Especially where Mr. Ash is concerned, it seems to us important to distinguish between two related but separate issues that have been raised in connection with Senator Ervin's bill. The fitness of Roy Ash for the job is one, and the relationship to Congress of the man who holds that job-whoever he might be—is the other. And although it seems apparent that questions concerning potential conflicts of interest on Mr. Ash's part have fueled the congressional drive to make this job subject to Senate confirmation, the legislation itself does not dispose of Mr. Ash's fate one way or the other. It merely addresses the question of whether the two top officers of OMB, including those who have just been appointed for a presumably long term of office, should be required to gain the same kind of Senate approval as Cabinet officers and other government officials. We think the answer to that is yes.

The positions that are at issue, like the OMB itself, have been altered dramatically in nature over the years. Half a century ago at its inception, the Budget Bureau amounted to little more than a small advisory group within the executive branch. Today, thanks to innumerable statutes and executive orders and rearrangements that have intervened, we are talking about something quite different. We are talking about an administrative and managerial agency of some 700 persons, an agency which makes and carries out policy affecting all the other departments of government. It is, as proponents of Senator Ervin's legislation have observed, more than slightly ironic that the top officers of this all-important decision-making-and-enforcing agency should retain “advisory" group immunity from Senate confirmation proceedings, while the relevant officials of other executive branch offices much more advisory in nature require confirmation. For instance, the Council of Economic Advisers, the Council on Environmental Quality and the Office of Telecommunications Policy all are subject to confirmation of key officials.

There appears to be widespread support in both bodies of Congress and among legislators of both parties for the principle the Ervin bill asserts, even though some have questioned the actual formulation of the bill itself. So the odds seem to be that it will be passed by the Senate and also by the House. Evidently too, Mr. Nixon's spokesmen have put it out that the President intends to veto the legislation if it passes on the grounds that it would inhibit the President's choice of advisers and also establish retroactive conditions on the ability of men he has put in office to serve. In our view the desirability of making Senate confirmation a condition of these most unadvisory of positions seems abundantly clear. And at a time when Congress and the administration seem destined for a pitched battle over the actions of the OMB, it would seem to us to be in the administration's interest that the top OMB directors be people of whom the Senate had formally approved. The dispute over Mr. Ash's qualifications and connections is bound to continue in some congressional setting until it is resolved. We can think of no more appropriate and ultimately reassuring setting for its resolution than Senate confirmation proceedings.

[From the Washington Post, Feb. 6, 1973]

THE IMPOUNDMENT BATTLE
(Editorial)

"Constitutional crisis" is hardly a term to be lightly invoked. In the battle over impoundment, however, the administration has pushed matters at least to a point of real constitutional strain. The White House has already gone far beyond precedent in using impoundment systematically to control Congress, the budget and social policy. Moreover, President Nixon and his aides seem intent on legitimizing their enterprise by advancing a novel and alarming concept of executive authority, a concept which applies a full twist to the constitutional duty of the chief executive to "take care that the laws be faithfully executed." As Senator Sam J. Ervin observed the other day, the new reading seems to be that the President may execute some laws by carrying the out, and execute others by killing them.

Mr. Nixon put it baldly at his press conference last Wednesday, declaring that: The constitutional right for the President of the United States to impound funds and that is not to spend money, when the spending of money would mean either increasing prices or increasing taxes for all the people, that right is absolutely clear.

One wishes that this had been one of the President's occasional offhand remarks, for as a serious argument it is astounding. Most students of the issue agree that impoundment is one of the murkier areas in constitutional law, and precious little about the practice is either absolute or clear-except that it is not among the presidential powers (there are no "rights") set forth in Article II. The prevalent view, except at the White House, was expressed by Associate Justice William H. Rehnquist in 1969, when he was an assistant attorney general. He wrote:

With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that the existence of such a broad power is supported by neither reason nor precedent. As the Rehnquist memo went on to suggest, a respectable case can be made for impounding some kinds of funds in some instances. Such briefs rely, however, not on any sweeping constitutional claim, but on custom, circumstance and the precise language of specific acts. It is also reasonable to assert that occasional collisions between appropriations and other laws, such as the debt ceiling, may require or permit a chief executive to modulate spending. Finally, there is some authority in the Anti-Deficiency Act, which authorizes creating "reserves" to "effect savings... through changes in requirements, greater efficiency of operations, or other developments." But that authority is limited, not that you would know it from some of the administration's interpretation of the law. Last week, for instance, budget director Roy L. Ash stretched the law more than a little when he tried to justify the freeze on housing funds on the grounds that there had been "some very dramatic ‘other developments'-the programs had not achieved the results Congress intended."

