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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 vears. 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. And the statute tells him to do it.
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 provided 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 vears, 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
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education program this year, that anybody would attempt to put a ceiling and limit the number of veterans who could go to school if they could get in under this program.
Professor MILLER. Suppose that someone said that they should do it, though; assume that just for purposes of discussion. Do you think there is legal authority to do it?
Mr. DRIVER. I would not think there was; no, sir. It would seem to me that this clearly would require a change in the law during the course of a year.
Professor MILLER. Mr. Turner, I think it was—took a different position, as I think you heard.
Mr. DRIVER. Well, I cannot help that. I was concerned mostly with title 38 which covers the laws pertaining to veterans. I would say clearly that as Administrator, I would have felt that I had no authority to do this sort of thing. You adjudicate the man's eligibility and if you decide he is not qualified, that is one thing. Then you do not admit him for reasons specified in the act.
Professor MILLER. Where would you go for a legal opinion as the VA Administrator?
Mr. DRIVER. You go to the Attorney General. In the case of the GI bill, the education program, there is a requirement in the law that certain regulations be coordinated with the Comptroller General before they are issued. But for a legal opinion, you would go to the Attorney General.
Senator ERVIN. Well, of course, the Anti-deficiency Act authorizes the setting up of reserves in the four cases to meet contingencies; to effect savings where the requirements are changed; and to where, by so doing, you could promote greater efficiency of operation; or where, as in the case you illustrated about President Truman a moment ago, where development subsequent to the time of the making of the appropriation rendered the expenditure unnecessary. The trouble comes where the President impounds funds because he disagrees with the wisdom of Congress in respect to either the appropriation of funds for a particular purpose or in respect to the priorities of what available revenues are. Do you have any doubt of the fact that Congress has the power to prescribe that the President shall spend the funds appropriated to Congress ?
Mr. DRIVER. I suppose they could write a directive that way. I would say the general authorizations, though, for funds are not that specific. I would assume they could be made that specific, but I do not think they are. When Congress delegated, in effect, to the President budget authority back in the 1920's, I think they started him down the road where the Chief Eexcutive pretty much assumed all administrative control over the funds after they are appropriated unless you got pretty darned specific, Senator, in the language.
Senator ERVIN. In other words, your opinion is that unless Congress makes a specific direction requiring the expenditure of funds by the executive branch of the Government, appropriations represent ceilings rather than floors?
Mr. DRIVER. Yes, sir. And if the President spends them in a way that is not outrageous, he can get away with it. When I say outrageons, I mean so that he would offend the great American public and bring the roof down on himself in effect.
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Senator ERVIN. I have received some complaints from some constituents recently in an area in which you used to operate to the effect that they are reducing the number of beds in the veterans' hospitals, or facilities, and entailing a great deal of hardship, particularly to elderly persons and to those persons in need of psychiatric care. Were you ever handicapped during the time you were in charge of VA by the impounding or withholding of funds in that respect?
Mr. DRIVER. No, sir. I would say I might be temporarily inconvenienced. For example, if you take $20 million and impound in the medical care program that means you have low recruiting for nurses or some medical specialty at 150 or 160 locations where you have hospitals. Now, the way the thing works, the money is appropriated pretty late in the fiscal year, or anyway you get it several months after the year starts. By the time you get your money out, send the money out, and get a recruiting program going, and you have to tailor it to what you have got, that is minus the x million impounded; you probably never can catch up with that plan again, not in that fiscal vear, even if the money is made available later.
Senator ERVIN. I think perhaps you would agree with me that Congress has some criticism, and I will not say how much, for the fact that it acts slowly in making appropriations. Last year I think we made appropriations for one of them and it was vetoed after the expiration of the fiscal year.
Mr. DRIVER. This is a very disabling feature of the appropriations no question about it. The continuing authority to spend at the same level really means you do not have any new plan; you cannot make 'improvements in the way you do business. You are kind of slipping along with one hand tied behind you for those months that you haven't got it, and after you get it, I think you do such a hurry-up job getting it out, maybe you do not put your best foot forward. A lot could be done to improve that.
Professor MILLER. Would you care to specify how, sir?
Mr. DRIVER. I would suggest in areas that have a long history behind them, that money should be appropriated in other than a 1-year basis. I think that congressional oversight could be more effective; I think that administrative innovations could be far superior if money were appropriated in, say, 2-year intervals, rather than 1-year intervals. I think all areas do not qualify but certainly where they do, we should take advantage of this. This would be a good starting point. I do not know how you speed up the mechanism of Congress to hold hearings and get the appropriation business through so that moneys are available reasonably near the beginning of the fiscal year. This would be a tremendous advance if the hearings could be completed before the end of May for action in June, and this would be marvelous.
Senator ERVIN. Well, there is one thing I think could be done and the Senate has passed a bill several times to this effect, but the House would not take it for some reason or another—and that is to set up an adequate staff, joint staff, or a joint committee of the Senate and the House to collect information relevant to anticipated requests for appropriations thought to be necessary. The legislative branch tends to, or just has to get by, all of this information on these points from the Executive, and it has very little independent facilities for