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REA loan authority, and included in contract authority, for example, would be Water Pollution Control.
The Congress needs to be informed regarding impoundments of any and all budget authority, whether the funds are appropriated, whether it is a contract authority (for example, the highway program and water pollution control program) or otherwise --not just "funds appropriated." There would also appear to be no sound reason for the words “for a specific purpose or project," because such words appear to place a limitation on the information which is to be submitted to the Congress. It would be better for the Congress to be informed on any and all budget authority, whether it is for a specific purpose or project, or otherwise (e.g., loan authorizations, appropriations, contract authority, etc.). It should be noted that the FY 1974 budget provides budget authority in excess of $10 billion in contract authority and in excess of $1,800,000,000 in authority to spend debt receipts. Certainly, if any of these items are impounded, the Congress should be informed. In other words, Mr. Chairman, the ambiguity arises in the fact that contract authority is not "funds appropriated" nor is it “funds otherwise obligated.” Other examples of contract authority which the present verbiage of the bill would not, in my judgment, reach, are urban re newal funds-capital grants; grants-in-aid for airports; Appalachian Regional Development programs; forest highways; and many others.
In this regard, Mr. Chairman, I would also suggest that the word “funds" be changed to the words "budget authority" wherever the word "funds" appears throughout the bill.
I would also suggest that, on page 4 of the bill, line 6, the words “expenditure or" be deleted, that being superfluous; and that following the parenthesis on line 8, all the words be stricken down to, but not including, the comma on line 11, and that the words "made available" be inserted in their stead. I suggest this change because the phrase "projects and activities” could very well limit the information which ought to be submitted.
On page 4, line 13, I would suggest that the words “or expenditure of the appropriated funds" be stricken and that the words “of budget authority" be substituted therefor.
I further suggest that on page 4, after line 14, the committee consider inserting a third paragraph, to read as follows:
(3) impoundments include the establishment of budgetary reserves pursuant to the provision of the Anti-Deficiency Act (31 U.S.C. 665). I make this suggestion because, as far as I personally know, there is no clear, legal definition of the word “impoundments.” Information heretofore furnished to the Congress by the Administration on impoundments, for instance, has referred to "budgetary reserves” pursuant to the provisions of the Anti-Deficiency Act. For this reason, it seems desirable to write into the law the impoundments we are talking about and at least include "budgetary reserves" set up pursuant to the Anti-Deficiency Act.
(3) I would suggest that it is not necessary to print as a document for each House, the special message referred to in line 1 of page 3. To avoid unnecessary expense, as well as unnecessary confusion which would result from having two differently numbered documents, I would suggest that a document printed by either House would be sufficient. Moreover, I think that the "special or supplementary message" referred to on line 12, page 3 of the bill, should also be printed as a document by one of the two Houses. I do not believe that Members of Congress should have to await the printing of such supplementary message in the “first issue of the Federal Register" subsequent to transmittal of such message.
(4) I come now to what I consider to be a major weakness in the bill, namely, no committee is designated as having the responsibility for developing the concurrent resolution referred to on line 1 of page 4 of the bill. Perhaps it was thought, in the preparation of S. 373, that no committee action would be necessary and that, in the interest of expeditious action, the procedures recommended in the bill would be preferred. However, I believe that unless clear responsibility is placed upon one or more committees of either or both Houses, the bill's provisions concerning the concurrent resolution would be infeasible. Are we to expect that a resolution will spring into full flower from the Floor of either House? Will just any Member of the Congress-Senator or Representative-be expected to take the matter immediately in hand and devise a resolution ratify. ing the impoundment of this or that budget authority and rejecting the impoundment of other budget authority?
It just seems to me, Mr. Chairman, that the bill must establish a specific mechanism for the handling of such special messages from the President, and for the decision-making with respect to what budget authority will or will not be ratified, together with responsibility for preparation of the resolution of ratification. Unless such a mechanism is specified, I fear the bill will fail of its purpose.
In other words, Mr. Chairman, I do not see the wherewithal in the provisions of this bill to generate the action leading to the resolution of ratification. Moreover, I have been advised that impoundments of budget authority are going on daily or weekly throughout the Executive Branch. If this is so, then I would anticipate a continuous flow of information on such impoundments, which, in turn, would require almost continuous study by a committee or committees of the Congress and which would also require repeated Floor action-certainly every 60 days or soin connection with resolutions of ratification. Without the committee mechanism, it seems to me, I repeat, the approach which we seek to establish here would be unworkable. I would not want to venture a suggestion as to what committee or committees should have this responsibility. It may be that all committees having jurisdiction over the various impoundments would have to make some contribution in this regard. But I do wish to raise this question for the committee's consideration here today.
