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Dawes, who was the first Director of the Budget Bureau. I think it would be enlightening, though not an entirely happy experience, if the present budget people would read his book called "The First Year of the Budget." His interpretation of what the impoundment power involved is really quite clear. He did say, and he is the first one to have used the notion, that appropriations are not mandatory. All he meant by that was that if you could implement a program without spending the full appropriation, you did not have to spend all the money-period. Nothing more than that.

From Dawes time until 1950, the Budget Bureau and the President really adopted a very restrained view as to what their authority was to impound. In fact, the Budget Bureau in 1950 was very anxious to get statutory authority, because it was doubtful of its authority to impound even for the reasons that Dawes had cited. There had never been any statutory authority for those grounds, nor any for the extension that other Budget Bureau people felt was clearly legitimate, which was to impound in cases where conditions had changed so as to make a particular appropriation wasteful.

Now it is true the language is framed a little broadly in section 1211 of the General Appropriations Act of 1951. But if you read the legislative history and read the report that the Budget Bureau itself submitted, it is clear that the Budget Bureau did not think it was receiving and did not claim to have anything more than the power to save money where the purposes of a program could be effected for less cost, or where conditions in a specific instance had changed so that it would be wasteful to implement a particular project or program. It did not understand change of conditions generally so that it included any interpretation of change of conditions and justified any impoundment. Rather it understood it to mean change of condition with reference to a particular program to mean situations where something had happened in terms of a program, not inflation or anything general, but something specific in terms of a program that would make it wasteful to implement that program.

We come to the present day and we do not have this restrained attitude any more. In fact, we have a claim that the Executive has inherent power to impound. My question is rather a sharp one, but on the basis of the history, I think it is an appropriate one. It is simply, what has changed since the first 30 years? Why can the Budget Bureau now claim inherent power and a general inherent power to impound, after 170 years in which this has not been very clear at all? On what basis, then, can you assert that power?

Mr. WEINBERGER. Professor, I think you are overlooking the fact that an equally important part of the history is the administrative interpretation and administrative action under the statutes. The administrative history and administrative action under the statutes fully supports the views that we have expressed this morning.

Professor COOPER. If you want to tell me that practice is your primary justification, I think you are right on that score. I think the best case the Budget Bureau has for the current withholding is precedent, Congress having allowed you to get away with it over the last 10, 12, or 15 years.

Mr. WEINBERGER. I think there is much more to it than that, and I think the additional part is that it is simply impossible to operate the executive branch or to carry on the fiscal affairs of the United States in a way that is really required by the circumstances without this kind of discretionary authority.

Professor COOPER. I would just suggest that there should be some better balance made between the Executive's needs for flexibility and the Congress' right to protect its own prerogatives. The extent to which the Budget Bureau has pushed impoundment is immense. Thus, though I would agree that the Budget Bureau needs more flexibility than General Dawes perhaps thought they had, it is still true that the kind of flexibility and discretion that you have now, really does not adequately protect Congress' rights. So there is a great need to explore alternatives for readjusting the balance.

Senator GURNEY. Mr. Weinberger, again, the subcommittee appreciates your prompt furnishing of the information. I would like. this expanded, though, to indicate the specific projects. I do not see my friendly fish in here and I think it really might serve a useful purpose for the committee if you did break down these amounts and give us the specific amounts that have been impounded for various projects. Would you furnish that information for the subcommittee? Mr. WEINBERGER. All right, sir, we will try to break that down in more detail than was originally furnished.

Senator GURNEY. Also, I think it would be helpful to the subcommittee if you would include the appropriation language in each of the specific instances where impoundment funds are involved. Mr. WEINBERGER. The appropriation language?

Senator GURNEY. Yes.

Mr. WEINBERGER. All right, sir.

Mr. COHN. I am not so sure that is readily doable. Some of these funds were appropriated in prior years, some of them are a combination of several years. In highways, it is a combination resulting perhaps from 15 years of separate actions. That will take quite a long time to do.

Senator GURNEY. I see your point. At least let us have the breakdown and if you could give us some indication of the time frame, possibly we can have our own staff do this.

Mr. WEINBERGER. We can, I think, supply somewhat greater detail than in the list furnished last week or a couple of weeks ago, and we will certainly try to put that together. You would not want us, I am sure, to get into any kind of major effort paralleling the budget or anything of that kind.

Senator GURNEY. No.

Mr. WEINBERGER. But we can certainly go into somewhat greater detail than was contained on the initial first run that we sent up. (The following was subsequently furnished for the record:)

(The following tabulation lists amounts withheld from obligation in February 1971. On the left margin of the listing 1972 Budget Appendix pages are identified. The page numbers represent the first page of the Appendix on which appears information concerning the budget account under which amounts are withheld from obligation.)

AMOUNTS WITHHELD FROM OBLIGATION BY AGENCY AND ACCOUNT (FEBRUARY 1971)

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157

178

181

181

182

183

186

190

205

210

209

213

(Dollars in millions]

Funds appropriated to the President:

Appalachian regional development programs.

