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tion of the allocation of powers, pursuant to our Constitution, between two branches of Government.
Senator Ervin. I would like to interject that I find myself in complete agreement. I don't think this is a partisan issue at all. Impoundment has been practiced by Presidents of both political parties and I think to my mind we have got a very solemn admonition from the Father of our Country on this point. In his farewell address to the American people he pointed out occupants of public office have a lot of power and are prone to abuse it, and he proceeded to say the reason they put the separation of powers of Government among the executive and the legislative and judicial branches of the Government, was because they wanted them to be preserved. They figured the separation of powers would be more certain to be preserved because each branch would have a tendency to resist encroachment, and that is what we are involved in.
Mr. SARBANES. I think this is an issue where all those who consider themselves as legislators, not Republicans, not Democrats, but as legislators have to unite in a common purpose.
As witnesses before these subcommittees have pointed out, the practice of impoundment is not new, or without statutory authority in certain carefully defined and limited circumstances. Legal authority for the apportionment of appropriated moneys was spelled out in the Anti-Deficiency Acts of 1905 and 1906 which provide for apportionment of appropriations by monthly or other allotments so as to "prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service for the fiscal year for which said appropriations are made;" (34 Stat. 48–49). As subsequently interpreted by the Budget Bureau the apportionment power was also seen as having the purpose of effecting savings in appropriations where such savings can be made without detriment to the service in question and this objective was included in the Omnibus Appropriation Act of 1951 which amended the Anti-Deficiency Acts. Impoundment considered in this restricted context is quite different from the executive practice which developed significantly during World War II and has continued since.
On certain occasions during World War II President Roosevelt directed the Bureau of the Budget to withhold funds, not in order to control the rate of spending or to effect savings while still accomplishing the service called for by the appropriation, but rather to secure specific revisions of policy objectives where his view of what needed to be done differed from that of the Congress. This action was justified on the practical grounds that the exigencies of the war required the country's resources to be put totally at the disposition of the war effort and not spent upon nonessential uses. The Congress, apparently in the interest of pursuing the war, permitted the President to de fer congressionally authorized projects that might otherwise have absorbed funds which the Executive contended were necessary to the war effort. Nevertheless, very strong congressional misgivings about this practice were reflected in efforts to provide in appropriation acts that there should be no impoundment of appropriations except by direction of the Congress.
Since World War II each of our Presidents has in turn resorted to impoundment not for the purposes set out in the Anti-Deficiency Acts,
and subsequent amendments thereto, that is, wise financial management, but for the broad purpose of revising national policy-quite simply put for the purpose of setting their own national priorities in spite of the judgment of the Congress. Unfortunately this practice seems now to have reached its zenith. Impoundment is not considered merely an accounting mechanism. It is not considered simply a means to achieve savings while carrying out the purpose of the appropriation. It has become instead a means by which the Executive can nullify policy decisions already made by the Congress and can set his own national course without reference to the Nation's elected legislative representatives.
As a consequence, impoundment has become a major constitutional issue in which the essential principle of the separation of powers is endangered. The Constitution clearly provides that all legislative powers. including the power to lay and collect taxes and to pay the debts and provide for the common defense and general welfare of the United States, shall be vested in a Congress of the United States and that appropriations shall be made by law. The veto power given to the President under the Constitution does not encompass an item veto-it reaches only to bills which shall have been passed and not to specific items in such bills.
It is, therefore, the challenge to our constitutional system of govern ment that makes the current practice of impoundment so dangerous and makes these hearings so important. There is no question but that the withholding of approximately $12 billion of appropriated moneys over the last 18 months has seriously interfered with the operation of a number of vital domestic programs which serve millions of Americans in all parts of the country; my own State of Maryland has been seriously affected by such impoundments, and I will describe shortly to the subcommittee what the cutoff of these funds means in practical terms. But before doing so I should like to emphasize again that the fundamental threat posed by impoundment is not its effect upon a particular program or a specific region but rather the double challenge it poses to the delicate, yet extraordinarily durable, system of govern ment that has served us so well for nearly two centuries.
