this time, by the deferments of construction projects not essential to the war effort."

By your definition, then, Senator Fulbright, would you say that President Roosevelt acted within his constitutional authority because of the war?

Senator FULBRIGHT. Yes, sir. That is the kind of case that is contemplated by this bill. Giving those reasons then the Congress, if it acts responsibly, would say, yes, that is a proper use of this power. That was a period of a declared war and national emergency.

As a matter of fact, by coincidence, a bill which will be up this week carries one item which was held up, a bridge over a lake in my State was held up at that very time for that very reason, the shortage of steel and concrete and so on. While we thought they were obligated to build it thereafter they did not and we are trying to make them build it now. So there were cases of that. There are such cases that I am willing to accept.

I think to make it orderly, the procedure set out in this bill is the proper one and the way to follow the Constitution, because they have departed now so far from that traditional practice that it has become a major issue.

Senator PERCY. Regarding the Department of Defense and its budget, one of your areas of deep concern, in 1949. President Truman impounded funds appropriated for a 70-group air force. Because of the ambiguity as to his authority, he made it quite clear that he was taking this action as Commander in Chief as well as President.

Do you think he acted within his authority to impound such funds? Senator FULBRIGHT. What year was that?

Senator PERCY. 1949. And it was an appropriation by Congress for a 70-group air force.

Senator FULBRIGHT. That is a very questionable one. I don't know what his reasons were in 1949 except over disagreement in policy, which I don't accept as a proper reason for doing so. I think that to me looks as if it is a good case where he did exceed his authority.

Senator PERCY. In 1950 the aircraft carrier Forrestal was canceled by the Department of Defense after funds had been appropriated by Congress.

Again did the President act within the constitutional framework of his authority, in your judgment?

Senator FULBRIGHT. It seems to me it was beyond his authority. What he should have done, would have been to request the Congress itself to set the appropriation, if he had reasons for it. I assume there were reasons. What did they do with the Forrestal, did they defer it awhile? When was the Forrestal actually built?

Senator PERCY. It was canceled then. I don't know when it was constructed. He apparently impounded.

Senator FULBRIGHT. The Forrestal was built. There is no way I know to have an absolutely rigid application of a principle. I mean there has to be a rule of reason in the application of these principles and that is what really we are seeking in the bill which is before you. I don't maintain that the President has got to be a complete autom

aton.

What he should have done it seems to me, in the cases where there are good reasons, is to ask the Congress to rescind the appropriation.

If it is only a temporary, as I have said before, a very short temporary one, this has been a practice that has been accepted throughout our history. But it has gotten beyond that. They make no bones, now they are not going to use the money for Amtrak, for example, and yet the President signed the bill. They are not contending that is temporary. There is no pretense in the President's statement that this is an emergency. He is exercising his power to set the policy. One little case which seems to me demonstrates his views that his judgment about what we should do must be accepted over those of the Congress, is that of the SST. One of the most prolonged and vigorous battles in recent years was over the SST and after a great deal of trouble it was clearly defeated by the Congress. Now he is putting funds back in, he is asking for funds in this

Senator PERCY. But that is not this case. He is asking for funds from Congress.

Senator FULBRIGHT. He is asking for funds. He is accepting that because we denied it in that case. I only illustrate to fortify my view that he is unwilling to accept the idea that the collective judgment of Congress is as good as the single judgment of the President. This is inherent in this whole trouble. The essence of this whole thing is whether or not the collective judgment of the Congress as prescribed in the Constitution should be continued to be accepted as the basic policymaking. I would say it is implicit, if not explicit, in some of the statements of the President; he no longer accepts that.

Senator PERCY. What if we had been defeated in our efforts to kill the SST, the flying Edsel, by a very narrow number of votes? What if we had been defeated but the President had a change of heart and said it was uneconomical, it was wrong ecologically for us to do it, and impounded the funds that Congress had appropriated. Senator FULBRIGHT. He would be in violation.

Senator PERCY. Would he be going beyond his authority in that case?

Senator FULBRIGHT. Yes. I am certainly not trying to make the point only that when I agree with the policies it is constitutional, when I disagree it is unconstitutional. I hope I didn't leave that impression. If I did I want to correct the record. Just because I approve of it, it would be the same position as the Presidency. I think he would clearly be, in the case you cite, be just as much in violation of the Constitution and Congress as he is in the case of Amtrak, which is a small matter. Senator PERCY. Mr. Staats pointed out that in 1956 the Department of Defense refused to spend an appropriation of the Congress earmarked for the construction of 20 superfort bombers.

