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two-thirds of that House it shall become law. When in all such cases the votes of both Houses shall be determined by yeas and nays and the names of persons vot. ing for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within 10 days after such shall have been presented to him, the same shall be a law in like manner as if he had signed it unless the Congress by their adjournment prevented its return. in which case it shall not be a law.
Now, isn't that the only provision in the entire Constitution that gives the President the power to disapprove in a legal manner any act of Congress?
Senator FULBRIGHT. That is right. That is the limit by two-thirds overriding.
Senator Ervin. The people who framed the Constitution took very particular pains to provide that if the President did disapprove of a law, that the Congress should have a right to reconsider the law and to make it, and to pass it over a veto by two-thirds majority.
Senator FULBRIGHT. That is right.
Senator Ervin. Is it not a fundamental principal of construction of constitutional and statutory provisions that the expression of one power is exclusion of any other on the same subject ?
Senator FULBRIGHT. Absolutely.
Senator Envin. So don't you consider it is a plain proposition that the President has, no power to refuse to carry out a definite appropriation act for a specific object, except by vetoing a bill.
Senator FULBRIGHT. That is right; he has no constitutional authority. He seems to do so many unconstitutional things I hate to use the word power. He has no constitutional authority.
Senator Ervin. It says here even laws that are necessary to carry out the powers vested by the Constitution in Federal officials, and that would include the President
Senator FULBRIGHT. Yes, sir.
Senator ERVIN (continuing). Shall be passed by the Congress and not by the President. And a law is nothing but a rule of conduct and the laws regulating the conduct of officers proscribe the rule by which they are supposed to act.
Senator FULBRIGHT. Mr. Chairman
Senator Ervin. I will ask you one other question about the Constitution, if you will pardon the interruption.
Is there anything in the Constitution which says if any President thinks that the Congress is composed of irresponsible men that he can nullify any of these provisions of the Constitution?
Senator FULBRIGIT. No there is not.
I was just going to say, because you are acknowledged to be the leading constitutional authority in the Congress, I don't think there is any doubt about it being clearly contrary, but the Constitution isn't selfexecuting and because it is unconstitutional that doesn't mean he will not do it. So the sanction finally comes to a political question and the only real sanction for upholding the Constitution is the Congress itself. While the courts may be of assistance in some indirect way, such as the suit that we are talking about, the final sanction is that the Congress has to stand up to itself. Is that not correct?
Senator ERVIN. Yes.
Senator FULBRIGHT. It has to muster a clear majority, at least. It is not a two-thirds in some cases and that is the only way it can really be made to function. Would you agree with that?
Senator Ervix. I agree. Not only do I agree, but one far better than I said virtually the same thing. George Washington in his farewell address to the American people, gave us some warnings. He pointed out that public official occupants of public office have a love of power and a proneness to abuse it. And then he said, in effect, that that was the reason that the Founding Fathers had divided the power's of government among the President, the Congress, and the courts, and he said it was just as necessary to preserve this explanation of powers as it was to devise it in the first place, and that is the reason this division was made, among other things, was because it was anticipated that each department of government, each of the three great departments of government, would resist encroachments by other departments on their constitutional domain, which is in complete harmony with the observation you just made.
Senator FULBRIGHT. What bothers me, and I only mention this to provoke some further thought about it, is the problem of access to television on the public. As you know, I have been concerned about this for some time. Yesterday the President had his press conference and he was on television and he made these statements that I have read about the irresponsibility of Congress. Now here is a Senator from North Carolina who, as I say, I respect, everybody who knows him knows he is an authority on this. He makes this statement here before a small
group, in this room and there will not be one one-thousandth of the exposure to whatever you or anyone else thinks compared to the President's, this comes back to my central point about the political sanctions of the Constitution. The President with the modern methods of communication, specifically television, has access to the minds of everybody in this country, virtually speaking, because when he speaks, he usually takes over all the three television networks. They have to listen to him if they want to watch television, and most people are curious anyway. I don't mean there is any compulsion that way. I can think of no way to counter that, to present the point of view that the Senator has just presented that in any way that can be equal to or have the same impact upon the minds of the people, so that they understand what is involved here. I have a feeling that many people think we as members of the House and Senate are just being quarrelsome about our personal prerogatives, that we are not really concerned about the Constitution or the government, we just think the President is treading on our toes and that he ought to be more gentle to us. That is the feeling I get and I don't know what to do about it.
