suggested by Prof. Miller. That is, the Congress, in appropriate instances, could place mandatory rates or schedules of accomplishment within the provisions of the substantive authorizing statutes, and could amend such rates or schedules from time to time as necessary in the light of the current situation including budgetary considerations. Such provisions, under the principles of Mississippi v. Johnson, would likely be subject to judicial enforcement against heads of agencies and presidential subordinates. And, if the mandatory rates or schedules were followed, there would be no question of "impoundment."

There is at least one point of which I agree with Prof. Miller. That is that the process of developing appropriate mandatory rates or schedules by congressional edict would imply a much greater congressional responsibility for budgetary management than is now the case. My own preference would be for the rates and schedules to be developed in the substantive committees of the Congress rather than in the appropriation committees. Perhaps the substantive and appropriation processes could be combined. I think that either the solution I propose or that proposed by Prof. Miller would require a major congressional reorganization before it could be fully carried out.

KARL S. LANDSTROM,

Former Director, Bureau of Land Management.

[From the Washington Post, Nov. 27, 1972]

ON IMPOUNDING APPROPRIATIONS: PROFESSOR MILLER REPLIES

Karl Landstrom's letter on impounding appropriations (Nov. 21), replying to mine of Oct. 26, lets us in on some secrets that should be widely disseminated. 1. He should tell Chief Judge Becker (U.S. District Court in Missouri) that "there is no mechanism by which .. (anyone) could obtain judicial process by which to enforce against the presidency any so-called mandatory appropriation authorizations." Last June, Judge Becker ordered Secretary of Transportation Volpe and Caspar Weinburger, Director of OMB, to stop the "impoundment" or "witholding" of highway trust funds. The suit was brought by the State Highway Commission of Missouri. The decision rests squarely on a statute (Sec. 101, Title 23, U.S. Code).

Mr. Landstrom knows full well that the President as chief executive need not be a party defendant to such a lawsuit. After all, the Supreme Court in 1952 held that Secretary of Commerce Sawyer acted unconstitutionally when ordered by President Truman to seize the steel mills. So unless the Supreme Court is willing to overrule more than a century of precedent, Mr. Weinberger, as head of OMB, and other executive officials, are subject to the judicial process. That is elementary constitutional law, as Mr. Landstrom knows full well. Mississippi v. Johnson, which he cites as precedent for his position, is simply not apposite. 2. He should also let Justice Rehnquist in on his secret, as well as Rehnquist's successors in the Justice Department. For in 1971, in the same hearings in which Landstrom participated, Assistant Attorney General Rehnquist said in part: “. . . the Office of Legal Counsel (which he headed) has taken the position that the President must spend in the domestic area when it is clearly mandated that he do so." (Emphasis added.)

3. Mr. Landstrom should tell the attorneys for the state of Missouri and also Ralph Elliott of Jacksonville, Fla., who is attorney in a recent suit against the Secretary of the Army and Mr. Weinberger, that they are pursuing futile quests. In Florida, funds for a barge canal, as well as separate money for an environmental impact statement, are being held up by OMB.

Other lawsuits are pending or are about to be filed. And in an analogous situation, Sen. Kennedy last August sued the head of General Services Administration and the Chief of White House Records in an effort to make them publish a bill (the Family Practice of Medicine Act) that the President purportedly “pocket vetoed" in December 1970. No doubt, Sen. Kennedy, as a lawyer, will be interested in Mr. Landstrom's secret.

4. Furthermore, Mr. Landstrom plays some puerile semantic games. Contrary to what he says, "impoundment" is the term usually used. True, it is not easy to define, as witness current efforts experienced after Congress tacked on to the debt-ceiling bill in October a requirement that it be informed of all impoundments. Sen. Charles Mathias called it a technique that permits the exercise of an "informal line item veto over appropriated money." No constitutional or statutory provision permits an item veto-but that is precisely what the extra-constitu

tional method of impoundment by OMB amounts to. As of June 30, 1972, about $12 billion were so impounded.

Almost everyone save Mr. Landstrom agrees that impoundments are deliberate attempts to scuttle projects authorized by Congress, but disliked by the Executive. As I said in my previous letter, President Nixon did not invent the technique. There is a lot of loose talk, in and out of Congress, that all Presidents since Jefferson have impounded, but any fair reading of the record soon shows that it really began with F.D.R. during World War II.

