Senator METCALF. Why can't we just let him spend the 1973 funds and not appropriate any more money?

Senator FULBRIGHT. Let him spend? He has impounded them.

Senator METCALF. You said that when he put the amendment, to which I was fully in concurrence, he released the 1971 funds but he didn't spend 1972. Then when 1972 came up, he didn't spend the 1973 funds. So let's catch up with him. We have 1973 in the pipeline, and we won't appropriate any more money.

Senator FULBRIGHT. Of course, he doesn't wish to spend the ones that I am interested in. The foreign aid is a means of pressure upon him if you deny him the foreign aid. If he wishes to continue

Senator METCALF. Can he transfer funds over to Indochina from the foreign aid funds that are in the pipeline over to his proposals for Marshall plan for Indochina?

Senator FULBRIGHT. I suppose he can. The carryover in the authorized foreign assistance program. It is operating. That is under a continuing resolution. What I was seeking to do was to say, he cannot spend the money for foreign aid unless he releases the Farmers Home Administration fund, which he does not wish to spend because he thinks that is inflationary, I assume, or he doesn't approve of the purpose. But he does approve of foreign aid and for the last several years, has brought great pressure to get the full amount for the foreign military assistance program. According to the press, apparently he is thinking of some $7 billion for a new program for the rehabilitation of Southeast Asia.

A number of other suggestions have been made about how Congress can better cope with this challenge. Many of these suggestions have merit-keeping a closer rein on the OMB by requiring Senate confirmation of the Director; increased congressional staff plus better use of technology and up-to-date organization so as to function more effectively in considering budgetary matters. Of course, I very much approve of that, too.

These steps are important, but they do not represent a panacea. Perhaps of more importance is the need for a change in attitude and spirit. If Congress would take itself more seriously, the President, the press, and the public might do likewise.

While serving in the Office of Management and Budget, Mr. Caspar Weinberger, who has been nominated as Secretary of Health, Education, and Welfare, referred to Congress as "irresponsible" and said demands that impounded funds be released were "complete and utter nonsense."

If Congress does not assert itself, and leaves the President free to impound these funds, it will properly be called irresponsible and our actions will become nonsensical, and Mr. Weinberger will prove to have been correct.

This means that the Congress must take a serious look at the budget requests and at appropriations bills. I speak not just of the committees considering a particular subject area. I realize that it is easier, when an expensive weapons system comes up for consideration before the entire Senate, to simply defer to the President, the Pentagon, and to a few members of the relevant committees. But much of the pertinent information which would enable us to make educated judgments is

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available, and we must take the time and make the effort. There is too much at stake to do otherwise.

I thought you made an excellent point in your opening statement on Tuesday, Mr. Chairman, when you said, "Too often, I fear there have been those among our ranks in the legislature who would rather receive a social invitation to the White House than display loyalty to the governmental institution to which they were elected."

Your words ring very true Mr. Chairman, yet I want to add a point here. I do not believe Congress is seeking a confrontation with the Executive. Indeed, at a time when I hope we are beginning to put one of the most divisive issues in our Nation's history behind us, the moment would seem ideal for a new spirit of cooperation. Such cooperation will, however, require mutual respect between the co-equal branches of Government. This is what we must strive to achieve. Our representative system of government cannot survive otherwise. Thank you very much, Mr. Chairman.

Senator ERVIN. I would like for the purpose of the record to read certain passages from the Constitution and ask you some questions about them.

Article I, section I, reads as follows:

All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.

Then it provides further in article I, section VIII, that the Congress shall have certain specific powers, and in what is ordinarily called the necessary and proper clause, in the last paragraph of section VIII, it provides that:

Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any Department or office thereof.

Then it makes it very clear that an appropriation bill is a law, because it so states expressly in section IX of Article I:

No money shall be drawn from the Treasury but in consequence of appropriations made by law.

So that makes it clear that an appropriation bill is just as much a law as one that would prohibit robbing a post office. And then it defines the powers of the President. He shall take care that the laws be faithfully executed.

I will ask you if in your judgment that word "executed" as used in that connotation doesn't mean carried into effect, endorsed?