The underlying issue here is not the fate of any one program, or the sway of politics between a Democratic Congress and a Republican administration. It is the extent to which the chief executive should arrogate the power to amend, suspend and shelve programs duly enacted and funded by Congress. Mr. Nixon is not the first occupant of the White House to invoke the conceit that the president alone speaks for the "general interest." But he is the first to claim in such unqualified terms the "right" to pick and choose among appropriated funds and thus impose his own judgment of what is worthy or wasteful for the government to do.

The administration argues, of course, that Congress has forfeited its legislative power over spending by abdicating responsibility. Indeed, the failures of the legislative branch are all too evident. But as Justice Black wrote in the steel seizure case in 1952, "The founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times." However inefficient, spendthrift or shortsighted the Congress may be-and it has been all three-the executive branch cannot rush in to rescue the nation without running into, or over, the Constitution along the way.

[From the Washington Post, Feb. 8, 1973]

HILL CHAIRMAN ATTACKS OEO DISMANTLING

President Nixon's plan to reshuffle federal anti-poverty programs was attacked at a House hearing yesterday as threatening to "create the most distressing and turbulent period in our history since the 1930s."

Chairman Augustus F. Hawkins (D-Calif.), of the House Equal Opportunity Subcommittee, said the President's proposal to dismantle the Office of Economic Opportunity and move some of its programs to other agencies would subject "the powerless poor to rivalry" over reduced federal money.

Hawkins contended the President cut social programs $8 billion in his budget while asking more than $19 billion in subsidies for corporations through tax breaks and payments for cost overruns.

Paul Fasser, the Labor Department's manpower administrator, testified that both the Job Corps and summer youth job programs will be continued.

Fasser said the Job Corps will be reduced from an average 22,500 enrollees to 16,000 and tightened so that the thrust will be not only to train corpsmen but to get them jobs. Its funds will be cut from $184 million to $125 million.

Fasser also said local mayors will be able to ask for emergency employment funds to continue their summer youth employment programs but he had no way of knowing whether they would want as many jobs this year as last.

[From the Washington Post, Feb. 11, 1973]

MILLS SAYS PRESIDENT CAN IMPOUND FUNDS

LITTLE ROCK, Ark., Feb. 10 (UPI)-Rep. Wilbur D. Mills (D-Ark.) says President Nixon has a constitutional right to impound federal funds, but he told the Arkansas legislature that setting spending priorities was up to Congress.

"And when a President says, 'Even though you may pass a program involving a priority over my veto, I still don't intend to spend the money,' I think that most any court sitting in Washington in the name of the Supreme Court of the United States would say he had no such constitutional authority," Mills said Friday.

The Arkansas congressman, chairman of the tax-writing House Ways and Means Committee, said he favored spending cuts, too, but that his priorities would be different from President Nixon's.

"Economizing without compassion would be the cruelist tyranny of all," he

said.

He advised the legislators, who met in a special joint session for the speech, to be cautious in budgeting any of the funds impounded by Mr. Nixon, although he said Congress might be able to change some of the budget cuts, especially in the areas of health and education.

"I would be very conservative in expecting to get much of this money," said Mills.

He said Congress would probably make some budget cuts of its own in the Defense Department.

"I think the Congress is going to take his [President Nixon's] word that this war is over and not spend six or seven billion dollars," he said "I think about 10 or 12 billion could be cut out and not get into the muscle of the defense budget." Mills also said he thought the United States' aid to North Vietnam to help repair some of the bomb damage would be "an awful bitter pill for Congress to digest."

"I just don't like to give a bunch of fellows I can't describe as anything other than murderers and hoodlums money out of the federal treasury," he said.

