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Gabriel's horn trembles, the Post Office Department will be able to deliver to me the letter which the Secretary is alleged to have sent me on the 26th. It seems to me the 26th of January to the 2d of February ought to be ample time for them, the Post Office Department, to get a letter down from the Department of Agriculture to the Senaté Office Building or the Capitol.

I don't know whether you can give us any information, but do you know the legal authority that the Secretary of Agriculture has to terminate the program that you have testified about or these other programs.

Mr. Koch. Mr. Chairman, No; I certainly do not and I was looking forward, as a matter of fact, to listening to Mr. Butz this morning to see just how he would answer you and I am, of course, very disappointed he wouldn't be here. Having been associated with this program ever since it started in 1963, frankly I just didn't believe, when I was informed on December 22, that it had been terminated, and here the Congress has been appropriating moneys for it each year and squabbling to be sure of the amount for a number of years, but at no time as far as I know in all that time has there ever been any question about terminating it completely and like you I was dumbfounded to think it was possible for the Executive to completely-in fact Senator Aiken wrote me a note and said, "Bob, the action of this administration just defies belief.” As you know, Senator Aiken is a strong supporter of this program.

Senator CHILES. My understanding is that our committee was in touch with the Office of the Secretary of Agriculture as late as yesterday in regard to arrangement as to what time he would testify and at that time we were still told that he was going to be here, that he is to appear today before the Agricultural Committee and we were working out the details as to when it would be convenient for him to leave that committee meeting and come up here and that we were told yesterday that he would appear. So that would have been after any date of any letter that supposedly was written to us.

Senator ERVIN. Of course, I have never seen the letter. It may have reached

my

office and I never saw it. I have never seen it or been advised as to its exact contents.

Senator CHILES. I understand further that when we this morning were trying to arrange the testimony or a convenient time for Mr. Ruckelshaus to be here, from EPA, that your staff has just been informed that he will not appear, that the Administration has decided that only two witnesses from the Administration will appear, and those will be Mr. Ash and the Deputy Attorney General, and that no one else is going to appear. I don't know, that is sort of conflicting with the letter.

Senator ERVIN. It doesn't harmonize with the letter of January 26, written by the Counsel to the President cutting off of these programs, it doesn't harmonize with section 1 of article 1 of the Constitution that says, “All legislative powers granted shall be vested in the Congress of the Tnited States, which shall consist of a Senate and House of Representatives."

That is one of the few times that the word "all” is used in the Constitution. "All legislative powers" of the Federal Government. And the power to repeal or nullify the law is a legislative power, not an executive, and yet we have termination of programs. And, furthermore,

there is another thing in this document, speaking about what the obligation of the President is—this is from section 3 of article 2.

He shall take care that the laws be faithfully executed.
Also, article 2, section 1, says:

Before he enters on the execution of his office he shall take the following oath and afirmation: I do so solemnly swear or affirm I will faithfully execute the Office of President of the United Sates and will to the best of my ability preserve, protect and defend the Constitution of the United States.

Thank you very much; you have a very fine statement.
Mr. Koch. Thank you. I appreciate it.

Senator CHILES. Mr. Chairman, I think our next witness is going to be Senator Fulbright who we are notifying now and he will be down. I wonder, as I recall that letter as it was read to the caucus, there was something in the last page about for convenience that the leadership could get in touch with them or something in working any of these details

out. I wonder maybe we should see if Senator Mansfield could be of help in arranging a proper time. Maybe we just haven't given enough notice.

Senator Ervin. In the letter to the caucus, the Secretary emphasized that* * * we recognize that there are over 300 committees in the Congress. Most committee chairmen have been cooperative and reasonable in scheduling witnesses. As majority leader of the Senate your continuing assistance in recognizing the scheduling and desires of the officials is needed to assure that sufficient notice of hearing is provided. All the witnesses can be fully responsive to the needs of of the Congress if they are given aid in avoiding schedule problems for the Executive and Legislative Branches.

Senator CHILE. I know that neither you, Mr. Chairman, nor I want to inconvenience any of these officials and I just wonder maybe we should try to find out what would be a convenient time for them to come so we could arrange our schedule so we could be here. I would certainly be willing to.

Senator ERVIN. Well, I don't know. There may be some good excuse for this. I don't know what it is.

