era of good feeling or in an effort to make Government work smoothly and more efficiently, one branch yield parts of another branch as a privilege and if the receiving branch grossly abuses the privilege, it becomes the duty of the granting branch to withdraw that privilege and recoup its control. Such give-and-take, yielding and recouping, is the heart of the balance of powers in our democracy. And yet, we sometimes seem surprised when our Government must undergo these adjustments. Restrictions on the Executive by a legislative group is not without precedent in our English heritage. One has only to recall the signing of the Magna Carta in 1215, over 750 years ago. Here was the power of the monarch first limited and made responsible to a body of lords. Legislators must go beyond partisan politics and act in unity to assert the will of the people they represent.

Our Nation's people, for many years, probably beginning with Franklin Delano Roosevelt, have looked to their President for strong leadership. With his power, authority and charismatic glamour, the President is the only figure elected by all of the people. He executes authority with a swiftness that legislative bodies can rarely match. The American people have come to respect this type of action. If the Congress is to recapture the respect of the people and function again as the peoples' branch of Government, it must first recapture the prerogatives it has relinquished to the Executive. It would seem to me that the fate of the concept of separation of powers in our American democracy rests squarely in the hands of this committee and the entire Congress. We, therefore, wholeheartedly endorse S. 373.

Thank you, Mr. Chairman and members of this committee, for the privilege of presenting this statement.

Senator CHILES. Thank you, Mr. Koch.

Senator Ervin, do you have any questions?

Senator ERVIN. The members of your organization have been particularly concerned about the termination of the program under which farmers are furnished with lime to carry out their soil conservation practices?

Mr. KоCH. That is correct.

Senator ERVIN. And that has been terminated by either the President or the Secretary of Agriculture?

Mr. KоCH. That is correct.

Senator ERVIN. The Congress has been very much concerned of late about failure of officials of the executive branch of the Government to appear before congressional committees when invited or requested to testify. Yesterday, Senator Mansfield read a letter to the Democratic caucus, dated January 25, 1973, from Mr. John Dean III, counsel to the President. The first paragraph says:

In response to your letter of January 11, 1972, the President has asked me to thank you for forwarding the text of a resolution adopted by the Democratic Conference of the Senate which advocates as a prerequisite of the confirmation that the Presidential appointees provide the appropriate confirming committees with assurances that they will appear and testify. Indeed, this proposal does not conflict with the policies of this Administration that appointed officials who are subject to Senate confirmation not only respond to invitations to appear before duly constituted committees of Congress, but on appropriate occasions to ask time to testify on matters of mutual interest to the committees and their departments or agencies.

In view of the fact that there are many programs which have been terminated which are administered under the supervision of the Department of Agriculture, I wrote a letter to the Secretary of Agriculture several weeks ago inviting him to come down and tell us— give us some information-to point out by what authority these programs have been terminated. This committee has been expecting the Secretary of Agriculture to be here today. I am now informed that some days ago, on the 26th of this month, the Secretary of Agriculture, who is just a few blocks away from the Capitol and Senate Office Building, wrote a letter to me that he wouldn't be here; he had to testify before the Committee on Agriculture.

Well, I have never seen the letter. I realize that the Post Office Department is not the most efficient department of Government, but we have had the Secretary of Agriculture scheduled to appear here today. Now, I am extremely anxious to have him. Of course, I would like to know what authority he acts under, because I have read many, many times the second article of the Constitution which set forth the powers to the President and there is not a syllable in there which gives the President any constitutional power to terminate any program established by Congress, and I need light on this subject.

Having been confirmed prior to this time, the Secretary of Agriculture is not covered by the resolutions that the Democratic caucus passed saying they are not going to confirm any Cabinet member who doesn't agree to come before the Senate committees and give them information about the affairs of their offices. Even so, it is about the affairs of this office that we need testimony of the Secretary of Agriculture.

I would like to find out just specifically under what legal authority he claims to act in terminating these programs.

But it has gotten to be a very unfortunate thing when we ask the executive branch of the Government-here is a copy. I wrote this letter to the Secretary of Agriculture:

The Subcommittee on Separation of Powers jointly with an ad hoc Committee of the Government Operations Committee will hold hearings on Executive impoundment of appropriated funds on January 3rd and 30th and February 1st, and 6th, 1973. These hearings are in effect a continuation of hearings on this subject held by the Subcommittee on Separation of Powers in March, 1971. I am writing to ask that you testify at these hearings concerning the impoundment of funds appropriated to implement the Rural Environmental Assistance Program or any other funds appropriated for programs under the jurisdiction of the Department of Agriculture which are now impounded, withheld, sequestered, or held in reserve or have been diverted to other uses. I also invite you to submit a written statement for inclusion in the hearing record. Please have one of your staff members contact Mr. Rufus Edminsten, Chief Counsel and Staff Director of the Subcommittee

Senator ERVIN. We gave a phone number to save them that much trouble.

concerning the arrangements for your appearance. He will, of course, attempt to arrange a time that will be most convenient to you. The hearings will be held in Room 3302, Dirksen Senate Office Building, New Senate Office Building, and will begin at 10 o'clock each morning, January 30th and 31st, February 1st, and 6th, 1973.

I am informed that the Office of the Secretary of Agriculture notified the committee that he would be here today, but I hope that eventually sometime between now and the time that the last echo of

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 Senate 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 ERVTN. 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 savs. "All legislative powers granted shall be vested in the Congress of the United 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 affirmation: 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 CHILES. 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 CHILES. 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 impoundment, 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 execu