WCBS-TV EDITORIAL, CHANNEL 2, N.Y., JANUARY 9, 1973

Every school child knows how the American system of checks and balances and separation of powers enshrined in our Constitution is supposed to work. Congress makes laws and the President executes them. If a president opposes a bill, he can veto it. But the Congress can override his veto by a two-thirds vote. Then the bill becomes the law of the land and the President has to execute it. Simple, right? Well, not always. Presidents have from time to time decided not to do the will of the people's representatives. They have refused to spend money authorized and appropriated by Congress-in flagrant disregard of Congress' constitutional prerogatives. For under the Constitution, the power of the purse belongs exclusively to the legislative branch.

Presidents in the past have stopped action on one or two controversial appropriations as Harry Truman did in 1949, but President Nixon has gone much further. He has already refused to spend $6 billion appropriated for water purification. He virtually cancelled a 12-year-old program for environmental protection of rural areas; and he has held back funds for other programs as well.

President Nixon says he is doing this to fight inflation. And Congress needs to do some soul-searching in this regard. For congressional budgetary procedures are hopelessly inadequate. Congress votes on programs piecemeal, without a view of the whole. Often there is little correlation between the money Congress raises and the money it spends.

But the fundamental issue here is not congressional reform, as needed as that may be. The fundamental issue-one that goes to the heart of the American system-is that one branch of government should not be allowed to usurp the powers of another. It is with this in mind that 14 senators have drawn the lines of battle. They have taken President Nixon to court to force him to release $80 million in impounded highway funds for Missouri, Democratic Sen. Sam Ervin of North Carolina has also drafted legislation that would forbid the President to impound congressionally appropriated funds, and the Senate Judiciary Committee is planning to hold hearings on this legislation next month.

We think that the separation of powers is worth protecting-and that Congress' constitutional authority over spending must be preserved. It's not the money. It's the principle.

[From the New York Times, Feb. 8, 1973]

IMPOUNDING AND IMPLYING

(By Tom Wicker)

In the political and constitutional struggle now developing between Congress. and President Nixon on the question of his right to refuse to spend appropriated funds, the danger is that the President is largely right on the issue and may therefore seem to be right on the principle.

The issue is not to be downgraded. Holding down prices and taxes is one of Mr. Nixon's aims in reducing the rise in Federal spending; there may be other ways to achieve that aim but few will dispute its importance. Ridding the Federal budget of outmoded, unnecessary and ineffective programs is useful in itself-although there is ample room for argument over Mr. Nixon's specific decisions.

Mr. Nixon is right, moreover, in contending that Congress has no functioning machinery, and has never displayed the will power or political courage, to set and keep an economically sensible spending ceiling-much less to balance spending. priorities within such an over-all limit. The process of setting up such Congressional machinery is only beginning, and the outcome is much in doubt.

Congress, moreover, has often been the offender rather than the offended. If, for example, a President were impounding money appropriated to double the size of the Air Force or build a full-scale A.B.M. system, some now criticizing Mr. Nixon would be backing him to the hilt. In fact, Congressional excess on military spending in past years was a major reason why Presidential impoundments came to be more frequent.

It is one thing, however, for a President to act essentially defensively against a specific Congressional policy he thinks unwise, particularly in the case of an item appropriation he could not veto without vetoing an entire appropriations bill-and even in that limited case his constitutional authority seems never to have been fully tested. It is quite another thing for a President to use the impoundment of appropriated funds offensively or aggressively-as Mr. Nixon now is doing to change the whole direction of government and to nullify legally legislated policies without resort to accepted constitutional practice.

Agriculture Secretary Butz, for example, has announced that all appropriated funds for the rural environmental assistance program have been impounded and the program terminated. He and Mr. Nixon no doubt have what they consider good reasons to kill this program; but accepted practice heretofore would havebeen for Mr. Nixon to ask Congress to repeal it, or to appropriate no more funds. Has he the right, not before claimed, to end by executive fiat a legislative policy, either because it would be more efficient to do it that way or because Congress might refuse to do as he recommended?

Well it may be asked why the Constitution's framers gave the President the veto power, and required a two-thirds vote in each house to override it (giving the executive a substantial and definable share of the legislative power), if they also intended, without saying, that he have the power to nullify acts of Congress for his own reasons, whether or not he had previously vetoed them, whether or not the veto was overriden.