Military assistance: Foreign military credit sales..
Economic assistance:

Supporting assistance.

Prototype desalting plant1.

Development loans..

Foreign investment guarantee fund 2.

Inter-American Social Development Institute.

Economic opportunity program....

Peace Corps: Salaries and expenses..

Department of Agriculture:

Agriculture Research Service:

Salaries and expenses..

Other..

Food and Nutrition Service: Special milk program..

Foreign Agricultural Service:

Salaries and expenses (special foreign currency program).

Other..

Agricultural Stabilization and Conservation Service: Agricultural conservation program..
Rural Electrification Administration: Loans..

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Other Agriculture..

Department of Commerce:

Bureau of the Census: 19th decennial census.

Economic development assistance: Regional development programs..

Participation in U.S. expositions: Inter-American Cultural and Trade Center.

Maritime Administration: Operating-differential subsidies (appropriations to liquidate con-
tract authority)..

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Amount

$191

200

14

20

47

110

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114

24

AMOUNTS WITHHELD FROM OBLIGATION BY AGENCY AND ACCOUNT (FEBRUARY 1971)-Continued

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757

Federal Railroad Administration: Grants to the National Railroad Passenger Corporation...

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Plant and capital equipment.

803 Environmental Protection Agency: Operations, research and facilities..

809

811

813

835

840

General Services Administration:

Construction, public buildings projects..

Sites and expenses, public buildings projects.
Additional court facilities.

National Aeronautics and Space Administration:
Research and development.

Research and program management.

862 Veterans' Administration: Construction of State extended care facilities.

976 Atlantic-Pacific Interoceanic Canal Study Commission.

900 District of Columbia: Loans to the District of Columbia for capital outlay.

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12

18

2

1

1

81

112

148

10

1

12, 761

Prototype desalting activity was shown in the "Grants and other programs" account in the 1971 budget. Since a mutually acceptable technical plan for the desalting plant has not been worked out between the Israelis and our technicians, the funds are presently shown as unobligated funds in the "Grants and other programs" on appendix p. 81.

The "Housing investment guarantee fund" shown on appendix p. 90 is for housing guarantees that were formerly shown in the "Foreign investment guarantee fund" on appendix p. 88, 1971 budget. Other functions of this fund are now shown under "Overseas Private Investment Corporation" on appendix p 92.

a $500,000 or less.

Senator GURNEY. Do you have any comparison of impoundment figures of this administration and the previous administration?

Mr. WEINBERGER. Yes, sir. We have, for example, starting-well. the previous administration, you might say, started in 1964. There was 3.5 percent of the outlays withheld in 1964; 4.7 in 1965; 6.5 in 1966; 6.7 in 1967; 5.5 in 1968; 5.4 in 1969; 6.6 in 1970; 6.0 in 1971. These figures are from picking out a particular date and taking the total number of reservations at that time, with all of the warnings that I mentioned earlier about definitional problems.

Senator GURNEY. So as I gather from the figures there, this administration is pretty much following the practice of the previous one?

Mr. WEINBERGER. That is the point I tried to make earlier, yes. We are just about on the average.

Senator GURNEY. You quoted one senator in your testimony. Let me quote another senator here with a strong statement. This was made on the Senate floor:

Do we have a centralized control in this country? Do we no longer have a co-equal branch of government? I had the thought that we had a constitutional responsibility to raise an army; I had the thought that we had a responsibility to appropriate funds. I had the thought that once the Congress passed the appropriation bill and the President approved it and signed and said to the country that 'this has my approval' that the money would be used instead of sacked up and put down in the basement somewhere.

That Senator was Senator Lyndon Johnson of Texas. I guess it make a difference on which side of the Government you are.

Mr. WEINBERGER. The same transformation that affected Senator Truman.

Senator GURNEY. He changes his mind somewhere on the way to the White House.

Mr. WEINBERGER. I am almost tempted to read a letter received by the President from a member of the House Appropriations Committee last year, in which the President was urged to sign a bill and the sentence is used "There is no requirement in the bill, of course, compeling the release of these funds."

Senator GURNEY. On that note, the committee will stand recessed until 2 o'clock.

Mr. EDMISTEN. Senator Gurney, may I at the request of the chairman, submit these statements and letters for the record?

Senator GURNEY. Without objection, it is so ordered. (The letters and statements referred to follow :)

U.S. SENATE,

COMMITTEE ON AGRICULTURE AND FORESTRY, Washington, D.C., March 24, 1971. DEAR MR. CHAIRMAN: I was grateful for your notification that your Subcommittee is considering the issues involved in Executive impoundments of funds approved by the Congress. The practice raises fundamental constitutional questions, and it also raises great practical concerns in all parts of the country. I would very much appreciate having the enclosed statement made a part of your hearing record on this issue.

Many thanks for your consideration.

Sincerely yours,

HON. SAM J. ERVIN, JR.,

Chairman, Subcommittee on Separation of Powers,

Committee on Judiciary,

U.S. Senate, Washington, D.C.

GEORGE MCGOVERN.

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