You spoke about no funds having lapsed. If the Executive continues to order limitations at the present rate, are not some lapses going to be almost inevitable?

Mr. TURNER. At some uncertain time in the future; yes. But we are not really concerned with that at this particular time. I do not think we are in any danger of lapsing moneys at this stage.

Professor STOLZ. Could you give us an estimate when that dreadful day is going to come?

Mr. TURNER. It will depend, of course, on whether or not there is an accumulative increasing amount of withholding. Eventually, we would reach the point where we would have as many funds, as many dollars frozen in an individual State as they had had made available to them and there might be a lapse. But we are looking at the amounts that we have now and at the present rates of withholding. We are several years, 3 or 4 years, away from any crisis of that kind. Professor STOLZ. Thank you.

Seantor ERVIN. I believe you gave me the estimated amount of the taxes that go into the highway trust fund, under the law, that would be forwarded at June 30 of this year; that is, 1971 fiscal year.

Mr. TURNER. I gave you a figure, Senator Ervin, but that was not the money in the trust fund. That was $5.5 billion and that is the estimated lag in the obligational authority. The actual cash in the highway trust fund on June 30 of this year is estimated to be at the present time $3.6 billion, I believe.

Senator ERVIN. Thank you.

Mr. ABRAMSON. I have just a few questions.

You give reference to the Attorney General's opinion of 1967 which claims that Congress' role in the appropriation process is permissive. What do you personally envision as the role of Congress in the process?

Mr. TURNER. The role of Congress is darned important in providing the appropriations and the legislative authorizations to start with. The deferment of certain of the authorized contractual authority, though, I think, is something that the executive branch has practiced over many years. It is not confined to just the actions that we are talking about here. I believe the executive branch has actually obligated lesser amounts than Congress authorized for many. many years. I believe that reference to legislative history of certain pieces of legislation will so indicate.

Mr. ABRAMSON. So therefore, you would adopt the philosophy that appropriations of Congress should be permissive, not mandatory, and that the Chief Executive should have a definite role within this appropriations scheme?

Mr. TURNER. Yes; I think there is a joint role between the two branches of the Government.

Mr. ABRAMSON. What would be the legal and constitutional limitations upon the Executive in its role?

Mr. TURNER. Well, I think certainly there has to be an element of good faith on both sides. I think the Congress would have ways of imposing its will on the Executive one way or another if there was evidence of bad faith in the cases we are talking about here. It is a case of judgment, differences in judgment by the two branches, as

to the rate at which we are to make expenditures in the highway program-new obligations to the highway program.

Mr. ABRAMSON. Which legislative authority do you consider more binding upon your actions and power, the Anti-deficiency Act or title 23. section 101 (b), or do you consider them equal?

Mr. TURNER. I do not think you can say that any law is more important than another one. They are all equal. Both of them apply to us. We have to adhere to both.

Mr. ABRAMSON. I just heard the comment that you did not read recently the language of the Anti-deficiency Act. Yet you quote the language of 101(b) in here and I was wondering if perhaps you are favoring one over the other.

Mr. TURNER. I did not mean to imply that. I am quite conscious of the Anti-deficiency Act and the penalties that it provides individually for me and others on my staff if we fail to abide by its provisions. I can assure you that we are quite conscious of that.

Mr. ABRAMSON. One last question, Mr. Chairman.

You cite title 23, section 101 (c) which states that no apportionment of highway funds can be impounded except when necessary to insure sufficient amounts to defray expenditures. You then stated that the Public Works committee reported out a bill which contained mandatory language to prohibit such impoundment; however, that language was eliminated in conference.

It just seems to me that the language in itself is pretty restrictive even without the conference adopting any mandatory language. What is your feeling on that? We have some precedent for the words "sense of Congress."

