspondence and other documents relating to the incidents I have described in the hope that they may be of some use to you and your Committee in your consideration of this most serious matter and possible courses of corrective action. Please be assured of my continuing strong support for your efforts in this direction, and thank you for your attention. Mr. GEORGE SHULTZ, EXHIBITS FEBRUARY 12, 1971. Office of Management and Budget, White House, Washington, D.C. DEAR MR. SHULTZ: I have been deeply concerned over the withholding by the Office of Management and Budget of the $350 million appropriated by Congress for fiscal 1971 to help local communities construct water and sewer facilities. My concern about this situation has been heightened with the revelation by HUD officials that the approved application for water facilities construction assistance for the City of Cudahy, Wisconsin, in my Congressional District will not be funded because of action by your office in withholding money appropriated by Congress for this program. As you know, the strong support of Congress for the water and sewer facilities construction program was reflected in its inclusion of the greatly increased sum of $500 million for the program in the original fiscal 1971 HUD appropriations bill, which was vetoed by the President. Congressional support for the program continues. Further, I share the belief of many of my colleagues that the goal of providing adequate water and sewer facilities in our cities will certainly not be served by the withholding of appropriated funds. In addition, it is highly illogical to follow such a policy in hopes of gaining approval for a "community development special revenue sharing plan" rather than the approach which has already been approved by an overwhelming majority in Congress. You may be sure that the continued withholding of these appropriated water and sewer facility funds will result in my strong support of remedial action by Congress. Respectfully yours, MARCH 21, 1971. CLEMENT J. ZABLOCKI, |