transport plane. Suppose the Congress had fought out the question of an SST, and the proponents had won. The fight is over. The appropriation has passed. But instead of vetoing the bill, President Proxmire impounds the money and refuses executive consent to its expenditure. What then? Impeach the President? Sue him? Such remedies have little substance of reality.

The law is unclear. In a major speech to the House on Feb. 10, Florida's Charles E. Bennett cited precedents going back to Kendall v. United States in 1838 to support his conviction that specific appropriations cannot lawfully be impounded. The case involved a small claim of a man named Stokes for carrying mail, and may not be in point. Bennett also cited various law review articles criticizing a President's asserted power to impound.

Manifestly, a President must have some discretion. Existing law permits impoundment to avoid deficiencies, or to effect economies. Custom and common sense support a President's refusal to expend appropriations when circumstances have changed; after World War II President Truman reasonably nullified outlays for unneeded military hospitals.

None of these exceptions touches a case such as the Florida barge canal. Congress has said it shall be built. Mr. Nixon, without a formal veto, has said it shall not be built. Never mind who is right or wrong, for the question is not a question of wisdom or of folly. Again, in saecula saeculorum, the question is power.

[From The Wall Street Journal, Apr. 22, 1971]

FROZEN MONEY--CAN PRESIDENT REFUSE TO SPEND SOME FUNDS?

FIGHT RAGES IN CAPITAL, CONGRESS THREATENS TO DELAY SOME NIXON BILLS UNTIL HE WILL RELEASE $12.8 BILLION

A Pork Barrel That Has Ice

(By Arlen J. Large)

Washington-This city has monuments and vistas, but it doesn't have a proper aquarium. Congress voted nine years ago to build one, and legislators appropriated money for it, but Presidents Johnson and Nixon refused to spend it. Now the aquarium's chief congressional sponsor has died, and the plans are abandoned.

But Mike Kirwan's aquarium keeps cropping up in a raging Congress-vs.White House debate over a President's power not to spend funds appropriated by law. Members of Congress in both parties assail what they consider constitutional corner-cutting by President Nixon, and the unbuilt aquarium is cited as a classic example.

Sen. Charles Mathias, the Maryland Republican, says, "The President has just quietly effected a veto without getting all the fish lovers in the United States upset by having to issue a veto message."

It's a serious quarrel. Legislation is being considered that would crimp a President's power to impound funds unilaterally, and lawmakers are threatening to put some administration-backed bills in cold storage until President Nixon unfreezes some of the $12.8 billion of unspent appropriations. And in a related dispute, a move is afoot to force Mr. Nixon to spend money on a health program he thinks he formally and officially vetoed.

SOURING RELATIONS

The din from Capitol Hill may be having some effect. Appropriations Committee members in both houses are beginning to get private assurances from the White House that the freeze on at least some public works projects will be lifted after July 1.

No matter how it all comes out, the argument over spending authority is further souring relations between the legislative and executive branches, which already are at odds over war powers and foreign policy. Democratic Sen. Allen Ellender of Louisiana, chairman of the Senate Appropriations Committee, has called openly for Congress to say "no" to Nixon proposals in retaliation for the spending freezes.

"I suspect we are going to see more and more of this thinking in the Congress in the days ahead if changes are not made," warned Sen. Ellender in a Shreveport speech last week.

To hear the aggrieved lawmakers tell it, they're just patriots trying to preserve the Constitution. The freezing of appropriated funds, says Democratic Sen. Sam Ervin of North Carolina, lets the President "modify, reshape or nullify completely laws passed by Congress," and this "flies directly in the face of constitutional principles." Sen. Ervin, an expert on the Constitution, has been holding scholarly hearings on the subject. He hasn't been complaining about specific project freezes in North Carolina, though there are some.

