the next calendar year, we will have $4 billion, $822 million, and so on, of obligations that will become due and payable; liquidating cash is what we go after.

Now, with respect to the obligational_authority, the contractual authority that we have in the program, I believe that that is something that the executive branch does have the authority to reduce in amount if it chooses to do so. It cannot exceed the amount authorized in the statute, but it does not necessarily have to go to that amount.

Professor BICKEL. Do I gather, then, that the argument would be that the Anti-deficiencv Act as drafted applied only to cash expenditures and not to obligational authority, because if that is the argument, I suppose the point is-it is an arguable point, but I think also that it is probably answerable in terms of the statutory language, which does speak in subsection (a) and in subsection (c)-well, certainly in (a)-of both spending and obligational authority and seems to refer, I would think, to both.

So that when it speaks of apportioning, it means the kind of apportioning that takes place within the executive department of any appropriation, whether it is obligational authority or actual cash, and it then tells you under what circumstances you may take such authority or funds and put them in reserve.

And as I would read it, it would limit what might otherwise be an unfettered Executive power to not spend up to authorized-not spend or obligate up to authorized limits.

I hasten to say I think this is arguable. I do not think Attorney General Clark's opinion settled the point. He did not even discuss the Anti-deficiency Act in the opinion. I am just searching, and you may not be the right person to ask, for what the administration's coherent statement of its legal position would be, taking account of the Anti-deficiency Act.

Mr. TURNER. I have not read the Anti-deficiency Act wording for some little time. I am generally familiar with it, of course. It basically says that no officer of the Government or agency shall create obligation in excess of whatever the authority is in the given statute. And we are abiding by that.

Professor BICKEL. Yes; but that also goes on to tell you

Mr. TURNER. The authorizing amount then becomes a maximum rather than a minimum.

Professor BICKEL. It then goes on, however, in (c)2, to tell you when you may establish references, when you may withdraw funds that have been appropriated. It does not use the word 'impound," but it clearly means that and it establishes conditions for doing that.

The question would be whether those conditions are the exclusive ones for doing that. If so, the administration's legal position becomes very weak. If not, I would like to know what the argument is for getting out from under this.

It is really not a question much different from the Steel Seizure case. It was conceded by the justices who had the decisive vote in the Steel Seizure case that the Executive authority would have been valid but for the fact that Congress had in certain statutes tended to limit it, in which event it becomes limited to what Congress says it should be.

I wonder whether the Anti-deficiency Act does not play the same role with respect to Executive powers and the impoundment of funds. I have not really seen anywhere a full, coherent statement of position that addresses this issue and answers it.

Mr. TURNER. I am not qualified to argue the legal points with you on that.

Professor BICKEL. I understand.

Mr. TURNER. Or the act itself. But we have administratively, in administering the program, taken the position that these amounts are ceiling amounts. We eventually will utilize all of them before the lapse period provided in the statute, but within that framework, we do have authority to set a rate of obligations, possibly below the total amount that may be authorized. I believe that both the Attorney General's and the Comptroller General's decisions that we have referred to in my statement support that position.

Professor BICKEL. Well, I was just simply putting it to you that I think it is a very arguable position at most.

Senator ERVIN. Professor Miller.

Professor MILLER. Just a small question at the outset, sir: What is the source of the funds that you disburse? Where do you get the funds? You talk about letting contracts and so on. Are these appropriated funds or what are they?

Mr. TURNER. No; the authority to enter into new obligations or contracts up to a certain ceiling amount is specified in the authorizing language.

Professor MILLER. But where does the money come from? That is what I am interested in.

Mr. TURNER. We do not have the money at that particular time, sir. We have the authority to enter into obligations to be liquidated at some time in the future. There is a requirement in the statute that we cannot enter into obligations which at any given time will exceed the amount of income that we expect to have to the highway trust fund by the date that those contracts must be liquidated. This contractual authority-

Professor MILLER. May I interrupt just a moment? This highway trust fund-the moneys come from where on that?

