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Russell, Mary and Spencer_Rich, "Hill Strikes At Budget on Three

Fronts”, The Washington Post, February 2, 1973..
Russell, Mary and David S. Broder, "Rural Aid Revival Is Voted House

Fights Nixon Freeze In 251-142 Test”, The Washington Post, Febru

ary 8, 1973... San Francisco Chronicle, “The Struggle Over Powers”, January 28,

1973. Sarro, Ronald, “Ervin Pressing For Stiffer Curbs On Impoundment”,

The Evening Star and Daily News, Washington, D.C., February 14,

Schlesinger, Arthur, Jr., “Law, Order and President Nixon: II”, Post-

Dispatch, St. Louis, Mo., October 31, 1972..
Scott, Austin, "Cutbacks Planned In Social Services”, The Washington

Post, February 12, 1973.
Sehlstedt, Albert, Jr., "Albert Joins Fund-Freeze Opponents”, The Sun,

Baltimore, Maryland, January 27, 1973-
Shandler, Philip, "Court Battle Readied To Save OEO Program”, The

Evening Star and Daily News, Washington, D.C., February 8, 1973.
Times-Dispatch, "Sen. Ervin Probes Congress' Conflict With Expanding

Role of the Presidency”, Richmond, Virginia, January 28, 1973.
Tomasson, Robert E., "Freeze on Funds Shatters a Dream in East Har-

lem”, The New York Times, Jan. 28, 1973. --
Wall Street Journal, “Business Bulletin: A Special Background Report on

Trends in Industry and Finance”, November 30, 1972
Washington Post, The:

Water Over the Budget,” October 22, 1972..
"Impounded U.S. Funds Challenged”, January 27, 1973-
"The Poor Potomac", January 29, 1973.
“Acknowledgeing the Status of OMB”, February 5, 1973-
"The Impoundment Battle", February 6, 1973.
"Hill Chairman Attacks OEO Dismantling", February 8, 1973.

“Mills Says President Can Impound Funds”, February 11, 1973.
WCBS-TV Editorial, Channel 2, New York, January 9, 1973..
Wicker, Tom:
"Impounding and Implying”, The New York Times, February 8,

1973. “Impounding and Implied Power”, The Evening Star and Daily

News, Washington, D.C., February 8, 1973.-
Winters, Bruce, The Sun, Baltimore, Md.:

“Democrats United on Budget”, January 31, 1973..
"Muskie Urges Challenge to 'Usurpation of Power", February 1,

"Ervin Hints at Subpoena; Top Aides Grow Available", February 2,

Wilson, Richard, "Spending Power Shift-A Radical Departure", The

Evening Star and Daily News, Washington, D.C., October 16, 1972.


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Washington, D.C. The subcommittees met, pursuant to notice, at 9:30 a.m., in room 3302, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding.

Present: Senators Ervin, Chiles, Burdick, Metcalf, Muskie, Gurney, Percy, and Javits.

Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief counsel and staff director, Walker F. Nolan, counsel; and Prof. Arthur S. Miller, staff consultant, Subcommittee on Separation of Powers; and George Patten, legislative assistant to Senator Chiles, chairman of the Ad Hoc Subcommittee on Impoundment of Funds.

Senator Ervin. The meeting will come to order.


Senator ERVIN. We have met today to hold hearings on S. 373, the bill which relates to the executive impoundment of appropriated funds.

This bill is referred to the Government Operations Committee. The Judiciary Subcommittee on Separation of Powers is sitting with the Ad Hoc Subcommittee on Impoundment of Funds of the Government Operations Committee, chaired by Senator Chiles, to assist in hearings because the subcommittee conducted hearings on this same subject some time ago and is familiar with the subject.

This bill is, in my judgment, a very important bill because it raises the question of whether the Congress of the United States will remain a viable institution or whether the current trend toward the executive use of legislative power is to continue unabated until we have arrived at a presidential form of government.

