Ervin has sponsored a bill, supported by 50 other senators, which would require the President to state within 60 days of receiving a bill whether he wishes to impound authorized funds, and that Congress be required to give that approval. Although Nader said that this gave the President too much leeway, Sen. Thomas F. Eagleton (D-Mo.) supported Ervin's proposal, calling it "a good beginning in reasserting our power."

Eagleton also said in his testimony that "the time has passed for Congress to wait for the constitutional issue to be decided, despite the fact that several cases are now pending in the courts. The willingness of the present Administration to seize upon impoundment as a tool for molding the federal government in its image and not that legislated by Congress-necessitates prompt legislative action to prevent further unconstitutional encroachment upon the powers of Congress."

Ervin's special committee has been given broad powers to look into impoundment and other aspects of what he and other members consider a "constitutional crisis" over the rights of Congress and the rights of the executive branch.

Opening the hearings, the 76-year-old Ervin, who is widely considered the leading Senate authority and spokesman on matters constitutional, set the stage for the battle between Capitol Hill and the White House.

The action taken by Congress, he said, will decide "whether the Congress of the United States will remain a viable institution, or whether the current trend toward executive usurpation of legislative power is to continue unabated until we have arrived at a presidential form of government."

The fault, however, was not all with the White House, Ervin went on to say. He said that not only has the Congress failed to equip itself to handle the complexities of modern lawmaking and oversight, but, “as individuals, too many of us have found it more comfortable to have someone else-the President-make the hard decisions and relieve us of responsibility.”

Moreover, he said, there have too often been "those among our ranks in the legislature who would rather receive a social invitation to the White House than to display loyalty to the governmental institution to which they were elected."

[From the Chicago Sun-Times, Feb. 4, 1973]

SAM ERVIN GETS THE CONGRESS CRUSADE ROLLING

(By David Murray)

WASHINGTON.-Sen. Sam J. Ervin Jr. is at once a likely and an unlikely choice to be leading a constitutional crusade against the faceless, gray-flannel White House under President Nixon.

The 76-year-old North Carolina Democrat is a silver-haired, stocky man, with a rich, "down home" accent and a manner of illustrating points with anectodes that often begin, "Way back yonder when I was practicing law. . . .” Or, “Now, I had a case once down in North Carolina. . . ."

But behind this "good ol' boy" facade is one of the shrewdest brains on Capitol Hill when it comes to constitutional issues.

So it was little wonder that the Senate Democratic leadership gave Sam Ervin the job of looking into the current unhappiness with Mr. Nixon's ways of transacting the public business, ignoring Congress and trying, in the view of many senators and congressmen, to run the entire United States from 1600 Pennsylvania Ave.

This past week, Ervin, sitting in two chairs as chairman of the Judiciary Committee's separation of powers subcommittee and as a member of a special subcommittee (which he himself named) of the Government Operations Committee, heard testimony-and, indeed, gave it himself-on the first major bone of contention between the White House and Congress.

The battle centers around Mr. Nixon's refusal to spend money approved by Congress for specific purposes and programs. The total is in the neighborhood of $12 billion, and the frozen funds are largely concentrated in domestic programs such as water-pollution control.

Mr. Nixon's position is based on two factors; first, that Congress in many cases appropriated more money than he had asked for in his budget requests, and second, that only the administration's Office of Management and Budget is in a position to decide how much money ought to go for what programs.

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The President told an impromptu press conference last Wednesday that Congress was pressed by "special interests" that required it to spend more money than it should and added that the House and Senate have not been "responsible on money."

The second instance, according to Mr. Nixon, arises out of congressional inability, through its fumbling, dilatory methods of screening appropriations in a host of committees, to draw a clear bead on the budget.

But many members of Congress-not all of them Democrats-believe that when Congress passes a money bill, it means that the will of the people has been expressed and the President is mandated to spend the money. Ervin has himself introduced legislation, on which last week's hearings were based, to require the President to ask congressional approval within 60 days if the White House wants not to spend the money.

Opening the hearings last Tuesday, Ervin said the question of impoundment "relates directly to a constitutional crisis in our nation-the question whether the Congress of the United States will remain a viable institution, or whether the current trend toward executive usurpation of legislative power is to continue unabated until we have arrived at a presidential form of government."

