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IMPOUNDMENT OF APPROPRIATED FUNDS BY THE

PRESIDENT

WEDNESDAY, JANUARY 31, 1973

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY, AND THE Ad Hoc

SUBCOMMITTEE ON IMPOUNDMENT OF FUNDS,
COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, 'D.C. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 3302, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding.

Present: Senators Ervin, Chiles, Muskie, Gurney, and Percy. Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief counsel and staff director, and Prof. Arthur S. Miller, staff consultant, Subcommittee on Separation of Powers; and George Patten, legislative assistant to Senator Chiles, chairman, Ad Hoc Subcommittee on Impoundment of Funds.

Senator CHILES. If the committee will come to order we will reconvene and continue our hearings which we recessed yesterday on the subject of impoundment and the Ervin bill that is before the committee.

This morning the committee is delighted to have as our first witness the Honorable Congressman Conte, and we are delighted to hear from you, Congressman.

STATEMENT OF HON. SILVIO O. CONTE, A REPRESENTATIVE IN CONGRESS FROM THE FIRST CONGRESSIONAL DISTRICT OF THE STATE OF MASSACHUSETTS, ACCOMPANIED BY PAUL LINDSEY

Mr. CONTE. Mr. Chiles and members of the committee, my good friend Senator Gurney, Mr. Chairman, I want to express my appreciation to you.

Lately, the press has been playing up what they call the crisis in the Congress. They say that the Congress, often by its own inaction, has allowed a multitude of its powers and responsibilities to pass into the hands of the Executive. Two of the primary areas discussed are the warmaking power and the Executive practice of impoundment. We are here today to discuss the latter.

In a sense, the press is right. Congress has allowed a very significant portion of its responsibilities and powers to slip away. The time has come for the Congress to sit up and take a hard look at itself. I believe that we are starting to do this. These hearings and the various impoundment bills are a step in the right process.

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Mr. ROBINSON. My limited knowledge of appropriation bills, Senator Ervin, would indicate to me that most of the appropriations approved by Congress are for rather specific purposes. Maybe I am wrong.

Senator Ervin. Oh, I think the majority are, yes, sir. I agree, but I just want to make it plain, if a bill does give the President discretionary authority to contract or refrain from contracting for the expenditure of funds, then this bill would not apply.

But the great majority of the appropriation bills that I have presented are for specific objects or purposes and this bill, I think, would apply to the great majority of appropriation bills.

Mr. ROBINSON. That was my impression; it was an excellently drafted bill and would apply in most cases unless the Congress in its appropriation process perhaps expressly reserved additional discretion above that in the normal appropriation bill.

Senator Ervin. You have touched on matters very much related, although not specifically covered by this bill, but you agree, do you not, with my view that where Congress passes a law establishing a certain program, that the President does not have the power to nullify that program?

Mr. ROBINSON. We are absolutely convinced of that, Senator, and that is the reason we retained this prestigious law firm of Arnold & Potter to look into that very question. Mr. Hawke can speak for himself if he disagrees that the President has no statutory or constitutional power to terminate a program of the type represented by the rural electrification program.

Senator Ervin. That is made very clear, it seems to me, by the case you cite, the Steel Seizure case, where a majority of the Court held, in about the most direct and most plain language that could be devised, that the President has no legislative power regardless of whether the times are good or bad, or whether peaceful or whether it is an emergency. All legislative power is vested in the Congress.

Mr. ROBINSON. Yes, I think that is absolutely correct.
Senator CHILES. Senator Metcalf?

Senator METCALF. No; I have no questions, Mr. Chairman. I want to commend Mr. Robinson for his statement and for coming up here and presenting to us one of the most flagrant violations of this business of comity between the two branches of Government, a problem that if permitted to be continued will destroy a great program such as the rural electrification programs that have had so much benefit to the people all over rural America.

Thank you very much.

Senator Cules. We certainly want to thank you on behalf of the committee for your statement.

Mr. Robinson. We appreciate the opportunity to appear and let me emphasize one more time that we are not arguing on the basis of an impoundment in this case. This is a total, complete, absolute, irrevocable, and irretrievable termination.

Senator CHLES. Thank you, sir.
We will recess the hearings until 10 o'clock tomorrow morning.

