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1967:

Construction, National Park Service: Buildings,

utilities, and other facilities... Parkway and road construction, liquidation of contract authorization, NPS: Parkways..-

Do..

Roads and trails. 1968:

Construction, National Park Service: Buildings,

utilities and other facilities. Parkway and road construction, liquidation of contract authorization, National Park Service:

Parkways...--..

Roads and trails.. 1969:

Management and protection, NPS, 1969...
Maintenance and rehabilitation of physical facilities,

NPS, 1969..

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1 Information not available-records destroyed under records disposal program.
2 Reserve for savings in addition to those for sec, 1214, footnote 3.
3 Reductions pursuant to sec. 1214, General Appropriation Act, 1951.

Contract authorization, to be matched with donated funds. Rescinded pursuant to sec. 108, Interior Appropriation Act, 1952.

$ Specific items and/or projects which could not be obligated current fiscal year.
. Reserve for savings.
7 Projects deferred for obligation in subsequent year.
81960 Contract Authorization, Federal Aid Highway Act, 1959.
• Current year contract authorization, not programed by Congress.
10 1967 fiscal year program level reduction, projects deferred for obligation in subsequent year.
11 1968 fiscal year program reduction, pursuant to title II. Public Law 90-218.
12 Reserve pursuant to Public Law 90-364.

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Our records regarding funds appropriated for our agency which were withheld by the Bureau of the Budget date back only ten years. Attached is information from FY 1958 to FY 1968. The records prior to 1958 were disposed of pursuant to Government property disposal regulations. DEPARTMENT OF THE INTERIOR-STATEMENT SHOWING BUDGET RESERVES FOR PERIOD 1945 THROUGH 1968

FISCAL YEARS
BUREAU OF COMMERCIAL FISHERIES

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1 Amount reserved for subsequent year construction of a fish protein concentrate pilot and demonstration plant.
2 Current status of reserve available for programing under sec. 4(b) of Public Law 88-309.
3 $27,000 reflects current status of savings pursuant to Public Law 90-364, title 2, sec. 201(e).

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Note: For fiscal years 1945 through 1957, information is not available, since records were disposed of in accordance with the disposal program of the General Services Administration.

INTERSTATE COMMERCE COMMISSION,

OFFICE OF THE CHAIRMAN,

Washington, D.O., February 18, 1969. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, U.S. Senate, Washington, D.O.

This letter is in response to your request of February 5 that the Commission furnish certain information on those instances since 1945 in which the Bureau of the Budget in the name of the President or on its own volition has impounded or frozen Commission funds appropriated by Congress.

Since 1945 there were five instances in which the Bureau of the Budget established reserves under the Anti-Deficiency Act. In each instance spending was reduced in a series of related programs or projects, however not necessarily by a fixed percentage. There follows a brief description of the establishment of each of these reserves.

ARLINGTON, VA., March 27, 1971. Hon. SAM ERVIN, Chairman, Subcommittee on the Separation of Powers, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: During my recent appearance before your Subcommittee, I was asked by Professor Miller to consider a case, which he cited, in which & cabinet member had been compelled by judicial process to perform a duty required by law, as a precedent under which your Subcommittee might proceed in its consideration of the plan suggested by Professor Maas, namely that the President personally be required by statute to submit any so-called “impoundment order," and withhold action thereunder until the passage of specific time, during which the matter might be considered by the Congress. My response was to the effect that the head of a cabinet department is not the President.

I should like to supplement my response by referring to the following quotation from pages 553-4 of Senate Document No. 39, 88th Congress, 1st Session, a report on the Constitution prepared in 1964 by the Legislative Reference Service, Library of Congress :

"By the decision of the Court in State of Mississippi v. Johnson, in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional, political or otherwise . . . But while the courts are unable to compel the President to act or to keep from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance. Moreover, the súbordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage, or be compelled by writ of mandamus to perform a duty definitely required by law ...” (Citations omitted).

This quotation, I believe, reinforces my advice to the Subcommittee that the Maas suggestion is of doubtful legal validity, and adds weight to my recommendation that the Congress might well move in a much more modest direction, namely, to place mandatory rates of work and time schedules, where appropriate, in statutory enactments which establish projects or programs that are to be executed by heads of Government departments or agencies. If the work proceeds on schedule, there of course would be no question of "impoundment." Sincerely yours,

KARL S. LANDSTROM,

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES,

COMMITTEE ON APPROPRIATIONS,

Washington, D.C., February 25, 1969, Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: I am pleased to respond to your request of January 17 in connection with your inquiry into the question of Presidential or executive impoundment of appropriations, although I am not certain I can add much or great value in the way of fundamental information not already of public record.

The question is at all times an important one. Under our system, taxation and appropriation are perhaps the two most cardinal powers available to the Congress

It is, I believe, wholly accurate to say that, over the long span of time, through many Congresses and many administrations, the weight of experience and practice bears out the general proposition that an appropriation does not constitute a mandate to spend every dollar appropriated. That is a generally accepted concept. It squares with the rule of common sense. I subscribe fully to it.

The Congress does not administer the government. Those in executive capacities who do, bear a responsibility to secure the objectives of appropriations at the least practicable cost in all the circumstances. Scattered throughout every annual budget will be found countless unused balances that reverted to the Treasury or carried over for application to future needs, many arising from executive impoundments. And Congress has underpinned that idea with statutory authority to the Executive Branch to impound funds under certain In accordance with the above, obligations in fiscal year 1972 would be financed from the Highway Trust Fund under the same type of authorization as was previously financed from the General Fund. An obligation level of $20 million for Forest Highways and $10 million for Public Lands Highways is proposed in the President's budget for fiscal year 1972.

