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For example, if we tell the President this afternoon, and I am typical of all the other cities, that we are ready to go on 3,000 units of public housing right now, desperately needed for relocation, for example, to sustain the entire urban renewal program, and we are told by the same administrator within the last 2 weeks that he will give us 25 units out of the 3,000 units-25 out of the 3.000. I think the President would be impressed by a statistic like that.

Professor MILLER. Suppose you could take that to the GAO and ask them to inquire into it? Mr. Udall has made a pretty good case for the fact that Congress is impotent on these matters. Other people have made the case for the fact that the President has a certain amount of power in these matters. Now, you get the arm of the Congress, the GAO, to investigate, publicize, and crank up the political machinery in that way.

Mayor ALIOTO. I think that might be helpful as an auxiliary thing, but we have determined, and I think it is correct, that the big city mayors themselves, making the point publicly, will probably get the attention faster. I think it is an excellent idea in terms of a supplementary means and I will tell that to my fellow mayors when I see them this afternoon.

Mr. EDMISTEN. You make the opening statement, Mr. Secretary, that "having wrestled with the problem of the expenditure and impoundment of funds both as a legislator and member of the executive department my views have been tempered by insights acquired while sitting on opposite sides of the table."

You probably had to take part in some impoundment practices yourself while you were at the Interior Department. Just this week, we released an impoundment statement, and I notice here that at least $243 million is impounded in the Interior Department. Could you tell us how that goes on in the Department? Where does the word come from and what do they tell you to do?

Mr. UDALL. Well, increasingly, presidents have wanted to agrandize their power by exerting the maximum control with regard to the budget. And the old Bureau of the Budget, depending upon how the President used it, was a source of real power. The new Office of Management and Budget even centralizes it more. This is a very powerful official. Obviously, the confidence President Nixon reposes in Dr. Shultz, this is maybe the second office in the Government at this point in time. It is a very powerful office. So with the tradition that has developed in recent years-in fact, the first issue of impoundment arose, real issue, other than the one in the confrontation with President Kennedy and Congressman Vinson, was at the onset of the Vietnam War, when the country was confronted with the wholee problem of how we financed it, inflation and so on. President Johnson at that time, advised by his economic people and his budget advisers, decided to hold up the highway trust fund and hold up other programs as a brake on inflation. In my own department, one of my favorite little programs compared with others that I had gotten through Congress, the Land and Wtaer Conservation Fund, $150 million in grants to the States, and so on, made a nice target. In fact, the administration zeroed in on earmarked funds. We thought of earmarked funds as having some protection, but it turned out we were the least protected people, because they said, "Well, there is a nice pot of money; we will just hold it."

The issue that I raised with them was that these were earmarked moneys, that if the fund had any integrity, they did in fact go into a trust fund and they did in fact have to be spent. But the answer that we got back was that the President was under very heavy pressure and the economy was in trouble, and therefore, our arguments did not weigh very heavily.

Senator ERVIN. If I may interject myself at this point, that has always been a queer thing to me, that President Johnson impounded highway funds, trust funds, and the OMB has done the same thing. As near as I can determine, they refuse to spend all the money they have in the trust fund, then spend some money that they do not have elsewhere and drop an IUO in the highway trust fund--where they had impounded money. They take that money and spend it to take the place of money that they do not have for other expenditures. The result of it is that the American taxpayers generally have to replace the impounded money by paving it a second time into the Treasury. And we have about $6 million in money that is impounded now for the highway trust fund. That would not be intolerable if they did not spend it for something else.

Mr. UDALL. Yes. So this was one of the experiences.

I notice you have Dr. Wisby appearing in a day or two, of the National Aquarium. This is an example. This is a pet project of Congressman Mike Kirwan, now deceased. Mike got the money appropriated, it is there, and it sat there for several years. And the White House stretched out planning and everything. I thought it was something that would gracet his city and be a very fine thing to have. But the Bureau of the Budget regarded it as about the lowest priority item possible, as the amenities usually are. So they could very easily win that argument with me and did. And the money sat there, I think, for 4 or 5 years and nothing was ever done.

