However, impoundment unfortunately unfortunately occurs under circumstances when the executive branch, for reasons of its own, wishes to avoid expending sums which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation of powers principle.

Let it be established at the outset that neither I nor my colleagues in the Congress who are concerned over this problem wish the executive branch to expend the taxpayers' money foolishly. On the contrary, it is well known that I advocate a balanced national budget and ever greater economy in the Government. Nor is this a partisan problem. Impoundment has occurred under Democratic and Republican administrations and is as objectionable under one as under the other.

In fact, the anti-deficiency acts of 1905 and 1906 provide that appropriated moneys may "be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made." (Act of Feb. 27, 1906, ch. 510, sec. 3, 34 Stat. 48-49.) These acts were passed as an aid to economy, but the impoundment process has, over the years, evolved into a major policy tool. By employing impoundment for policy reasons, the executive branch has, on many occasions, nullified policies of Congress which had been enacted into appropriations statutes.

Under the Constitution, all legislative power is vested in the Congress, including the power to appropriate money. Article I, section 9, provides that "no money shall be drawn from the Treasury but in consequence of appropriations made by law." As one scholar, Leonard D. White, in his book, "The Federalists," said the Founding Fathers took the utmost care

To insure that public funds would be legally expended, to prevent either misapplication or embezzlement, and to guarantee that the immediate representatives of the people would bear the responsibility for determining how much money should be provided, the sources from which it should be derived, and the purposes to which it should be applied.

The President, on the other hand, is given no role in legislation save for the power to recommend "such measures as he shall judge necessary and expedient" provided in article II, section 3, of the Constitution, and the power granted him under article I, section 7, to veto measures passed by the Congress, subject to being overridden by a two-thirds vote of both Houses. He does have the clear responsibility to "take care that the laws be faithfully executed," as required by article II, section 3. Certainly the Founding Fathers did not intend to give the President any discretion when they imposed that duty upon him.

On the contrary, they intended that he execute all laws passed by the Congress, irrespective of any personal, political, or philosophical views he might have. He has no authority under the Constitution to decide which laws will be executed or to what extent they will be enforced. Yet, by using the impounding technique, the

i

President is able to do just that. He is able to effect policy by determining which of the laws passed by Congress he will enforce and to what extent.

It is equally evident that the Founding Fathers intended to limit the veto power of the President to the procedure outlined in article I, section 7, which gives him only a limited veto, subject to being overridden by the Congress. Yet under the impoundment procedure the President is, in effect, able to veto measures absolutely, after they have been passed by the Congress and signed by him.

Perhaps even more shocking is the fact that impoundment enables the President to effect an item or line veto. Such a power clearly is prohibited by the Constitution which only empowers him to veto entire bills. Thus, by impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy through Executive power. Such an illegal exercise of the power of his office flies directly in the face of clear constitutional provisions to the contrary.

In this era, the powers of the executive branch have become dominant in the operation of the governmental structure. The power of the purse is one of the few remaining tools which Congress can use to oversee and control the burgeoning Federal bureaucracy. Congress is constitutionally obligated to make legislative policy and is accountable to the citizens for carrying out that obligation. The impoundment practice seriously interferes with the successful operation of that principle and places Congress in the paradoxical and belittling role of having to lobby the executive branch to carry out the laws it passes.

The impoundment practice has existed throughout this century, although it did not reach its height until the depression and the war years, when it became a means of coping with economic pressures and the necessity of centralizing the management of the Nation's war effort. While many observers feel that impoundment during the war years appeared at the time to be necessary to give effect to the President's war powers, the practice unfortunately did not abate following the war but has expanded steadily since that time, spreading from military spending to the civilian sphere.

The increase in impoundment has attracted the attention of the Congress from time to time and individual Members have decried its use. However, the practice has never been studied in depth by a congressional committee and one administration after another has engaged in impounding with the apparent acquiescence of the Congress.

This subcommittee in 1969 attempted to gather information from the executive branch of the Government regarding the extent of impoundment, the amount of money being impounded and for what projects, and the constitutional grounds upon which the practice was based.

