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impoundment by comparing the position of the Executive to a customer in a grocery store who was given too much money to spend and too brief a period in which to spend it. He argued that it was not possible to spend the money intelligently, so there was no longer any duty to spend it.
The analogy is weak. An appropriation is not a mandate to spend every cent by a given date on articles chosen by the executive branch. The mandate is to purchase specific things or services at the best price and this legislative direction, in the form of an appropriation statute, is beyond the arbitrary power of the Executive to change. He is expected only to exercise the standards of good stewardship.
It seems to me that this is basic in the constitutional pattern. However, I recognize that unless the finest craftsmanship is practiced, we will bog down in legalisms at the expense of economy.
If I may make one suggestion regarding the language of S. 373, Mr. Chairman, I would like to point out that, as drawn, the bill only permits the Congress to vote the impoundment "up or down." There is no provision for partial approval.
It would be wise, I believe, to recognize that there might be appealing reasons for allowing executive impoundment of some portion of an amount.
I believe the Congress should focus on two courses of action: (1) A clear legislative delineation of the limited Executive powers with reference to impoundment; and (2) Improved communications between the Executive and the Congress so that the wisest and best course can be laid out, and the public interest be conserved, without resort to a power struggle.
The second is as important as the first.
If the frailties of human nature produce dubious determinations by the Executive and intransigent responses by the legislative branch, we can also assure that the latent concern for the public conscience can be so stimulated that technical considerations of power will give way to mutually acceptable courses of actions and the tensions be avoided.
One illustration comes to mind. In 1959, the two Houses of Congress sent to the President an historic piece of legislation designed to relieve the TVA of annual bickerings over financing, and to fix precisely the geographical boundaries for that agency.
I was one of the three directors, the others being Brig. Gen. H. D. Vogel and Mr. Arnold Jones. President Eisenhower asked us to meet him in the White House to discuss a phase of the legislation which raised strong reservations in his mind regarding his approval of the bill. His objection was based on the possibility of an impairment of executive power which, as President, he was determined to prevent.
"I will not permit the authority of the Presidency in this vital area to be eroded. Unless my fears are dispelled, I will have to veto this bill."
Those fears were not fully removed after a long discussion, and the Board members decided to contact the leadership of Senate and House, both Republican and Democratic, and if they would agree to put through a clarifying bill to allay Presidential fears, the landmark measure would be signed immediately by President Eisenhower. This was agreed upon.
The Speaker and the other House leaders promptly agreed, as did the Senate leaders, and the President signed the bill when the gentlemen's agreement was conveyed to him. The promises were immediately carried out.
This demonstrates, may I say to the committee, the wisdom of cooperation as an adjunct of strict respect by both the legislative and executive branches of Government. Thus I firmly believe that many of the confrontations now brewing between the two branches can be avoided by exercising a very elemental human characteristic-cooperation and human respect.
Thank you, Mr. Chairman.
Senator Ervin. I wish to thank you for stating that the actions by the Executive, to which I and other members object, are not inspired by an alien and sinister or new influence in the Government.
To corroborate your statement in that respect, I would point out again, as I have pointed out before in these hearings, that in his wonderful farewell address to the American people, George Washington said that occupants of public office have a love of power and a proneness to abuse it, and he proceeded to say that it was just as necessary to preserve, as it was to establish originally, the division of separation of powers of Government among the three branches of Government: the executive, legislative, and judicial. He said that the Founding Fathers made that division or separation because they believed that each branch of the Government would resist encroachments upon its constitutional domain by other branches of the Government, and in that way, the Constitution itself would be preserved and carried out.
I think that is absolutely true. That is the reason that some of us in the Congress are opposed to the recent action of the President of impounding funds which were authorized to be expended by appropriation acts which Congress had passed, and which the President, in most every case, had signed into law, and thereby manifested his approval.