While it is true that in the President's budget the unused balances of General Fund authorizations are proposed for rescission effective July 1, 1971, the programs would, however, be continued with Trust Fund financing, beginning with the fiscal year 1972 authorizations. It is expected that the States would be able to carry out their higher priority projects under the new Trust Fund authorizations.

Enactment of the President's proposal would result in a rescission of $3,846,816.69 in Forest Highway funds apportioned to Idaho. This amount consists of $3,023,993 authorized for fiscal year 1971 and $822,823.69 authorized for fiscal year 1970.

Similarly there will be a rescission of $500,000 in Public Lands Highway funds allocated to the State of Idaho. It has been ascertained, however, that the State is not planning to advance the project proposed for financing with these funds to construction prior to June 30, 1971.

We appreciate your interest in this matter and trust that the above information will be helpful. Sincerely,

JOHN VOLPE.

U.S. DEPARTMENT OF JUSTICE,

Washington, D.C., July 17, 1969. Mr. RUFUS EDMISTEN, Chief Counsel and Staff Director, Subcommittee on Separation of Powers,

Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. EDMISTEN : This will provide the information requested in Senator Ervin's letter of February 3, 1969 addressed to the Attorney General requesting information on instances in which the Bureau of the Budget reserved or impounded funds appropriated to the Department of Justice. Based on the records available to the Department, our response to your four points is negative.

The only recent instance in which funds were impounded or reserved by the Bureau of the Budget was on Public Law 90-364 which permits filling three vacancies out of four. As a result of this Public Law $2 million was reserved against funds appropriated to the Department. This amount has since been released by the Second Supplemental. Sincerely,

JOHN J. KAMINSKI, Director, Office of Budget and Accounts.

U.S. DEPARTMENT OF LABOR,

OFFICE OF THE SECRETARY,

Washington, March 11, 1969. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, U.S. $enate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your letter of February 3, 1969, requesting information pertaining to those instances since 1945 in which funds appropriated to the Department of Labor have been withheld by the Bureau of the Budget.

With the exception of fiscal year 1968 reserves required by H.J. Resolution 888, P.L. 90–218 ($6,900,000, of which $4,900,000 was made available in fiscal year 1969) and fiscal year 1970 reserves under the Revenue and Expenditure Control Act, P.L. 90-364 ($4,010,000), we are unable to identify, from existing Departmental records, instances where the Bureau of the Budget has withheld appropriated funds. Sincerely,

GEORGE P. SHULTZ,

Secretary of Labor.

ARLINGTON, VA., March 27, 1971. Hon. ŞAM ERVIN, Chairman, Subcommittee on the Separation of Powers, U.S. Senate, Washington, D.O.

DEAR SENATOR ERVIN: During my recent appearance before your Subcommittee, I was asked by Professor Miller to consider a case, which he cited, in which a cabinet member had been compelled by judicial process to perform a duty required by law, as a precedent under which your Subcommittee might proceed in its consideration of the plan suggested by Professor Maas, namely that the President personally be required by statute to submit any so-called "impoundment order,” and withhold action thereunder until the passage of specific time, during which the matter might be considered by the Congress. My response was to the effect that the head of a cabinet department is not the President.

I should like to supplement my response by referring to the following quotation from pages 553-4 of Senate Document No. 39, 88th Congress, 1st Session, a report on the Constitution prepared in 1964 by the Legislative Reference Service, Library of Congress :

"By the decision of the Court in State of Mississippi v. Johnson, in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional, political or otherwise . . . But while the courts are unable to compel the President to act or to keep from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance. Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage, or be compelled by writ of mandamus to perform a duty definitely required by law ..." (Citations omitted).

This quotation, I believe, reinforces my advice to the Subcommittee that the Maas suggestion is of doubtful legal validity, and adds weight to my recommendation that the Congress might well move in a much more modest direction, namely, to place mandatory rates of work and time schedules, where appropriate, in statutory enactments which establish projects or programs that are to be executed by heads of Government departments or agencies. If the work proceeds on schedule, there of course would be no question of "impoundment." Sincerely yours,

KARL S. LANDSTROM.

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES,

COMMITTEE ON APPROPRIATIONS,

Washington, D.C., February 25, 1969. Hon, Sam J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: I am pleased to respond to your request of January 17 in connection with your inquiry into the question of Presidential or executive impoundment of appropriations, although I am not certain I can add much of great value in the way of fundamental information not already of public record.

The question is at all times an important one. Under our system, taxation and appropriation are perhaps the two most cardinal powers available to the Congress.

It is, I believe, wholly accurate to say that, over the long span of time, through many Congresses and many administrations, the weight of experience and practice bears out the general proposition that an appropriation does not constitute a mandate to spend every dollar appropriated. That is a generally accepted concept. It squares with the rule of common sense. I subscribe fully to it.

The Congress does not administer the government. Those in executive capacities who do, bear a responsibility to secure the objectives of appropriations at the least practicable cost in all the circumstances. Scattered throughout every annual budget will be found countless unused balances that reverted to the Treasury or carried over for application to future needs, many arising from executive impoundments. And Congress has underpinned that idea with statutory authority to the Executive Branch to impound funds under certain

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