As I have said many times during hearings conducted by the Separation of Powers Subcommittee on various subjects, the executive branch has been able to seize power so brazenly only because the Congress has lacked the courage and foresight to maintain its constitutional position. The Congress has failed as an institution to equip itself physically to carry out its legislative duties independent of the executive branch, much less to perform its important function of over


seeing the activities of the executive branch in administering the programs it has enacted. Moreover, as individuals, too many of us have found it more comfortable to have someone else—the President—make the hard decisions and relieve us of responsibility. Too often, I fear, there have been those among our ranks in the legislature who would rather receive a social invitation to the White House than display loyalty to the governmental institution to which they were elected. The time has come when something must be done to restore the Congress to its rightful role, or our representative system of government cannot survive.

The bill we are considering today, S. 373, which is cosponsored by over 50 members of the Senate, is the outgrowth of hearings conducted in March 1971 by the Separation of Powers Subcommittee on the constitutional issues raised by the practice of Executive impoundment of appropriated funds. Testimony and materials adduced at those hearings revealed that over $12 billion in appropriated funds were then being impounded by the President. Since that time, President Nixon has asserted that he will keep Federal spending within a $250 billion ceiling by impounding funds appropriated above that limit. Already we have seen the termination of several agricultural programs, including the rural environmental assistance program and emergency disaster loans to farmers, and we are all aware of the President's recent action in cutting $6 billion in funds for water pollution control which the Congress has authoriezd over the Chief Executive's veto. More than likely the list of illegally impounded and terminated programs will grow, unless Congress stops it.

Another recent and particularly flagrant impoundment action, which flies directly in the face of expressed congressional intent, is the withholding of more than $5 billion in the Highway Trust Fund. This issue was litigated in Missouri Highway Commission v. Volpe. (347 F. Supp. 951) where the U.S. District Court on June 19, 1972, held that the Secretary of Transportation and the Director of the Office of Management and Budget do not have discretion, under the FederalAid Highway Act of 1956 as amended, to impound Highway Trust Fund moneys except for reasons set forth in the act. The district court decision was appealed to the U.S. Court of Appeals for the Eighth Circuit, and on January 2 of this year 22 other Senators joined me in filing an amicus curiae brief in the case. The appeals court heard oral argument on January 10, 1973, but has not yet rendered its decision.

Yet even now, while the President continues his efforts to negate the programs created and funded by Congress in accordance with its constitutional responsibility, the record will show that during the first 4 years of his administration, President Nixon urged Congress to appropriate $20 billion more than Congress was willing to authorize.

Reserving of appropriated funds is not a new concept, and when undertaken pursuant to congressional dictate it may be quite useful in effecting economy. Unfortunately, however, impoundment most frequently occurs under circumstances where the executive branch, for reasons of its own, desires to avoid expending funds which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation-of-powers doctrine.

Perhaps even more disturbing is the fact that the impoundment practice enables the President to effect an item or line veto. Such a power clearly is prohibited by the Constitution, which empowers the President to veto entire bills only. By impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy-a power reserved exclusively to the Congress. Such an illegal exercise of the power of his office violates clear constitutional provisions.

Neither I nor my many colleagues who are cosponsoring this bill desire that the executive branch expend the taxpayers' money foolishly. Indeed, I always have been in favor of a balanced Federal budget, as have numerous of my colleagues. Nor is this a partisan problem, for impoundment has occurred under Democratic and Republican administrations; it is as objectionable under one as under the other. Our concern is with maintaining the constitutional role of the Congress and not with t. 2 performance of either political party.

In my capacity as chairman of the Subcommittee on Separation of Powers, I have come to realize that the Congress cannot long survive as a viable institution if it does not develop the capacity to gather, retrieve, and analyze budgetary data and to exert control over the budgetary powers. The power of the purse is one of the most basic powers of the legislative branch, and if it is not exercised in a decisive and fiscally responsible manner, the Congress itself may rightfully be accused of abrogating its role under the separation of powers doctrine.

