number, and one delegate at large. In contrast, the Ervin bill provides that the convention shall be composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress, one delegate from each congressional district and two delegates at large being elected from each State.

The Hathaway bill would prohibit Members of Congress from serving as delegates to the convention. It also provides that the convention would be conducted in accordance with the rules of the House of Representatives, not rules adopted by the convention, and that the convention would terminate its proceedings in 6 months, rather than 1 year as provided in the Ervin bill.

As the Subcommittee has stated in previous reports, it continues to hold the view that the enactment of Federal Constitutional Convention Procedures legislation is necessary; that it would fill a serious gap in the law, and may avert a constitutional crisis that could occur if a constitutional convention were to be called by the States without any provision having been made for the conduct of a convention, the method of selecting delegates, the time and place of meeting, convention rules, the method of adoption and ratifications of amendments, and other necessary and orderly procedures.

CONGRESSIONAL OVERSIGHT OF ADMINISTRATIVE AGENCIES

(THE COST OF LIVING COUNCIL)

As a part of the continuing study of the principle of separation of powers as it relates to the operations of administrative agencies, the Subcommittee undertook an examination of the Cost of Living Council.

Early in 1973, Senator Charles McC. Mathias, Jr., the Ranking Minority Member of the Subcommittee, proposed that the Subcommittee examine the conduct of the Cost of Living Council, which had been created by Executive Order in 1971 under authority of the Economic Stabilization Act of 1970, as amended, to determine whether it was complying with the legal duties imposed on it by law. The Subcommittee believed that this was an appropriate subject for investigation because of the Subcommittee's concern with the operation of Federal agencies which exercise executive, rulemaking, and adjudicative powers and because of the existence of such powers in the Cost of Living Council and the unprecedented reach of that agency into all aspects of the Nation's economic structure.

Consequently, hearings on Congressional Oversight of Administrative Agencies (Cost of Living Council) were held on October 9 and 10, 1973. Eight witnesses testified, including the General Counsel of the Cost of Living Council, labor experts, lawyers, academicians, and representatives of business and consumer groups. In addition to oral testimony, written statements by institutions, private industry, and organizations concerned with wage and price controls were submitted to the Subcommittee and were included in the hearing record. Statements were received from trade associations representing hospitals, nursing homes, builders, contractors, gasoline retailers, manufacturers, wholesalers, distributors, department stores, and others.

1 Executive Order No. 11615, August 17, 1971, 36 F.R. 15727.

Although not desiring to enter into the existing wide-spread controversies over economic theories relating to wage and price controls or the day-to-day functions of the Cost of Living Council, the Subcommittee considered that the investigation undertaken came within its mandate and was in keeping with a tradition of past hearings conducted to consider the role of the independent administrative and regulatory agencies.

Chairman Ervin, commenting on administrative agencies at an earlier hearing, made the following observation:

The independent administrative agencies now constitute a fourth branch of the Federal Government -some have described them as the "headless fourth branch." In a relatively short time, they have come to have responsibility over major areas of public interest--transportation, public relations, communications, trade regulations, and finance, to mention only a few.

Further, the administrative agencies are an innovation in the tripartite system conceived by the Founding Fathers ***. They exercise a combination of legislative, executive, and judicial powers, and so represent a major deviation from the separation of powers formula ***1

In a statement on the Senate floor on September 28, 1973, Senator Mathias said:

The Economic Stabilization Program is one which grants enormous power to a small group of men whose decisions can make or break any business in America. These men can have this impact even by their failure to decide. They are subject to unclear and uncertain statutory standards in the procedures they must follow and hence can wield their enormous power without effective hearings, without explanations, and with only a limited right of appeal. This is executive discretion in the extreme.

Many witnesses at the hearings complained that the multiplicity and complexity of the regulations and of the council's instructions made it difficult or impossible for a firm to know whether or not it was in compliance with the regulations, that at times rules were made without notice; that affected firms had difficulty in obtaining adequate explanation of how determinations had been arrived at; and that there was inadequate access to the council's procedures.

