ment, though not a novel technique, has been "displaying a new versatility" by being used as a policy tool.' Of these impoundments, Professor Mansfield said, "Plainly the object was not an overall reduction, or not wholly an overall reduction, but despite continuing inflationary pressures, a redistribution of emphases ***"*

Mr. Chairman, that prompts me to point out very clearly when the Foreign Relations Committee tried very hard and voted to cut parts of the foreign military assistance program, the administration fought it tooth and toenail and reinstituted the cuts we were able to make and increased it on the floor. When he says he is concerned, he is responsible for the overall budget, spending beyond taxes, that was clearly not so. It is simply a choice. He favors certain programs and he doesn't favor others. I don't think he can sustain at all, the idea that he was just doing it in order to prevent inflation. The reason was quite clear, that he disapproved of certain programs. I am bound to say there are some of these I don't approve of either. There is always this difference between us. I was with the President on some of his proposals-I am now. But on others I am not. However, this is contrary to the whole procedure which we are supposed to follow under our Constitution.

I do not believe the President has the constitutional right to use impoundment to redistribute emphases, nor do I believe the Congress should allow him to assume such power. As you stated, Mr. Chairman, the President "has no authority under the Constitution to decide which laws will be executed or to what extent they will be enforced." I do not deny this has been done but when it is done it is an abuse of the Constitution.

Senator ERVIN. It may be that they have put a different interpretation on the provision that "the President shall take care that all the laws be faithfully executed." It may be that they interpret the word executed there in the same sense that people say if a person commits certain crimes, capital crimes, that he should be executed. So maybe that is the reason the President thinks he has the power to execute the laws. Senator FULBRIGHT. That is apparently one way they have interpreted the word.

In regard to the President's power to refuse to spend funds, Mr. Rehnquist, then Assistant Attorney General, now a Justice of the Supreme Court, stated it well when he said, referring to the Labor-HEW appropriations bill:

With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such broad powers is supported by neither reason nor precedent.3

Mr. Chairman, at the beginning of my statement I mentioned the impoundment of funds for Amtrak service to the State of Arkansas. I cited this example because I believe it to be particularly flagrant and because it is very damaging to the citizens of my State. I do not want to elaborate here on the details of this problem, but the fact is that the experimental period for Amtrak service will expire on June 30 and the people of Arkansas will have been given absolutely no opportunity to

1 Executive Impoundment of Appropriated Funds. Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, U.S. Senate, 91st Cong., first sess. (Washington: U.S. Government Printing Office, 1971), p. 170.

2 Ibid., p. 172.

Ibid., p. 282.

utilize modern, efficient rail service. Therefore, when a more permanent Amtrak system is created, if it is and I hope it is, there will be no basis for determining whether service through Arkansas should be provided. In effect, I think it prejudices our long-term opportunity to participate in such a program.

I have referred to the impoundment of highway and Amtrak funds, both important to Arkansas and both essential to development of a balanced transportation system. These funds are impounded while the administration moves ahead with spending on exotic and unproven weapons systems and more and more dubious military planes and ships. There are other areas where the administration's actions will have particularly adverse effects on Arkansas. Among these are the severe cutbacks in rural programs. In addition to those which were announced recently, the President has used impoundment for several years to virtually abolish by fiat-contrary to clear congressional intent—the Farmers' Home Administration water and sewer systems grants so important to the development of our smaller communities. A similar approach has been taken toward the constructing of health facilities. I only wish to mention these are not just important to smaller communities. One of the principal reasons for the congestion in the slums of our big cities is the fact that there is so little opportunity for the people to remain in the smaller communities. It has a very direct bearing, in my mind, upon the terrible conditions that have arisen in the major metropolitan areas of this country.

We also have the example of the impoundment of $6 billion in funds for water pollution control-funds which were voted over his veto. This, if anything, is a challenge to the legislative branch.

Mr. Chairman, you may recall that Congress passed an amendment to the 1971 Foreign Assistance Act which provided for a cut off in foreign aid unless certain impounded funds were released. That amendment, which I sponsored, became part of Public Law 92-226 and the pertinent section read-I would ask unanimous consent this be inserted in the record.