I would direct Counsel to write a letter to the Secretary of Agriculture and tell him we are particularly desirous of having him appear and give us the legal authority by which these programs that are under the supervision of the Department of Agriculture have been terminated and under which the funds have been withheld.

I also want to ask Counsel for the committee to investigate the power of this committee to subpena a Cabinet officer.

Senator CHILES. I wonder, Mr. Chairman, can we also make a request to Mr. Ruckelshaus, if we find a convenient time for him, because I would like to know whether he has been instructed not to appear before a committee or maybe it is we haven't had a convenient time. Maybe we ought to try to actually write him, too.

Senator Ervin. Well, I wish when I practice law that they couldn't have any witnesses except the ones I approved to testify against my clients. | Laughter.]

And I really don't recognize the power of the Executive to determine what witnesses a congressional committee should have. I think every official of the Government is under obligation. Even the Chief Justice said by way of dicta in the Erhenburgh case, we could even subpena the President. I wouldn't want to go that far, but certainly that could be true. Everybody else is subject to the requirement of testifying.

The President is quoted as saying at a press conference:

I would simply say the general attitude I have is to be as liberal as possible in terms of making people available to testify before the Congress, and we are not going to use Executive Privilege as a shield for considerations that may be embarrassing to us, but that doesn't really deserve Executive Privilege.

Senator CHILES. Our next witness will be the Honorable Senator Fulbright of Arkansas who we are delighted to have come before this committee and give us the benefit of his thinking on this subject.

STATEMENT OF HON. J. W. FULBRIGHT, A U.S. SENATOR FROM

THE STATE OF ARKANSAS Senator FULBRIGHT. Mr. Chairman, I am sorry to detain you. I was waiting for word when you were ready for me.

Senator CHILEs. Our schedule has been a little upset today.

Senator FULBRIGHT. I was originally told 11 o'clock. But anyway, I appreciate very much your giving me the opportunity to testify.

Senator Chilfs. We are delighted that you decided to present yourself to the committee.

Senator FULBRIGHT. Mr. Chairman and members, I am pleased to have the opportunity to appear before you today. I believe the subject of the hearing is one of extreme importance and I want to commend the chairman especially and also the acting chairman for continuing leadership in this area.

Last October, the Congress passed a supplemental appropriations bill which included $9.1 million for the National Railroad Passenger Corporation-Amtrak. Of these funds, $4.1 million was to be utilized for a route which would provide service to Mexico on a route through Arkansas. This would have been the first passenger service in Arkansas since the establishment of Amtrak.

However, we have since been informed that the Office of Management and Budget has “permanently impounded” the funds for this service.

I cite this simply as the most recent example, the clearest cut impoundment that I am aware of.

In recent years we have witnessed the growth of a lexicon of terms such as executive privilege, executive agreement, permanent impound, ment, delayed disbursements, suspended allocations, reprogramed funds—all of which imply a superiority of the power of the executive branch over the legislative, and none of which are mentioned in the Constitution.

In the past, I have testified before the Subcommittee on Separation of Powers on the subject of Executive privilege, July 1971, and Executive agreements, April 1972. I hope that we are making some progress toward restricting the use of these devices which have served to limit the ability of Congress to exercise its constitutional role and responsibility.

Now we confront the problem of impoundment, which goes to the very heart of congressional power—the power to appropriate. It is imperative that Congress reassert itself in this field where the executive branch is acting with increasing disregard for constitutional congressional authority.

I am pleased to be a cosponsor with you, Mr. Chairman, of S. 373, the Impoundment Control bill, which would be an important step in reasserting congressional power. Likewise, I have joined with you and others in the friend-of-the-court brief in the U.S. Eighth Circuit Court of Appeals challenging the President's power to impound Federal Highway Trust Fund moneys.

The impoundment of highway funds is one of the better-known examples among a vast array of programs being seriously cut or facing death-by-impoundment at the hands of this administration. Many of these programs are of major importance to the people of Arkansas.

It became apparent early in the life of this administration that the heavy use of impoundment was likely to lead to a confrontation with Congress, for this was not the modest withholding of funds practiced by prior administrations, largely on a temporary basis. True, the administration began by using such terminology as "funds being held in reserve” or “temporarily deferred” for the purpose of "orderly financial management."