Senator FULBRIGHT. Correct; yes, sir.

Senator ERVIN. Now, it is not true that the United States has operated deficit financing as to the extent of approximately $110 million during the past 4 years?

Senator FULBRIGHT. Just exactly. I am glad you brought that up. I was thinking about that. It is so relevant to what the President said yesterday in the latter part of his statement. He said he is looking after the general welfare in the overall budget; and I thought when I read that, as you say, under the last 4 years he has accelerated a deficit of more than $100 million.

Senator ERVIN. I want to read you this for the purpose of asking you a question. Doesn't the Constitution make it very clear that as far

as most of this deficit financing is concerned, that it was done with the Congress and the President aiding and abetting each other.

Senator FULBRIGHT. Exactly.

Senator ERVIN. To make that clear, I just call attention to this portion of section VII of article I, "Every bill which shall have passed the House of Representatives and the Senate shall before it becomes the law be presented to the President of the United States. If he approves he shall sign it."

With the exception of about three or four vetoes, all of these laws were signed by the President, weren't they?

Senator FULBRIGHT. They only override, I think, two, wasn't it? Senator ERVIN. There was one about the manpower bill way back, and then there was one about the environment.

Senator FULBRIGHT. The pollution was the last one, water pollution and education.

Senator ERVIN. And one HEW bill.

Senator FULBRIGHT. Three as I recall were overridden. So he signed all the others.

Senator ERVIN. He signed this supplemental bill that had the appropriation for Amtrak in it, didn't he?

Senator FULBRIGHT. That is right, he did.

Senator ERVIN. And in such cases the money that has been impounded was recommended by the President, wasn't it? For example, you remember the Emergency School Act?

Senator FULBRIGHT. Yes, sir.

Senator ERVIN. It was recommended by the President. I thought it was a bad law. I voted against it. And I will say I am more of a pennypincher than the Executive is. I have voted against some of the other proposals, recommendations of the White House, because I thought they were unwise and extravagant. For example, the bill to authorize the appropriation of approximately $33 or $34 billion for revenue sharing. I knew we didn't have a red cent to share with anybody, a red cent of revenue, and so I voted against it, and that has gone to many States that had a big surplus in their State treasury. Senator FULBRIGHT. My State had a surplus this last year of nearly $100 million, but we couldn't afford to turn it down if you are going to have such a program. You are put in an impossible position.

Senator ERVIN. This emergency school bill was recommended and insisted on by the administration. The Department of Health, Edueation, and Welfare, so my school authorities tell me, just implored them to take advantage of that appropriation, and so they did, they employed several hundred teachers, and then after the contracts were signed and the teachers started, they suddenly cut them off and now, the teachers either must go without pay or the State of North Carolina will have to pick up the tab.

Now, can I read a part of section 7 of article I where it says:

If he approves

The President

> shall sign it, but if not, he shall return it with his objections to that House which it shall have originated, who shall enter the objections on their journal d proceed to reconsider it. If after such reconsideration two-thirds of that be shall agree to pass the bill, it shall be sent together with the objections to other House by which it shall likewise be reconsidered and if approved by

two-thirds of that House it shall become law. When in all such cases the votes of both Houses shall be determined by yeas and nays and the names of persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within 10 days after such shall have been presented to him, the same shall be a law in like manner as if he had signed it unless the Congress by their adjournment prevented its return, in which case it shall not be a law.

Now, isn't that the only provision in the entire Constitution that gives the President the power to disapprove in a legal manner any act of Congress?

Senator FULBRIGHT. That is right. That is the limit by two-thirds overriding.

Senator ERVIN. The people who framed the Constitution took very particular pains to provide that if the President did disapprove of a law, that the Congress should have a right to reconsider the law and to make it, and to pass it over a veto by two-thirds majority. Senator FULBRIGHT. That is right.

Senator ERVIN. Is it not a fundamental principal of construction of constitutional and statutory provisions that the expression of one power is exclusion of any other on the same subject?

Senator FULBRIGHT. Absolutely.

