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In Perrin v. United States, 232 U.S. 478, 486 (1914) when speaking of the plenary powers of Congress over Indian Affairs the Supreme Court said:

As the power is incident only to the presence of the Indians and their status as wards of the Government, it must be conceded that it does not go beyond what is reasonably essential to their protection, and that, to be effective, its exercise must not be purely arbitrary, but founded on some reasonable basis. * * * On the other hand, it must also be conceded that, in determining what is reasonably essential to the protection of the Indians, Congress is veșted with a wide discretion, and its action, unless purely arbitrary must be accepted and given full effect by the courts.

We would very seriously maintain that if Congress is prevented from acting arbitrarily toward Indian matters and Congress has vested in itself the powers to control and supervise Indian matters, then how much more restricted is the power of the Executive when dealing with Indian matters, and how much less the scope of arbitrary actions is allowed the Executive. Again, if Congress, having acted with its wide discretion, passes legislation which binds the courts of the land in their ability to change, adapt, interpret or negate it, should not the executive be also bound in its exercise of its power with respect to the field of Indian affairs.

We will not debate the possible constitutionality of the President impounding funds of general laws for the moment. For we maintain that even if he can impound general appropriations once Congress has appropriated funds for Indian matters it becomes a constitutional question and hence a constitutional violation if he attempts to change the will of Congress with respect to Indian matters. For while the President is bound to carry out the general laws of the land in his executive capabilities and capacities, constitutionally he is not given powers in the field of Indian affairs but only such powers accrue to him which Congress itself delegates to him.

In the Indian Education Act, the Congress has clearly spoken its will once again with respect to Indian matters. It then becomes the responsibility of the executive branch to carry out the mandate of Congress. The executive branch cannot, on its own initiative, make or change existing policies of Congress. We feel that the Congress must at this time reassert its role as the body charged by the Constitution with supervising and regulating the commerce with Indian tribes.

Senator CHILES. This will conclude our hearings for today and so we will recess the committee now until 10 o'clock tomorrow morning.

(Whereupon, at 4:05 p.m., the committee was recessed to meet the following morning at 10 a.m.)

IMPOUNDMENT OF APPROPRIATED FUNDS BY THE

PRESIDENT

THURSDAY, FEBRUARY 1, 1973

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY, AND THE AD HOC
SUBCOMMITTEE ON IMPOUNDMENT OF FUNDS,
COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 a.m., in room 3302, Dirksen Senate Office Building, Senator Lawton Chiles presiding.

Present: Senators Chiles, Ervin, Metcalf, and Percy.

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

Senator CHILES. We will reconvene our hearings and this morning our first witness will be Mr. Robert Koch.

STATEMENT OF ROBERT M. KOCH, PRESIDENT, NATIONAL LIME

STONE INSTITUTE, INC., ACCOMPANIED BY MIKE STROTHER, VICE PRESIDENT, NATIONAL LIMESTONE INSTITUTE, INC.

Mr. Koch. Mr. Chairman and members of this committee, I feel highly honored to have been invited by you to appear and testify on S.373 and the profound constitutional question to which it is addressed.

Let me state for the record that my name is Robert M. Koch, president of the National Limestone Institute which is an organization of more than 600 limestone producers scattered all across this great Nation of ours. Let me further state that we have recently formed a federation called the National Crushed Stone Institute with our sister organization, the National Crushed Stone Association. They have a membership of nearly 200; thus, I am testifying today as an NCSI representative in behalf of nearly 800 stone producers.

But, I cannot refrain from mentioning that I, as one of the more than 210 million concerned Americans, personally appreciate this opportunity to talk about my government. And while I am only a layman and therefore am somewhat lost in the myriad of conflicting legal views, I would like to bring to your attention how our industry is being affected by the continued usurpation of power by the White House and its Office of Management and Budget.

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Before I begin my statement, I want to compliment and thank Chairman Ervin and Chairman Chiles and members of both committees not only for holding these extremely important hearings but for the outstanding statements which you all made Tuesday morning. I hope they can be made available to every citizen of our Nation.

As the years go by—and I would remind you that I have been on the Washington scene longer than any of your colleagues in the Senate, with the single exception of my good friend, the senior Senator of Vermont, George Aiken, who only preceded me by 6 months—I am more and more amazed at the ingenuity of our Founding Fathers. How a group of men who could not possibly have foreseen our tremendously complex society could have laid down the blueprint to establish the most perfect form of government ever developed for people to govern themselves never ceases to amaze me.

