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vide for contingencies or to effect savings where the purposes of the legislation are otherwise being fulfilled.
In impounding funds for highway construction, rural environmental assistance, water pollution control, National Science Foundation activities, and numerous health and education programs, the Presi. dent is plainly frustrating the will of Congress and leaving the purposes of its legislation unfulfilled. He is doing so outside the Constitution and outside this Nation's laws.
The duty to execute laws faithfully does not conversely carry with it the power to withhold execution of the laws. The President's own lawyer, Mr. Justice Rehnquist, formerly Assistant Attorney General, reached this conclusion in a memorandum to the White House on December 1, 1969:
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 a broad power is supported by neither reason nor precedent.
The Constitution gives the President the means to express his disapproval of congressional will—he may veto a bill. But once having signed it into law, he must faithfully execute it. Impoundment of funds intended to carry out specific statutory programs constitutes an attempted item veto, without basis in the Constitution.
The need for Congress to counter the present unconstitutional impoundments on the part of this administration and to define precisely when and where the President can withhold funds, and the procedures required in such cases, is clear.
If we can overcome “congressional inertia, indifference, and quiescence,” in the words of Mr. Justice Jackson, then the President cannot fall back on “congressional irresponsibility” or other strawmen to bolster his claims that he can do what he pleases. If Congress can act, and act decisively, to make clear its desires, directions, and mandates, then the President can disobey those mandates only at the risk of branding himself lawless (and thereby subjecting himself to control by the judiciary as well).
We must of course put our own house in order to allow us to process more efficiently appropriations bills and to view more comprehensively the Nation's fiscal needs. Congress must act more expeditiously on appropriations matters. Congress should
have its own OMB—not to duplicate functions of committees or the GAO, but to provide comprehensive analyses especially directed at budget priorities. Congress should consider end-of-the-year omnibus fiscal legislation that combines supplemental appropriations with a debt increase if necessary or rescissions to deep spending within a specified ceiling.
President Nixon has raised the spectre of tax increases as the only alternative to extensive impoundments. There are most assuredly other alternatives, including tighter congressional control of the budget. The public debt can be increased—the President has requested this on occasion already. Our tax system should be reformed the President has said he supports this but so far he has yet to translate into this support specific proposals. And national budget priorities should be realigned—this has happened in Congress already, witness this year's appropriations increase over the President's request by Con
gress of Labor-HEW appropriations and social security, and decrease of Defense appropriations and foreign assistance.
Where does Congress start, in asserting its full powers under the Constitution, to curb excesses on the part of the Executive and to restore balance to the separated governmental powers. S. 373, which we are considering today, provides an excellent focal point.
I am proud to be a cosponsor of this proposal introduced by Senator Ervin, and I fully support its objectives. In light of some of the problems pointed out by earlier witnesses, however, I would like to offer an alternative approach for this subcommittee's consideration.
It seems to me that we should be able to agree on two basic propositions:
First, the President has no independent authority to impound or reserve funds except for that explicitly provided by Congress, either through the Anti-Deficiency Act or in specific statutes. Thus there can be no impoundment without congressional authorization. (There may be, as I indicated above, an additional exception here for the President's exercise of his powers as Commander in Chief in the fields of military and foreign affairs.)
Second, the Congress has the right, and the need, to know where every Federal dollar it appropriates goes. Thus all impoundments and reservations should be reported fully to Congress and to the public (as provided in S. 373).
At this point S. 373 takes one route—it requires Congress to approve specifically each and every impoundment reported to it. I believe that this will result in Congress either rubber-stamping most impoundments, or becoming incredibly bogged down in paperwork. So I would suggest a different approach, as follows:
1. Whenever reported impoundments are justified as (a) being pursuant to explicit and specific legislative authority or falling generally under the Anti-Deficiency Act, and (b) constituting less than 10 percent of the program appropriations involved, then congressional action-to-ratify ratification will not be necessary.
2. Whenever desired impoundments (a) would constitute 10 percent or more of program appropriations, or () cannot be justified under explicit statutory authority, then affirmative legislative rescissions must be sought from Congress. For accommodation, a stay on spending of the amount desired to be impounded might be allowed for a 60-day period while Congress considers the rescission.
3. Impoundments reported under (1) above should be screened by the Appropriations Committees, who would report any disagreements over statutory authority to Congress. Ultimate disagreements between Congress and the executive over interpretation of statutory authority (including executive misuse of the Anti-Deficiency Act) would be submitted by the appropriate committee chairman to the Comptroller General, who would render his opinion on the matter. The executive could appeal an adverse decision to the courts; the Congress could reverse any decision legislatively.
