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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]
(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, $200 million for water and sewer grants, and so on. The trend has gone so far that some Congressmen themselves accept the contention that a Congressional appropriation is merely an authorization to spend, not a mandate.
But the tide is turning. In hearings before his own subcommittee on the separation of powers, Senator Ervin of North Carolina complained rightly that through this discretionary use of funds "the President is able to modify, reshape or nullify completely the laws passed by Congress.”
Legislation is in preparation to restore the balance by requiring a President to seek Congressional approval for cuts in appropriations that go beyond the dictates of efficiency. But Senator Mathias of Maryland, a liberal Republican, seems to us to be on an even better track. Why not give the President, through constitutional amendment, a line-item veto in appropriations bills—with Congressional power, of course, to override? Given a compelling case, the President would generally have his way-but he would have it only by grace of a truly equal branch of government.
(From The News and Observer, Raleigh, N.C., Mar. 19, 1971)
ERVIN CITES IMPOUNDED U.S. FUNDS Washington (UPI)-Sen. Sam J. Ervin Jr., D-N.C., made public Thursday a list of funds totaling $11.1 billion in congressionally appropriated funds he said the administration has impounded by presidential orders.
The list of funds “reserved or otherwise unapportioned" as of Feb. 23, 1971, included two big items-$1.3 billion for the Defense Department and $6.3 billion for the Transportation Department.
The Transportation Department funds being withheld by the Nixon administration includes $5.8 billion in the highway trust fund, $411 million in current funds and $39 million in federal rairoad administration funds, Ervin said.
Ervin, chairman of a Senate Judiciary Subcommittee, said these unspent funds will be the subject of a series of hearings starting March 23. The senator said impounding is often justified, as when it is done to avoid deficits, but in other cases it means allowing the executive branch to override Congress.
"Under the present impoundment practice, the President has an item veto over acts of Congress,” Ervin said. "There is not a word in the Constitution giving such a power.
"By impounding appropriated funds, the President is able to modify, reshape or nullify complete laws passed by the Congress-thus making policy through executive power," he said.
[From The News and Observer, Raleigh, N.C., Mar. 24, 1971)
ERVIN CHALLENGES NIXON ON FUNDS
Washington (AP)-The constitutionality of a president impounding appropriated funds was challenged at a Senate hearing Tuesday, and one witness urged Congress to force a showdown.
Sen. Sam J. Ervin Jr., D-N.C., chairman of a subcommittee on separation of powers, said available information indicates $11.1 billion in appropriations is being held by the administration.
Federal Highway Administrator F. C. Turner defended the practice, saying both Congress and the President have a role in the appropriation and expenditure of funds.
He said "Congress has ways to impose its will" if it feels bad faith, rather than a difference in judgment, is shown by the executive branch.
Former Secretary of the Interior Stewart L. Udall said Congress should reform its own appropriations procedures and then set mandatory spending priorities to be followed by the President.
He testified he would like to see Congress seek"a confrontation with the President ... a showdown" by insisting the appropriations it feels are vital and urgent be spent on schedule.
Turner said the question of whether appropriations are mandatory or per missive has been an issue between the executive and legislative branches since the beginning of the Republic.
i nk the question has been settled by anybody," he said, but he
suit brought by the Missouri Highway Commission last year thholding of federal highway funds might resolve the issue. $ h Alioto of San Francisco testifying for the National League
e U.S. Conference of Mayors, said that just because presidenof funds has been going on for 100 years or more doesn't
ART by BLACK ARTISTS
(From NEWSDAY, Long Island, N.Y., Mar. 22. 1971]
NADER: KILL TAX 'SUBSIDY' rocate Ralph Nader asked Congress yesterday to block Presi
redup of tax deductions for depreciation, calling it an unlawful $3-billion suvody to favored businesses.
Nader sent to a Senate subcommittee a legal analysis of the liberalized depreciation rules, arguing that Nixon's order is a usurpation of legislative power and is not in fact a depreciation reform. Nader said in a letter to Sen. Sam J. Ervin Jr., (D-NC.), chairman of the subcommittee on separation of powers, that the Treasury is proposing to "spend billions of dollars annually in a tax expenditure program never authorized by the Congress. Once again powerful private interests have undertaken a raid on the U.S. Treasury."
At a White House news conference Jan. 11 the depreciation changes were announced as a stimulant to private investment. The order, formally promulgated last week, would let businessmen write off their outlays for new equipment or machinery 20 per cent faster than in the past, in tax deductions for depreciation.
[From Newsweek, Apr. 19, 1971)
THE ECONOMY: Nixon's NEST EGG Through all the painful months that the U.S. economy has been struggling to regain momentum, economic critics have been increasing the pressure for some meaningful fiscal pump priming by the Nixon Administration to supplement the monetary stimulation supplied by the Federal Reserve Board. Of late, the campaign has attracted some of the more powerful Democratic policymakers on Capitol Hill such as House Speaker Carl Albert, Senate Appropriations Committee chairman Allen Ellender and Senate Banking Committee chairman John Sparkman. Some Republicans also have been grumbling that the Administration should do more to spur recovery-and last week, critics of the White House were flourishing a figure they could sink their teeth into. That figure was $12.8 billion, the sum now reposing in the President's reserve of funds appropriated by Congress, but so far unspent.
Such Presidential nest eggs are as old as Thomas Jefferson. But what disturbed President Nixon's critics last week was both the size of the reserve and the uses to which he could put it. They argued that the President was not only punishing his enemies by freezing their favorite public-works projects but also creating a gigantic political "s!ush fund” of backlogged projects that he could release in time for the 1972 elections.
It wasn't really that simple; in fact, Mr. Nixon's advisers argued that the $12.8 billion was largely an illusion. Much of it was mandated for future projects, and the spendable portion-mainly in the highway-construction fund -also needed months of planning before it could be pumped into the economy. Even more important, said the President's defenders, he was still walking a tightrope between the need for recovery and the threat of inflation. "The economy is not like a ball game, where you get a decision, out or safe, ball or strike, every few seconds," said one Administration official. “We can wait a little. We're not going to boot this economy in the behind now and ruin all of our efforts."
That put the game back into Congressional hands, and at the weekend there were some signs of action on Capitol Hill. At the urging of North Carolina's Sen. Sam Ervin, Democrats had introduced a resolution in both houses calling for the creation of a joint Congressional committee to investigate the practice of Executive impounding of appropriated funds. And the bill seemed to have