The Administration seems to be arguing that the impoundment power is implied in the President's duty to "take care that the laws be faithfully executed”— a strange claim from a "strict constructionist" President. In political fact, however, Mr. Nixon is resting his case on public necessity, which is no doubt considerable, but which is also a dangerous doctrine to invoke in constitutional matters. At his recent news conference, for example, Mr. Nixon said he had an "absolutely clear" constitutional right to impound appropriated funds when their expenditure would cause a rise in prices or taxes. Whether the right is all that clear is questioned by many; but if it exists it can't be ascribed to a nonexistent constitutional duty falling on the President to hold down either prices or taxes. This is a momentary public necessity which is being adduced to justify an expansion of the President's constitutional limits.

Again, in the case of the water pollution control act, Mr. Nixon refused to allocate to the states $6 billion authorized by Congress. Ronald Ziegler and the budget bureau have pointed out that funds to meet the authorization have not been appropriated, hence have not technically been impounded. But what has happened goes beyond impoundment because, having vetoed the original bill and'

lost, Mr. Nixon still had the chance to fight in Congress against the actual appropriation of funds this year.

Fearing he would lose again, Mr. Nixon refused even to allocate the authorization among the states, although doing so would not have involved spending a dime, and he would later have had the opportunity to reduce or refuse state requests for any funds that might ultimately be appropriated. That is how an "implied" power to impound funds can become the "implied" power to set aside legislative enactment, in effect overriding Congress' overriding of the veto. It is the same insidious process by which implied powers produced the imperial Presidency in foreign affairs, and now work toward the monarchical President at home.

[From the Evening Star and Daily News, Washington, D.C., Feb. 8, 1973]
IMPOUNDING AND IMPLIED POWER

(By Tom Wicker)

In the political and constitutional struggle now developing between Congress and President Nixon on the question of his right to refuse to spend appropriated funds, the danger is that the President is largely right on the issue and may therefore seem to be right on the principle.

The issue is not to be downgraded. Holding down prices and taxes is one of Nixon's aims in reducing the rise in federal spending; there may be other ways to achieve that aim but few will dispute its importance. Ridding the federal budget of outmoded, unnecessary and ineffective programs is useful in itself-although there is ample room for argument over Nixon's specific decisions.

Nixon is right, moreover, in contending that Congress has no functioning machinery, and has never displayed the will power or political courage, to set and keep an economically sensible spending ceiling-much less to balance spending priorities within such an over-all limit. Presidents have been doing the budgetary job mostly from necessity, not in an egregious usurpation of congressional power.

Congress, moreover, has often been the offender rather than the offended. If, for example, a president were impounding money appropriated to double the size of the Air Force or build a full-scale ABM system, some now criticizing Nixon would be backing him to the hilt. In fact, congressional excess on military spending in past years was a major reason why presidential impoundments came to be more frequent.

It is one thing, however, for a president to act essentially defensively against a specific congressional policy he thinks unwise, particularly in the case of an item appropriation he could not veto without vetoing an entire appropriations bill-and even in that limited case his constitutional authority seems never to have been fully tested. It is quite another thing for a president to use the impoundment of appropriated funds offensively or aggressively-as Nixon now is doing to change the whole direction of government and to nullify legally legislated policies without resort to accepted constitutional practice.

Agriculture Secretary Butz, for example, has announced that all appropriated funds for the Rural Environmental Assistance Program have been impounded and the program terminated. He and Nixon no doubt have what they consider good reasons to kill this program; but accepted practice heretofore would have been for Nixon to ask Congress to repeal it, or to appropriate no more funds. Has he the right, not before claimed, to end by executive fiat a legislative policy, either because it would be more efficient to do it that way or because Congress might refuse to do as he recommended?

Well it may be asked why the Constitution's framers gave the President the veto power, and required a two-thirds vote in each house to override it (giving the executive a substantial and definable share of the legislative power), if they also intended, without saying, that he have the power to nullify acts of Congress for his own reasons, whether or not he had previously vetoed them, whether or not the veto was overridden.

The administration seems to be arguing that the impoundment power is implied in the President's duty to "take care that the laws be faithfully executed”— a strange claim from a "strict constructionist" President. In political fact, however, Nixon is resting his case on public necessity, which is no doubt considerable, but which is also a dangerous doctrine to invoke in constitutional matters.