Mr. EDMISTEN. In other words, they exterminated that one with prejudice.

Mr. UDALL. That is right. No, it was down at the bottom of the list. Of course, the only thing a Cabinet officer can do this is the position Secretary Romney is in-is to argue with the Bureau of the Budget people; if he thinks it is something terribly urgent, he can ask for an appointment to see the President and argue it out on that basis. If he does not win the argument, he has had it.

Senator ERVIN. Your position as far as remedy is concerned is that this condition is brought about by politicians and the practical remedy and he most efficient remedy is to use a little politics. Mr. UDALL. That is a very candid way to put it.

Senator ERVIN. And for the Congress to tell the President if you do not spend the money we have made available here or we expect to make available here, we will not give you money for this project that you have recommended?

Mr. UDALL. Senator, I think the appropriations committees and the congressional leaders on this issue have been patsies and I think they ought to get tough. I think that is a pretty good solution, if it is done in the right way. I think it can be done in the right way with good politics. I do not think we have to apologize about politics. Good politics is a way to solve a lot of problems.

Professor MILLER. Mr. Udall, have they been patsies, or are they part of the team on this?

Mr. UDALL. No, I think Congress has not cranked itself up because it has been too fragmented. Congress is a creature of habit and it is doing things in many ways the same way it did a long time ago. One of the grand old men of the Senate was Senator Carl Hayden from Arizona. He served longer in Congress than any man in the history of the Republic. He is retired, in his ninety's, out in Arizona now. I heard him tell this story several times, his story of impoundment, Senator. You have probably heard him tell it. This was, I think, his first term in Congress back in 1914. He got some money for a bridge out in Arizona on an Indian reservation. The Indian Bureau and the administration did not want the bridge, so they did not spend it. He always used to tell it with a chuckle, you know. He was not unhappy about it. In fact, his attitude, I always thought, was too lenient on these matters. If the bridge was really important, the money should have been spent. He sort of took the lenient view that the Executive has this power and ought to use it.

That is what we are discussing here today, just how much power does the Executive have, and just what are the checks and balances on that power?

Senator ERVIN. If I may interrupt, I am happy to note that Representative Charles Bennett has joined us. He is one of our witnesses today. It will be appropriate to hear his statement at this time.

STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE IN CONGRESS FROM THE THIRD CONGRESSIONAL DISTRICT OF THE STATE OF FLORIDA

Mr. BENNETT. Thank you very much. I would like to follow up on what you said, Mr. Secretary; that is sort of an issue in the House. You have done a wonderful job for our country. I would like to follow up on one thing you said before getting into my statement.

That is in briefing the law with regard to the matter that I am interested in, the continuation of the building of the Cross-Florida barge canal, I have found out that there is no basis for giving the President any such authority in ending projects. In my opinion, most of the decisions indicate there is no basis for even retarding projects substantially, with the exception of certain statutes that have been passed. So I would think this committee might look into those statutes. There have been special statutes passed. They do not affect the canal, because the canal is not a question of holding up funds or impounding of funds. It is a question of ending a project. Mr. Chairman, I deeply appreciate this opportunity to appear before your Subcommittee on "Executive Impoundment of Appropriated Funds." This is an important subject because it is timely and goes to the roots of our form of government; and I congratulate the chairman and subcommittee for considering it. Incidentally, I have handed out a marked copy of a much longer statement. I do not know whether I have a copy for Mr. Udall or not, but if you have another marked copy, it is easier to follow.

I have underlined portions of it and I am going to read these portions. I ask unanimous consent to put all the statement in.

Senator ERVIN. Let the record show the entire statement will be placed in the record immediately after Representative Bennett's testimony.

Mr. BENNETT. I will just read the portions which I have underlined, which will be much briefer.

A learned lawyer, to wit, the present President, President Nixon, applying to the New York bar in December 1963, wrote:

The principles underlying the government of the United States are decentralization of power, separation of power and maintaining a balance between freedom and order.

