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doing that. That is usually due to the fact that the legislative branch of the Government, while it certainly does appropriate a lot of money, it has not gotten along very well when it comes to enabling itself to operate in the field of appropriations.

Mr. DRIVER. Sometimes you are up for your supplementals by the time you get the original.

Senator Ervin. That is right; we have a Joint Committee on Taxation but we do not have a Joint Committee on Appropriations, or any adequate staff to study the matters related to appropriations. I think that is a prime need for the Congress.

Professor MILLER. Someone has said that it would be a good idea to cut out air conditioners.

Senator ERVIN. If the Constitution required air conditioning to be cut out in the Capitol and the Senate Office Building and the House Office Building, I would quit.

I thank you very much, Mr. Driver. Mr. DRIVER. Thank you, Senator.

Senator ERVIN. I will say the same thing to you that I said about Mr. Turner: From my experiences I had while you were head of the Veterans' Administration, you did an exceedingly fine job.

Mr. DRIVER. Thank you very much, sir. Senator ERVIN. The subcommittee will stand in recess until 10 a.m. tomorrow.

(Whereupon, at 4 p.m., the hearing was recessed to reconvene on Wednesday, Mar. 24, 1971, at 10 a.m.)

EXECUTIVE IMPOUNDMENT OF APPROPRIATED FUNDS

WEDNESDAY, MARCH 24, 1971

niversity Nolina; Prof. Asity; Prof. Lberkele

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin, Mathias, and Gurney.

Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Prof. Ralph K. Winter, Jr., Yale University Law School, consultant; Prof. Alexander M. Bickel, Yale University Law School and the Center for Advanced Study in the Behavioral Sciences, Stanford, Calif., consultant; Prof. Preble Stolz, University of California School of Law, Berkeley, Calif., visiting professor of law, Yale University; Prof. Loch K. Johnson, University of North Carolina ; Prof. Arthur S. Miller, The George Washington University National Law Center, consultant.

Senator ERVIN. The subcommittee will be in order.

Senator Mathias was unable to be here yesterday. The chair will recognize him now to make an opening statement.

Senator MATHIAS. Thank you very much, Mr. Chairman.

The investigative power of the Congress is its ultimate safeguardthe dependable lifeline to assure a proper balance between the authority and power of the three separate branches of government. Through investigation, exposure, and acknowledgement of problems, the Congress serves as the trustee of the public's conscience and the watchdog of constitutional intent.

Congress will never lose control over its constitutionally mandated responsibilities as long as we have men in Congress such as our distinguished chairman, who will perform the necessary, and as the Senator commented, sometimes dangerous watchdog function over this delicate balance. It is indeed appropriate that Senator Ervin be the chairman of the Separation of Power Subcommittee.

We are all grateful to you, Mr. Chairman, for your leadership.

Senator ERVIN. If I may interject, I am deeply grateful for your remarks and I certainly do appreciate the way that you have worked on this subcommittee in its most important work.

Senator Mathias. We have all seen in the area of foreign affairs how the Congress has not only ignored the dangers, but has actually watered and fertilized the beanstalk of growing executive authority. It is important to recognize the naivete of Congress which tolerated

every form of abuse of the rules so long as it was in substantial agreemen with the purpose. We must assure through hearings such as these that a similar acquiescence not be made in the area of domestic affairs. The power of the purse the power of Congress to determine the expenditure of public money, the money of America's taxpayers must be preserved if we are to preserve the fundamental balance between the legislative and executive branches.

What was tolerated in the foreign and military areas where facts were few, expertise limited and differences dangerous is not likely to be accepted at home even in an atmosphere of harmony. Let us make clear that Congress will not sit idle and watch its domestic authority slip away.

We are here addressing ourselves to the role of Congress and of the Executive in the spending of appropriated funds. The question goes to the very lifeline of our government. The Constitution clearly delegates sole authority to Congress to raise and expend money. But what is the role of the Executive in the context of its responsibility to execute the laws and its inherent duty to have an efficient, effective, and orderly government? The Executive must have some opportunity to fulfill its objectives, for as we know, it must suffer the political burden for any failure. These are fundamental questions—hard questions which must be answered, when we consider when and under what circumstances the Executive can play an independent role in the appropriation process.