The hearings were published in two parts, volume 1 containing the testimony and statements received, and volume 2, an Appendix, containing Economic Stabilization Program regulations. The publication of the latter volume was, in large part, the result of demands from business, industry, and the public for information and clarification of the Cost of Living Council's requirements and procedures.

The role of the Internal Revenue Service in the operation of the program was explained in the published exhibit. That role had been greatly expanded under phase IV of the program, and included responsibility for screening, analyzing, and investigating filings, decisions on proposed price increases, and enforcement of the regulations of the Economic Stabilization Program.

Hearings of the Subcommittee on Separation of Powers, Congressional Oversight of Administrative Agencies (National Labor Relations Board), March 26, 1968, volume 1, page 1.

Although the Wage-Price Program had been characterized from the beginning as temporary, it was in its third year at the time of the Subcommittee's hearings. In his September 28 statement, Senator Mathias voiced concern over the continuation of the program: “I can appreciate that under emergency circumstances and on a temporary basis, the Congress has been traditionally more willing to forego limitations on Executive authority", he said, "but, if, as it appears, the Wage-Price Program is to be with us for a prolonged period of time, I think it is vitally important that we now examine the manner in which the program is operating with a view toward learning whether limitations or guidelines might be proper."

As it developed, the Wage and Price Controls were allowed to expire and the Cost of Living Council ceased to function on April 30, 1974. This occurred among a clamor of "hurrahs" by those who desired the controls removed, on the one hand, and on the other, predictions of runaway inflation and "leap-frogging" of wages and prices, by advocates of extension of controls.

As a result of these hearings, Senator Mathias developed a set of procedural requirements for the Cost of Living Council. These were adopted by the Senate in the form of an amendment, co-sponsored by Senator Ervin, to the Economic Stabilization Act, which the Senate then refused to extend.

Because of the similarities between the Economic Stabilization Program and the proposed Federal Energy programs, Senators Mathias and Ervin offered a similar set of procedural requirements for the Federal Energy Office, which were enacted into law.

CONTINUING STUDIES AND INVESTIGATIONS

Other investigations were continued or commenced, on the following subjects:

EXECUTIVE AGREEMENTS

The Subcommittee continued its active interest in obtaining the passage of legislation to strengthen congressional oversight of Executive Agreements.

The Constitution of the United States established a system of shared powers between the legislative and executive branches of the United States Government in the making of international agreements. Many Executive agreements, of course, are made pursuant to existing statutes or treaties. However, the Subcommittee questioned, on constitutional grounds, the assertions of Presidential prerogative to make commitments to foreign countries by Executive agreement alone, absent constitutional or statutory authority. The treaty is the only kind of international agreement mentioned in the Constitution.

When international agreements are made without congressional debate and oversight, the ordinary citizen and even Members of Congress, may not be informed of these commitments, even though these agreements may have the most profound effect upon the country. The Senate Foreign Relations Committee said in a report, "As the committee has discovered, there have been numerous agreements contracted with foreign governments in recent years, particularly agreements of a military nature, which remain wholly unknown to Congress and to the people."

1

1 Senate Report No. 92-591, 92d Cong. 2d sess. 3 (1972).

The Chairman's bill (S. 1472) of the 93d Congress, introduced on April 5, 1973, which is designed to restore the legislative role in the making of foreign policy, is in a number of respects identical with his bill (S. 3475) of the 92d Congress which was the subject of the Subcommittee's hearings in April and May 1972, on Congressional Oversight of Executive Agreements.

Prior to the introduction of the bill, Senator Ervin addressed a letter to his colleagues in the Senate telling them of his intention to introduce a measure that would prevent the use of so-called Executive agreements as a substitute for treaties and inviting them to cosponsor the measure. In his letter, he warned, "If the trend toward use of Executive agreements to conduct foreign relations continues, then the Senate will no longer be able to give its advice and consent to important matters of national policy and commitments in foreign affairs. My effort to curtail the present use of Executive agreements to bypass the constitutional treaty-making power of the Senate is part of a larger effort of the Congress to restore the proper balance between the Executive and the Congress and to prevent further usurpation of the constitutional power of Congress." S. 1472 was cosponsored by 24 Senators.