The first challenge is, of course, to the doctrine of separation of powers that marks the relationship among the three branches of our National Government. Of the great western systems of representative government, ours is virtually unique in establishing and maintaining a clear separation between the legislative and the executive functions in most European countries where a cabinet governs in a parliamentary context, thsee powers are merged. The President's use of impoundment abrogates to the Executive the legislative function, thereby greatly centralizing power in the Presidency. Impoundment further unsets the balance in our system by bringing the legislative and executive branches in direct conflict with one another thus placing the third branch of Government, the Judiciary, in the unenviable position of being called upon to decide the issue between them.
The second great challenge which impoundment presents to our system of government is its debilitating impact upon the activities of our State governments and hence its harmful effect upon our federal system. Those of us who work closely with our State and local governments know only too well the chaos caused in their programs by Exec
utive impoundment of appropriated funds. Last session the Maryland congressional delegation met with members of the Maryland Legislature's Commission on Intergovernmental Cooperation. In preparation for that meeting the Maryland commission sent a questionnaire on Federal-State relations to all State agency heads—it included, as part of a lengthy list, the following question: What specific problems have you had in relation to Federal programs?
A theme common to the replies was expressed by the State Department of Budget and Fiscal Planning:
The problems in this area are many and are quite serious as they affect the planning and budgeting, not only of the Federal funds involved, but also of State resources.
The department went on to list the first problem as: The uncertainty of Federal funding even though appropriations have been approved. In recent months, the President and some Cabinet heads have withheld appropriations which state agencies had expected to receive as a binding commitment.
I find it ironic, Mr. Chairman, that the growing use of impoundment, which is poisoning the relationship between the Federal and State governments and understanding the ability of the States to function effectively as partners in our Federal system, should coincide with the enactment of revenue-sharing, a program advocated by the President as a means of strengthening our State and local governments and improving our Federal system.
Let me illustrate with a few specific examples how the impoundment of funds has affected the State of Maryland and its localities. Withholding of funds has affected a wide variety of State programs, as well as the State's central planning processes, but for the present I will limit my remarks to the water pollution control and housing programs, which are sufficient to make my point. The State government is currently compiling a complete list of impounded funds, and I shall be happy to submit the list for the record as soon as it is furnished to me.
Under the terms of the Water Pollution Control Act which the Congress first passed on October 4 (House 366 to 11; Senate 74 to 0) and then subsequently passed over the President's veto (House 247 to 23; Senate 52 to 12), $5 billion in contract authority for sewage treatment works was to have been made available to the States for fiscal 1973, and $6 billion for fiscal 1974. Of this total of $11 billion, Maryland's share was calculated to be $168 million. As we all know the OMB has announced that only $2 billion (of the $5 billion) will be made available in fiscal 1973 and only $3 billion (of $6 billion) in fiscal 1974. This means that Maryland will receive $213 million rather than $468 million, or approximately 45 percent of congressionally enacted and State anticipated funding.
In the Baltimore and Washington metropolitan areas of the State, in which approximately 80 percent of Maryland's population resides, the OMB action will have a grave impact. Baltimore is served by two sewage treatment plants, one of which provides only primary treatment and needs to be upgraded to secondary treatment at once. The State health department has indicated that the joint capacity of the two treatment places must be expanded by 54 percent as soon as possi
ble and that the facilities must be significantly upgraded to meet Federal and State water quality control standards.
The Maryland suburban counties in the Washington metropolitan area have been under a State order to refuse authorization for future sewage service since May 1970-that is, for almost 3 years. The State bureau of health maintains that in view of the acute pressure on sewage treatment facilities, even commitments made prior to the ban cannot automatically be honored; and the question of honoring prior commitments has become a subject of acrimonious dispute between the State agency and the Washington suburban sanitary commission.
Although the Baltimore and Washington metropolitan areas offer the most dramatic examples, they are far from being the only areas in the State to suffer the effects of the OMB action. Throughout the State sewage treatment projects will be held up as the State and its localities attempt to adjust their planning and their pollution control efforts to the reduction in the Federal effort which has been decreed by the Executive.
Mr. Chairman, water pollution and waste disposal are especially serious problems in Maryland, a State heavily dependent upon its water resources for industry and recreation. The marine environment of the Chesapeake Bay, the massive problems of waste disposal in our urban areas, and the need to protect Maryland's Atlantic beaches are urgent problems. Water pollution control is not a make-work project. Money spent today means less money spent tomorrow because the problem, if not attended to, can only worsen. I believe the Congress clearly recognized this fact when it pressed ahead with the enactment of this legislation over the President's veto.