Impoundment did not begin with the Nixon administration. Sen. Edmund S. Muskie (D-Me.) testifying before the subcommittee Wednesday, pointed out that in 1754, the governor of the then-Province of Pennsylvania declined to execute legislation passed by the common council to defend the province against the French and Indians. And presidents, beginning with Thomas Jefferson, have refused to spend money allocated by Congress, and have gotten away with it, mostly because Congress either did not feel like challenging them or because the amounts involved were relatively piddling.

But Presidents have generally been aware that they might force a fight with Congress by impounding funds. President Harry S. Truman in 1949, for example, shelved the money appropriated for a 70-group Air Force. But he carefully noted he was taking the action as commander-in-chief after there was criticism he was not legally authorized to impound funds as President.

In President Dwight D. Eisenhower's two administrations, there were flurries over impoundments. In 1956, Congress wanted to have 20 Superfort bombers. Eisenhower said no. Three years later, Eisenhower again overruled spending funds for antiaircraft missile hardware.

In both cases, although Congress fumed, presidential critics did not feel it would be politic to challenge the military judgment of the liberator of Europe.

President Lyndon B. Johnson, in his turn, cut back funds for programs under the Departments of Housing and Urban Development and Health, Education and Welfare. Again, Congress didn't like it, but Johnson was a creature of Congress and wheeled and dealed his way through that thicket.

The genesis of the present unrest with Mr. Nixon came last year, when the President impounded federal highway funds and brought a lawsuit-State Highway Commission of Missouri vs. Volpe (the transportation secretary)—which is still before the court.

What irks Democrats in particular is Mr. Nixon's politicization of the issue of impoundment, together with the other areas in which White House critics believe the President has moved too far into the congressional realm.

Mr. Nixon, said Ralph Nader, who likes to be considered "Public Citizen No. 1," has "developed a 'do-it-yourself' Congress right inside the White House complex." Testifying before Ervin's committee, Nader said the President has now effectively taken over the following functions which are reserved to Congress under the Constitution:

-To make war.

-To enter into treaties by calling them "executive agreements."
-To develop budgets while withholding their details from Congress.

-To reorganize various branches of the executive by presidential fiat rather than by congressional approval and without continued overseeing.

Beyond that, such leaders as Sen. Mike Mansfield of Montana, the Senate majority leader, have become increasingly irked with the way Mr. Nixon has taken pains to denigrate Congress.

In veto messages last fall, for example, Mr. Nixon repeatedly called congressional authorizations "spendthrift" or "reckless." He also said that unless Congress passed his requests and only his requests, there would be increased inflation and new taxes which would be solely on the head of Congress.

Muskie contended before Ervin's committee that the President was not saving money in his budget requests but merely shifting it around. He said Congress would have to use whatever weapons it had at hand to combat the President, and that these might even include impeachment, which he described as “a crude kind of blunt instrument."

The question of what the administration may or may not do was pointed up in 1921 by Charles G. Dawes, the first director of the White House Budget Bureau, forerunner of the present sprawling OMB.

"Much as we love the President," Dawes said at the time, "if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty as a bureau-in an impartial nonpolitical and nonpartisan way-to advise the executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner."

What the Ervin hearings will lead to, no one knows at this point. It is likely that some form of anti-impoundment legislation will get through the Senate, but Rep. Carl Albert of Oklahoma, the House speaker, says he believes that law and precedent are on the President's side in impounding money.

Even if some bill challenging the President is passed, it may well be vetoed, and it is questionable whether the necessary two-thirds majority in both houses can be mustered to override.

Should the issue come to a court test-a second possibility-it is dubious whether the present Supreme Court would hear it. Similar cases have in the past been turned aside as being political in nature, not constitutional.

Other witnesses before Ervin's panel, including Senators Charles H. Percy (R-Ill.), Hubert H. Humphrey (D-Minn.) and William E. Brock III (R-Tenn.), have suggested that one effective way for Congress to get back its traditional powers is to redesign its own budgetary machinery.

In this way, Congress can set a ceiling on federal spending (which Mr. Nixon insists on), beef up its staff and bring some order out of the chaos that is the present system. But this, too, may be quixotic.