In these hearings last week and in the literature there has been extensive discussion of how Congress can make authorizations so air-tight and mandatory that the executive could not possibly swerve from full implementation. It can set minimum “floors below which the administration cannot go, as was done in the appropriations for the Veterans' Administration in fiscal 1972 (97,500 operating beds in VA hospitals). It could use mandatory language in all legislation, using “shall” and “directed” instead of "authorized,” as was done in AEC authorizations in 1957. It can employ formula grants that leave the executive no discretion as to the level or the purpose of expenditures, as reflected in the impacted aid programs and vocational education amendments.
Congress could also counter executive impoundments with quid pro quos. The Foreign Assistance Act of 1971 made expenditure of Foreign Assistance and Foreign Military Sales Act funds contingent on Comptroller General certification that the administration had released by April 30, 1972, impounded Agriculture, HEW, and HUD funds. In some respects, defeat of the administration's SST proposal precipitated by impoundment of funds for projects which Congress considered more important at the time. And more recently, Senator McGee has announced that his Agriculture Appropriations Subcommittee will not consider the fiscal 1974 budget until programs terminated by impoundment have been restored.
While I see merit in these ad hoc efforts to draft mandatory language and exact quid pro quos, statutorily and constitutionally it should make no practical difference whether Congress used mandatory or permissive language in its legislation. Litigation over the meaning of the language of the Highway Trust authorization illustrates the fallacy in relying on the legislative process to yield clearly understood mandates. It can hardly be said that Congress-after holding hearings and debating and passing through both Houses both authorization and appropriation bills—does not intend the executive fully to carry out its will. Where executive discretion on spending levels is intended, Congress can explicitly authorize impoundments. Congress should not acknowledge the legitimacy of impoundment. In short, we should not have to say, "We really mean it for our laws to be taken seriously by the executive.
Unfortunately, executive claims of extra-legislative impoundment authority make it occasionally necessary for Congress to do just that-thus in the Medical Facilities Construction Act specific mandates were inserted to guard against impoundment. I repeat, however, that except under the terms of legislation expressly allowing impoundment, the executive should not be accorded further authority to impound.
Mr. Chairman, these hearings should serve as warning shots over the bow of the ship of state that Congress means to take its role and responsibilities and powers seriously.
The Separation of Powers Subcommittee has considered the excesses on the part of this administration in withholding information from Congress, and I am confident that these excesses will be curbed. We can expect definitive and aggressive action on the part of this congress to put the administration's omnipresent claim of executive privilege in its rightful and constricted place.
The Foreign Relations Committee expects to report soon a bill defining the President's war powers in accordance with the terms of the Constitution and the will of the American people.
S. 373 will likewise help restore control over the Government's spending process to the Congress, where it was initially vested by the Constitution.
Thank you for the opportunity to present my views. I would like to include in the record here the memorandum I referred to earlier.
Senator CHILES. Without objection.
[Bureau of the Budget, October 1961) MEMORANDUM TO THE PRESIDENT: AUTHORITY TO REDUCE EXPENDITURES The traditional concept of the responsibilities of the Executive Branch with respect to the use of appropriations was set forth in a report of the Committee on Appropriations of the House of Representatives in 1950 (House Report No. 1797, 81st Cong., 2d Sess.) in these terms:
"Appropriation of a given amount for a particular activity constitutes only a ceiling upon the amount which should be expended for that activity. The administrative officials responsible for administration of an activity for which appropriation is made bear the final burden for rendering all necessary service with the smallest amount possible within the ceiling figure fixed by the Congress. Every official of the Government who has responsibility for administration of a program must assume a portion of the burden for the deficit in the Federal Treasury."
Various statements to the same effect may be found in other congressional committee reports and in congressional debates, where the proposition is most frequently expressed in the statement that "an appropriation is not a mandate to spend.” However, none of the various statements of this nature is authority for the proposition that an official charged with carrying out the terms of an appropriation act is free to exercise his own judgment as to whether or not it should be executed. Where the law is clear, the duty is clear; the responsibility of the official is to accomplish the purpose of the law with the smallest possible expenditure of public funds.
Except in a few instances (notably, foreign aid), the authority and responsibility for administering Federal programs is vested by law in the heads of the departments and agencies concerned. While the President has the constitutional duty to “take care that the laws be faithfully executed,” the direct responsibility for administration is vested in the officers whom he appoints.