The subcommittee wrote every department, agency, commission, and board in the Government requesting that they submit a complete listing of impounded funds appropriated for their use for the fiscal years 1945-69.

The nearly 40 polite replies received by the subcommittee demonstrated the difficulty in obtaining substantive information about impoundments.

One particular example was the response submitted by the Director of the Bureau of the Budget, which has since been reorganized as the Office of Management and Budget. The document, entitled "Examples of Reserves Established Under Specified Circumstances, 1945-1969," presented a very sparse listing of so-called reserving actions and failed to mention many examples of impoundment cited by scholarly writers on the subject. In fact, the only examples included were those which least brought the impoundment practice into question. The report did not even allude to such blatant incidents of impoundment as the cancellation of the aircraft carrier Forrestal in 1950.

From fragmentary reports, of course, we know that impoundment has been a widespread practice since World War II. It has been used extensively where Congress has appropriated money in addition to what the President has requested in his budget. These add-on funds have been impounded on a number of occasions by Presidents Eisenhower, Kennedy, Johnson, and Nixon.

One question we shall try to answer in these hearings is whether impounding is being practiced more today than in the past. Within the last few weeks, it has been revealed that the Nixon administration has placed in reserve or otherwise left unapportioned a total of more than $12 billion of appropriated funds. A list submitted by OMB to the Senate Appropriations Committee revealed that $11.145 billion was in this status as of February 23, 1971.

Later testimony before the House Subcommittee of the Senate Banking Committee indicated that another $1.124 billion appropriated for urban programs was also in reserve. According to my offhand calculations, this total of $12.2 billion represents nearly 20 percent of the total of controllable items in President Nixon's budget for fiscal year in 1971. If I am wrong on this score, then we want to clear this matter up during the hearings.

At this time, I will insert into the record (1) a copy of the Anti-deficiency Act; (2) the list of moneys in reserve or otherwise unapportioned as of February 23, 1971; (3) a list provided by the Secretary of Housing and Urban Development of funds for his Department's programs which were in reserve on March 1, 1971: (4) a list of controllable budget outlays from the summary tables of the 1972 budget; and (5) the letter of May 28, 1969, from the Bureau of the Budget to the subcommittee.

(The documents referred to above follow :)

"THE ANTIDEFICIENCY ACT"

(Section 3679 of the Revised Statutes, as amended) (31 U.S.C. 665)

SEC. 3679. (a) No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.

(b) No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of property.

(c) (1) Except as otherwise provided in this section, all appropriations or funds available for obligation for a definite period of time shall be so apportioned as to prevent obligation or expenditure thereof in a manner which would indicate a necessity for deficiency or supplemental appropriations for such period; and all appropriations or funds not limited to a definite period of time, and all authorizations to create obligations by contract in advance of appropriations, shall be so apportioned as to achieve the most effective and economical use thereof. As used hereafter in this section, the term "appropriation" means appropriations, funds, and authorizations to create obligations by contract in advance of appropriations. (2) In apportioning any appropriation, reserves may be established to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available. Whenever it is determined by an officer designated in subsection (d) of this section to make apportionments and reapportionments that any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he shall recommend the rescission of such amount in the manner provided in the Budget and Accounting Act, 1921, for estimates of appropriations.

(3) Any appropriation subject to apportionment shall be distributed by months, calendar quarters, operating seasons, or other time periods, or by activities, functions, projects, or objects, or by a combination thereof, as may be deemed appropriate by the officers designated in subsection (d) of this section to make apportionments and reapportionments. Except as otherwise specified by the officer making the apportionment, amounts so apportioned shall remain available for obligation, in accordance with the terms of the appropriation, on a cumulative basis unless reapportioned.

(4) Apportionments shall be reviewed at least four times each year by the officers designated in subsection (d) of this section to make apportionments and reapportionments, and such reapportionments made or such reserves established, modified, or released as may be necessary to further the effective use of the appropriation concerned, in accordance with the purposes stated in paragraph (1) of this subsection.