I believe all of us would be willing to concede that from time to time there is justification for temporarily holding up funds so that they can be released on an orderly basis and not have an undue effect of the economy.

However, that is not what is under consideration here. The concepts of "funds being held in reserve” or “temporarily deferred” have given way to permanent impoundment, and, whether called “permanent or not, this is really the thrust of the administration's actions in many areas

to permanently withhold funds. Impoundment, in the operational sense, has come to mean the denial of funds which exceed the President's budget requests or which are appropriated for programs the President does not support.

Through the device of impoundment, the President has moved to make his budget an inviolable document from which the Congress must not vary. But there is nothing sacrosanct about the Presidential budget. It is, in fact, no more than a request or a proposed blueprint for Congress to consider. Just as a client is not bound to accept everything an architect proposes, Congress can modify the blueprint in line with its views of national priorities. But in the case of President Nixon, if Congress makes changes in the blueprint which he submits, he proceeds to build according to his own plans regardless of congressional action.

If Congress is going to fulfill its constitutional functions and to operate as a separate, coequal branch of Government, we cannot continue to allow the President to use impoundment to impose policy. To do so would be to subvert the explicit constitutional authority of the Congress.

The heart of this matter, Mr. Chairman, is whither a collective judgment of elected representatives in the long run serve the interests of the people better than the individual judgment of the President.

You have heard a great deal in recent years of strict construction of the Constitution. Much has been said by this administration about the necessity of returning to the spirit and the letter of the Constitution. It seems to me this departure on the part of this Administration is as flagrant a departure from the Constitution as any that I can think of because it is a denial of the very essence of the democratic system.

It may be that the complexities of modern society are such that the Congress cannot deal with it and the President in his press conference as reported in the New York Times of February 1, seems to me to be suggesting this—That he no longer has any confidence in the collective judgment of the Congress, and he states his views in categorical terms.

For the record, at this point, I would like to quote from the President—I assume it is a correct verbatim report of his statement yesterday.

The Constitutional right for the President of the United States to impound funds and that is not to spend money, when the spending of money would mean either increasing prices or increasing taxes for all the people, that right is absolutely clear.

The problem we have here is basically that the Congress wants responsibility, they want to share responsibility. Believe me, it would be pleasant to have more sharing of responsibility by the Congress. But if you are going to have responsibility you have to be responsible and this Congress and some of the more thoughtful members of Congress, and that includes most of the leadership, in the very good give and take we had the other day—this Congress has not been responsible on money. We simply had this?

Then I will skip one sentence and read another sentence.

The point is the Congress has to decide does it want to raise taxes in order to spend more or does it want to cut as the President is trying to cut. The difficulty, of course, and I have been a Member of Congress, is that the Congress represents special interests.

The implication is that the President does not represent special interests.

And it goes on.

I would ask, if it has not been put in, that the entire passage there entitled "Section 13 on Impoundment of Funds" be included in the record. It is very relevant, addresses the issue very clearly. It is the clearest statement I have seen by this or any other President on this subject.

Senator CHILES. Without objection, it will be included in the record.

(Section 13 from the news article follows:) EXTRACT FROM, "TRANSCRIPT OF THE PRESIDENT'S News CONFERENCE ON FOREIGN

AND DOMESTIC MATTERS," New YORK TIMES, FEB. 1, 1973

13. IMPOUNDMENT OF FUNDS Q. Mr. President, how do you respond to criticism that your impoundment of funds abrogates power or authority that the constitution gave to Congress?

A. The same way that Jefferson did, and Jackson did and Truman did. When I came in on this, Mr. Mollenhoff-he is one of the few old-timers around here who will remember it—you remember when Senator Symington, who has now turned the other way on this, but you remember when we were talking about the 70-group Air Force. You remember that on that case I voted as a Congressman to override President Truman's veto. I think it was 70-wing or 70-group Air Force, where we insisted on a 70-group Air Force and he said the budget would only provide for 48.

Despite the fact that the Congress spoke not just as the leaders spoke to me the other day, but by veto, overwhelming in both Houses, President Truman impounded the money. He did not spend it. And he had a right to. The constitutional right for the President of the United States to impound funds and that is not to spend money, when the spending of money would mean either

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