[From the Washington Post, Feb. 11, 1973]

MILLS SAYS PRESIDENT CAN IMPOUND FUNDS

LITTLE ROCK, Ark., Feb. 10 (UPI)—Rep. Wilbur D. Mills (D-Ark.) says President Nixon has a constitutional right to impound federal funds, but he told the Arkansas legislature that setting spending priorities was up to Congress.

"And when a President says, 'Even though you may pass a program involving a priority over my veto, I still don't intend to spend the money,' I think that most any court sitting in Washington in the name of the Supreme Court of the United States would say he had no such constitutional authority," Mills said Friday.

The Arkansas congressman, chairman of the tax-writing House Ways and Means Committee, said he favored spending cuts, too, but that his priorities would be different from President Nixon's.

"Economizing without compassion would be the cruelist tyranny of all." he

said.

He advised the legislators, who met in a special joint session for the speech, to be cautious in budgeting any of the funds impounded by Mr. Nixon, although he said Congress might be able to change some of the budget cuts, especially in the areas of health and education.

"I would be very conservative in expecting to get much of this money," said Mills.

He said Congress would probably make some budget cuts of its own in the Defense Department.

"I think the Congress is going to take his [President Nixon's] word that this war is over and not spend six or seven billion dollars," he said “I think about 10 or 12 billion could be cut out and not get into the muscle of the defense budget.” Mills also said he thought the United States' aid to North Vietnam to help repair some of the bomb damage would be "an awful bitter pill for Congress to digest."

"I just don't like to give a bunch of fellows I can't describe as anything other than murderers and hoodlums money out of the federal treasury," he said.

WCBS-TV EDITORIAL, CHANNEL 2, N.Y., JANUARY 9, 1973

Every school child knows how the American system of checks and balances and separation of powers enshrined in our Constitution is supposed to work. Congress makes laws and the President executes them. If a president opposes a bill, he can veto it. But the Congress can override his veto by a two-thirds vote. Then the bill becomes the law of the land and the President has to execute it. Simple, right? Well, not always. Presidents have from time to time decided not to do the will of the people's representatives. They have refused to spend money authorized and appropriated by Congress in flagrant disregard of Congress' constitutional prerogatives. For under the Constitution, the power of the purse belongs exclusively to the legislative branch.

Presidents in the past have stopped action on one or two controversial appropriations as Harry Truman did in 1949, but President Nixon has gone much further. He has already refused to spend $6 billion appropriated for water purification. He virtually cancelled a 12-year-old program for environmental protection of rural areas; and he has held back funds for other programs as well.

President Nixon says he is doing this to fight inflation. And Congress needs to do some soul-searching in this regard. For congressional budgetary procedures are hopelessly inadequate. Congress votes on programs piecemeal, without a view of the whole. Often there is little correlation between the money Congress raises and the money it spends.

But the fundamental issue here is not congressional reform, as needed as that may be. The fundamental issue-one that goes to the heart of the American system is that one branch of government should not be allowed to usurp the powers of another. It is with this in mind that 14 senators have drawn the lines of battle. They have taken President Nixon to court to force him to release $80 million in impounded highway funds for Missouri. Democratic Sen. Sam Ervin of North Carolina has also drafted legislation that would forbid the President to impound congressionally appropriated funds, and the Senate Judiciary Committee is planning to hold hearings on this legislation next month.

We think that the separation of powers is worth protecting-and that Congress' constitutional authority over spending must be preserved. It's not the money. It's the principle.

[From the New York Times, Feb. 8, 1973]

IMPOUNDING AND IMPLYING

(By Tom Wicker)

In the political and constitutional struggle now developing between Congress and President Nixon on the question of his right to refuse to spend appropriated funds, the danger is that the President is largely right on the issue and may therefore seem to be right on the principle.

The issue is not to be downgraded. Holding down prices and taxes is one of Mr. Nixon's aims in reducing the rise in Federal spending; there may be other ways to achieve that aim but few will dispute its importance. Ridding the Federal budget of outmoded, unnecessary and ineffective programs is useful in itself-although there is ample room for argument over Mr. Nixon's specific decisions.