5. For Mr. Landstrom to mention the Three Sisters Bridge indeed boggles the mind. No one argues that money should be spent unlawfully (that is the thrust of the judicial order there). And certainly no one argues that efforts should not be made to be efficient and to save money. Every dollar of every appropriation need not be spent. What cannot be justified under law is the cancellation of entire projects such as the Florida canal and the Potomac River aquarium. If Landstrom can furnish any legal basis for such cancellations, he will then have a case for his position. But he cannot-as he knows full well.

6. It is faintly amusing to be called "radical" for daring to suggest that the Constitution means what it says-that Congress and only Congress has the power to appropriate money and that the President has the duty to faithfully execute all the laws. If Mr. Landstrom wants to rewrite the Constitution, he of course is at liberty to do so. The First Amendment merely protects speech; it does not require that the speech make sense.

7. Mr. Landstrom suggests that Congress could place "mandatory rates or schedules" in statutes and could amend them from time to time. Then he says (God save the mark!), "if the mandatory rates or schedules were followed, there would be no question of impoundment." Let me recast that: If Congress says funds must be spent and they are in fact spent, then impoundment must take place. I hardly think we need education in the obvious; as Little Abner might say, "any fool can plainly see" that if appropriated money is spent, impoundment has not occurred.

ARTHUR S. MILLER,
Professor of Law,
The George Washington University.

FEBRUARY 3, 1973.

Hon. SAM ERVIN, Jr.,

Senate Committee on the Judiciary,
Washington, D.C.

DEAR SENATOR ERVIN: I wish to be recorded in the hearings now in progress as very much opposed to your bill which would prohibit the President from "impounding appropriated funds" without the approval of the Congress. I have been traveling for the past several weeks, and I have not had the opportunity to study the text of the bill now under consideration by your Subcommittee. However, from newspaper reports of its purpose and method, I believe that you and your colleagues who support the measure are distinctly wrong on the law and the facts and that your remedy for the problem that has been encountered is unsatisfactory.

You will no doubt recall that I appeared before your Subcommittee in the last preceding Congress during its exploratory hearings on this subject. As a member of the Federal Bar Association's Committee on Administrative Law, as a former head of a bureau in the Department of the Interior, and now as an interested citizen, I reaffirm the information and advice that I submitted at that time, and incorporate it by reference in this letter. Please also refer to my letter to the Editor of the Washington Post which was printed in November of 1972.

From the newspaper accounts, you have again challenged the authority that has been used in the Executive Branch by which, as you and your colleagues have put it, the President "impounds appropriated funds." You are quoted as saying: "An appropriations bill is a law." Of course an appropriations bill, like any other bill, becomes a law if it is passed and duly enacted. That is beside the point. The point is to examine what the law says. You apparently did not consider my earlier testimony asking you, please, to read an appropriations act. The usual appropriations act does not command or direct the President, the Secretary of the Treasury, or anyone else in the Executive Branch to spend as much as a penny. All it does, by its own terms, is to authorize the appropriation, for specified objects or purposes, of any funds not otherwise appropriated from the Treasury of the United States.

I sincerely wish that you and your colleagues would clean up your language on this matter so that you are reflecting the law and the facts. As I have previously testified, and as I wrote to the Washington Post, the substantive auhorizing legislation concerning the Government programs or projects which are at issue in this debate almost invariably use language of authorization (the Secretary is hereby authorized to construct, etc.), not language of mandatory direction (the Secretary shall construct, etc.). Thus, both the substantive authorizing legislation and the applicable appropriating legislation are couched in authorizing language, not mandatory language. I sincerely wish that you would look, for example, at the statute which authorized the Administrator of General Services to construct the Potomac River aquarium. If you should do so, you will notice that the text of the law merely authorizes such construction, without indication as to rate or schedule of progress or termination date. By the same token, the applicable appropriations act merely authorizes the appropriation of funds out of the Treasury with which to liquidate any obligations which might have been incurred as a result of construction. Neither law directs anyone in the Executive Branch to do any thing by any set time at all. And thus it is with the great majority of the laws about which you and your colleagues are dealing. I say, please clean up your language, at least, so as to come to the actual legal and factual point. It is regrettable, indeed, that you could resort to a truism (An appropriations bill is a law) to support your argument. If you would only read that law and be willing to follow its explicit text you would have to admit that the law in question was not mandatory, merely authorizational.