Senator ERVIN. So don't you consider it is a plain proposition that the President has no power to refuse to carry out a definite appropriation act for a specific object, except by vetoing a bill.

Senator FULBRIGHT. That is right; he has no constitutional authority. He seems to do so many unconstitutional things I hate to use the word power. He has no constitutional authority.

Senator ERVIN. It says here even laws that are necessary to carry out the powers vested by the Constitution in Federal officials, and that would include the President

Senator FULBRIGHT. Yes, sir.

Senator ERVIN (continuing). Shall be passed by the Congress and not by the President. And a law is nothing but a rule of conduct and the laws regulating the conduct of officers proscribe the rule by which they are supposed to act.

Senator FULBRIGHT. Mr. Chairman

Senator ERVIN. I will ask you one other question about the Constitution, if you will pardon the interruption.

Is there anything in the Constitution which says if any President thinks that the Congress is composed of irresponsible men that he can nullify any of these provisions of the Constitution?

Senator FULBRIGHT. No there is not.

I was just going to say, because you are acknowledged to be the leading constitutional authority in the Congress, I don't think there is any doubt about it being clearly contrary, but the Constitution isn't selfexecuting and because it is unconstitutional that doesn't mean he will not do it. So the sanction finally comes to a political question and the only real sanction for upholding the Constitution is the Congress itself. While the courts may be of assistance in some indirect way, such as the suit that we are talking about, the final sanction is that the Congress has to stand up to itself. Is that not correct? Senator ERVIN. Yes.

Senator FULBRIGHT. It has to muster a clear majority, at least. It is not a two-thirds in some cases and that is the only way it can really be made to function. Would you agree with that?

Senator ERVIN. I agree. Not only do I agree, but one far better than I said virtually the same thing. George Washington in his farewell address to the American people, gave us some warnings. He pointed out that public official occupants of public office have a love of power and a proneness to abuse it. And then he said, in effect, that that was the reason that the Founding Fathers had divided the powers of government among the President, the Congress, and the courts, and he said it was just as necessary to preserve this explanation of powers as it was to devise it in the first place, and that is the reason this division was made, among other things, was because it was anticipated that each department of government, each of the three great departments of government, would resist encroachments by other departments on their constitutional domain, which is in complete harmony with the observation you just made.

Senator FULBRIGHT. What bothers me, and I only mention this to provoke some further thought about it, is the problem of access to television on the public. As you know, I have been concerned about this for some time. Yesterday the President had his press conference and he was on television and he made these statements that I have read about the irresponsibility of Congress. Now here is a Senator from North Carolina who, as I say, I respect, everybody who knows him knows he is an authority on this. He makes this statement here before a small group, in this room and there will not be one one-thousandth of the exposure to whatever you or anyone else thinks compared to the President's, this comes back to my central point about the political sanctions of the Constitution. The President with the modern methods of communication, specifically television, has access to the minds of everybody in this country, virtually speaking, because when he speaks, he usually takes over all the three television networks. They have to listen to him if they want to watch television, and most people are curious anyway. I don't mean there is any compulsion that way. I can think of no way to counter that, to present the point of view that the Senator has just presented that in any way that can be equal to or have the same impact upon the minds of the people, so that they understand what is involved here. I have a feeling that many people think we as members of the House and Senate are just being quarrelsome about our personal prerogatives, that we are not really concerned about the Constitution or the government, we just think the President is treading on our toes and that he ought to be more gentle to us. That is the feeling I get and I don't know what to do about it.

Senator ERVIN. The objection to that is he is treading on our Constitution.

Senator FULBRIGHT. That is it. But he doesn't say that. He says exactly the opposite. To him, in his statement yesterday his right to do this is absolutely clear. He is in effect saying the exact opposite of what the Constitution says, of what you are saying, and how can that issue be presented to the public generally? I don't know. This bothers me very much. I don't know the practical answer of how with modern technology, the Constitution can be made to survive.

Senator ERVIN. I would say that if the President is concerned about financial responsibility, he has submitted to the Congress a budget. which contemplates, if adopted, that we will engage in deficit financing again next year and the prediction, as I construe it, the year thereafter,