Mr. Nixon is right, moreover, in contending that Congress has no functioning machinery, and has never displayed the will power or political courage, to set and keep an economically sensible spending ceiling-much less to balance spending priorities within such an over-all limit. The process of setting up such Congressional machinery is only beginning, and the outcome is much in doubt.

Congress, moreover, has often been the offender rather than the offended. If, for example, a President were impounding money appropriated to double the size of the Air Force or build a full-scale A.B.M. system, some now criticizing Mr. Nixon would be backing him to the hilt. In fact, Congressional excess on military spending in past years was a major reason why Presidential impoundments came to be more frequent.

It is one thing, however, for a President to act essentially defensively against a specific Congressional policy he thinks unwise, particularly in the case of an item appropriation he could not veto without vetoing an entire appropriations bill-and even in that limited case his constitutional authority seems never to have been fully tested. It is quite another thing for a President to use the impoundment of appropriated funds offensively or aggressively-as Mr. Nixon now is doing to change the whole direction of government and to nullify legally legislated policies without resort to accepted constitutional practice.

Agriculture Secretary Butz, for example, has announced that all appropriated funds for the rural environmental assistance program have been impounded and the program terminated. He and Mr. Nixon no doubt have what they consider good reasons to kill this program; but accepted practice heretofore would have been for Mr. Nixon to ask Congress to repeal it, or to appropriate no more funds. Has he the right, not before claimed, to end by executive fiat a legislative policy, either because it would be more efficient to do it that way or because Congress might refuse to do as he recommended?

Well it may be asked why the Constitution's framers gave the President the veto power, and required a two-thirds vote in each house to override it (giving the executive a substantial and definable share of the legislative power), if they also intended, without saying, that he have the power to nullify acts of Congress for his own reasons, whether or not he had previously vetoed them, whether or not the veto was overriden.

The Administration seems to be arguing that the impoundment power is implied in the President's duty to “take care that the laws be faithfully executed”— a strange claim from a "strict constructionist" President. In political fact, however, Mr. Nixon is resting his case on public necessity, which is no doubt considerable, but which is also a dangerous doctrine to invoke in constitutional matters. At his recent news conference, for example, Mr. Nixon said he had an “absolutely clear" constitutional right to impound appropriated funds when their expenditure would cause a rise in prices or taxes. Whether the right is all that clear is questioned by many; but if it exists it can't be ascribed to a nonexistent constitutional duty falling on the President to hold down either prices or taxes. This is a momentary public necessity which is being adduced to justify an expansion of the President's constitutional limits.

Again, in the case of the water pollution control act, Mr. Nixon refused to allocate to the states $6 billion authorized by Congress. Ronald Ziegler and the budget bureau have pointed out that funds to meet the authorization have not been appropriated, hence have not technically been impounded. But what has happened goes beyond impoundment because, having vetoed the original bill and

lost, Mr. Nixon still had the chance to fight in Congress against the actual appropriation of funds this year.

Fearing he would lose again, Mr. Nixon refused even to allocate the authorization among the states, although doing so would not have involved spending a dime, and he would later have had the opportunity to reduce or refuse state requests for any funds that might ultimately be appropriated. That is how an "implied" power to impound funds can become the "implied" power to set aside legislative enactment, in effect overriding Congress' overriding of the veto. It is the same insidious process by which implied powers produced the imperial Presidency in foreign affairs, and now work toward the monarchical President at home.

[From the Evening Star and Daily News, Washington, D.C., Feb. 8, 1973]
IMPOUNDING AND IMPLIED POWER

(By Tom Wicker)

In the political and constitutional struggle now developing between Congress and President Nixon on the question of his right to refuse to spend appropriated funds, the danger is that the President is largely right on the issue and may therefore seem to be right on the principle.

The issue is not to be downgraded. Holding down prices and taxes is one of Nixon's aims in reducing the rise in federal spending; there may be other ways to achieve that aim but few will dispute its importance. Ridding the federal budget of outmoded, unnecessary and ineffective programs is useful in itself—although there is ample room for argument over Nixon's specific decisions.