Three separate classes of cases come to mind: A standard authorization and appropriation, a mandatory appropriation, and the appropriation of unrestricted funds for revenue sharing.” Illegal impoundment takes place when the Executive holds up-impoundsmoney the Congress clearly directed to be spent. If language is permissive not mandatory—where we give the President the discretion to impound or build reserves—we then cannot be surprised at the Executive for the exercise of that discretion. We are on notice from previous experience and could have acted differently to prevnt repetition.

We cannot allow, however, the President or the executive branch to have an informal line item veto of appropriated money which cannot be overridden by the Congress. This is in effect to impound declared congressional policy and threaten Congress' very existence. This is clearly in violation of the spirit and intent of our Constitution. There are certainly instances when in the name of efficiency of Keynesian management of the economy the executive branch would decline to spend certain appropriated moneys. It would just not make good business sense to do otherwise. But where efficiency ends and infringement begins is a very thin yet fundamental line.

Perhaps we should consider a formal line item veto with provisions for congressional review and authority to override the President's objections. Some consideration of this possibility would not be inappronriate to this hearing.

The practice of impoundment is not an exclusive characteristic of any administration. Executives of both parties have been guilty. Impoundment has become a tradition-an incidental benefit and power to the Executive within the mushrooming growth of the executive branch.

Impoundment affects us all. It affects the quality and integrity of Government as well as the implementation of the needed programs which have been specifically approved by Congress. In the State of Maryland, for example, recent Federal impoundment has caused harmful results in housing and education.

As we approach the concept of revenue sharing, it is particularly timely to inquire into the role of the Executive in the appropriation process. Billions upon billions of dollars, Mr. Chairman, may be passing through the executive branch on their way to the States. It is important that these hearings lay the ground rules for the participation of the executive branch. Revenue sharing cannot tolerate revenue impoundment. If Congress ever authorizes revenue sharing without this clear understanding with the Executive, it will have sounded, I think, its own death knell. If Congress delegates the power of the purse to a President by authorizing him to appropriate Federal revenues or withhold them at his sole discretion, then the purpose of Congress as an institution would have become obsolete. And, Mr. Chairman, I speak in this way as both a cosponsor and as a friend of revenue sharing.

Mr. Chairman, opposing points of view are being advanced as to the authority, right, and jurisdiction of both the Congress and the executive branch in the area of appropriations. I hope we do not make this mere academic exercise for it must be clearly understood that all rights must be qualified in the public interest. Also, I sincerely hope that this subcommittee makes strong legislative recommendation to remedy the problem. We must act now to preserve the balance of power.

Senator ERVIN. I want to commend you on this statement and say that I am delighted that one of our new members, Senator Gurney of Florida, is with us here today.

Senator, we will be glad to hear any statement you wish to make at this time.

Senator GURNEY. I do not have one at this time. Senator ERVIN. We are glad to have you with us. Senator GURNEY. I am delighted to be here. Senator ERVIN. The counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, we are delighted to have with us Mr. Caspar Weinberger, Deputy Director of the Office of Management and Budget. He will introduce the gentleman with him.

STATEMENT OF CASPAR W. WEINBERGER, DEPUTY DIRECTOR,

OFFICE OF MANAGEMENT AND BUDGET; ACCOMPANIED BY SAMUEL M, COHN, ASSISTANT DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET (BUDGET REVIEW)

Mr. WEINBERGER. Mr. Chairman, Samuel Cohn, Assistant Director of the Office of Management and Budget in charge of our Budget Review Divisions, is accompanying me here this morning. We will have a short statement to present to the subcommittee if you would like to hear it at this time.

Senator MATHIAS (presiding). We are very happy that you could be with us this morning. We would like very much to have your statement.

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