While I feel that the Congress has indeed been a spendthrift on occasion, I do not believe that the President's impoundment of the amounts appropriated constitutes a cure for our Nation's fiscal and economic woes. Impoundment does not save anybody any money, nor does it lead to lower taxes. It merely provides a means whereby the White House can give effect to the social goals of its own choosing by reallocating national resources in contravention of congressional dictates.

Congress is constitutionally obligated to make legislative policy, and is accountable to the citizens for carrying out that obligation. The impoundment practice seriously interferes with the successful execution of that role and places Congress in the paradoxical and belittling position of having to lobby the Executive to carry out the laws it has passed.

The bill we have under consideration will give the Congress an opportunity to review its choice of priorities and rearrange them if changed conditions make such action desirable. But it will insure that any rearrangement will be effected by the Congress and not by the President, who has no legislative power under our Constitution.

The impoundment control bill actually is rather simple. It requires the President to notify each House of the Congress by special message of every instance in which he impounds or authorizes an impoundment by any officer of the United States. Each special message must specify, first, the amount of the funds impounded; second, the date on which funds were ordered to be impounded; third, the date the funds were impounded; fourth, any account, department, or establishment of the Government to which the impounded funds would have been available for obligation except for the impoundment; fifth, the period of time during which the funds are to be impounded; sixth, the reasons for the impoundment; and seventh, the estimated fiscal, economic and budgetary effects of the impoundment.

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The reporting provisions of the bill are identical to those of Senator Humphrey's amendment to the Debt Ceiling Act of 1972.

The bill further provides that the President shall cease the impounding of funds specified in each special message unless the Congress approves the impoundment within 60 calendar

days of continuous session after the message is received.

The intent of the bill is to preclude any form of impounding, withholding, delaying expenditure or obligation of funds, or the termination of authorized projects or activities unless such action is specifically mandated by Congress, and to that end it defines “impounding of funds" in such a way as to foreclose the use of semantic strategems.

This measure is the first of a series of proposals I intend to submit to the Congress to help it restore itself to its intended role under our Constitution. The Subcommittee on Separation of Powers and Committee on Government Operations plans to engage in sustained efforts to restore the proper balance of power between the executive and legislative branches of our Government, including further investigations of such practices as abuses of the pocket veto power, the invocation of executive privilege, the widespread use of executive agreements to circumvent the treatymaking provisions of the Constitution, and numerous other manifestations of the existence of legislative power by the executive branch of the Government.

I hope that the hearings we begin today will alert the Congress and the American people to the constitutional crisis that we face and to the urgent necessity that some redress be found if our form of government is to survive.

(Senator Ervin's introductory remarks in the Senate, the bill, and other pertinent material from the Congressional Record of Jan. 16, 1973, follow :)



Mr. Ervin, Mr. President, on behalf of 45 other Senators and myself, I introduce for appropriate reference a bill to protect the legislative function by requiring the President to notify the Congress whenever he impounds or terminates or authorizes the impounding or termination, of a Federal program, and to provide that the President shall cease such impounding at the expiration of 60 calendar days unless the Congress shall approve his action by concurrent resolution.

The bill also establishes a procedure whereby the Senate and House of Representatives can approve each impoundment reported by the President-an action which would be required in order for the impoundment to continue beyond 60 calendar days after it is reported to the Congress.

Mr. President, this bill is very similar to a bill (S. 2581) I introduced during the 92d Congress, on September 27, 1971. I believe the new bill is an improvement over the earlier version.

Within a few weeks, the Judiciary Subcommittee on Separation of Powers, of which I am honored to serve as chairman, will conduct hearings on this bill, in conjunction with an ad hoc subcommittee of the Committee on Government Operations. I sincerely hope that the bill can be ready for consideration by the Senate before the heat of summer has beset the Nation's Capital.

The impoundment control bill is the outgrowth of hearings conducted in March 1971, by the Subcommittee on Separation of Powers, on the constitutional issues raised by the practice of Executive impoundment of appropriated

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