As you know, the White House recently announced a freeze on housing and urban renewal programs. Suddenly State and local officials across the country who have been working to meet this critical problem discovered that the Executive had simply stopped everything. Their reaction and the strain it places on any meaningful FederalState-local relationship is illustrated by the following telegram sent by the mayor of Baltimore to the President shortly before the housing moratorium was officially announced :
I have been advised that you are considering an eighteen-month moratorium on all housing and urban renewal programs. May I respectfully ask that you reconsider any such action. Any such moratorium would produce drastic and tragic results for Baltimore as well as for other cities across the Nation.
Over 2,500 acres of urban renewal land have been approved by the Federal Government, acquired and prepared for development. A moratorium on develop. ment funds would have a disastrous impact on Government's credibility with communities and developers. Approximately $100 million in development will be placed in jeopardy. Land and properties already acquired for demolition and development will remain vacant, a blight on their surrounding neighborhoods.
This halt of funding will not only directly affect the living standards of approximately 25,000 moderate income Baltimore families, but it will also halt the building of over 2,000 units of badly needed housing for our elderly citizens.
Our integrity and good faith are at stake. We have developed strong neighbor. hoods capable of using the tools of community participation to aid in designing the City's future. I urgently request that any decision in relation to stopping funding for these programs be given your most cautious consideration. I would be happy to meet with your Office of Management and Budget at the earliest possible moment regarding the impact of this decision on Baltimore City. I urgently solicit your support in this matter.
The President contends that his actions are necessary to check inflation. I know of no authority that gives the President the power to withhold for this reason the expenditures of moneys appropriated by the Congress. He can, of course, veto appropriation bills as he has done twice this past year with the Labor-HEW bill. But once he signs them into law he cannot simply pick and choose which laws shall be faithfully executed and which shall be ignored. In fact, in the last session of the 92d Congress the total amount of the funds contained in the appropriation bill were less than
the total amount of the budget requests submitted by the President. It is true that there were sig. nificant variations in different program areas between requests and appropriations, reflecting some sharp difference of opinion between the Executive and the Congress as to where this Nation should spend its money. For the Executive to resort to impoundment as a means of resolving these differences violates all constitutional and legal requirements.
Mr. Chairman, it is for these reasons that I strongly support the bill which you and a majority of your colleagues have introduced. In the House I have joined with Representatives Pickle of Texas, William Ford of Michigan, and Harrington of Massachusetts in seeking support of our colleagues for similar legislation--to date it has attracted the support of 107 Members of the House. As in the Senate, support for this proposal is bipartisan and comes from Members from all areas of the country and with widely varying political philosophies. The differences between the House version and S. 373 consist in some minor variations in reporting requirements.
The strength of this legislation lies in its presumption in favor of appropriations duly voted by the Congress. For any impoundment to be effective it would have to be positively sanctioned by the Congress. The bill would oblige the President to notify the Congress within 10 days of any impoundment. It would further provide for the automatic termination of impoundment at the end of a 60-day period, unless the Congress takes action to approve the impoundment. The burden of establishing why a duly enacted law should not be carried out is thus placed on the executive, where it should be.
Finally, Mr. Chairman, I do not contend that this measure alone will redress the balance between the executive and the legislative. It is, however, an extremely important first step in stopping the erosion of legislative authority and the concentration of power in the executive. Congress must proceed to carry through the many other reforms essential to its effective functioning. We must be willing to provide the staff and the technology necessary to counter the expertise of OMB and required by the complex problems facing us. Budget procedures which enable us to take an overview of spending must be developed so that a legislative determination as to the fiscal impact of the total budget can be made.
I am encouraged by the steps which the Congress is now taking in this direction. A Joint Study Committee on Budget Control, established under the provisions of title III of the Debt Ceiling Act, is already at work. In a memorandum dated January 24 and circulated to all Members of Congress, the committee has expressed its eagerness "to receive suggestions and ideas from any and all Members of the House and Senate with respect to the subject matter before the com