The Chairman asked that his bill be referred, first, to the Committee on the Judiciary, in order that the Subcommittee on Separation of Powers would have a further opportunity to make a careful and definitive examination of the powers, duties, and prerogatives of the Executive and Legislative branches of the Government in the area of international agreements, and that after the Committee on the Judiciary had completed action on the measure, that it be referred to the Committee on Foreign Relations.

S. 1472 provides that:

The Secretary of State shall transmit each Executive agreement to Congress;

The President can impose an injunction of secrecy on any Executive agreement the disclosure of which he believes would be prejudicial to the national security;

The Congress may nullify Executive agreements, within 60 days, by concurrent resolution of both Houses of Congress. If not disapproved, the agreement would come into force.

The Subcommittee reported S. 1472 to the Committee on the Judiciary on July 17, 1973, where, at the time of the writing of this report, the bill is pending.

IMPOUNDMENT OF FUNDS

The Subcommittee continued its interest in the constitutional questions involved in the impoundment of appropriated funds by the Executive. Previous reports of the Subcommittee have described the pioneering efforts of the Subcommittee to investigate and halt this practice. The earliest agenda of the Subcommittee, adopted following the creation of the Subcommittee by the 89th Congress, in 1966, included as part of the long-range plans for the Subcommittee's investigations, an item under the heading "Executive BranchRefusal to Execute Laws and Impounding of Funds."

Previous reports also have described the Subcommittee's hearings held in early 1971, in the 92d Congress, on Executive Impoundment of Appropriated Funds, and the second series of hearings held by the Subcommittee on Separation of Powers jointly with an Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations, in the 93d Congress, 1st session on Impoundment of Appropriated Funds by the President S. 373.

Early in 1973, Chairman Ervin requested the Comptroller General of the United States to submit his opinion on the legality of Executive impoundment of appropriated funds. In his letter to the Comptroller General the Chairman wrote:

The President has stated that he has the constitutional authority to impound funds appropriated by the Congress. I should like to request that the office of the Comptroller General of the United States issue an opinion as to the legality of such actions on the part of the Executive. Specifically, I should like an opinion on recent instances of Executive impoundment of funds, such as the impoundment of monies designated for Waste Treatment Grants to states and local governments under the auspices of the Environmental Protection Agency, the elimination of funding for the Rural Environmental Assistance Program (REAP), and the withholding of Highway trust funds.

The Comptroller General, the Honorable Elmer B. Staats, responded with a carefully prepared analysis of current impoundment practices, the possible historical basis or statutory authority for withholding funds, the responsibility of the executive branch, constitutional considerations, specific impoundment actions, and legislative history. The Subcommittee published the Comptroller General's opinion in a 43-page committee print entitled, "Comptroller General's Opinion of the Legality of Executive Impoundment of Appropriated Funds”, 93d Congress, 2d Session.1

The Impoundment Control Bills which Senator Ervin introduced in the 92d Congress (S. 2581) and in the 93d Congress, first session (S. 373) were referred to the Committee on Government Operations. Early in the second session of the 93d Congress, Senator Ervin introduced S. 3034, the Impoundment Prohibition Act of 1974. Provisions of the last named bill ultimately became a part of the Congressional Budget and Impoundment Control Act of 1974. In addition to restoring the authority of Congress in the budget process and setting up machinery for handling the Federal budget, this Act effectively provides controls on Executive impoundment of appropriated funds.

The Senate Committee on Government Operations and its staff deserve great credit for their work in perfecting the Impoundment Control Bill and in reporting it to the Senate, as do also the House committees and conferees who worked diligently for the passage of this legislation. To no lesser degree, the Subcommittee on Separation of Powers by its early and timely investigation of the abuses of the constitutional principle of separation of powers involved in the

Copies of the committee print containing the Comptroller General's opinion, at the time of this writing are available at the Subcommittee's office or the U.S. Government Printing Office.