(d) (1) Any appropriation available to the legislative branch, the judiciary, or the District of Columbia, which is required to be apportioned under subsection (c) of this section, shall be apportioned or reapportioned in writing by the officer having administrative control of such appropriation. Each such appropriation shall be apportioned not later than thirty days before the beginning of the fiscal year for which the appropriation is available, or not more than thirty days after approval of the Act by which the appropriation is made available, whichever is later.

(2) Any appropriation available to an agency, which is required to be apportioned under subsection (c) of this section, shall be apportioned or reapportioned in writing by the Director of the Bureau of the Budget. The head of each agency to which any such appropriation is available shall submit to the Bureau of the Budget information, in such form and manner and at such time or times as the Director may prescribe, as may be required for the apportionment of such appropriation. Such information shall be submitted not later than forty days before the beginning of any fiscal year for which the appropriation is available, or not more than fifteen days after approval of the Act by which such appropriation is made available, whichever is later. The Director of the Bureau of the Budget shall apportion each such appropriation and shall notify the agency concerned of his action not later than twenty days before the beginning of the fiscal year for which the appropriation is available, or not more than thirty days after the approval of the Act by which such appropriation is made available, whichever is later. When used in this section, the term "agency" means any executive department, agency, commission, authority, adminis

tration, board, or other independent establishment in the executive branch of the Government, including any corporation wholly or partly owned by the United States which is an instrumentality of the United States. Nothing in this subsection shall be so construed as to interfere with the initiation, operation, and administration of agricultural price support programs and no funds (other than funds for administrative expenses) available for price support, surplus removal, and available under section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612(c)), with respect to agricultural commodities shall be subject to apportionment pursuant to this section. The provisions of this section shall not apply to any corporation which obtains funds for making loans, other than paid in capital funds, without legal liability on the part of the United States.

(e) (1) No apportionment or reapportionment, or request therefor by the head of an agency, which, in the judgment of the officer making or the agency head requesting such apportionment or reapportionment, would indicate a necessity for a deficiency or supplemental estimate shall be made except upon a determination by such officer or agency head, as the case may be, that such action is required because of (A) any laws enacted subsequent to the transmission to the Congress of the estimates for an appropriation which require expenditures beyond administrative control; or (B) emergencies involving the safety of human life, the protection of property, or the immediate welfare of individuals in cases where an appropriation has been made to enable the United States to make payment of, or contributions toward, sums which are required to be paid to individuals either in specific amounts fixed by law or in accordance with formulae prescribed by law.

(2) In each case of an apportionment or a reapportionment which, in the judgment of the officer making such apportionment or reapportionment, would indicate a necessity for a deficiency or supplemental estimate, such officer shall immediately submit a detailed report of the facts of the case to the Congress. In transmitting any deficiency or supplemental estimates required on account of any apportionment or reapportionment, reference shall be made to such report.

(f) (1) The officers designated in subsection (d) of this section to make apportionments and reapportionments may exempt from apportionments trust funds and working funds expenditures from which have no significant effect on the financial operations of the Government, working capital and revolving funds established for intragovernmental operations, receipts from industrial and power operations, available under law and any appropriation made specifically for

(1) interest on, or retirement of, the public debt;

(2) payment of claims, judgments, refunds, and draw-backs;

(3) any item determined by the President to be of a confidential nature;

(4) payment under private relief Act or other laws requiring pay-` ments to designated payees in the total amount of such appropriation; (5) grants to the States under title I, IV, or X of the Social Security Act, or under any other public assistance title in such Act.

(2) The provisions of subsection (C) of this section shall not apply to appropriations to the Senate or House of Representatives or to any Member, committee, Office (including the office of the Architect of the Capitol), officer, or employee thereof.

(g) Any appropriation which is apportioned or reapportioned pursuant to this section may be divided and subdivided administratively within the limits of such apportionments or reapportionments. The officer having administrative control of any such appropriation available to the legislative branch, the judiciary, or the District of Columbia, and the head of each agency, subject to the approval of the Director of the Bureau of the Budget, shall prescribe, by regulation, a system of administrative control (not inconsistent with any accounting procedures prescribed by or pursuant to law) which shall be designed to (A) restrict obligations or expenditures against each appropriation to the amount of apportionments or reapportion