Would this have been a wrong use of Presidential power, to refuse to build those bombers?

Senator FULBRIGHT. Was it more than a temporary suspension? If so, then I say he ought to seek a rescission of the decision.

Senator PERCY. In other words, in your judgment, if he deferred it for a year, 2 years, 3 years, it is within his constitutional power, but if he killed it totally and completely

Senator FULBRIGHT. That is right. Supposing he had accepted the judgment of Mr. Fitzgerald that the C-5A is a great mistake. He should have reviewed the reports of Mr. Fitzgerald and others and recommended to the Congress, "Look, you have made a very terrible mis

take." If the Congress insists on spending it any way, I suppose constitutionally they have the basic law-making authority under the Constitution. But I don't know of a case that I can think of where a President has come back-maybe there are such cases, you usually can find a case for anything-to say "Look, you have made a mistake and you should rescind it" and asked Congress to rescind an authorization for such mistakes. Congress certainly can make mistakes. If the President thinks he detects one then he should seek a rescission in an orderly constitutional manner. If he thinks it bad to build water and sewer systems, I think what he ought to do is come to Congress and say, "Look, we no longer need sewer systems, we will do without them from now on and we don't need water systems;" he ought to ask for a rescission of the program, not to arbitrarily refuse to spend the money that is appropriated.

These individual weapons systems, are somewhat different because of their highly technical setup. Frequently the Congress is not aware of all the considerations involved in whether to proceed with or delay a weapons system. I do not think as a practical matter that the policy involved in the construction of an exotic weapon system is comparable to the policy involved in whether or not we should have schools or whether we should have sewer systems or whether we should build roads. I think those matters which are within the normal experience of a Member of Congress are different from a highly technical matter. I think there is a difference, just a commonsense difference.

In the case of the ABM, for example, many of us in the Congress did try to make a service study, and I think we arrived at the right result. I think it has been acknowledged by the Executive that it was the right result.

One Member of this body, Senator McClellan, after long hearings, decided the TFX was a terrible mistake and it shows that the Congress is capable of investigating and arriving at the right decision, but the Executive insisted on going ahead against the advice of the committee of this Congress on the TFX, which is now the F-111. There is another $5 or $10 billion down the drain for a white elephant. I don't think anybody thinks it is anything but a museum piece now.

Senator PERCY. I just have two further brief questions. When I discussed this matter with a high official at the White House, I said that in my judgment a great deal of the present fracas, which is taking a lot of time of both the executive and the legislative branch, could possibly have been avoided if there had been more prior consultation. In fact, if there had been any prior consultation it would have helped. To have, for instance, housing funds shut off totally and completely without a single phone call to a single member of the Appropriations Committees, does not, to me, seem the right way to do it. Prior advice, some consultation and explanation of why it was being done and why it was necessary, would have helped. The answer given back to me was that it wouldn't have made any difference anyway, we couldn't have changed their minds, so why bother.

Do you think that judgment on the part of the White House was right? If there had been some prior consultation, if the appropriate legislative leaders had been taken into confidence would there have been a chance for a better situation than we now have where we are faced with a very serious confrontation?

Senator FULBRIGHT. I agree with you. This is what is lacking. It is in a sense, as I said a moment ago, a denial of the very essence of the democratic process which is based upon persuasion. If they had followed the advice you are suggesting, the course you are suggesting, it would be consistent with the constitutional process. But they seem to have arrived at the conclusion that the Congress is irresponsible, and only represents special interests, and is open to persuasion. To me this is a denial of the basic quality of our system-that there is value. in having the collective judgment of 100 men on the one hand and 435 on the other. The administration doesn't believe it. Mr. Weinberger, in particular, has been very harsh in his statements and I am bound to say I don't think Congress is perfect either. There is just enough truth in this to cause a lot of people to wonder. But nevertheless, I think all of us believe that this system has by and large served the country well and it ought to be preserved. If we don't believe it, the right way to go about it is to rescind the Constitution or to change it. That would be the orderly way, not just to defy it and proceed to the contrary. Senator CHILES. I am not sure that I understand your answer to that question, Senator.

