tive 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

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.

There is a clear choice. We either cut spending or raise taxes, and I made a little check before the leaders' meeting. I checked on the campaigns of everybody who had run for office across this country, Democrat and Republican. I didn't find one member of Congress, liberal or conservative, who had campaigned on the plaform of raising taxes in order that we could spend more.

The point is that 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.

Senator FULBRIGHT. I think it is good for the record to show that. Senator ERVIN. I would suggest two books that should be in the White House to read. One is the Constitution of the United States and the other is Dale Carnegie's book on "How to Win Friends and Influence People."

Senator FULBRIGHT. That is an excellent suggestion.

If the President really has no confidence in the judgment of the Congress he ought to propose a constitutional amendment and say just what he is saying here, that the Congress no longer represents the country it represents special interest, therefore, we abolish the right of Congress to determine policy.

Senator ERVIN. Aren't the Members of the Senate and the Members of the House elected by exactly the same people that elected the President?

Senator FULBRIGHT. That is my impression.

Senator ERVIN. And the President says in substance there when the people vote to elect both the President and Members of Congress, that they act responsibly only in voting for the President, and irresponsibly in voting for Congress.

That is very complimentary, isn't it?

Senator FULBRIGHT. Mr. Chairman many of the issues involved here were debated last October when the Senate considered the $250 billion spending ceiling. The Senate refused to give the President the authority to exercise an item veto which would have been implicit in such legislation. Now, however, the President has proceeded, through impoundment, to exercise a power not granted him and one that distorts the balance of power between the two branches.

The President would be in a better position on this issue if he were willing to see cuts made across the board. But he wants to decide where the cuts are to be made. When he proposed the spending ceiling the President refused to say where he would make cuts if the ceiling was approved. But many of us knew where such cuts would comenot in military spending, which dominates the Federal budget, but in social and educational programs. Our fears have been borne out by the President's impoundment actions and his proposed budget for fiscal 1974.

As Prof. Harvey Mansfield of Columbia University told your subcommittee in 1971, Mr. Chairman, under this administration impound

ment, though not a novel technique, has been "displaying a new versatility" by being used as a policy tool. Of these impoundments, Professor Mansfield said, "Plainly the object was not an overall reduction, or not wholly an overall reduction, but despite continuing inflationary pressures, a redistribution of emphases ***"*

Mr. Chairman, that prompts me to point out very clearly when the Foreign Relations Committee tried very hard and voted to cut parts of the foreign military assistance program, the administration fought it tooth and toenail and reinstituted the cuts we were able to make and increased it on the floor. When he says he is concerned, he is responsible for the overall budget, spending beyond taxes, that was clearly not so. It is simply a choice. He favors certain programs and he doesn't favor others. I don't think he can sustain at all, the idea that he was just doing it in order to prevent inflation. The reason was quite clear, that he disapproved of certain programs. I am bound to say there are some of these I don't approve of either. There is always this difference between us. I was with the President on some of his proposals-I am now. But on others I am not. However, this is contrary to the whole procedure which we are supposed to follow under our Constitution.

I do not believe the President has the constitutional right to use impoundment to redistribute emphases, nor do I believe the Congress should allow him to assume such power. As you stated, Mr. Chairman, the President "has no authority under the Constitution to decide which laws will be executed or to what extent they will be enforced." I do not deny this has been done but when it is done it is an abuse of the Constitution.

Senator ERVIN. It may be that they have put a different interpretation on the provision that "the President shall take care that all the laws be faithfully executed." It may be that they interpret the word executed there in the same sense that people say if a person commits certain crimes, capital crimes, that he should be executed. So maybe that is the reason the President thinks he has the power to execute the laws. Senator FULBRIGHT. That is apparently one way they have interpreted the word.

In regard to the President's power to refuse to spend funds, Mr. Rehnquist, then Assistant Attorney General, now a Justice of the Supreme Court, stated it well when he said, referring to the Labor-HEW appropriations bill:

With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such broad powers is supported by neither reason nor precedent.3

Mr. Chairman, at the beginning of my statement I mentioned the impoundment of funds for Amtrak service to the State of Arkansas. I cited this example because I believe it to be particularly flagrant and because it is very damaging to the citizens of my State. I do not want to elaborate here on the details of this problem, but the fact is that the experimental period for Amtrak service will expire on June 30 and the people of Arkansas will have been given absolutely no opportunity to

1 Executive Impoundment of Appropriated Funds. Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, U.S. Senate, 91st Cong., first sess. (Washington: U.S. Government Printing Office, 1971), p. 170.

2 Ibid., p. 172.

Ibid., p. 282.

utilize modern, efficient rail service. Therefore, when a more permanent Amtrak system is created, if it is and I hope it is, there will be no basis for determining whether service through Arkansas should be provided. In effect, I think it prejudices our long-term opportunity to participate in such a program.

I have referred to the impoundment of highway and Amtrak funds, both important to Arkansas and both essential to development of a balanced transportation system. These funds are impounded while the administration moves ahead with spending on exotic and unproven weapons systems and more and more dubious military planes and ships. There are other areas where the administration's actions will have particularly adverse effects on Arkansas. Among these are the severe cutbacks in rural programs. In addition to those which were announced recently, the President has used impoundment for several years to virtually abolish by fiat-contrary to clear congressional intent-the Farmers' Home Administration water and sewer systems grants so important to the development of our smaller communities. A similar approach has been taken toward the constructing of health facilities. I only wish to mention these are not just important to smaller communities. One of the principal reasons for the congestion in the slums of our big cities is the fact that there is so little opportunity for the people to remain in the smaller communities. It has a very direct bearing, in my mind, upon the terrible conditions that have arisen in the major metropolitan areas of this country.

We also have the example of the impoundment of $6 billion in funds for water pollution control-funds which were voted over his veto. This, if anything, is a challenge to the legislative branch.

Mr. Chairman, you may recall that Congress passed an amendment to the 1971 Foreign Assistance Act which provided for a cut off in foreign aid unless certain impounded funds were released. That amendment, which I sponsored, became part of Public Law 92-226 and the pertinent section read-I would ask unanimous consent this be inserted in the record.

Except as otherwise provided in this section, none of the funds appropriated to carry out the provisions of this Act or the Foreign Military Sales Act shall be obligated or expended until the Comptroller General of the United States certifies to the Congress that all funds previously appropriated and thereafter impounded during the fiscal year 1971 for programs and activities administered by or under the direction of the Department of Agriculture, the Department of Housing and Urban Development, and the Department of Health, Education, and Welfare have been released for obligation and expenditure.

Senator FULBRIGHT. According to the GAO, the funds specified in the amendment were released. However, when the funds for fiscal year 1971 were released, the administration impounded the money appropriated for 1972 and now for the 1973 funds. So it circumvented the effect of this restriction.

The administration is expected to submit a new foreign assistance bill to the Congress in the near future, because they are currently operating under a continuing resolution which expires on February 28. Since the earlier amendment did not serve to deter the administration's impoundment except for a short period, I am contemplating a new amendment which would not contain any loopholes. I would hope, and which would require release of funds for these important. domestic programs if the administration wanted to continue foreign assistance.