Mr. TURNER. Well, section 101 (c), the anti-impoundment amendment that was used in the 1970 act, says that it is the sense of Congress that there shall be no impoundment of funds or reduction of an authorized amount. That is virtually word for word the language that was used by the Congress in 1968 to admonish the executive branch to use the ful amounts authorized. The reason that the House committee backed away from what had been their original mandatory language requiring the executive branch without question to utilize every cent that was authorized-the reason that they backed away from that was simply because of this question that you are debating here today: the question of the authority that the Congress had to require the executive branch to utilize the full amounts authorized. Now, I do not think that the question has really been settled by anybody. Both branches of Government have been arguing over this basic philosophical question for a good many years, to my own knowledge. I am sure that Senator Ervin is even better acquainted with it than I am. This has been a philosophical question between these two branches of Government, I guess, since the beginning of the Republic. And it has never been settled in terms of court issues, as we asked a moment ago. It may be that this case that is now pending by the State of Missouri in connection with the highway program may resolve the question. But meantime, I do not know that we can do anything other than abide by what 101 (c) says, which is that it is the sense of Congress that we shall do such and so, which I think would be interpreted by anybody to be nonmandatory type language.

Mr. ABRAMSON. Perhaps we can get some guidance from the panel as to any precedent in the sense of Congress language. It seems to me that we might have some conflicting authority on that.

Professor BICKEL. The sense of Congress language is generally not mandatory language.

Senator ERVIN. It is sort of like what we used to call prefatory language in the will.

It sort of intrigued me, your observation that all laws are equal. We used to have a requirement in the statutes that provided for taking some State offices in North Carolina that seemed to militate a little against that. We used to have to swear solemnly, it said, to support the Constitution of the United States, but we had to swear sincerely to support the constitution of North Carolina.

Thank you very much, Mr. Turner.

Since, as so often, public officials get brickbats thrown at them rather than compliments, I would like to say I think you have done a wonderful job in the work you have done for the Government since I first became acquainted with you.

Mr. TURNER. Thank you very much, Senator.

Mr. EDMISTEN. Mr. Chairman, our next participant is Hon. William J. Driver, formerly Administrator of the Veterans' Administration and now member of the President's Commission on Health and Manpower.

Senator ERVIN. We are delighted to have you before this subcommittee. We though you might like to come up and discuss this around King Arthur's roundtable rather than conduct an inquisition.

STATEMENT OF WILLIAM J. DRIVER, FORMER ADMINISTRATOR OF VETERANS' AFFAIRS; PRESIDENT'S COMMISSION ON HEALTH AND MANPOWER

Mr. DRIVER. Thank you. I will consider what you say in supporting myself. I am more used to sitting here than up there, but I will certainly consider this a roundtable discussion.

Senator ERVIN. I want to express to you our appreciation for your presence and your willingness to assist us in this study.

Mr. DRIVER. Thank you, sir. I do not have a prepared statement. I was pleased to be invited to come before the panel and talk to you. I have looked into the question of freezing of funds by the old Bureau of the Budget in my experience with the U.S. Government with the Veterans' Administration over a period of about 20 years. To the best of my knowledge, I can discover six instances where money was impounded after it had been authorized by the Congress. In one instance, the money lapsed. This is in an area having to do with the construction of hospital facilities and I believe that this no longer can happen; that is, it could no longer lapse even though the funds would be delayed in being spent, because construction funds now are contained in a revolving fund with no-year money. So in this unusual case, the first one that I could document, back in 1949, involving about $237 million, congressionally authorized contract authority for building hospital facilities did lapse in 1952.

Senator ERVIN. Was that because the money obligated during the year for the Department was appropriated?

Mr. DRIVER. It was under the congressional language that authorized the contract authority. It had to be spent by that time or it would lapse, and it did lapse.

Subsequent to that, and I do not have the precise dates, but after the 1952 lapse, a new costruction program was worked up by the executive branch. It was thoroughly explored with the congressional committees having oversight in this area, and since that time, as I say, there has been a revolving fund for contruction money and no further incident like this has occurred.

The other five cases were in relatively small amounts. I might say over this entire 25-year period, in dealing with moneys appropriated by the Congress in an amount of about $135 billion, roughly $250 million was, in the area that we are talking about here, frozen.

Professor MILLER. Mr. Driver, may I ask on that first example, who ordered it?