Above all else, the Framers of the Constitution were fearful of the concentralization of power, separation of power and maintaining a balance besolution in this respect is that they were able to maintain a very definite but delicate balance between the Federal Government and State Government, on the one hand, and between the Executive, Legislative and Judicial Branches of the Federal Government on the other hand.

This same learned lawyer, who, incidentally, was admitted to the bar of the State of New York and was later elected President of the United States in the 1968 elections, recently completely abrogated his thesis in the 1963 paper with an edict not unlike a Catherine de Medici or Louis XIV decision of the 16th century.

He destroyed the "delicate balance between the Federal Government and the State government" of Florida, and he also dictatorially repealed an authorized law of Congress by "permanently" halting the Cross-Florida barge canal. He did not even give notice to the public or to Congress that he was going to do it, much less allow any objective presentation of views on the subject.

The 18th century French writer Montesquieu wrote in "The Spirit of the Laws" on the Constitution of England:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Later, Justice Brandeis said the "doctrine of separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power."

This brief discusses the President's edict to terminate the CrossFlorida barge canal and shows that he was misled on the law backing his decision. There is absolutely no law for such a decision.

The canal case is a current classic in the "impoundment of funds" field.

The responsibility of the President of the United States is as stated in section 3 of article 2 of the Constitution to "take care that the laws be faithfully executed." He has the power of veto in the process of enactment or repeal of a law (sec. 7 of art. 1); and personally, I would favor an item veto, although I realize it would require a constitutional amendment to achieve that; but after a bill is signed into law and appropriations are made the President cannot repeal the law himself without congressional action in repealing; and the President must execute or carry out the duly enacted law. He can, of course, recommend that the law be repealed. No

principle of American constitutional government is more fundamental than this to our heritage or more clearly stated in our Constitution.

One of our Founding Fathers, President James Madison expressed it well in the Federalist Papers (No. 47) when he wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The Cross-Florida barge canal was specifically authorized in 1942 by Public Law 77-675. Although its value to the defense needs of our country were recognized in its authorization, the shortage of manpower for its construction during World War II postponed the appropriations needed for its commencement. But the appropriations have been made continuously ever since 1964 and now total $60 million; and the project is now more than a third complete.

Last year in the House report on the appropriations bill the following statement was made:

The Committee has included in the bill the $6 million including carryover funds, proposed in the budget to continue construction of the project the committee does not feel that it would be warranted, in the light of the current facts available, in delaying construction of the project which was started in 1964 and is now about 30 percent complete . . . Considering, therefore, the status of the construction and the need for the project, the committee recommends that the construction work continue and that every effort continue to be made to minimize any adverse effects on the environment, ecology, and fish and wildlife in the area.

It is not proposed to discuss here the merits of the canal; however, the facts are that about $50 million have been spent on this canal: (1) Which the Joint Chiefs of Staff supported to provide "an additional and shorter line of communication between the gulf Coast and the east Coast" that would "reduce exposure of shipping to submarine attack" and (2) which several independent studies found to be justified for economic and job producing reasons, and (3) which many geologists and ecologists, and all congressional public hearings, open to all points of view, gave a clean bill of health to on ecological grounds.

On January 19, 1971, the President issued a press release in which he said, "I am today ordering a halt to further construction of the Cross-Florida barge canal," which has been construed to be a termination.

After repeated requests to the White House, on February 25, 1971, the White House staff furnished the following statement on the legal authority of the President to terminate the Cross-Florida barge canal without congressional approval, reciting that this was the opinion of the Department of Justice.

An appropriation of funds for a particular project or activity is ordinarily regarded as permissive in nature and not as equivalent to a direction that such projects or activity be undertaken or that such funds be spent. See 42 Ops. A. G. No. 32, p. 4 (1967); McKay v. Central Electric Power Cooperative, 223 F. 2d 623, 625 (C.A.D.C. 1955).

The only court decision cited to uphold the quoted conclusion was McKay v. Central Electric Power Cooperative (an REA Cooperative). This case does not in any way support the President's

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