Nixon is right, moreover, in contending that Congress has no functioning machinery, and has never displayed the will power or political courage, to set and keep an economically sensible spending ceiling-much less to balance spending priorities within such an over-all limit. Presidents have been doing the budgetary job mostly from necessity, not in an egregious usurpation of congressional power.

Congress, moreover, has often been the offender rather than the offended. If, for example, a president were impounding money appropriated to double the size of the Air Force or build a full-scale ABM system, some now criticizing Nixon would be backing him to the hilt. In fact, congressional excess on military spending in past years was a major reason why presidential impoundments came to be more frequent.

It is one thing, however, for a president to act essentially defensively against a specific congressional policy he thinks unwise, particularly in the case of an item appropriation he could not veto without vetoing an entire appropriations bill-and even in that limited case his constitutional authority seems never to have been fully tested. It is quite another thing for a president to use the impoundment of appropriated funds offensively or aggressively-as Nixon now is doing to change the whole direction of government and to nullify legally legislated policies without resort to accepted constitutional practice.

Agriculture Secretary Butz, for example, has announced that all appropriated funds for the Rural Environmental Assistance Program have been impounded and the program terminated. He and Nixon no doubt have what they consider good reasons to kill this program; but accepted practice heretofore would have been for Nixon to ask Congress to repeal it, or to appropriate no more funds. Has he the right, not before claimed, to end by executive fiat a legislative policy, either because it would be more efficient to do it that way or because Congress might refuse to do as he recommended?

Well it may be asked why the Constitution's framers gave the President the veto power, and required a two-thirds vote in each house to override it (giving the executive a substantial and definable share of the legislative power), if they also intended, without saying, that he have the power to nullify acts of Congress for his own reasons, whether or not he had previously vetoed them, whether or not the veto was overridden.

The administration seems to be arguing that the impoundment power is implied in the President's duty to "take care that the laws be faithfully executed"— a strange claim from a "strict constructionist" President. In political fact, however, Nixon is resting his case on public necessity, which is no doubt considerable, but which is also a dangerous doctrine to invoke in constitutional matters.

At a recent news conference, for example, Nixon said he had an "absolutely clear" constitutional right to impound appropriated funds when their expenditure would cause a rise in prices or taxes. Whether the right is all that clear is questioned by many; but if it exists it can't be ascribed to a nonexistent constitutional duty falling on the president to hold down either prices or taxes. This is a momentary public necessity which is being adduced to justify an expansion of the President's constitutional limits.

[From the Sun, Baltimore, Md., Jan. 31, 1973]

DEMOCRATS UNITE ON BUDGET

(By Bruce Winters)

WASHINGTON.-Democratic leaders of Congress generally agreed yesterday to stay within President Nixon's $268.7 billion spending limit next year, but they pledged a fight to reorder his priorities.

Senator Mike Mansfield of Montana, the Senate's majority leader, reported this "consensus" after a breakfast meeting yesterday in which he participated with Representatives Carl Albert of Oklahoma, the Speaker of the House; Representative Thomas P. O'Neill, Jr., of Massachusetts, the majority leader, and Representative John J. McFall of California, the Democratic whip.

STIFFENING RESOLVE

The meeting represented a rare display of partisan unity, reflecting a stiffening resolve among congressional Democrats to challenge the President fiscally and philosophically within the framework of his new budget proposals.

Symbolically, the meeting yesterday, which will be followed by another in a month, was held in the private dining room known as "the board of education” when Sam Rayburn, the late speaker, and Lyndon B. Johnson, then Senate majority leader, met regularly to plot Democratic strategy.

According to Mr. Mansfield, the conferees yesterday also tentatively adopted an agenda of "must" legislation and an order of priority for handling it as laid out by the Senate leader earlier this month.

WANT 12 BILLS PASSED

Of utmost urgent concern will be attempted repassage of 12 bills vetoed by President Nixon, to be followed by support of other pieces of legislation that passed one or the other house last year.

