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Senator Cuiles. Well, I noticed in his opinion he uses the language on page 4, about the third paragraph of the opinion, if you want to look at it since it is clear that neither the substantive legislation nor the appropriation act compels the obligation and expenditure of the full amount authorized, but merely authorizes a program to be carried out; it is our opinion that the program may legally be terminated.
Then he cites that this is not the first time a program carried out on the Soil Conservation and Domestic Allotment Act was of a lesser magnitude. He does not cite any example where anyone has been terminated, but there have been some done at a lesser amount.
The question I wanted to ask you, Mr. Secretary, when your lawyer has made an opinion like that, and based on language in the appropriations that was designed to give you, as the Secretary, latitude in determining how moneys could more advisedly be spent, what do you think the Congress is going to do, what is left for the Congress to do if they do not want you to legally terminate a program, if they do not want you to terminate a program?
Secretary Butz. I presume they could have a special ad hoc committee to hold hearings such as you are having this very day.
Senator CHILEs. They also could take away that discretion that they have been trying to grant to you over all the years, have they not, sir?
Secretary Burz. I am not qualified to answer that. That is a constitutional question. I guess that is what the argument is about.
Senator CHILES. Well, we have talked about whether this is a political issue or whether it is a legal issue and the only point, what I want your opinion as to is what you expect that the Congress is going to do to keep you from terminating a REAP program or any other program that they do not want to see terminated ?
Secretary Butz. Well, if the Congress passes legislation that mandates expenditure and assuming the President would veto that, and I understand that the White House has indicated it would be vetoed, and assuming the Congress overrides the veto, then I presume you have a case that the courts will decide.
May I ask counsel to reply to that?
Mr. KNEBEL. Mr. Chairman, the programs which have been impounded over which control is in the Department of Agriculture are, in our opinion, of a discretionary nature. I have recently reaffirmed the opinion rendered by Mr. Shulman to that effect.
Senator Cules. Mr. Counsel, are you not going to then give the Congress no alternative but to take away your discretionary power if you will not follow a broad intent that a program like REAP is a program of the Congress and we are giving you some discretion as to how the funds would be spent or how they would be allocated, then if you are going to use that discretion to say you can terminate the program, which is a little farfetched to the extent that over the almost 200 years of our Government it has never been used quite that way before, so it is a pretty unique opinion.
Do you not leave the Congress with no discretion at all or in the position that they are not going to be able to leave you with any discretion, your department any discretion.
Mr. KNEBEL. I will grant you you need discretion, however, I believe these are rather unique times and the ultimate responsibility for impounding funds rests with the President.
Now if the Congress does pass mandatory legislation and we do get into a hiatus of that sort, as the Secretary has indicated, we will have a situation not unlike the Highway Trust Fund case. However, as the Deputy Attorney General testified previously before this committee, it is highly unlikely that the courts will attempt to resolve these economic matters.
Senator CHILES. Well, as I asked the Assistant Attorney General, if the courts do not resolve it, then that means they will not resolve the question of the legislation that Congress might pass setting requirements on impoundments. So that issue would not be justifiable either.
You cannot have it both ways, can you, counselor?
As you know, it is a matter, very frankly, of pragmatic application. Each impoundment gets looked at in a set of circumstances upon which the decision is made ultimately by the President for the impoundment itself.
Senator CIIILES. Do you have a question?
Mr. MILLER. Yes. I may pose a couple of questions to the Secretary, please?
Senator CHILES. Yes, sir. Mr. MILLER. I might pick up first, if I may, something Senator Chiles mentioned a moment ago about the termination of programs.
You mentioned, I think I am accurate in saying, many examples of when Presidents have terminated programs in the past absent emergencies and so on.
Just for the information of the committee, could you give us a half-dozen?
Secretary Burz. I do not think I could give you a half dozen.
Well, I think in the case the President mentioned the other night in the press conference when he talked about President Truman, in the case of the number of wings in the Air Force.
Mr. MILLER. Let me interrupt you, Mr. Secretary.
President Truman merely cut back the number of wings, he did not say the Air Force is not going to have any more airplanes.
Secretary Burz. But he did
Mr. MILLER. That is not a precedent for you, sir. I respectfully disagree.
Secretary Butz. You are talking about the complete stoppage of a program.
Mr. Miller. Do you have any precedents?
Mr. KNEBEL. As the counsel for the committee has indicated, complete elimination of a program is one thing. However, as the Secretary testified previously, there is a standby procedure under which some of the REAP-type practices will be continued by virtue of the Rural Development Act.
Mr. MILLER. I am merely asking
Mr. KNEBEL. Do you want something where there is a total and complete elimination versus previous precedents?
Mr. MILLER. I am just merely asking for illumination on the Secretary's statement that there are many instances of this in the past. I know of none except one prior to this administration. That was the aquarium which Congress authorized for the Potomac River.
There may have been others and I think the committee would be interested in when BOB, OMB, or any department or any case of the Chief Executive having done it.
I am merely asking as a point of information.
In the hearing which Senator Ervin's committee held 2 years ago there was only the aquarium instituted in those hearings, and I know of no other in the history of this country.
Now I think we ought to also get on the public record, Mr. Secretarv, something about the history of impoundment.
Secretary Burz. I might say the impoundments have been general. Whether or not they have actually stopped programs I am not prepared to say.
Mr. MILLER. That is what you say, that is why I wanted you to elaborate a bit on it to inform the Congress and the committee.
Secretary Burz. I am not aware that I said they had stopped programs. I said impounding had been practiced in many, many administrations.