ICE IN THE PORK BARREL

Not so with many of the other avowed Constitution-preservers, who are alarmed at ice in the pork barrel. Sen. Ellender is sore because the administration won't spend an extra $3 million that Congress voted for the Red River Waterway in Louisiana. Democratic Rep. Joe Evins, chairman of the House Appropriations subcommittee on public works, is miffed at the withholding of funds for expansion of the Oak Ridge Atomic Energy operation in his Tennessee district, and he also resents a national hold-down on aid to cities. That kind of thing, he wrote constituents, is counter to the principles "established by our forefathers in the Constitution."

Democratic Rep. Charles Bennett from north Florida condemns the "Louis 14th decision" of the President to cut off funds for the Cross Florida Barge Canal. But the Republican Rep. Herbert Burke, an opponent of the canal from south Florida, has no constitutional objection to the decision.

Indeed, congressional complaints about impounding are highly selective. Critics of big Pentagon spending aren't saying much about that $1.3 billion of frozen military funds. Conservative lawmakers aren't loudly demanding release of $38 million in antipoverty money. Senate Democratic Leader Mike Mansfield has suggested the administration be taken to court for impounding appropriated funds, but there's an exception: Mr. Mansfield has been having a furious row with the new quasi-government railroad passenger corporation over curtailed service in Montana. Some $38 million in government start-up grants to the company are temporarily on the impounded list, and “as far as I'm concerned," says the Senator, "they can impound that from now till doomsday."

TWO POSITIONS OF JOHNSON

A typical Senate complaint about impounding goes this way: "I had thought that once the Congress passed the appropriation bill and the President approved it and signed it and said to the country that "This has my approval' that the money would be used instead of sacked up and put down in the basement somewhere."

That is the familiar syntax of Lyndon Johnson, and the words were uttered when he was a Senator in 1959. But when he got to the White House he sent appropriations to the basement as freely as his predecessors had, and that's one of the Nixon administration's main answers to its critics: all Presidents impound funds when "necessary" to manage the government efficiently.

A 1950 law specifically authorizes the President to pace the spending of appropriated funds in ways that achieve economy and efficiency. The White House also argues it must regulate spending rates to comply with other laws that Congress fancies as inducements to general thrift: the statutory limit on the national debt, and a leaky "ceiling" on total government spending. Finally, the administration says Presidents can hold back spending for construction projects that might be inflationary, under terms of the 1946 law requiring the government to "promote maximum employment, production and purchasing power."

Thus both sides have plenty of statutes and constitutional clauses to hurl at each other, and these are augmented with political brickbats. House Majority Leader Hale Boggs of Louisiana has accused the administration of hypocrisy for pushing its revenue-sharing plans while holding back $600 million available for present programs of aid to cities. This is becoming a major debating point for Democrats who don't want revenue sharing anyway.

There are hints from the administration that some impounded money may be released even before July 1. Budget-keepers are said to have determined that the statutory spending ceiling won't, after all, require the continued

freezing of the entire $12.8 billion. Officials insist any turn of the spending spigot would be due to bookkeeping technicalities, not a conscious decision to hypo the economy or appease the opponents of revenue sharing.

THE CANAL AND THE AQUARIUM

Release of funds temporarily held up by a technicality, however, wouldn't quiet another branch of the controversy: impounding of money for projects the President wants killed for policy reasons. The blocking of spending on the Cross Florida Barge Canal is an example; President Nixon decided the canal was a menace to the environment and shouldn't be built. The Washington aquarium likewise falls into this category, as do past disputes over development of a new bomber and the size of the Marine Corps.

To increase congressional clout in such disagreements, some lawmakers would like to lace up their spending bills with language making the outlays mandatory. A prototype was last year's bill authorizing hospital construction funds and requiring that the entire annual appropriation be spent every year. Mr. Nixon complained vigorously about this assault on "Presidential options," and vetoed the bill. The veto was overridden, and the mandatory spending language now is law, a precedent for applying it to other programs.

Sen. Ervin says he's considering another approach. His bill, still being drafted, would require the President to send Congress formal notice he's impounding something, and why. Congress then would have 60 days or so to pass a resolution overturning the impounding decision.

