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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 Vixon'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 budg. etary 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 reto 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"à 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.
(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 prede cessors' 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 an. niversary 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
proposition that only the faceless functionaries in the Office of Management and Budget have the wisdom to determine our national priorities."
He added : “But simply because we have permitted our power to be diluted by executive encroachment before does not lessen the injury now. Repetition does not make rape any less a criminal act. Only the failure to resist invites continuing assault."
At the same time yesterday, Mr. Muskie introduced legislation that would make public all the information submitted to the executive department by its agencies during the budget-making process.
"The secrecy which surrounds the preparation of the budget has become a shield behind which special influence operates with immunity," Mr. Muskie said. “Concealing the process only confuses the issues, encourages furtive deals and bewilders both citizens and lawmakers."
‘ABANDONED THE BABY" On the other hand, Senator William E. Brock 3d (R., Tenn.) told the subcommittee the President wasn't "guilty of kidnaping congressional authority.” Rather, he added, Congress "had abandoned the baby."
Mr. Brock said Congress had neither the staff, the technical resources nor, apparently, the will to adequately review the budget. In such circumstances, temporary impounding of money by a President was inevitable, perhaps even necessary.
“Congress as presently constituted, structured and inhabited is unable to evaluate national needs and priorities,” Senator Brock said.
Senator Sam J. Ervin, Jr. (D., N.C.), who has introduced legislation to trim the President's penchant for impoundment, agreed with Mr. Brock that Congress, in part, was to blame for creating a power vacuum into which the chief executive has moved.
But, he added, "It's as clear as a noon-day sun in a cloudless sky that the President doesn't have the constitutional power to impound."
Flashing some of the anger building on Capitol Hill over the issue, Mr. Ervin observed that "sometimes I think the President thinks the Congress shouldn't appropriate for anything that isn't set out in his budget.”
For his part, Mr. Muskie observed that impeachment of the President was one remedy open to a frustrated Congress. He explained later he was not suggesting Mr. Nixon's impeachment but describing the kind of "blunt instrument" a Congress with its back to the constitutional wall might be forced to use some day.
In a related move, the Senate's 55 Democrats, caucusing formally, ratified the leadership's decision Tuesday to meet monthly with their Democratic counterparts in the House. These sessions will focus on the development of joint strategy for dealing with President Nixon's budget proposals.
[From the Sun, Baltimore, Md., Feb. 2, 1973]
ERVIN HINTS AT SUBPOENA; TOP AIDES GROW AVAILABLE
(By Bruce Winters) WASHINGTON.—The threat of a subpoena yesterday brought a quick reversal from the Nixon administration and a promise that two of its top officials would be made available for questioning next week on Capitol Hill.
Both Earl L. Butz, the Secretary of Agriculture, and William D. Ruckelshaus, director of the Environmental Protection Agency, had earlier indicated they would not appear before a Senate subcommittee studying the legality of President Nixon's refusal to spend certain funds appropriated by Congress.
Learning of the planned snub. Senator Sam J. Ervin, Jr. (D., N.C.), before whose judiciary subcommittee they were to testify, announced that he was "giving consideration to the issuance of subpoenas,” but was hoping for a "little co-operation."
Within an hour he got it.
William E. Timmons, chief of White House liaison with Capitol Hill, personally assured Senator Ervin that both men would be available next Wednesday, and that in the future, similar problems would be as speedly worked out.
Somewhat wryly, Rufus Edmisten, the subcommittee's chief counsel, observed that, “It shows that when someone with clout like Ervin stands up to them. they'll come running."
ASH DEFENDS WITH HOLDING The administration's courtesy, however, did not extent to the testimony of Roy L. Ash, director of the powerful Office of Management and Budget, who told the Ervin subcommittee that restrictive legislation it was considering was wrong, and that President Nixon is within his rights to “reserve" certain spending in the name of fiscal prudence.
The impoundment question being examined by the subcommittee has become a major point of contention between Congress and the President, a dispute involving practical politics as well as the issue of constitutionality.
"The position of the executive branch is that upon consideration of all the applicable historical precedents, facts and statutes ... action in reserving funds from time to time is fully consistent with the President's constitutional duies," Mr. Ash said.
NOT A "SYLLABLE" Mr. Ervin, on the other hand, said he could not find "a syllable in the Constitution" supporting Mr. Nixon's view.
Mr. Ervin and Mr. Ash spent nearly 45 minutes feinting and weaving through constitutional complexities and the difficulties faced by the President in drafing a budget.
When the questioning finally got around to Senator Edmund S. Muskie (D., Maine), Mr. Ash pleaded he could spend only 10 minutes more with the subcommittee because of “a pressing engagement” at the White House.
Ruffled a bit at the imposed time limitation, Mr. Muskie asked the witness whether Congress should be given the same raw data from executive agencies that the President uses in creating his budget and its priorities. Mr. Muskie has sponsored a bill to that effect.
Mr. Ash hedged, saying the committees of Congress elicited their own budget information through hearings, a process Mr. Muskie labeled inadequate.
When Mr. Ash refused to be pinned down further, essentially repeating the same answer when the question was put another way, Mr. Muskie pounded the table.
"Don't give me that stuff,” he declared. “Do you think we're entitled to the information or not. I don't understand how you can sit in that chair and pay lip service to co-operation and say we can't get that information."
Holding his ground, Mr. Ash insisted he would recommend that President Nixon veto the Muskie bill if Congress enacted it.
Mr. Muskie shook his head. “Then I don't take in good faith your offer of co-operation,” he said.
The Maine Democrat reminded Mr. Ash that in the 1920's all budget requests came first to Congress and that the Bureau of the Budget—which preceded the agency Mr. Ash now heads—was created by Congress to help the legislative as well as the executive branch.
In his earlier dialogue with Senator Ervin, Mr. Ash stipulated that no law "explicitly” gave the President power to "impound” money, but the word “reserve" indeed could be found among the statues.
Mr. Ervin has sponsored legislation that would require the President to explain to Congress within 60 days his reasons for making a specific impoundment. Mr. Ash said the bill “would substitute financial chaos for financial management."
On the question of who will appear before the Ervin subcommittee, Mr. Ash told newsmen the "feeling was that my testimony and that of the Justice Department would give the subcommittee all the information it required."
Mr. Ervin thought otherwise and, when "considering”the subpoenas, noted that "Congress has the right to select the witnesses it wishes to hear."
Yesterday, Dr. Butz appeared before the Senate Agriculture Committee to explain the administration's budget cuts. He now will cover essentially the same ground with the Ervin subcommittee next week.