Mr. MILLER. You sent a letter dated February 5 to Senator Ervin using the word "terminate.”
You approved a memorandum by Mr. Shulman which ends up, "We are of the view that the Department's action is terminating the assistance under the REAP and water bank program is legally authorized."
I do not know what that means, if it does not mean that you are abrogating, scuttling, or otherwise killing a program. Does it mean anything else other than that?
Secretary Burz. It means that funding of that particular program is being terminated, it doesn't mean we are terminating the pollution program.
Mr. MILLER. REAP is being terminated?
Mr. MILLER. Well, as I understand it, then, there is no historical precedent other than the one I mentioned and the Secretary is unable to furnish any examples.
Secretary Butz. At the moment.
Mr. MILLER. I think the committee would, if I may speak for Senator Ervin, would be interested in a list of examples that you have complete terminations of programs by impoundment action, by any type.
Senator, if I may, I think it would be very useful for the committee to have that.
Senator CHILEs. If they had such a list, we would be delighted to have it.
(The following was subsequently supplied for the record by Secretary Butz:)
EXAMPLES OF PROGRAMS TERMINATED BY PRESIDENTIAL ACTION President Johnson : Aedes-aegypti-Mosquito control program.
President Kennedy: AEC—Aircraft nuclear propulsion program ; Dyna-soar program.
President Truman: Supercarrier, the U.S.S. United States.
President Roosevelt: Numerous flood control projects amounting to about $500 million.
Mr. MILLER. I have another question. I would like to refer, sir, to your testimony which I have had the pleasure of reading before Senator Talmadge's committee last Thursday and I would like to direct my attention at least to this question of guidelines, the colloquy you had with Senator Dole.
I refer now to pages 97 and 98 of the transcript of the testimony. And you said this statement, if I may refresh your memory, sir.
"We get some guidelines in the amount of reductions which they expect us to take, expect HUD to take, expect HEW to take, and so on, and simultaneously work out these things.
“There are other candidates for cuts too." Now my question is this:
I recall when the guidelines were given the entire Cabinet the comment was made, “When you see the figures it will not be a typographical error.”
My first thought was it is a typographical error.
Now, my question is not to that, my question is to the articulation of the criteria by your office or by the Office of Management and Budget when impoundment should take place, how do you determine when a given impoundment is to take place?
Secretary Burz. After we got the guidelines on the amount of reduction that Agriculture would take, I think that we followed the same procedure as any other department followed unless they got word to work these ont simultaneously with the cognizant offices.
Mr. MILLER. What are those guidelines, sir? Secretary Burz. You have to simply establish some kind of priorities where you cut.
Mr. MILLER. Then how do vou establish a prioritv?
We come back to have they ever been published for elucidation, for example.
Secretary Burz. No, sir; except as I said, through half a dozen presidents attempts have been made substantially to reduce and often eliminate the old agriculture conservation program, now the REAP program. That was kind of a guideline.
It had a very low priority through half a dozen administrations and that was a kind of guideline, one that you take into consideration.
The fact that a substantial number of practices under the REAP program were essentially income supplements rather than nayments for pollution abatement practices. Income is up substantially to our farmers-$3 billion.
That became a part of the guidelines. It went into the formula to determine its rank on the priority scale.
Mr. MILLER. Well, sir, I recognize from your testimony from what you said earlier today that you are not a lawyer but you would agree that this is a government of law, would you not?
Secretary Burz. Yes, sir.
Mr. MILLER. And you would agree that the decision, then, if this is a government of law, have to be made in terms of some articulated standard of judgment.
Secretary Burz. Yes, sir.
Mr. Miller. I am asking for the articulated standards of judgment then that OMB has issued with respect to impoundments.
Secretary Butz. All I can say, we have acted on the counsel of the Attorney General's Office and our own General Counsel that the executive branch of the Government had in fact the power to do this.
Mr. MILLER. But you are telling me that you have the power, you are not telling me how you do it.
Secretary Burz. I presuine how you do it was back of the decision in the Attorney General's Office.
Mr. MILLER. Do you associate yourself with Mr. Sneed's testimony?
How can you reconcile the fact that you say that we are a government of law when you say that we do not have any standards by which to make decisions?
You admit implicitly, Mr. Butz, you have no standards, now, the specific question, sir, did OMB direct you to make an across-the-board cut of all agriculture programs?
Secretary Butz. No.
Mr. MILLER. Or did it say cut program X, Y, but don't cut A, B, and C?
Secretary Butz. No, sir: we work these things out together.
As I said previously, once we got our guidelines on total reductions, then we worked them out together.
Mr. MILLER. How do you do it, I think Senator Muskie was asking and Senator Metcalf was asking.
Secretary Burz. Obviously this has to be on the basis of subjective judgment, basis of alternatives, basis of impact the selective cuts would have on the agriculture economy as well as nonagriculture economy; it has to be on the basis of other programs available.
Mr. MILLER. A subjective judgment, Mr. Butz, is a judgment without law; would you agree with that statement ?
Secretary Butz. I do not know that I can agree with that statement. Mr. MILLER. Then what are the criterion judgment standards?
Secretary Butz. In this case we had the opinion of the Attorney General that the President was acting within his authority.
Mr. MILLER. That is not the point. The point is how you act within that so-called authority. I happen to disagree with it but that is a different point.
The point is, assuming he has the authority, you have got to have criteria of judgment.
Secretary Butz. Quite right.
Mr. MILLER. Now, that is all I think the committee is really interested in.