The President's authority to control his appointees in the matter of expenditures of public funds was treated in an unpublished opinion rendered by Attorney General Cummings on May 27, 1937, in response to an inquiry from President Roosevelt as to the President's authority to direct departments and agencies of the Government, either on a percentage basis or with reference to specific items, “to withhold expenditures from appropriations made." The Attorney General's opinion referred to is, in part, as follows:
"To answer your inquiry, it is, therefore, necessary to consider the extent, under the Constitution, of the President's powers over the various departments and agencies of government and the officers thereof. The scope of such powers, while long the subject of discussion, has not yet been absolutely defined, and perhaps is susceptible of delimitation only as particular powers are drawn into question. However, it seems quite clear that the Constitution confers on the Congress the power to establish departments and agencies in the executive branch of the Government and to define the duties and functions of the officers who are to administer them; and that when the Congress has so done, the President, in the absence of legislative authority, has no legal power to interfere with the administration of such departments or agencies further than 'to take care that the laws be faithfully executed.'
"It appears to follow from these authorities that in the absence of legislative sanction an order by you withholding expenditures from appropriations made would not be binding on the disbursing officers in the event that a department head or other authorized official should desire funds from the amount ordered to be withheld. Further doubt regarding the existence of the power to make such an order arises from the fact that the power would in effect enable the President to overcome the well settled rule that he may not veto items in appropriation bills."
While Attorney General Cummings' opinion indicates that the President could not order the head of an agency to defer initiation of the projects involved here, it concludes as follows:
"* * * it is, of course, entirely legal for you in an endeavor to accomplish the desired ends to request or direct the heads of the departments and agencies to attempt to effect such savings as may be possible without violation of or interference with the proper performance of any duty prescribed by law."
(The word "direct," as used in the sentence quoted above, in context appears to be synonymous with “request” or “suggest"; it was apparently not used in the sense in which the word “directive" is commonly used today, when a directive is regarded as tantamount to an order.)
Thus, the President certainly may indicate his views to his agency heads and he may request an agency head to delay initiation of some or all of the projects or programs for which funds are provided in the appropriation act. In most cases there is considerable latitude available to the agency head. For example, he can prosecute projects with the utmost vigor, and disregard minor details in an effort to award contracts and initiate projects at the earliest possible moment. On the other hand, he can prosecute a program in a most cautious manner with great attention to detail. Depending upon the manner which he selects, it might be that a greater or lesser number of projects or programs would be initiated or completed during a particular fiscal year.
Action along these lines was taken by the President on June 30, 1959, when he signed H.R. 2256, a bill providing additional funds for housing loans for veterans. Referring to an item of $100 million for direct loans which was not a part of the administration's program, the President noted that such loans were, under basic law, to be made only in areas where private capital was not generally available. He then stated that the Veterans Administration will therefore "exercise maximum caution” in making direct loans until it could be determined whether sufficient private capital would be available for the purpose.
Action by the President along these lines would, however, be far short of a specific order to agency heads to defer initiation or completion of particular projects or programs for which funds have been appropriated. And the effectiveness of such action would depend upon the agency heads' views of the extent to which compliance with the President's expressed wishes would be possible "without violation of or interference with the proper performance of any duty prescribed by law.” An additional factor for consideration, of course, is that most agency heads may be removed by the President at will.
In carrying out his duty to take care that the laws be faithfully executed, the President must consider not only appropriation acts but all of the other laws enacted by the Congress. If executing the appropriation act would result in a conflict with other laws, the President would have not only the right but the duty to resolve the conflict. For example, in the fiscal year 1958 the President requested agency heads to delay expenditures and to reduce them below the amounts appropriated by the Congress in order to prevent expenditures which could not be met by borrowing within the statutory limit on the national debt. The Deputy Attorney General, by letter of May 14, 1958, transmitted to the Committee on Armed Services of the House of Representatives a memorandum prepared in the Department of Justice which indicated a view that the actions of the Executive Branch in this regard were in accord with the law.
The authority of the President with respect to limiting expenditures for particular projects was treated by the then Special Counsel to the President, in a letter of August 12, 1955, to a member of Congress, as follows:
"Because of the President's Constitutional obligation to faithfully execute the laws, I am strongly of the view that when Congress has appropriated funds for a particular project, that President cannot set aside the will of Congress and direct that no funds be spent on that project.
“It is true that in the past Presidents have declined to spend funds appropriated by the Congress for a particular purpose, but I have not found any instance of this that did not relate to funds appropriated for the national defense. In this field the President, of course, has Constitutional responsibilities of own as Commander-in-Chief of the armed forces. Thus President Truman declined to spend funds which were appropriated by the Eightieth Congress for a seventy group air force. These national defense precedents, however, cannot, in my opinion, be used as precedents for withholding funds appropriated for a nondefense purpose."
After the above-referred-to letter was written, President Eisenhower twice requested that expenditures be curtailed in situations not involving his duties as Commander-in-Chief. The first such instance was in fiscal year 1958, involving