And may I say to this committee, in my judgment, one of the principal reasons why we as a nation are facing as many problems as we are today is because long ago we began to stray from the path they so clearly charted. It is my hope that not only this committee but the entire Congress will take the necessary steps to get us back to the constitutional separation of powers.

The industry it is my privilege to represent has more to gain than almost any other by a return to the type of government envisioned by the signers of the Constitution. While this may be true professionally it is, of course, not true as far as they are individually concerned for all 210 million of the citizens in this great Nation of ours have a vital stake in how we go on governing ourselves.

I have been accused—and maybe I am guilty-of tying our present quarrel with the administration too close to certain individuals. But, gentlemen, I was very much interested to hear Senators Mathias and Gurney question Caspar Weinberger when he appeared before your Separation of Powers Subcommittee in 1971. I want to make it crystal clear that my quarrel is not with Mr. Weinberger, who is a very fine and able gentleman, but with the system which allows Mr. Weinberger and his anonymous associates to lay down rules and regulations which completely negate laws passed by the Congress.

We all know our Government has grown too complex for any one man, who happens to be in the White House, to make all the day-to-day decisions. But what many Americans have not yet caught up with is that this delegation of power has moved us very close to literal dictatorship. Now I realize those are very strong words, but I submit, how else can you describe the situation when the action taken by the 535 Members of Congress, who are the elected representatives of the people, is destroyed by the stroke of a pen by an anonymous official in the Office of Management and Budget? When a Cabinet officer cannot appeal this decision to the President, much less to the Congress, we have certainly strayed a long way from what the Founding Fathers intended.

Mr. Chairman, Congress has the constitutional authority to set legislative policy. Congress also has the authority to appropriate monies to fund the various programs established under their legislative authority. Congress alone, under the Constitution, has the "Power of the Purse". Today, unfortunately, these statements are in theory, not in fact. We at the National Limestone Institute recognized this problem several years ago. We have gone on record over and over again voicing our opposition to the actions of the executive branch in the impoundment of funds. Just 2 weeks ago the board of directors of the institute passed a resolution which I would like to have inserted into the record at this point.

(The resolution referred to follows:)

RESOLUTION ON IMPOUNDMENT, NATIONAL LIMESTONE INSTITUTE Whereas the Constitution of these United States of America was written nearly two hundred years ago to guarantee certain rights theretofore denied, and a government was formed to insure the protection and continuation of these basic rights; and

Whereas the American constitutional form of government incorporated a division of authority and a balance of power equally divided among the Executive, Legislative, and Judicial branches of our government in such a manner that no one branch could usurp the power of the other equal branches thereby placing itself in violation of the precepts contained within the Constitution; and

Whereas the Executive Branch has now put itself in violation of the Constitution of these United States of America by causing Congressional appropriated monies to be impounded rather than to be made available to the people and programs for which they were intended by the elected representatives of the people; and

Whereas the action of impoundment by the Executive Branch is not subject to Congressional approval, the balance of power within our government has now shifted to a dangerous position, and is causing a multitude of national programs to be either terminated or reduced to a leval of insignificance: Now, therefore, be it

Resolved by the Board of Directors of the National Limestone Institute, Inc., this 17th day of January 1973, that this Institute reaffirms its stance of strong opposition to the flagrant violation of Constitutional and Congressional intent by the Executive Branch of our Government in the impoundment of appropriated funds; and be it further

Resolved that this Institute works for the re-establishment of balanced powers within the framework of the Constitution, and supports the efforts of Congressional leaders to return to the sound and sensible manner of determining our National priorities.

Mr. Koch. What this resolution says in effect, Mr. Chairman, is that we want a Government operated under the precepts of the Constitution.

Now a few words about our industry and how it has contributed to the fantastic growth of the Nation. I belong to the generation which saw this Nation literally taken out of the mud. The first car my Dad bought had to be "winterized” by being placed on blocks because, for months in Massachusetts, there was no way to get a car either through the snow or the mud that followed. Today, there are just three traffic lights between my home in Fairfax and my summer place in rural Vermont, 500 miles away. And when I-95 is finished to the south, there will be only three lights between Fairfax and my winter home over 1,000 miles south, in Fort Lauderdale. How did this come about? You gentlemen know as well as I-by a tremendous partnership program between the Federal Government and the States. Isn't this an excellent example of almost perfect Government functioning "of the people, by the people and for the people?" No paternalistic government is handing this to to us on a silver platter. Highway users are paying taxes into a trust fund established by the Congress. And by what stretch or distortion of any part of the Constitution can the impoundment of those funds, paid by the people, be justified?

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