(5) I note that section 4 of the bill provides special procedures to be followed during Floor debate, and some of them apparently are modeled after the procedures set forth in the Reorganization Act of 1949 dealing with reorganization plans. I question, however, whether amendments to ratification resolutions, should in all cases not be in order. Perhaps a time limitation could be placed on amendments, to come out of the time allotted for debate on the resolution, with nongermane amendments being out of order.
(6) Finally, Mr. Chairman, the committee may wish to consider redrafting the bill to require that the President, if he wishes to impound budget authority not already sanctioned by the Congress, first submit a formal request to the Congress for such permission which, if denied, would preclude the President from making such impoundments. In this way, the consent of Congress would be sought and would be required as a condition precedent before budget authority could be impounded (except where previously sanctioned by anti-deficiency legislation, Congressional mandate, etc.). In other words, the consent of Congress would have to be gained before the fact, rather than after the fact, viz., after the impoundments have occurred, as is envisioned by S. 373, the bill which we are here discussing.
Mr. Chairman, I appreciate the indulgence of the committee in allowing me to appear at this hour, and I am grateful for the courtesy that has been accorded me. I do not envy you your task. You certainly have my support in the effort to find a way to legislate a workable solution to the problem we face.
Senator CHILEs. Thank you very much for your testimony.
Our next witness will be Hon. Edward Kennedy, distinguished Senator from Massachusetts.
Senator, we look forward to your testimony.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator KENNEDY. Thank you very much, Mr. Chairman and members of the subcommittee. It is a pleasure for me to testify at these hearings today to consider the implications of the President's practice of impounding funds and the appropriate congressional response to that practice. The impoundments for the present year, estimated to run over $8 billion, have no counterparts or parallels in history. They represent an attempt on the part of the President of the United States to establish his own national priorities in the face of conflicting congressional priorities. They reflect a preference for ABM's and SST's over hospitals and schools, for subsidies to big business over water pollution control assistance for cities and local governments. And they reflect a royal view of presidential prerogatives which seeks arrogantly to relegate the legislative branch to a position of inferiority.
There can be little doubt that when a President impounds funds under explicit congressional direction or permission, then he is acting legally and constitutionally.
But when a President impounds all funds appropriated for a program, or so substantial a portion of funds so as to frustrate the impact of that program, or even the smallest portion of funds in direct contravention of express congressional mandates, then he is acting illegally and unconstitutionally, precipitating the "constitutional crisis” referred to by Senator Ervin in the opening hearings.
It is unfortunate, but undeniable, that some of the funds impounded by President Nixon are being withheld despite the absence of statutory authority. In his press conference last week-January 31, 1973—the President asserted :
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.
Stripped of rhetoric and obfuscation, the position being asserted by the President in his press conference, and by his spokesmen Messrs. Weinberger and Ash in recent congressional hearings, amounts to nothing less than a claim of inherent authority on the part of the President to impound funds to promote his own policies and to control the economy according to his own dictates.
The Supreme Court dealt with this administration's claim of inherent powers when it struck down as unconstitutional the Justice Department's assertion of authority to wiretap for domestic security purposes. And Senator Ervin made an eloquent and reasoned plea to the Senate to overrule the administration's claimed inherent authority to vest extra-legal power in the Subversive Activities Control Board. Let me quote from that statement:
We have heard a lot about "inherent power" in recent months from the Justice Department. It is cited, it seems, every time the Justice Department wants to do something that affronts the Constitutional rights of Americans.
We heard it when the Justice Department said it could tap phones to catch domestic security threats.
We heard it when the Justice Department sought to enjoin newspapers from publishing despite the first amendment and in the absence of any statute giving it power to sue for injunctions against the press.
We hear it when the executive branch refuses to tell Congress what Congress has a right to know.
We hear "inherent power" all the time these days. “Inherent power" is just the modern equivalent of the divine sovereignty of kings.
We fought a revolution to rid ourselves of the tyranny of the inherent powers of George III. We wrote a Constitution sharply limiting the powers of the Gov. ernment, and especially the President, because we knew that the claim of inherent power is just another name for a claim to eventual total unrestrained power by one man.
Thus it is most appropriate that these hearings be chaired by Senator Ervin, referred to last week in the Washington Star as "Mr. Constitution.” And it is likewise appropriate for us to look to the Constitution itself to find which powers are granted to the President, and which to the Congress. It is in terms of this document that all governmental action must ultimately be judged.