Following this will be action on proposals dealing with housing, consumer protection, no-fault insurance, pension reform, health insurance, strip mining, and crime control.

"The general consensus agreed to stay within the limit laid down by President Nixon," Mr. Mansfield said. "But we'll do our best to change the order of priorities."

He said the leaders did not discuss specifics, talking instead in broad terms and creating the atmosphere for continuing bicameral contacts. Detailed plans will be worked out in the Democratic caucuses of each house.

Although he did not discuss it with his peers, Mr. Mansfield said he personally believed significant cuts could be made in proposals for defense, space, foreign aid and atomic development, with the savings diverted to more pressing social needs.

In related affairs, Senate Republicans, meeting yesterday for their regular weekly policy luncheon, decided to postpone for at least a week any endorsement of the $268.7 billion ceiling for the government's next business year-an ironic delay in view of the Democratic leaders breakfast decision to live within it.

Senator Morris Cotton of New Hampshire, the chairman of the GOP conference, said the group decided it had not fully digested the budget details and "could give more meaningful support to the President if it appeared we weren't shooting from the hip."

HEARINGS ON SPENDING

Both Mr. Cotton and Senator John G. Tower of Texas, the chairman of the Republican Policy Committee, said the minority was not overly concerned with the idea that President Nixon was abusing his authority by not spending money appropriated by Congress.

Many congressmen believe that issue brings the executive and legislative branches into direct confrontation.

A Senate subcommittee, in fact, began hearings on the subject yesterday, with a warning from Senator Sam J. Ervin, Jr. (D., N.C.), a respected constitutional specialist, that a major legal crisis was already at hand.

"By impounding appropriated funds," Mr. Ervin said, "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," he said.

But Mr. Ervin and others, including Ralph Nader, who also testified yesterday, blamed congressional sloth and inefficiency as much as anything else for the executive branch's newly found power.

Mr. Nader, for example, noted that President Nixon, "building in his predecessors' precedents, has developed a 'do-it-yourself' Congress right inside the White House complex."

Senator Hubert H. Humphrey (D., Minn.), deploring the shrinking role of Congress in the budget-making process, said Congress must create an office of budget analysis and program evaluation, with computers and adequate technical staff, to assist congressmen in reviewing the President's proposals.

Pounding on the bulky budget book on the witness table before him. Mr. Humphrey complained that its thoroughness put Congress "on the defensive from day one."

But with adequate resources for budget review, Congress "could be in on the take offs and not just the crash landings," Mr. Humphrey said.

[From the Sun, Baltimore, Md., Feb. 1, 1973]

MUSKIE URGES CHALLENGE TO 'USURPATION' OF POWER

(By Bruce Winters)

WASHINGTON.-Senator Edmund S. Muskie warned yesterday that congressmen will become "caricatures of legislators" if they continued permitting President Nixon to impound money they appropriate for specific projects.

The Maine Democrat, testifying before a Senate subcommittee studying the constitutionality of such impounding, also challenged what he called Mr. Nixon's "whole public relations approach" to the government's financial processes.

For example, he charged that impounding did not really save the taxpayers money but merely shifted the burdens for providing governmental services to state and local treasuries.

"Self-reliance doesn't build schools," Mr. Muskie said. "Taxes do and it is a fraud and a delusion for the President to suggest otherwise."

In even angrier terms, Representative Carl Albert (D., Okla.), the speaker of the House, said that "no series of acts strikes more directly at the Congress' fundamental power over the purse than the usurpation of power by the President's impoundment of appropriated funds."

In a speech prepared for delivery at a party here celebrating the 50th anniversary of Time, Inc., Mr. Albert added, "The President has interpreted his re-election as a mandate to strike down the domestic programs passed by Congress over the past 30 years."

The twin themes struck by Mr. Albert have become a rallying point for congressional Democrats, bringing members of the House and Senate leadership in closer concert than they have been for years.

Precedents cited by President Nixon for impounding funds have now been stretched, Mr. Muskie said “to condone a usurpation of power based on the