Senator Ervin. The objection to that is he is treading on our Constitution.
Senator FULBRIGHT. That is it. But he doesn't say that. He says exactly the opposite. To him, in his statement yesterday his right to do this is absolutely clear. Ile is in effect saying the exact opposite of what the Constitution says, of what you are saying, and how can that issue be presented to the public generally? I don't know. This bothers me very much. I don't know the practical answer of how with modern technology, the Constitution can be made to survive.
Senator Ervin. I would say that if the President is concerned about financial responsibility, he has submitted to the Congress a budget which contemplates, if adopted, that we will engage in deficit financing again next year and the prediction, as I construe it, the year thereafter,
and I don't think that is fiscal responsibility. I think, I have preached all the time, that the Federal Government should either reduce the expenditures to the amount of revenues it has or increase taxes to cover all expenditures in excess of that, except in time of war or great emergency. I think that there is something very wrong in engaging in deficit financing and I will assure the President that I am just as anxious to save money as he is, that if he vetoes what I consider to be excessive spending bills, that I will vote to sustain the veto, as I have done in times past, except on one or more occasions, and I want this done in an orderly fashion. I think it is bad to cut off a program that has been funded by Congress, right in the middle of the program after contracts have been made on the faith that the appropriation bill passed by the Congress, and signed into law by the President, would be carried out. And it would seem to me that the appropriate way to do this is just to go by the Constitution and recommend to the Congress the abolition of congressionally created programs which he thinks are unwise, or to reto appropriation bills which he thinks are too much.
Senator FULBRIGHT. I agree.
Senator Ervin. Don't you think one of our opportunities might be, Senator, now that we have this magic figure of $268 billion, that if we have this figure then all will be well, there will be no inflation, there will be full employment, there will be no new taxes, all the economy will boom, and flowers will bloom in the desert. Now that we have that, within that figure, Congress has some opportunity to either come into figure or to determine what the priorities should be within that magic figure?
Senator FULBRIGHT. We do have the opportunity and I certainly hope we will, but the right way to do it is the way we have been discussing, not by his impounding funds for those programs that he doesn't approve of. We talked about $250 billion spending limitation provided it would preserve the same proportions that Congress had determined. He rejected that. That wasn't what he wanted. He insisted on having the right to determine where the cuts would come.
Senator ERVIN. As I understand, the administration also used the excuse, that because we didn't come down to 250 it was necessary to impound these funds.
Senator FULBRIGHT. Yes, sir.
Senator Ervin. Now we have a ball park figure of 268 for this particular year.
Senator FULBRIGHT. For next year.
Senator ERVIN. And so, if Congress comes within that figure, what reason would there be for impoundment, because we have met all of the criteria.
Senator FULBRIGHT. He will say it is improvident, that it is special interests. There are always new reasons to do, he can say he is representing a national interest and no special interest.
Senator Ervin. It's been my understanding, in spite of the fact some people say to the contrary, you still have to run for election in Arkansas to get another 6-year term.
Senator FULBRIGHT. That is the constitutional provision. I am a constitutionalist.
Senator Ervin. You submit to the people of Arkansas at the time you run for election. At that time they would have an opportunity to discuss with you what their desires are in regard to rail service and
other items and then select you for another term or someone else, depending on what they felt your attitude was going to be on that and other issues. Would that be correct?
Senator FULBRIGHT. That is correct.
Senator ERVIN. Do you know of any way that the people of Arkansas get a chance to vote for anyone that made a decision in regard to cutting off the funds of Amtrak? Would they even know who to write a letter to?
Senator FULBRIGHT. They did vote for Mr. Nixon. I guess he took that to mean he was authorized to do as he pleased on any issue.
Senator McClellan and I, of course, both are agreed upon this and I think all the Congressmen from Arkansas.
Senator Ervin. Do you know how they would try to express themselves now in regard to this cut, would they know who to address the letter to, how they would go about finding the nameless face in OMB?
Senator FULBRIGHT. They usually address them to us. That is the usual place, especially if they are displeased.