I am concerned and disappointed that, according to newspaper accounts, Director Ash did not explain to you the constitutional and statutory basis by which personnel in the Executive Branch, under circumstances such as the Potomac aquarium act, are enabled lawfully to reduce or discontinue Government operations and the spending of moneys under authorized programs or projects. The constitutional basis that I would cite is not the "take care" clause, which was referred to by Director Ash. It, rather, is the legislative power which the Constitution gives to the Congress. I regret that I do not have facilities, while travelling, to submit a precise legal brief on this point. That I should be pleased to do upon return to my home in Arlington. However, the cases do indicate that when the Congress passes a statute which authorizes a member of the Executive Branch to perform a function, without specification as to time or rate of progress, or without a deadline being stated, then such authorization amounts to a delegation of Congressional discretion, not only on the matter of when and at what rate to proceed, but also on the matter of whether to perform the function at all. One case that I have cited on this point is Ferry v. Udall, U.S. Supreme Court, about 1962.

My point can be simply stated in another way: The Congress, in such statutes, has delegated discretion to one or more members of the Executive Branch to proceed under such authorizations (both substantive and appropriations) at such rate or schedule as appears to such Executive Branch member as most appropriate in the public interest. If the Congress had intended otherwise, it could have, or should have, written into the text of such laws some kind of mandatory directive. Failing to have done so, it ill behooves you and your colleagues, in my opinion, now to complain that the President or his colleagues in the Executive Branch have "contradicted orders from Congress." The reverse is true: the President and his colleagues have been precisely carrying out orders given them by the legislation emanating from the Congress: they have observed the mandate implied from the authorizing language to use their discretion, in the public interest, in adjusting the rate or schedule of progress. Or, in some rare instances, such as the Potomac aquarium case, operations have been entirely suspended under such delegated Congressional discretionary power.

So I must sharply differ with Director Ash: There is a specific law that stipulates that the President and his colleagues may suspend or reduce the pace of Government operations in instances such as the Potomac aquarium case. The specific law is (1) the substantive authorizing statute; and (2) the appropriations statute. If you will but reach such statutes, you will have to admit that by their terms, as well as by traditional interpretation of such terms, they do not direct or command that any Government operation shall proceed at any specific rate or pace or by any certain deadline. They merely authorize that such operation proceed, but under delegated legislative discretion, resting for its foundation upon the Constitution powers of the Congress, to proceed at such rate or schedule, if at all, as the Executive Branch personnel consider, in their judgment. to serve the public interest.

Please, for the sake of legal and factual accuracy, stop saying that the President "impounds funds." What happens, both in legal theory as well as actual practice, is that the Office of the President formulates rates of progress under various authorizational statutes that, taken together, in the judgment of the responsible officers, will best serve the public interest. Then so-called ceilings are placed on the rate of employment in the particular programs or projects, or on the rate of procurement of supplies or services therefor. (In rare cases, as in the Potomac aquarium case, work is entirely stopped or postponed.) Obviously, the reduced level of personnel hiring and work results in reduced obligations against the authorized level of appropriations. Hence, less money is spent from the Treasury. There are no "funds" lying around unused in the Treasury because of some Presidential directive. As you know as well as I, the Treasury Department funds (cash) only to the extent necessary to anticipate current obligations. There are no billions of dollars lying around "impounded" in the Treasury as the language that you and your colleagues employ would have the public believe. What has been impounded, if one must use that term, is the work which the Congress, under its Constitutional power, has authorized to be performed by the Executive Branch, by terms of the substantive and appropriations acts, not at any rate or schedule fixed by the statutory language, but rather at a rate or schedule deemed appropriate, in the public interest, by Executive Branch personnel in accordance with legislative discretion delegated in such acts to Executive Branch personnel.

As I testified before your Subcommittee earlier, and as I wrote to the Washington Post, the proper remedy for the problem is not the one you propose, but rather to experiment with mandatory authorizing and appropriations language which specifies the rate or schedule of progress. Then, of course, the delegation of legislative discretion as to rate or schedule would be removed, and the applicable Executive Branch personnel (other than the Presidency itself) could be held judicially accountable. Of course, such a course of action would impose a much larger obligation on the Congress than is now generally exercised to pass judgment upon the rate or schedule by which authorized programs or projects are implemented in the Executive Branch or in the independent agencies. This, I recognize, is the end result desired by many of the sponsors of the pending legislation. But I believe the proper method, following my analysis of the law and facts, should not take the form of the legislation now pending, which I consider a misdirected "meat-axe" approach. Rather, the proper remedy would be to experiment with specific mandatory language in the individual substantive statutes (or amendments thereto in the case of statutes now in effect) under which the applicable Executive Branch personnel would be obligated to proceed at indicated rates or schedules of progress. And it would not, in my judgment, be adequate merely to specify such rates or schedules once when the bill is originally passed. The rates or schedules would have to be reviewed almost continuously by the Congress. Times change and conditions vary, even within a year, as we all know. Hence, the Congress would have to be ready at all times to amend such mandatory statutes so as to change the mandatory rates or schedules. or possibly postpone the work, if necessary in view of changed conditions. Obviously, if the statute is couched in expressed mandatory terms, it would be enforceable upon the applicable Executive Branch officer (other than the Presidency itself) by judicial action.