This plan, however, is meeting resistance from Rep. Evins and others, who think it would give the President a new form of pocket veto; Mr. Evins says he prefers creation of a congressional committee just to ride herd on the doings of White House budgeteers.

WHAT'S A POCKET VETO?

Sen. Ervin has teamed with two fellow Democrats, Sen. Ted Kennedy of Massachusetts and Rep. Fred Rooney of Pennsylvania, in a separate money fight with the administration. This involves a dispute over the definition of a presidential pocket veto, which is veto of a bill by failure to sign it after congressional adjournment.

Last Christmas, Congress gave itself the weekend off, after passing by nearly unanimous votes a bill authorizing funds for the training of family-practice doctors. President Nixon used a pocket veto to kill the bill on Dec. 24, on the ground that Congress had adjourned and wasn't in town to receive a regular veto message. Congress can't override a pocket veto.

When the Senate reconvened on Dec. 28, Sen. Ervin said the pocket veto had been improperly used. By neither signing the doctor-training bill nor returning it with his disapproval, the President actually had allowed it to become law, Sen. Ervin contended.

On this assumption, Sen. Kennedy and Rep. Rooney have asked the House Appropriations Committee to provide some money as if the disputed 1970 bill were law, wrapping it in mandatory-spending language and designating some specific medical schools as recipients. If the appropriation is enacted and the administration refuses to spend the money, a recipient school could start a suit leading to a Supreme Court ruling on the proper use of a pocket veto.

[From The Commercial Appeal, Memphis, Tenn., Mar. 20, 1971]

CONGRESS LOSING POWER OF THE PURSE

(By Nathan Miller)

Presidential primacy over foreign policy and war-making powers has seriously eroded the responsibilities of Congress. But the body has contented itself with the conviction that it maintained control of the government through the power of the purse. This, Congress is rapidly learning, is no longer the bulwark of legislative authority it once was.

Senator John J. Sparkman (D-Ala.) charged on March 3 that the Nixon administration has impounded-or refused to spend-more than eight billion

dollars in funds previously appropriated by Congress, mostly for domestic programs. He called it "a serious breach of faith" with Congress.

The administration explained the main reason for impounding the money was to combat inflation. "What concerns me," replied Senator Sam J. Ervin Jr. (D-N.C.), in scheduling hearings before his judiciary subcommittee on separation of powers, "is the use of the impounding practice to avoid or nullify congressional intent." Three days of hearings begin Tuesday.

The exercise of the power of the purse "constitutes the core legislative process-underpinning all other legislative decisions and regulating the balance of influence between the legislative and executive branches of government," writes one expert. Congress wields this power under a constitutional provision which states: "No money shall be drawn from the Treasury but in consequence of appropriations made by law." Presidents have circumvented this provision.

In 1949, Congress approved a 58-group Air Force rather than the 48-group force sought by President Truman. He simply refused to spend the extra money appropriated. Two years later, he ignored a rider to an appropriations bill providing for a loan to Spain. During the Kennedy and Johnson years, Congress provided funds for exotic new weapons systems opposed by Defense Secretary Robert S. McNamara-and in some cases he refused to deploy them. Congressional opponents of presidential impounding of appropriated funds contend it gives a president what amounts to an item veto. A president does not have power to veto a single item in a bill without vetoing the whole measure. Supporters of the impounding practice maintain that a congressional appropriation does not carry with it a mandate that the money be spent.

Writing in the Stanford Law Review, Senator Frank Church (D-Idaho) called executive impounding of funds a threat to the separation of powers. "Once it is widely recognized that a project may be entombed by the executive branch," he wrote, ".. the American people will sense the futility of appealing to their elected representatives."

With executive power in the ascendancy, Capitol Hill sees the erosion of its appropriations power as a threat to the democratic process itself.

[From The New York Times, Mar. 25, 1971]

FUND IMPOUNDING BY NIXON BACKED

BUDGET AIDE TELLS SENATORS THAT MOVES ARE ILLEGAL

Washington, March 24-One of President Nixon's key budget advisers said today that the President had the right to impound money that Congress had ordered spent, but he declared that Mr. Nixon would never do it to thwart the lawmakers.

