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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 outrageous, 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 year, 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 doneand 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

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

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 (91)

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