Now, I think there was an orderly way for the President to do this, and that was to do what he attempted to do in the budget for the fiscal year of July 1 of this year, and that is to recommend the elimination of programs which he deems undesirable, by an act of Congress, not by executive power. He should recommend a curtailment of, or elimination of, any appropriations which he thinks are not necessary or warranted, and give the Congress the benefit of his advice and let the Congress take its own course of action with reference to appropriations.
To me it is a great tragedy that the President saw fit to impound so many of these funds right in the middle of a fiscal year. I do not yield to the President in my desire to see the Federal financial house in order. That has been put in disorder
for many years by the combined irresponsible financial actions of the Presidents and the Congress, both of them.
I am proud to say I have cosponsored a proposed constitutional amendment to these things, I have voted for decreasing the debt limit, because I think the debt limit should be kept down. We will either have to take an honest course of action and eliminate some Government spending, or we will have to leave enough taxes to take care of our expenditures.
I think it is irresponsible for a President to recommend that Congress make appropriations which he knows can only be carried out by deficit financing, or for Congress to pass bills provided for expenditures without providing taxes to cover those expenditures.
To my mind there is something fundamentally irresponsible about that, and I am glad I have not participated to a very large extent in that.
Now, for example, the President proposed last year to merge the school bills. I voted against it. I knew we did not have any money, and I thought the bill provided for too much interference by HEW in the schools of the States. So I voted against it. But it was recommended by the President, and after the President had recommended passage of that bill over my vote, HEW went to the public school authorities in North Carolina, and urged them to take advantage of the Federal funds which Congress and the President, by their joint making of that law, had assured them would be available for the current fiscal year. So they went out and hired hundreds of teachers under this bill, and other personnel, and then right in the middle of the fiscal year, after these teachers were under contract to carry on to the end of this year, the meat ax descended and those funds were cut off.
Well, I voted to uphold the President's veto of the Environmental Protection Agency provision, because I thought, being not used to such large dollar figures, I thought it was too big to offer and there were some provisions in there I did not like, those in regard to the appropriation process, because I believe it is good for Congress to look at everything twice.
I voted to sustain the President's veto, but it was overruled by an overwhelming majority and I felt it was then the duty of the President under his oath to support the Constitution, and also his duty to make sure the laws were faithfully executed, to carry out the provisions of that authorization and contract, made by the appropriation act.
But the President impounded a large amount of those funds.
I do not think there is any way under the Constitution for the President to express his disapproval of appropriations but to veto them. I think when the veto is overridden that his constitutional power is exhausted, and the usurpation—thereafter refusal, to carry out appropriations is unconstitutional unless exclusively given by law by Congress to exercise discretion in the matter.
So I resist these things because I have always heard that every journey to a forbidden end starts with a single step, and if this Congress sits supinely by and does not resist this encroachment on its authority over the purse, then the kind of republic which the Constitution was ordained to create, will be destroyed, and we will be in the situation of which Benjamin Franklin warned, that we might not be able to keep the republic the Constitution gives us.
We had a lot of startling testimony by a very distinguished man yesterday, the present occupant of the Office of Deputy Attorney General. About the only thing he would concede, if I interpret his remarks correctly, in respect to appropriations, he said if Congress directed the President to spend a particular sum to pay a particular person, that the President would have to obey that act of Congress, otherwise he was free to do what he pleased.
I hope I have not misconstrued this official's remark, but that is what it meant to me.
I thank you for calling attention to what seems to be a defect, and that is that Congress would have to vote to ratify the entire impoundment, and I think it is very wise if your suggestions on the bill will be approved in part and disapproved in part.
Thank you very much.
May I make a brief response on the question of sinister or new influence?
I think there might have been an excessive desire to be entirely fair and to bring in preceding administrations as well as this, and while I think from the standpoint of final damage of these efforts to the Constitution itself, I think it is sinister.
I do not want to impute improper motives to the Executive, either the present Executive, or preceding Executives, and I am grateful to you to leap back to George Washington. I think we have to leap back sometimes because in that day and time the patterns were simple and they knew what they were doing.