Caspar W. Weinberger, deputy director of the Office of Management and Budget, told a Senate subcommittee that the President was only exercising this power to keep the Government under spending and borrowing ceilings, to economize and to fight inflation.

The White House official said that a Congressional appropriation was "a direction to be followed whenever it's possible to do so" and that freezing such appropriations was "not a means by which the President attempts to thwart the will of Congress."

The Senate Subcommittee on Separation of Powers has made public a list of more than $11-billion worth of items for which Congress has appropriated funds but that the Administration has placed in a "reserved" status. More than 40 agencies and programs are affected.

Senator Charles McC. Mathias Jr., Republican of Maryland, said at today's hearing that Congress "cannot allow the President or the Executive branch to have an informal line-item veto of appropriated money which cannot be overridden.

"This is, in effect, to impound declared Congressional policy and threaten Congress's very existence," the Senator said.

Senator Mathias also warned that any revenue-sharing legislation that Congress approved would have to contain guarantees that the President could not impound any of the Federal funds involved.

"If Congress delegates the power of the purse to a President by authorizing him to share Federal Revenues or withhold them at his sole discretion," he went on, "then the purposes of the Congressional institutions will have become obsolete."

Mr. Weinberger insisted that the President could not be placed in the position of automatically spending all of every appropriation approved by Congress without exercising any discretion or heeding statutory debt and spending ceilings.

"The President has to be more than a rubber stamp or a messenger boy running over to the Treasury," he said.

In defending the President's right to impound funds, Mr. Weinberger quoted a number of Democrats: Harry S. Truman as a Senator, President Franklin D. Roosevelt and Attorney General Ramsey Clark.

Mr. Weinberger said that both Mr. Truman and Lyndon B. Johnson had done it as Presidents.

As an example of impounding, Senator Mathias pointed out that Congress had voted $10-million to begin construction of a national aquarium in Washington but that the President had effectively scuttled the project by simply refusing to proceed with it.

"He just isn't doing it," the Senator said.

ANOTHER CHANCE FOR CONGRESS

In that case, Mr. Weinberger said, "the Administration decided not to fund the project and is giving Congress another chance to consider the matter." The White House official said that he did not know whether this was a permanent decision or only a postponement.

Mr. Weinberger said the consititutional requirement that the President "take care that the laws be faithfully executed" could require him to withhold appropriated funds. His constitutional power as Commander in Chief of the armed forces would permit him to impound military appropriations, Mr. Weinberger added.

"Any action to prevent or defer the expenditure of funds which have been appropriated by law is obviously not one to be taken lightly," the budget official said, "nor do we take it lightly.”

[From The New York Times, Editorial, Apr. 21, 1971]

SEPARATE THOSE POWERS

The average American still tends to assume that when Congress appropriates a sum of money for a particular program or project and the President fails to veto it, precisely that sum of money will be spent in the allotted time. Few assumptions are less warranted; as a result, a political confrontation between the executive and legislative branches of government is not far in the offing.

Over most of the Republic's history the authority of Congress to appropriate money was unchallenged, but now Congress proposes and the President disposes if he so wishes. If not, he impounds the appropriated money or whatever part of it he thinks wise.

The shift started in complete innocence soon after the turn of the century, when the President was empowered to save the Treasury money if he could achieve a Congressional purpose for less than the amount appropriated. In World War II the executive power in this regard was swollen by President Roosevelt's refusal to spend money appropriated for projects that might require scarce materials or otherwise hinder the war effort. And legislation enabled postwar Presidents to exercise the same discretion for other reasons -the state of the nation's economy, the debt ceiling and the like.

By now the process has gone so far that the Nixon Administration has impounded nearly $13 billion in funds appropriated by Congress for domestic programs. Instead of the roughly $600 million that Congress clearly wanted spent on urban mass transit this year, the Administration has budgeted only $269.7 million. Of funds made available by Congress for fiscal year 1971, some $192 million for public housing has been frozen, $200 million for urban renewal,