As I have previously indicated. I feel than any large-scale development of the kind I have proposed could only be satisfactorily accomplished by means of a major reorganization of the committee structure of the Congress. Preferably the function of passing upon new authorizing legislation should be combined with the function of passing upon proposed appropriations authorizations. In other words, if authorizations for work are to be made mandatory as to rate or schedule, the applicable appropriation authority, in identical amount, statute. By the same token, amendments which are proposed as to rates or schedules of progress should be accompanied at the same time, in the same place, and in the same document, by amendments in the applicable appropriations authorization. To do otherwise would end with Director Ash, who has pointed to contrary actions in the past by the Congress such as authorizing Government operations (even though largely discretionary on the part of the Executive Branch) far in excess of the current ceiling on the National Debt.

Please consider me as totally out of sympathy with testimony reportedly given to your Subcommittee by Senator Fulbright to the effect that so-called “impoundments" left the President free to decide which laws to carry out and which to ignore. The applicable substantive statutes, as I have pointed out above, and if

Senator Fulbright will only read them, have delegated legislative discretion to the Executive Branch as to rates of progress; and they have inferred to a responsibility on that Branch, heretofore largely ignored by the Congress, to "impound" rates of progress, if we must use that term, under general supervision by the President under his "take care" Constitutional mandate.

Yours truly,

KARL S. LANDSTROM.

ALBANY, N. Y., February 8, 1973.

Hon. SAM J. ERVIN, Jr.,

Senate Judiciary Subcommittee on Separation of Powers,
Washington, D.C.

DEAR SENATOR ERVIN: Over the past twelve (12) years Congress and the Nation have witnessed a proliferation of presidential power. Beginning with the Vietnam war, continuing with Presidential impoundment of CongressionallyAppropriated funds and perhaps ending with the first budget of the second Nixon Administration, Congresses' Constitutional powers have been ignored, circumvented and eroded until we now find ourselves in a crisis situation. I shall not dwell on the various reasons that might explain this erosion of power, but strongly urge you to begin immediately to exert once again Congressional power in order to control and stop the "Presidential Establishment."

The following are several steps which I urge you to take in establishing control: 1. Challenge impoundments of Congressionally-Appropriated Funds by supporting and voting for bills which will require the President to spend all the funds that are appropriated for urban problems including:

(a) Federal Water Pollution Control Act, Fiscal Year 1973, where Congress voted $5 billion and $1.1 billion has been held back by Administration; Fiscal Year 1974 where $6 billion was voted by Congress and $3 billion has been held back by the Administration.

(b) H.U.D. Water & Sewer Grants where $300 million of $500 million carryover funds appropriated by Congress for use in previous fiscal years has been held back by Administration.

(c) H.U.D. Rehabilitation Loans, Fiscal Year 1973, $70 million of $120 million voted by Congress has been held back by the Administration.

2. Support and vote for a Comprehensive Child Development bill. New York State will be drastically reducing their day care services due to the steps taken by the Administration to place a ceiling on Federal spending.

3. For the present time, continue to support the categorical grant programs including Model Cities, the Neighborhood Youth Corps and the Community Action programs of the Office of Economic Opportunity.

4. Find a way to stop the dismantling of O.E.O. By redistributing its responsibilities to other Departments, all power that the disadvantaged ever had in our society will disappear.

5. Recapture whatever is left of the $5 billion "peace dividend" from the Defense Department. These funds should be channeled into antipoverty and manpower programs.

6. Draft, support and vote for a bill to outlaw the so called doctrine of "executive privilege" that Presidents have used to continue the war in Vietnam. It is essential and must be demanded that the President and any of his staff be held accountable not only through the ballot box but also through inquiries conducted by Congress.

The above are just a few ways in which you can begin to re-assert Congressional authority and responsibility. I know you will act today to restore our Constitutionally guaranteed system of democracy through appropriate checks and balances applied by each branch of Government.

Sincerely,

PAUL J. MITCHELL.

Hon. SAM J. ERVIN, Jr.,

U.S. Senate, Washington, D.C.

FEBRUARY 12, 1973.

DEAR SENATOR ERVIN: When I testified two weeks ago at the impoundment hearings, one subject of discussion was whether a bill such as S. 373, which gives the President the right to impound funds for 60 days, is preferable to a bill such