Except as otherwise provided in this section, none of the funds appropriated to carry out the provisions of this Act or the Foreign Military Sales Act shall be obligated or expended until the Comptroller General of the United States certifies to the Congress that all funds previously appropriated and thereafter impounded during the fiscal year 1971 for programs and activities administered by or under the direction of the Department of Agriculture, the Department of Housing and Urban Development, and the Department of Health, Education, and Welfare have been released for obligation and expenditure.

Senator FULBRIGHT. According to the GAO, the funds specified in the amendment were released. However, when the funds for fiscal year 1971 were released, the administration impounded the money appropriated for 1972 and now for the 1973 funds. So it circumvented the effect of this restriction.

The administration is expected to submit a new foreign assistance bill to the Congress in the near future, because they are currently operating under a continuing resolution which expires on February 28. Since the earlier amendment did not serve to deter the administration's impoundment except for a short period, I am contemplating a new amendment which would not contain any loopholes, I would hope, and which would require release of funds for these important domestic programs if the administration wanted to continue foreign assistance.

Senator METCALF. Why can't we just let him spend the 1973 funds and not appropriate any more money?

Senator FULBRIGHT. Let him spend? He has impounded them.

Senator METCALF. You said that when he put the amendment, to which I was fully in concurrence, he released the 1971 funds but he didn't spend 1972. Then when 1972 came up, he didn't spend the 1973 funds. So let's catch up with him. We have 1973 in the pipeline, and we won't appropriate any more money.

Senator FULBRIGHT. Of course, he doesn't wish to spend the ones that I am interested in. The foreign aid is a means of pressure upon him if you deny him the foreign aid. If he wishes to continue

Senator METCALF. Can he transfer funds over to Indochina from the foreign aid funds that are in the pipeline over to his proposals for Marshall plan for Indochina?

Senator FULBRIGHT. I suppose he can. The carryover in the authorized foreign assistance program. It is operating. That is under a continuing resolution. What I was seeking to do was to say, he cannot spend the money for foreign aid unless he releases the Farmers Home Administration fund, which he does not wish to spend because he thinks that is inflationary, I assume, or he doesn't approve of the purpose. But he does approve of foreign aid and for the last several years, has brought great pressure to get the full amount for the foreign military assistance program. According to the press, apparently he is thinking of some $7 billion for a new program for the rehabilitation of Southeast Asia.

A number of other suggestions have been made about how Congress can better cope with this challenge. Many of these suggestions have merit-keeping a closer rein on the OMB by requiring Senate confirmation of the Director; increased congressional staff plus better use of technology and up-to-date organization so as to function more effectively in considering budgetary matters. Of course, I very much approve of that, too.

These steps are important, but they do not represent a panacea. Perhaps of more importance is the need for a change in attitude and spirit. If Congress would take itself more seriously, the President, the press, and the public might do likewise.

While serving in the Office of Management and Budget, Mr. Caspar Weinberger, who has been nominated as Secretary of Health, Education, and Welfare, referred to Congress as "irresponsible" and said demands that impounded funds be released were "complete and utter nonsense."

If Congress does not assert itself, and leaves the President free to impound these funds, it will properly be called irresponsible and our actions will become nonsensical, and Mr. Weinberger will prove to have been correct.

This means that the Congress must take a serious look at the budget requests and at appropriations bills. I speak not just of the committees considering a particular subject area. I realize that it is easier, when an expensive weapons system comes up for consideration before the entire Senate, to simply defer to the President, the Pentagon, and to a few members of the relevant committees. But much of the pertinent information which would enable us to make educated judgments is

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available, and we must take the time and make the effort. There is too much at stake to do otherwise.

I thought you made an excellent point in your opening statement on Tuesday, Mr. Chairman, when you said, "Too often, I fear there have been those among our ranks in the legislature who would rather receive a social invitation to the White House than display loyalty to the governmental institution to which they were elected."