The betting is that Mr. Nixon and his White House aides will recognize that Congress is more concerned and angry than ever before in recent history. And out of this recognition may come the corollary that if the President wants to get his own programs through Congress, he had better start improving relations with Capitol Hill.

Perhaps the battle lines are too firmly drawn for that already, but Washington is the capital of the Kingdom of Compromise, and compromise requires two participants.

[From the New York Times, Feb. 4, 1973]

ERVIN ASSUMING LEADERSHIP IN EFFORT TO REASSERT THE AUTHORITY OF CONGRESS

(By James M. Naughton)

WASHINGTON, Feb. 3-Sam J. Ervin Jr. has a jowly, lined face resembling the Appalachian foothills. He frequently slaps his thigh and chortles as he tells courthouse anecdotes, and at the age of 76, he would seem to be about as rebellious in nature as a retired country preacher.

But Mr. Ervin is the senior Senator from North Carolina, his bible is the United States Constitution-in its original form-and if the Congress does more this year than just talk about reasserting its authority, it will be largely because of Mr. Ervin.

"He is the man to watch this year," Senator Mike Mansfield, the majority leader, said the other day. "He'll have his hands full."

The Senate Judiciary Subcommittee on Separation of Powers, headed by Mr. Ervin, conducted hearings this week and will again next week on his proposal to require the President to spend money the way Congress appropriates it.

Another Judiciary subcommittee headed by Mr. Ervin will take up later this month an examination of Government efforts to force newsmen to reveal their sources of information. Mr. Ervin will also be chairman of a full-scale Senate investigation of charges that the Committee for the Re-election of the President conducted political espionage and sabotage last year.

WHITE HOUSE CONCERNED

In his spare moments, Senator Ervin will push for limits on the Nixon Administration's use of "executive privilege," to withhold testimony from Congressional committees, on the power of the White House to enter into "executive agreements" with other governments and on the President's use of the "pocket veto" to kill measures enacted by Congress.

"We're going to have trouble," one White House official said.

The reason for the official's concern is twofold: After years of acquiescence in the absorption of power at the White House, Congress is suddenly awash with rhetoric about a resulting "constitutional crisis"; and, after 18 years in the Senate, Mr. Ervin has acquired a reputation as its foremost consultant on the Constitution.

"I have been fighting for years to try to enforce the doctrine of separation of powers," the Senator said as he sat recently in his bookstrewn office.

Until now, Mr. Ervin said, Congress has seemed reluctant to do much more than "engage in a certain amount of intellectual bellyaching" about such matters as a President's refusal to spend money as Congress directs.

Thus, as he waggled his handlebar eyebrows and brushed ineffectually at stalks of chalk-toned hair that danced back across his forehead, he appeared to take an impish delight in the fact that what he views as excessive secrecy or arrogance in the Nixon White House has gained new allies for his cause. Mr. Ervin has 50 co-sponsors for a bill to require the President to release impounded appropriations unless Congress consents, within 60 days, to a request to withhold the money. Seventeen senior Democratic Senators joined him in filing a legal brief in support of a Missouri court test of the Administration's refusal to spend highway trust funds. The Senate Democratic Caucus voted unanimously to ask Mr. Ervin to lead the Watergate investigation.

At first glance, Mr. Ervin's Senate career seems full of contradictions and unlikely to make him the central figure in a campaign to raise Congress to a par with the executive and judiciary.

He filibustered against civil rights bills, but often initiated civil liberties legislation. He tried to defeat Federal housing programs, but challenged the President's refusal to spend the housing money. He backed the war in Vietnam, but fought Army surveillance of antiwar protesters. He came from the Bible Belt town of Morganton, N.C., but defended the Supreme Court ruling against prayer in public schools.

If there is a consistency in Mr. Ervin's record, it is that he views every bill he votes on in terms of his interpretation of the Constitution.

"I think," he said, "that apart from the faithful observance of the Constitution by the President, the Congress and the courts, our country has no protection against tyranny."

He recalls having gone through Harvard Law School backwards-third year first, then the second year and finally the first years classes-and would just as soon have the Supreme Court track back to the Constitution in its original form. "Sometimes I think the Supreme Court's reversed everything I ever knew on the subject and left me in a state of total ignorance." Mr. Ervin said-with the same laugh he uses to embellish his cracker-barrel stories.