Mr. DRIVER. The President ordered it. This was a major decision in terms of authorization to build hospitals after World War II and President Truman made a decision to withdraw thousands of beds from the new construction program. That, of course, made the funds unnecessary in terms of the construction program.

Professor MILLER. Do you recall the reasons, if any, why that was done?

Mr. DRIVER. I really do not. I am sure that part of the reason was a decision to take over military hospitals for the time being rather than go forward with new VA construction and to wait and see where the servicemen would land when they came back after they had had a chance to get adjusted; in other words, where the demands would be for medical care. This probably turned out to be very good advice, because there was a tremendous movement on the part of the veteran after World War II to locations where there were jobs, to places where he met his wife going to school under the GI bill, and that sort of thing.

Professor BICKEL. So this would be an example of an action that would fit the Anti-deficiency Act almost to the letter when it speaks of effectuating savings or establishing reserves in light of developments subsequent to the date on which such appropriation was made available?

Mr. DRIVER. That is right-shift in principle totally.

Professor BICKEL. That is a classic example of that?

Mr. DRIVER. Yes, sir. This is a case where I think the Chief Executive would be derelict if he did not do it.

Professor BICKEL. And the statute tells him to do it.

Mr. DRIVER. Right.

The other cases involve medical care to some small extent. In 1952, $4 million was withheld and this, as best I can find out now, was based on lower employment levels being experienced than were contemplated. Here you can get into the whole business of not having to build hospitals; you would therefore not have to staff the ones you had held back on, so you would cut back on the staff.

The last two, one in 1968 and one in 1969, involved moneys for medical care-in 1968, medical care in the amount of $28 million, and in 1969, medical care in the amount of $15.1 million. In both of these, these moneys were applied later toward a general pay raise pro

vided by the Congress. They were used for the situation for which they were originally requested, but they were used.

Professor MILLER. You are referring to something where the Congress says spend money for one purpose and the President says for another?

Mr. DRIVER. NO; Congress appropriated $28 million in 1968 based on the estimate of the number of patients that would turn up for care across the country. Now, if the patients are not turning up for care at the rate you expected, you are going to build up funds that you will not use. This money will be impounded by the Bureau of the Budget, then, and it was.

Later that next year, when Congress enacted a pay increase in the committee report involving the Veterans' Administration share. they would have taken cognizance of the fact that $28 million was available to the VA to absorb part of this pay increase.

Professor MILLER. I see.

Mr. DRIVER. The last one in 1969 was pretty much an identical situation. So that these six instances pretty much represent my experience with this situation. Listening to the conversation with two previous gentlemen who were here, Mr. Turner and his colleague, recalled to me, certainly, the idea that I have felt over the years, the moneys appropriated by Congress were more ceilings than they were floors. Circumstances do change during the course of the year that would require with good judgment that you impound, freeze, or not spend certain funds. In the Veterans' Administration, where the budget always was in the billions of dollars, you consistently ended each budget year if you did not have a revolving fund such as is now the case in the construction area; you ended the year with money in many pockets that was not spent and that went back into the Treasury. Where you have to put the money out from a central location here in Washington to a couple of hundred locations where it would be actually spent at hospitals or in regional offices, quite naturally, in the budget process in putting money out and bringing it back in again, you would have a certain lapse in funds that on June 30 would not have been spent.

But I would say that the question of impounding and the funding of programs, certainly in the areas that I was concerned with, these decisions were made in the budget process before the budget was submitted to Congress and that within the parameters of what was outlined in that budget, subject, of course, to changes that might occur during the course of the year. This is the place where the controls in terms of program direction were most effectively administered by the Congress and by the Chief Executive. What he proposed and asked moneys for were in that budget. If Congress, during the course of the year, as they have many times over the years, enacted new legislation that required the spending of new moneys by the VA, it was almost always in areas where it would involve a benefit to the veterans in the form of a direct check from the Treasury and no one ever assumed that there was any discretion to tamper with this. These moneys always were spent to the extent that a veteran came forward and qualified for the benefit.

For example, we never would have dreamed, and I am sure this is true today, to say that if Congress authorizes $2 billion for the GI