Senator JAVITS. But you would not go below the committee level? Mr. STAATS. I would think in a case of this type we would want to ask the committee or the Congress as a whole to make that request. Senator JAVITS. Mr. Chairman, I would certainly hope that we can have an executive session before very long of either the Government Operations Committee or Judiciary or both, or of this subcommittee, and decide whether the soonest and fastest course for the Congress is not to ask our watchdog to tell us whether or not this is legal. Then the Congress, it seems to me, would be on much stronger ground than it is now.

Senator CHILES. Why would we need an executive session to answer that?

Senator JAVITS. Just to discuss it between us. I am willing to ask for it now.

Senator CHILES. The chairman of this subcommittee frowns on those sessions.

Senator JAVITS. Excuse me for getting off on a peripheral issue, but you know whatever the session was, I am just suggesting to the Chair that I would say here and now this: I hope very much the Chair will call a meeting or suggest to Senator Ervin that a meeting be called of such appropriate level committee, to wit, from what the witness says it would have to be Government Operations or Judiciary, it couldn't be the ad hoc kind of subcommittee that is meeting on this issue, to make a request of the Comptroller General as to whether, and that is one of his authorities, these impoundments are lawful. Would the Chair entertain such a request?

Senator CHILES. I would be happy to.

Senator JAVITS. I hereby make it.

Mr. STAATS. Senator Javits, Mr. Chairman

Senator JAVITS. May I yield to Senator Metcalf?

Senator METCALF. If the Senator will yield, it seems to me this witness has made a forthright statement that he is not aware of any authority in the Antideficiency Act or any specific authority in the Full Employment Act of 1946, which he helped to draft, or any other authority to withhold funds for general economic, fiscal, or policy purposes.

What do we have to do, get him up here to say that again?

Senator JAVITS. No. The only reason

Mr. STAATS. If I may interject, I think Senator Javits' question is still a good one because in some specific statutes the legislative history is not all that clear as to whether the Congress did or did not intend that the Executive use some discretion in the level of spending and I think that is the reason we say in the very beginning here that you have to kind of look at these case by case.

Senator METCALF. I think then that the Senator from New York has made a splendid suggestion and I certainly concur we should get the Comptroller General up here to advise us on these case-by-case issues.

Senator JAVITS. I thank my colleagues very much and we have all of the cases in the $12 billion impoundment. You have as many as you need to try it out.

Mr. STAATS. I would like to suggest, Senator Javits, that in our statement we refer to the action taken last year by the Foreign Rela-.

tions Committee, approved by the Congress as a whole, which had the effect of denying the availability of funds to the Executive on programs which the Executive felt were essential unless certain funds were released from the impoundment. Here we had a sanction, the GAO had a sanction in this case because we have the authority to deny the use of any expenditure authority for military assistance unless the funds that have been impounded were released.

Senator JAVITS. In that particular category.

Mr. STAATS. We sent our auditors into those three agencies and we were able to certify to the Congress that the law had been complied with, the money had been released. We did make the exception with respect to funds that had been held back under the Antideficiency Act because the amendment to the Foreign Assistance Act did say that exception would be for any funds being withheld pursuant to existing law. The only existing law that we could find was the Antideficiency Act. So we excepted funds that had been reserved under that statute.

Senator CHILES. What you are saying is this was an instance in which the legislature had worked its will in a political way on the subject of impoundment of funds to those particular agencies.

Mr. STAATS. That is right.

Senator JAVITS. Now, that brings me to the next question, Mr. Chairman, and that is the catechism which is contained in the Antideficiency Act which says, this is section 3679 of the revised statute, subsection (c) (2):

"In apportioning any appropriation," and those words are different, I assume that this is the generic reference to anything you would hold: In apportioning any appropriation, reserves may be established that provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirement, greater efficiency of operation, or other developments subsequent to the date on which such appropriation was made available. Question: Does the word "other developments" then include the moon and the stars or is there some other point of reference and solely relevant to timing, that is, if the other developments occurred subsequent to the appropriation? And therefore, are they absolutely in the discretion of the Chief Executive? He says there are other developments. That is the end of it. Or is there some reference or relevancy of some other refinement or definition of that generic term?

Mr. STAATS. Let me answer your question, but let me say this first: It might well be that the Congress would wish to make the provisions more explicit. However, we think that in the legislative history, and here we are depending on the legislative history, it is very clear that the third type of situation which I describe in the statement could be a situation where events developed in such a way that you do not need all of the money. There may be some unforeseen circumstance develop. I believe it was Senator Church or someone suggested we are going to build something on an island and the island disappeared under the water there would no longer be need to use the funds. These would be situations where no one could have anticipated events which would make the full amount no longer necessary or necessary at all. Now in the Budget Circular itself, in the attachment that we have in the prepared statement, we think we have interpreted this in such a way as to make it clear.

Reserves may be established as a result of changes and requirements, greater efficiency of operations or other developments subsequent to the date on which the budget authority was enacted.

Reserves may also be established to provide for contingent or for subsequent apportionment.

But then it also says in the next paragraph there:

Reserves must not be used to nullify the intent of the Congress with respect to specific projects or levels of programs.

That was the interpretation by the Budget Bureau itself following the General Appropriation Act, 1951.

Senator JAVITS. I think, Mr. Staats, this is extremely revealing. In short, you say the words "other developments” mean substantive good faith postappropriation developments?

Mr. STAATS. That is correct.

Senator JAVITS. Of a factual character?

Mr. STAATS. Yes.

Senator JAVITS. So that just to take an example, if we had inflation before in appropriations, we continue to have it after appropriation, you would have to judge the state of facts as to whether you would say that is or is not another development.

I am not trying to prejudge it, I am saying that would be a criterion you would have to judge, is this substantively a good faith "other development?"