Senator PERCY. Senator Fulbright, I think your testimony this morning has been very helpful indeed. I was interested in reading the last paragraph on page 5 where you quote our chairman regarding the desire of people to go to the White House and forego their loyalty to their own institution. If that is the litmus test of whether we are loyal to the Senate of the United States, my record of social engagement at the White House during the last 4 years makes me very loyal to the Senate.
I did see in the press a statement that I was an opponent of impoundment. I think this is an error. I said at the opening that I am here with an open mind, I think it is a twilight area, and I am trying to learn and not come to a conclusion before beginning the hearings, and that is why your testimony is extremely important.
On page 2, in the third paragraph, you talk about the difference between permanently withholding funds and funds held in reserve or temporarily deferred.
I have been particularly disturbed at the impounding of housing funds for an 18-month period.
Are you inferring that a temporary hold is acceptable, but a permanent one is not? I am trying to draw the principle that you are enunciating there.
Senator FULBRIGHT. That is true as a general principle. These general principles are hard to apply without getting into a gray area. We have accepted without serious complaint temporary withholding of the spending of funds for various reasons. There have been changes of situations, emergencies have arisen, a war has broken out, and so on, and programs have been suspended. I would say this in a temporary tay, in that limited way has been an accepted practice almost since the beginning of the country. But it was never accepted that this was, they were entitled thereby to simply stop a program permanently or to change a policy that had been enacted into law.
I think that a slight or temporary holdup on spending of funds is an acceptable principle under our Constitution. It can't be that rigid, that absolute, without any reservations at all. That is not a principle I advocate. But he has gone so far that in this case he makes no bones about it, permanently impounding these funds for Amtrak and there
is every indication he simply is not going to spend the money for the farmers home program I mentioned a moment ago. He has in his mind determined that these are not in the public interest.
I don't think he has the constitutional authority to make that judgment.
Senator Percy. In other words, you feel that there are certain circumstances under which the President would be justified in impounding funds and where he would have the implied authority to do it, but other circumstances where he would not be so justified.
Senator FULBRIGHT. That is right-on a temporary basis. I think the bill which we have introduced accepts that principle. We say after 60 days, he gives his reasons—he gives his reasons for holding up the funds for a certain program and a lot of other things the bill specifies, but the important consideration is the reason he gives. Then we have 60 days, and the Congress then may approve or disapprove. In a sense we acknowledge that there can be and there have been reasons, reasons which are acceptable.
Senator PERCY. Yesterday I asked Senator Humphrey about the testimony to be given by Elmer Staats, indicating that he, even though he was a part of the administration in 1966, he felt that President Johnson did go beyond his constitutional authority when he impounded highway trust funds and made sizable cutbacks in the programs for housing, urban development, health, education and welfare, agriculture, and interior.
Do you believe that the President did exceed his authority in that recent illustration of presidential impoundment?
Senator FULBRIGHT. 1966 ? I don't remember the extent of it. It is true that at that time he was building up to a disastrous war and I don't know whether those are the reasons he gave or not. This is an example of what I think you have a very close case, that if a war breaks out, and on-going program has been authorized and with a war breaking out there is a tremendous increase in demand, on our resources, both material resources and manpower resources. They could create a very close case indeed.
I think each case has to be examined on its own facts whether there actually was that kind of a crunch, and demand
Senator PERCY. Of course in that instance the war was on, but the President presented a guns-and-butter budget, which called for huge deficits and didn't realistically face up to the fact that we were actually in a war. No one wanted to say that. The administration apparently felt they could present the budget but then not spend the funds because of the war and the pressure on the economy,
Senator FULBRIGHT. Of course, I am not sure; I haven't studied all of the factors there, but I would be prepared to say it was an unconstitutional abuse of his power if he did it without the justification that I mentioned. The war didn't really get underway until about 1966. He started the bombing in 1965. But the movement of manpower and the vast expenditures which resulted were beginning to build in 1966.
Senator Percy. Could we go back then to 1942? If my history is correct, that is the year you were first elected to Congress, and the year President Roosevelt directed the Secretary of War, according to Elmer Staats, in cooperation with the Director of the Bureau of the Budget “to establish reserves in the amount that can be set aside at