Senator Ervin. I can see that from his standpoint, the ends which the President has in view, and that is to bring some financial responsibility back to the Federal household, but I can never believe that you can ever justify using wrong means to reach a rightful conclusion.
I have none of the ideas of Machiavelle in my system.
I wish to make some other comments and say this should be a matter to be adjusted between the Executive and the legislative branch of the Federal Government on the basis of cooperation and mutual respect. It is undoubtedly true there are some joints in the Constitution where the powers of the Executive and powers of the legislative branches of Government meet and coincide, and about the only way to make these joints work in a satisfactory manner is to sort of oil these joints with the oil of mutual self-respect and respect for each other's constitutional domains and that seems to be lacking at the present moment with respect to impoundment of these funds.
Senator CHILES. Senator Muskie.
Senator MUSKIE. I have no questions, but I would like to compliment an old friend, a public servant who I think is wise and thoughtful with respect to this problem. I think this hearing can stand some of the humor for which this distinguished witness is noted.
I could use a refresher on some of his stories. I suspect he doesn't want to.
But it is always a pleasure to have Brooks Hays before us and I appreciate your words of wisdom.
Mr. Ilays. Any words of praise to my alleged prowess in the field of humor from the old gentleman himself from Maine is high praise, and as far as any material for the Senator's concern, he knows he can have without fee anything I have.
Senator CHLES. Senator Metcalf.
Senator METCALF. Mr. Chairman, 20 years ago when I came to the House of Representatives one of the first men I met was Brooks Hays. He at that time gave all of the freshman Members an orientation lec
ture as to how we would conduct ourselves in Congress. Of course, as a result of that I regarded Congressman Hays as mentor and guide and I have missed him very much when he left the House of Representatives.
Today you brought us the same sort of informative and persuasive statement as you did as a Member of the House of Representatives. You tried to bring in that glue that Senator Ervin talks about that holds together legislative bodies, and men working together in organizations such as we have here.
I think made a most effective and persuasive presentation here, and it is what I would have expected from an old time and long-time friend and a man regarded as one to follow in the legislative halls.
Mr. Hays. Well, thank you very much, Senator. I remember those days very well. I hated to see you leave the House. Your situation was a little different from mine. I left the House with the consent of the people. But I cherished my friendship with you as I did with the other members of this committee.
Senator METCALF. Thank you, Mr. Chairman.
Senator Ervin. If I can make one more observation, I will say that my friend, Alvin Barkeley, who served in both branches, the executive and the legislative branches of Government, would join me in saying that the paper which you read was well worth reading.
Mr. Hays. Thank you so much.
Senator METCALF. Mr. Chairman, may I make a further observation, too.
Brooks, we both served with Senator Mansfield, who is the majority leader of the U.S. Senate and Carl Albert, who is the Speaker of the House, and you and I have both worked and know that they are men who are open to compromise and to the adjustments necessary to make this Congress work. I feel that persuasive statements such as yours urging a little yielding on all sides would be brought to all their attention, that his would be most helpful in this confrontation that might be brought in more violent adjustments than are really necessary, and as men of good will we have known over the years could be consulted and worked out.
Senator Javits. Mr. Chairman.
Senator Javits. I am sorry I have to go to the Foreign Relations Committee meeting this morning, but I express my pleasure over the advice of our valued colleague Brooks Hays, and I know his statement will be quite meaningful and I will read it with the greatest care. I wish to express my great pleasure in seeing him again and having him participate in this service.
Mr. Hays. Mr. Chairman, do I have a moment to acknowledge this fine and gracious comment from my Republican friend? I want him to be sure that I tried to avoid partisanship. I don't mean partisanship is ignored. Sometimes it is very laudible. I am very capable of it. You ought to hear my democratic speech in Lowland County. I just want Mr. Javits, my dear friend on the Foreign Relations Committee, to know that his friendship transcends any partisanship; we just must not bog down in that.
I don't mean to belabor that point. There is plenty of literature to be ground out in the Republican and Democratic Committee nationa}