Your words ring very true Mr. Chairman, yet I want to add a point here. I do not believe Congress is seeking a confrontation with the Executive. Indeed, at a time when I hope we are beginning to put one of the most divisive issues in our Nation's history behind us, the moment would seem ideal for a new spirit of cooperation. Such cooperation will, however, require mutual respect between the co-equal branches of Government. This is what we must strive to achieve. Our representative system of government cannot survive otherwise. Thank you very much, Mr. Chairman.

Senator ERVIN. I would like for the purpose of the record to read certain passages from the Constitution and ask you some questions about them.

Article I, section I, reads as follows:

All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.

Then it provides further in article I, section VIII, that the Congress shall have certain specific powers, and in what is ordinarily called the necessary and proper clause, in the last paragraph of section VIII, it provides that:

Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any Department or office thereof.

Then it makes it very clear that an appropriation bill is a law, because it so states expressly in section IX of Article I:

No money shall be drawn from the Treasury but in consequence of appropriations made by law.

So that makes it clear that an appropriation bill is just as much a law as one that would prohibit robbing a post office. And then it defines the powers of the President. He shall take care that the laws be faithfully executed.

I will ask you if in your judgment that word "executed" as used in that connotation doesn't mean carried into effect, endorsed? Senator FULBRIGHT. Correct; yes, sir.

Senator ERVIN. Now, it is not true that the United States has operated deficit financing as to the extent of approximately $110 million during the past 4 years?

Senator FULBRIGHT. Just exactly. I am glad you brought that up. I was thinking about that. It is so relevant to what the President said yesterday in the latter part of his statement. He said he is looking after the general welfare in the overall budget; and I thought when I read that, as you say, under the last 4 years he has accelerated a deficit of more than $100 million.

Senator ERVIN. I want to read you this for the purpose of asking you a question. Doesn't the Constitution make it very clear that as far

as most of this deficit financing is concerned, that it was done with the Congress and the President aiding and abetting each other.

Senator FULBRIGHT. Exactly.

Senator ERVIN. To make that clear, I just call attention to this portion of section VII of article I, "Every bill which shall have passed the House of Representatives and the Senate shall before it becomes the law be presented to the President of the United States. If he approves he shall sign it."

With the exception of about three or four vetoes, all of these laws were signed by the President, weren't they?

Senator FULBRIGHT. They only override, I think, two, wasn't it? Senator ERVIN. There was one about the manpower bill way back, and then there was one about the environment.

Senator FULBRIGHT. The pollution was the last one, water pollution and education.

Senator ERVIN. And one HEW bill.

Senator FULBRIGHT. Three as I recall were overridden. So he signed all the others.

Senator ERVIN. He signed this supplemental bill that had the appropriation for Amtrak in it, didn't he?

Senator FULBRIGHT. That is right, he did.

Senator ERVIN. And in such cases the money that has been impounded was recommended by the President, wasn't it? For example, you remember the Emergency School Act?

Senator FULBRIGHT. Yes, sir.

Senator ERVIN. It was recommended by the President. I thought it was a bad law. I voted against it. And I will say I am more of a pennypincher than the Executive is. I have voted against some of the other proposals, recommendations of the White House, because I thought they were unwise and extravagant. For example, the bill to authorize the appropriation of approximately $33 or $34 billion for revenue sharing. I knew we didn't have a red cent to share with anybody, a red cent of revenue, and so I voted against it, and that has gone to many States that had a big surplus in their State treasury. Senator FULBRIGHT. My State had a surplus this last year of nearly $100 million, but we couldn't afford to turn it down if you are going to have such a program. You are put in an impossible position.

Senator ERVIN. This emergency school bill was recommended and insisted on by the administration. The Department of Health, Education, and Welfare, so my school authorities tell me, just implored them to take advantage of that appropriation, and so they did, they employed several hundred teachers, and then after the contracts were signed and the teachers started, they suddenly cut them off and now, the teachers either must go without pay or the State of North Carolina will have to pick up the tab.

Now, can I read a part of section 7 of article I where it says:

If he approves

The President

he shall sign it, but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections on their journal and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent together with the objections to the other House by which it shall likewise be reconsidered and if approved by