Mr. TURNER. The highway trust fund is a special account set up in the Treasury to which are automatically appropriated the receipts from the 4-cent Federal tax on motor fuel-gasoline, diesel, and certain other fuels used in motor vehicles-the tax on tires, the tax on lubricating oil, the tax on retread materials used in retreading rubber tires, the manufacturers' 10-percent excise tax on trucks and buses and trailers, spare parts and accessories for those units.

Professor MILLER. It is not straight appropriated funds, then? Mr. TURNER. Not at that stage; no, sir.

Professor MILLER. When it comes to the getting of the money that has been actually spent, you do not just take it out of the fund? Congress has to appropriate it?

Mr. TURNER. Exactly. We do not have control over the highway trust fund here to use at our pleasure. The moneys are automatically appropriated from the general fund into the trust fund, but then they are locked up insofar as we are concerned. We cannot get any of them back.

Professor MILLER. Without an appropriation?

Mr. TURNER. To liquidate our contracts, except if we go to the regular appropriations committees each year.

Professor MILLER. Well, the only other question I think I have is the same one, I think, that concerns Professor Bickel, but in a somewhat different way. That is the legal basis for the authority for what you are doing and what the Executive is doing. As I read the Comptroller General's opinion, shot full of statements that it is an advisory opinion, he says:

It is not within our jurisdiction to determine authoritatively what the executive branch is enabled and required to obligate and spend funds appropriated by the Congress.

In our opinion, this particular question can only be resolved with any finality by the courts.

It seems to me he is cutting the ground out from under him with that particular quotation. He comes back later on and says words to similar effect. He is talking about the constitutional powers of the President:

We have found nothing conclusive on the question of whether this constitutional provision to execute the laws may be considered as sustaining the President's authority to withhold the obligations of appropriations.

I do not think you have anything, Mr. Turner, to sustain your position at all in the Comptroller General's opinion. If you take the Attorney General's opinion, Mr. Clark's, you have a selfserving executive document which was written by an attorney general who is the President's lawyer, who takes his orders from the President, so all you have is a couple of lawyers-somebody for the Comptroller General who says he is not giving you an opinion; and you have a lawyer for the President who is writing on order. I would like to know from Mr. Wells or from you if you have any Supreme Court case or any case that specifically authorizes the withholding of funds?

Mr. TURNER. Well, you say that the Attorney General is the appointee, the President's lawyer, the lawyer for the executive branch of the Government, which is correct. Likewise, the Comptroller General is the lawyer and interpreter of the intent of the Congress on the congressional side. What you have here is an opinion from both parties that are discussing or arguing points the lawyer for the Congress, the lawyer for the executive branch.

Professor MILLER. But the Congress' lawyer says he is not saying anything and says it several times. He sets that out very clearly. He says this is advisory only; we do not have the power.

Now, he may have the power. I am not arguing that point. All I am taking is what Mr. Staats said. Now, Mr. Clark says that there is power here.

We had before this subcommittee in January Mr. Rehnquist from the Department of Justice on another matter. I think, as I recall the testimony, he says that he is the President's lawyer and, in effect. writes opinions the way orders come down from 1600 Pennsylvania Avenue. So I do not see where you have a legal basis at all for what you are doing. I do not think you have a court case; I do not think you have any opinions that would stand up anywhere.

I say that perhaps as a comment, but I would certainly like to hear from Mr. Wells if he has ever seen a Supreme Court case which is authoritative on this matter.

Mr. TURNER. Mr. Wells say he knows of no case directly related to the question that you asked, but, of course, we do have pending this month a case that I mentioned in my statement which may decide the thing. But as an officer of the executive branch of the Government, having served for some years in that branch, being fairly well acquainted with the powers, advisory or otherwise, of the Comptroller General, the General Accounting Office, in control of the expenditures, the actions of the executive branch of the Government, I can guarantee to you that as Federal Highway Administrator, I would pay a great deal of attention to an opinion of the Comptroller General, whether he called it advisory or not. Professor MILLER. Have you ever taken occasion to examine whether you can withhold funds, sir?

Mr. TURNER. I think, in effect, that was the question that we asked. Professor MILLER. Is this the one here that you have?

Mr. TURNER. He answered, in effect, that we could.