(Whereupon, at 4:40 p.m., the joint hearing was recessed to reconvene at 10 a.m., Wednesday, January 31, 1973.)

IMPOUNDMENT OF APPROPRIATED FUNDS BY THE o PRESIDENT

WEDNESDAY, JANUARY 31, 1973 o U.S. SENATE,

SUBCOMMITTEE on SEPARATION OF Powers,
CoMMITTEE ON THE JUDICIARY, AND THE AD HOC
SUBCOMMITTEE on IMPOUNDMENT OF FUNDs,
CoMMITTEE ON GovERNMENT OPERATIONs,
Washington, D.C.

The subcommittee met, pursuant to recess, at 10:10 a.m., in room 302, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding.

Present: Senators Ervin, Chiles, Muskie, Gurney, and Percy.

Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief Counsel and staff director, and Prof. Arthur S. Miller, staff conSultant, Subcommittee on Separation of Powers; and George Patten, legislative assistant to Senator Chiles, chairman, Ad Hoc Subcommittee on Impoundment of Funds.

Senator CHILEs. If the committee will come to order we will reconVene and continue our hearings which we recessed yesterday on the subject of impoundment and the Ervin bill that is before the Committee.

This morning the committee is delighted to have as our first witness the Honorable Congressman Conte, and we are delighted to hear from You, Congressman.

STATEMENT OF HON, SILVIO 0. CONTE, A REPRESENTATIVE IN CONGRESS FROM THE FIRST CONGRESSIONAL DISTRICT OF THE STATE OF MASSACHUSETTS, ACCOMPANIED BY PAUL LINDSEY

Mr. CoNTE. Mr. Chiles and members of the committee, my good friend Senator Gurney, Mr. Chairman, I want to express my appreClation to you. Lately, the press has been playing up what they call the crisis in the Congress. They say that the Congress, often by its own inaction, has allowed a multitude of its powers and responsibilities to pass into the hands of the Executive. Two of the primary areas discussed are the warmaking power and the Executive practice of impoundment. Wearehere today to discuss the latter. In a sense, the press is right. Congress has allowed a very significant Portion of its responsibilities and powers to slip away. The time has * for the Congress to sit up and take a hard look at itself. I olieve that we are starting to do this. These hearings and the various impoundment bills are a step in the right process.

(129)

One realization we must come to is that the Congress doesn't have to do that much to reassert itself. If we take some affirmative actions such as placing strict controls on the practice of impoundment, seriously scrutinizing the activities of the Office of Management and Budget, and working, at the same time, to put our own fiscal house in order, we will have come a long way toward making the Congress the coequal branch it is supposed to be.

As a member of the House Appropriations Committee for 14 years, I am deeply concerned about the practice of impoundment. The Appropriations Committees in the House and the Senate spend literally thousands of man-hours putting together the appropriations bills. The President signs these bills into law, and then refuses to spend some of the appropriated funds. In the interest of economy, the Executive has assumed a selective veto over programs which he views as being ineffective or undesirable. These are judgments for the Congress, not the Executive to make.

Congress has always refused to give the President a selective veto. Yet, by allowing the practice of impoundment to continue, Congress has effectively given him this power. The time has come for us to say, “No more !”

While the practice of impoundment is not unique to this administration, it is now becoming a problem of immense proportions. Nearly every day we learn that yet one more program is being cut back or eliminated, and this is all done without any consultation with the Congress.

The funds that have been impounded were authorized and appropriated by law. It is the President's job to execute these laws, not to frustrate the intent of the lawmakers.

On February 10 we will receive OMB's report on the funds which the administration has impounded. When that message comes, the Congress will have a choice of doing two things. One-sit and wring its hands proclaiming how terrible it is that the President is refusing to support these programs and activities funded by law. Or, two act as quickly as possible to restrict presidential impoundments.

I believe that the Congress must follow the latter course.

On January 3, I introduced the Congressional Spending Power Act (H.R. 415). I respectfully ask that a copy of this bill be included as a part of this record. Senator CHILES. Without objection, it will be so included. Mr. CONTE. Thank you, Mr. Chairman. (The bill referred to follows:)

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