Article I, section 1, of the Constitution explicitly vests in Congress “All legislative powers herein granted,” and section 8 goes on to enumerate specific congressional powers: “To lay and collect taxes," to provide for the common defense and general welfare," "to regulate Commerce," and so on. “The Executive Power,” on the other hand, is vested by article II, section 1, in the President, who is directed to “take care that the Laws be faithfully executed.” Special authority in the fields of military and foreign affairs is also accorded the President in section 2.
Any power claimed by a President which is not enumerated in the Constitution must be either implied or unconstitutional. It seems to me that the exercise by the President of a claimed power--not derived directly from the Constitution—not to execute a mandate of Congress is unconstitutional.
A reading of the Constitution does suggest one area where it can reasonably be argued that Presidential power—in this case power to impound funds-may flow directly from that document and not be dependent upon statutory authorities. That is the power of the President which can be implied from his constitutional role in foreign affairs and his designation as Commander in Chief. History indeed abounds with examples of impoundments by Presidents in these areas.
In 1803 President Thomas Jefferson, who should have been fully aware of what powers the Framers intended to vest in the Executive, returned to the Treasury funds appropriated by Congress for 50 gunboats. Hostilities along the Mississippi had ceased, he reported to Congress, thereby rendering "an immediate execution of that law unnecessary.”
Every discussion of historical acts of impoundments by past Presidents contains numerous examples of withholding of funds in the military field. The question or impoundment was considered in the early months of the administration of President John F. Kennedy, and the counsel to the President concluded in a memorandum to the President in October 1961:
Previous Presidents, in their roles as Commander-in-Chief, have “impounded” Defense appropriations. Similar action in the civilian area is not customary and of doubtful legal basis.
A memorandum drafted in the Bureau of the Budget, containing the reasoning underlying this conclusion, is most enlightening, and I would like to submit it for the record at this time.
I would not try to resolve authoritatively the conflict between those, on the one hand, who see the President's Commander in Chief powers as applying only to his physically leading the troops into battle, and those, on the other, who see in this authority umbrella powers over all matters relating in any way to foreign affairs or the military excepting those explicitly vested in Congress by article I, section 8. Because of Presidential activities in recent years in the military field, I would personally not read the President's authority in these areas nearly so broadly as these latter observers. There is a need to strike a balance between the President's duties as Commander in Chief and the Congress responsibilities to provide for the common defense and to raise and support Armed Forces. And there is genuine danger in having the Executive define "national security” in such sweeping terms as to jeopardize domestic liberties. Whatever the range of presidential discretion in weapons procurement, the authority to impound ordinarily does not extend to domestic projects.
The vast majority of impoundments undertaken by the Nixon administration do not fall within the realm of foreign or military affairs. So we must look to specific statutes to see if they provide authority for these impoundments.
I would first rule out the proposition advanced by some administration spokesmen that the Employment Act of 1946, tax laws, the limit on the public debt, and past spending ceilings provide the statutory bases for Executive impoundments. These provide neither authority nor justification for the levels or types of impoundments now being undertaken.
Although individual legislators may be displeased where the President impounds funds even under authority of law, these instances do not pose problems of constitutional significance. And Congress has in fact vested the Executive with explicit authority to impound funds under many circumstances.
The clearest case of congressional intent obviously lies where impoundment is mandatory under a specific set of standards determined by Congress. Title IV of the Civil Rights Act of 1964 best illustrates this category in its direction to the Executive to effectuate the nondiscrimination mandate of the bill by withholding funds from entities practicing unlawful discrimination. Also falling within this category are foreign assistance acts which have directed the President to withhold assistance from an underdeveloped country in an amount equivalent to that spent by the country for the purchase of sophisticated weapons systems (unless an explicit determination is made that this would be detrimental to national security).
Congress also required general expenditure reductions to be achieved by executive action based on a predetermined formula, such as the reductions required by the Revenue and Expenditure Control Act of 1968. In a recent example, Congress attempted to authorize the President to reduce the total amount of the Labor-HEW appropriations for fiscal year 1973 by over a billion dollars, provided that no single program appropriation is reduced by more than 13 percent. (This appropriation bill was vetoed, however.)
In addition to these provisions, which relate to specific authorizations or appropriations, the Anti-Deficiency Act (31 U.S.C. $ 665) generally allows reserves to be established “to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available."
Reserves may be set aside for only two narrowly circumscribed purposes under this act—“for contingencies or to effect savings." The Anti-Deficiency Act expressly presupposes that reserves will be used only, as the Comptroller General testified last week, “to achieve the most economical and efficient application of particular appropriations to their intended purposes.
It is true that appropriations have traditionally been viewed as permissive, setting a ceiling on expenditures and not constituting a direction that all funds be spent. But a careful reading of various official expositions of this view suggests that while the Executive may spend less than the amount appropriated, he may do so only to pro