As I understand the question by Senator Percy, the question was do you think it would have been more proper if the administration had sought the advice or just given prior warning to appropriate members of the committees before they exercised the impounding.

Now, what I want to know, do you think had they given just some prior warning or even advice they were getting ready to do that do you think that would have made it constitutionally proper for them?

Senator FULBRIGHT. No, I was assuming if they had enough respect for the Congress to wish to consult and ask its advice, they would also have enough respect to ask for a revision or change in the basic law. No: I don't think just notification fulfills the constitutional responsibility. I was maybe jumping to conclusions. If they do have respect, if they are interested in the congressional views I would and say they would be interested in persuading Congress to adopt their view and, therefore, change the law.

Senator PERCY. Do you think the administration would have had a better response from Congress than they have had if they said these are the reasons that have caused us to go against an act of Congress in impounding funds; here are the time limits placed on it, we are not trying to gut the whole program, we are simply trying to adjust to a situation that we face?

Senator FULBRIGHT. Again, the case you cite, it is very difficult to pin it down. Each case has to be decided on its own facts. A very temporary holdup of funds for good reasons is acceptable. Our bill acknowledges that. We say all you have to do, though, is come to Congress and get the agreement of Congress that it is acceptable. Heretofore Congress has allowed this to take place without protesting because it has never been abused. It has always been temporary, or including a small amount and or in the highly technical field that you mentioned. Many of them apparently have been in these sophisticated weapons systems where it wasn't a question of policy so much as the technique or the technology of those particular areas. Now we have an ordinary program in which all Congressmen feel they are qualified to have a judgment such as water and sewer systems or education, housing, as distinguished from the others.

Now, it has never been so greatly abused in the past. It has always been relatively minor. Now it has gotten to the point where they are saying they have the right, the unquestioned right to permanently impound money, which is another way of saying permanently stop or repeal a program for all practical purposes a program. We say they don't have that. It is not constitutional. We are giving them a mechanism in this bill to come in, as you say, and consult, come and put their case to Congress. If it is a good case, we pass a resolution, a concurring resolution saying okay, its all right. This has been precipitated by what I call this abuse of the right to hold up the funds. I meant nobody, no reasonable man can say that a President has got to act like an automation, no matter what has happened. The Congress passed a bill and appropriated money for a vast amount of arms, we'll say, and suddenly there is a peace conference-I mean peace breaks out all over the place, then it would be absurd to say he has to go spend' all of that money regardless. What he should do is come to Congress and say we have peace, we don't need this and, therefore, he impounds it pending the reversion of the money to the Treasury. I think there is a reasonable constitutional means of rescinding that action.

Senator PERCY. In conclusion, you take a little different view if it was temporary rather than permanent, you take a different view if there was more consultation ahead of time, and you feel that there is a better way to do it. You have outlined on page 4 the problems of the 1971 foreign assistance cutoff proviso whereby the administration could not spend that money unless they released other money. They were able to circumvent that in 1972 and 1973 bills, so that that is not a satisfactory long-term answer.

Senator FULBRIGHT. It did not work. They are too clever for me. They have semantic agility which I never dreamed of and it is very difficult to pin them down. I am not sure I can now. But anywaySenator PERCY. Could I ask your help in the one final point?

Senator FULBRIGHT. Let me say, I don't want to leave the impression just because they consult makes it constitutional. Maybe I misspoke myself. The idea that they have sufficient respect of the Congress to consult left with me the implication they might ask for rescission, for agreement to whatever they wish to do. I do accept the principle that a temporary holdup of these funds for reasonable and clearly stated. reasons is not unconstitutional.

Senator PERCY. Finally, then, you and I fought together on national priorities on the SST, on ABM. We could not justify spending the money on a supersonic transport for 2 percent of the population when the train service of this country was miserable and failing, when the mass transit system was miserable and failing.

Senator FULBRIGHT. That is right.

Senator PERCY. I come to you and ask for advice as a member of the Appropriations Committee. What do we do. What do you and I do in Arkansas and Illinois when you can't get train service and we can't get mass transit service? Our systems are failing the city of Chicago, and yet there are billions of unspent money in the Highway Trust Fund.

Now you would like to build roads in Arkansas but you also want train service. We would like roads in Illinois but we also want more mass transit. How do we get it? Why don't we get at this Highway