Amid quotations from Thomas Jefferson or James Madison, he is just as likely to cite Lum Garrison, the town philosopher of Morganton half a century ago: "The first time I ran for the Legislature, Lum told me, 'Pass no more laws and repeal half of those we got.'"

Mr. Ervin's homespun gentility may be his biggest asset. He does not raise his voice in committee hearings. He does not hammer on his desk as some colleagues do to underline their seriousness. Instead, Senator Ervin smiles.

When he smiled last Thursday and said that he was "considering" issuing subpoenas for two Cabinet members who were reluctant to testify before one of his subcommittees, a White House official sped to Mr. Ervin's office and promised that the Cabinet officers would appear.

The Senator smiled as he listened to Roy L. Ash, the new director of the White House Office of Management and Budget, testifying that the President had the right to withhold appropriated funds. Mr. Ervin made his point by instructing an aide to give Mr. Ash a blue, paperbound copy of the United States Constitution.

[From the New York Times, Feb. 7, 1973]

WIDE SPENDING REFORMS URGED IN CONGRESS STUDY-OFFICIAL UPHOLDS NIXON

(By James M. Naughton)

WASHINGTON, Feb. 6-The new Deputy Attorney General, Joseph T. Sneed, told members of Congress today that President Nixon had an implied constitutional right to refuse to spend money as Congress directed.

But members of the Senate Judiciary Subcommittee on separation of Powers countered that the Nixon Administration was trying to rewrite the United States Constitution and that Mr. Sneed's attitude was reminiscent of the President Ferdinand E. Marcos when he recently abolished the Philippine National Assembly.

One Senator went so far as to tell Mr. Sneed that in explaining the President's cutbacks in domestic programs, "you put up the best possible defense you could for a guilty client."

VETOES FORECAST

The committee debate over a Senate proposal to require the President to spend congressionally appropriated money was by turns contentious, scholarly, humorous and esoteric. It represented the high point thus far of an angry clash between Congress and the President over conflicting views on national spending priorities.

Republican Congressional leaders declared after a meeting with Mr. Nixon this morning that the President was determined to hold down Federal spending and would veto a "very substantial” number of appropriation measures if they conflicted with the White House goal.

The House of Representatives scheduled floor action tomorrow, nonetheless, on a proposal that would require Mr. Nixon to release $225-million in rural conservation funds that the White House has withheld from the current budget. Mr. Sneed, who was sworn in last week as the number two official of the Justice Department, said that a proposal to force Mr. Nixon to seek Congressional approval each time he wanted to impound appropriated funds was probably unconstitutional and would reduce the President to the status of a "chief clerk." The Deputy Attorney General, presenting the first detailed rationale for the President's refusal to spend more than $8-billion appropriated by Congress, said in prepared testimony that the President was sworn to uphold "all" the laws. Thus, he contended, if appropriations bill appeared to conflict with Congressional mandates limiting the national debt, curtailing inflation or seeking full employment, the President was empowered to impound appropriations.

ABOLITION RIGHT UPHELD

At one point during long questioning he told Senator Charles H. Percy, Republican of Illinois, that the President's powers allowed him to abolish programs by withholding their total appropriations.

Mr. Sneed also disavowed a 1969 memorandum in which William H. Rehnquist an Assistant Attorney General later appointed to the Supreme Court by Mr. Nixon-advised the White House that the refusal to spend appropriated money "is supported by neither reason nor precedent."

Senator Percy recalling that Mr. Nixon had described Mr. Rehnquist as "the President's counsel," asked if Mr. Sneed was suggesting the Associate Justice had used faulty judgment.

"We think it was erroneous," Mr. Sneed replied.

The crowded hearing room erupted in laughter when Senator Sam J. Ervin Jr., Democrat of North Carolina, said "The President didn't appoint him [Mr. Rehnquist] to the Supreme Court because he gave him erroneous legal advice, did he?

Mr. Sneed's response was inaudible.

CHALLENGE BY MUSKIE

Senator Edmund S. Muskie, Democrat of Maine, sharply challenged the Administration viewpoint as Mr. Sneed gave it. Mr. Muskie said that Mr. Sneed's testimony was "very much like the tone of a speech made by the President of the Philippines as a justification for eliminating the National Assembly."