Professor MILLER. I think, as I read it, at least, he tells you that he really has no opinion, although he takes three pages to say it. Mr. TURNER. But he does not say that we cannot.

Professor MILLER. This is my final statement, sir. I take it, then, and perhaps this is unfair, that you are proceeding on dubious legal authority to do something which you want to do?

Mr. TURNER. That might be your interpretation, but we feel that we had basis for the action that we took.

Professor BICKEL. Dubious legal authority is better than none. You are halfway home.

Mr. TURNER. That is the way we did it, anyway.

Senator ERVIN. Mr. Turner, it might be correct to describe you as a career man in the Federal Government, might it not? Mr. TURNER. Yes, sir.

Senator ERVIN. You have been connected with the Bureau of Public Roads before the Department of Transportation was set up and with the establishment of the Department of Transportation, then the functions of the Bureau of Public Roads were turned over to that Department and the Bureau of Public Roads was upgraded as a division of the Transportation Department?

Mr. TURNER. It is incorporated as the Federal Highway Administration in the Department of Transportation, Senator.

Senator ERVIN. I believe the highway trust fund was set up in 1956: was it not?

Mr. TURNER. Yes, sir.

Senator ERVIN. And the taxes that constitute what we call the highway trust fund might be correctly described as taxes which are imposed upon articles which are used by the persons who use the highways, and the actual use of the highways-in other words, you might call them highway user taxes, might vou not?

Mr. TURNER. Yes. sir; they have been described as such. Senator ERVIN. Now, under the highway trust fund, these taxes are devoted exclusively to highway purposes; are they not?

Mr. TURNER. Yes, sir. By law, they have to be used for that purpose only and those purposes are described in the statute.

Senator ERVIN. And as you pointed out, in the administration of the Federal highway programs, owing to the fact that you have what we call a long leadtime, you have obligational authority? Mr. TURNER. Yes, sir.

Senator ERVIN. So you can obligate funds even before the funds are collected and before they are appropriated. That is, you can enter into contracts which obligate the payment of these Federal funds before the funds are collected and put into the highway trust fund?

Mr. TURNER. That is correct. There is, however, Senator, a limitation on that; we cannot enter into obligations that will exceed in amount the estimated income to the trust fund by the date those obligations become due and payable.

Senator ERVIN. So, as a matter of fact, before you pay out the funds, the funds have to be appropriated?

Mr. TURNER. Yes, sir.

Senator ERVIN. And Congress has at least implicitly bound itself not to appropriate more highway funds for any given fiscal year than those available for that fiscal year?

Mr. TURNER. That is correct.

Senator ERVIN. Now, it has been a favorite action on the part of the last two Presidents when they thought inflation was getting a little out of hand to defer a large proportion of funds for highway purposes and for most other things: has it not?

Mr. TURNER. Both the present administration and the preceding administration did make reductions in substantial amounts in the highway program. Percentagewise, those reductions to the highway program aggregated as much as a fourth of the total reduction that was made in all programs.

Senator ERVIN. That is out of the entire budget, budgeted items, I mean?

Mr. TURNER. Yes, sir.

Senator ERVIN. And appropriated items?

Mr. TURNER. Yes, sir. The $3 billion that was sought to be obtained on a national basis in one of the actions that are referred to in my statement involved about $700 million reduction in the highway program. So that the highway program took almost a fourth of the total savings for the national Government.

Senator ERVIN. We have received information, as I understand it, from the Office of Management and Budget, that as of February 23, 1971, there has been a withholding of current highway funds to the extent of $411 million, and a deferment of highway funds to the extent of $5 billion, $852 million: is that correct?

Mr. TURNER. I believe those are the figures in the President's budget document as submitted in late January or February. Those are the figures I have; yes, sir.

Senator ERVIN. Now, that is a pretty substantial amount, or, rather, proportion, of the anticipated Highway Trust Fund: is it not for this fiscal year? Or is it the 1971 fiscal year?

Mr. TURNER. That figure is for the 1971 fiscal year, Senator. That amount, $5.8 billion, is more than the estimated revenue during this