Mr. STAATS. It is a savings that you would achieve because of some subsequent development.

I think that if we go through the legislative history, that is the purpose of this attachment. It is abundantly clear that the Congress did not intend that that other development be used to hold up the project or cancel a project or lower a program level or cancel a program that had been approved.

Senator JAVITS. I have just one other question. I do not want to intrude on your time. But you mentioned something about rescission. You are acquainted with what went on this morning about the possibility of supplemental rescissions rather than supplemental propositions. Mr. STAATS. Right.

Senator JAVITS. Are those so numerous it would be a burden to submit for the record a historical list of when that was done?

Mr. STAATS. I think this could be pulled together. I put together quite a few of them myself.

Senator JAVITS. Shall we limit in time, 10 or 20 years?

Mr. STAATS. If you want to back over 15 or 20 years.

go

Senator JAVITS. Give us a time whenever you say, 20 years, whatever you think, postwar, say beginning in 1945, whether there were any rescissions, and could we have the history of each without burdening you too much?

Mr. STAATS. I think we could.

Senator JAVITS. I ask unanimous consent that it be included in the record.

Senator CHILES. Without objection.

(The following was supplied for the record :)

RESCISSIONS SPECIFICALLY REQUESTED BY THE PRESIDENT FOLLOWING END OF WORLD WAR II

1 Rescinded by 1st Supplemental Surplus Appropriation Rescission Act, 1946, Feb. 18, 1946, 60 Stat. 6. Rescinded by 2d Supplemental Surplus Appropriation Rescission Act, May 27, 1946, 60 Stat. 221.

* Rescinded by 3d Supplemental Surplus Appropriation Rescission Act, 1946, July 23, 1946, 60 Stat. 624. Rescinded by Urgent Deficiency Appropriation Act, 1947, Mar. 22, 1947, 61 Stat. 17.

'Rescinded by Supplemental Appropriation Act, 1952, Nov. 1, 1951, 65 Stat. 754, 755.

Senator JAVITS. And I reiterate my request for a meeting of the committee to make a request of the Comptroller General for a legal opinion on these specific impoundments which have been announced by the President.

Senator CHILES. Thank you.

Such a request will be made.

Mr. Staats, your testimony is that you think that the antideficiency statute should be an exclusion to the legislation that is now pending before us because you feel that there hasn't been an abuse under that

statute.

I think the committee would like to have any kind of information we could to determine the facts of that.1

Our concern, I think, is that it has been broadly cited as being authority for impoundment requests. Now for impoundments. It has been used from time to time by administrative people when they were asked why they impounded or what was their authority, they would cite the statutes as they have cited some of the others. We have talked about the full employment statute and some of the others. If the practice is that it has not been used, then I think that would be interesting to the committee to know and to be able to have that in the record.

As I understand from what you are saying, that is something that is kind of used daily on small items or on items over a period of time to set aside, but you do not think those would really be policy considerations that the Congress would want to deal with.

Mr. STAATS. That is correct. Increase productivity personnel making it possible to do the same job with fewer people, install a computer, be able to reduce people that way. These are routine kinds of actions taken to achieve economies which do not really affect the program level.

Senator CHILES. What if we had something in the legislation that required notification even in areas under the Antideficiency Act or something we would know it was not being used as a tool or device. to do what we are trying to get to?

1 See p. 105.

Mr. STAATS. This could be done on a reporting basis.

Senator CHILES. But would it be possible, anyway, for us to get the information as to whether major items had been used under this as a means of impounding?

Mr. STAATS. You mean what kind of action, how much savings and so forth?

Senator CHILES. Yes.

Mr. STAATS. I think we could give you some help on that.

Senator CHILES. I think that it would be helpful because I think this committee would be reluctant to exclude that unless we really felt it was purely being used for the kind of functions that you get forth. Mr. STAATS. The President over a period of time has, for example, put freezes on promotions and has taken actions to avoid filling vacancies and things of that type which I would not think you would want to or need to go through the full process as contemplated under S. 337.

However, it might be of interest to the Congress to know what savings have been achieved through those types of actions.

Senator CHILES. I think it is something we definitely would like to

see.

Mr. EDMISTEN. I would like to address this question to the General Counsel. You are no doubt aware of a memorandum of December 1, 1969, by Mr. William Rehnquist, then Assistant Attorney General, with respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds. Mr. Rehnquist stated" *** we must conclude that the existence of such a broad power is supported neither by reason nor precedent." 1

Do you suppose they have changed their minds at the Department of Justice; have you seen any legal document which contravenes the 1969 memo?

Mr. DEMBLING. I haven't seen any more recent memo, no, sir. I am not aware of any document that has been written by the Office of Legal Counsel at the Justice Department since that one was issued.

Mr. STAATS. I might add President Truman's decision on the 70group Air Force was taken as Commander in Chief because his Attorney General advised him it was very doubtful he had authority otherwise to take this action.

I recall a case President Eisenhower asked his Attorney General with respect to reserving funds for the National Institutes of Health and he got the same advice.

Senator CHILES. Do you know if any of those were written opinions? Mr. STAATS. No; he asked that it not be put in writing. I think you will find very little by way of support from any Attorney General that the President has this kind of broad authority.

Senator JAVITS. I add a unanimous consent request. This morning we put in the record section 406 of the vocational educational amendments which related to this issue. I now find there is another section of another law, section 6 on one of the Hill-Burton Amendments of 1970, having the same effect.

Senator CHILES. Thank you very much. We appreciate your attendance, Mr. Dembling and Mr. Moore.

We will hear now Mr. Charles Robinson, Jr., of the National Rural Electric Cooperative Association.

1 See memo, p. 390.