tion of costly pet programs, the financial burden of which is borne by the general public. Any effort to cut back or eliminate programs once started-notwithstanding their exhorbitant cost and inefficiency-has invariably been met with organized resistance and cries of anguish from one pressure group or another. Little wonder that the small voice of the people-unorganized, inarticulate, docile, and, yes, complacent-has been drowned by the thunder of politically powerful pressure groups.

Too many of us have not had the intestinal fortitude to say "no" to these pressures. As a matter of fact, quite candidly, too many of us over the years have virtually outdone ourselves in currying the favor of organized pressure groups that advocate more and more spending as the solution for more and more problems, this being the way to get more and more votes. The result: more and more deficits; more and more debt, and more and more interest on the debt; and, at last, a super-politically-sensitive President who correctly interprets the mood of the American taxpayer who, in turn, is fed up with it all and has had enough!

So, the brakes have been applied; the impoundment of funds is resorted to as a bald instrument of economic policy; worthwhile programs are victimized along with those that are unworthwhile and which we ourselves have shown neither the wisdom nor the guts to terminate; and we suddenly have a serious constitutional question on our collective hands.

But neither the fact that the Congress has been derelict in its past responsibility, nor the fact that this Administration in the short period of five years will have accumulated a Federal funds deficit by June 30, 1974, of $134 billion— 26 percent of the then total national debt of $505 billion, going back well over 100 years-none of this relieves the Congress of its responsibility to squarely confront the constitutional issue that has now been joined.

Does the President have the authority to impound funds? Article I, Section 9, Clause 7 of the Constitution reads as follows:

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

While it is clear that no funds may be expended without the authority of Congress, there is no constitutional provision explicitly requiring the President to spend funds made available by the Congress. However, it is my belief that other provisions of the Constitution, as I shall refer to them later, impliedly and logically deny the President's use of impoundments purely as an instrument of fiscal and economic policy.

But to say that the President does not constitutionally possess this authority is not to say that much of the public-perhaps a majority, even a sizeable majority-does not applaud the substantive effect of his actions in reducing or eliminating unwanted, ineffective, and costly programs; I think the public approves and supports what he is doing. The President's actions have political appeal, and I think they are what the people want, especially in the present context of growing deficits, burgeoning national debt, and continuing inflation. We have too long overstated the theme that ours is a nation of poor people; that this country is. from sea to shining sea, in abject poverty; and that money is the solution for every problem. The taxpayers have had enough of this, and I will wager that a few random telephone calls back home will suffice to convince most members of Congress that such is the case.

But it is to say that the Congress has a duty to act forthwith to retrieve and reestablish its constitutional power of the purse. If Congress really is determined to do this, I think it is imperative that Congress move in the following directions: (1) It must demonstrate a proper restraint in the consideration of future spending programs, and this restraint must guide both the legislative committees and the appropriations committees. In other words, the constitutional power of the purse must be exercised by Congress more responsibly, prospectively, than in the past.

(2) Congress must apply a ceiling on budget authority, and both the authorizing and the appropriations committees must govern themselves accordingly. Incidentally, I think it is appropriate to mention here that Congress, in consideration of the appropriations bills, has, during the past four years, effected reduc tions amounting to approximately $20 billion in the budget authority requested by the President. Nonetheless, if Congress does not place a ceiling on budget authority, it will be saddled with blame for the tax increase that will inevitably result. The Administration has suggested a ceiling on FY 1974 expenditures of

$269 billion and has submitted a budget trimmed to that amount. Keep in mind, that the Administration's budget makes no mention of funds for reconstruction in Indochina even though the Administration has already made a commitment for such, meaning only that such funds, when they are requested, will come out of the hide, so to speak, of other budgeted programs-or out of a tax increase which will be blamed on Congress if it goes over the $269 billion ceiling. Overstepping the ceiling will also subject Congress to blame for the inflation which, in my judgment, will soon again show signs of an upward trend as the direct aftermath of premature scuttling of most of the Phase II price and wage controls.

In any event, any ceiling on budget authority should be a Congressional imposed ceiling-not a presidential ceiling-if we are to restore and preserve Congressional power of the purse.

(3) Congress must find some way, perhaps through a permanent joint committee, to exercise a continuous overview of revenues and expenditures, to relate anticipated revenues with budget authority, and to provide guidance to the two Houses in establishing priorities and ceilings in a meaningful, effective, and responsible way. I think there has been too much poor-mouthing of the Congress with respect to the tools which it already has at hand. It merely needs to determine the direction in which—and show the will-to use them. It is not a helpless giant, and it is not necessary that we fill the corridors with millions of dollars worth of computers which will stand idle 360 days out of the year, nor is it necessary that Congress arm itself, man for man, in an effort to match the Executive Branch. The Executive Branch administers the laws; the Congress enacts them. But Congress does have available to it, 5,000 employees of the General Accounting Office, many of whom can readily be made available to the appropriations committees upon request.

I think it is necessary for us to explore such a joint committee approach as I have suggested or some other permanent approach which will afford us a better utilization, then we have heretofore demonstrated, of the Congressional tools which we have at hand.

(4) Congress must try to devise workable, feasible legislation, which will be sustainable in the courts and which will protect its constitutional authority to determine how the people's moneys will be spent, how much will be spent, and for what purposes. To devise such legislation and to enact it into law will not be an easy task, as we shall all eventually surely see. But try we must, and I congratulate the Chairman of the Separation of Powers Subcommittee on the effort that is being made here. No Senator is so pre-eminently qualified as he for such a difficult, such a challenging and important task. He has my support and the support of all Senators in both parties who view the matter, not as a partisan matter, except perhaps incidentally, but rather as a grave and far-reaching challenge to the rightful position of Congress in a constitutional system of separation of powers.

The separation of powers concept in the Constitution traces its development from Plato and finds its fullest development prior to the American Constitution in Montesquieu's "The Spirit of the Laws". There he states: "To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. ... Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. .. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; . . .".

Montesquieu then specifically addressed the issue of the Executive usurpation of the legislature's powers to appropriate: "The executive power has no other part in the legislative than the privilege of rejecting. . . . Were the executive power to determine the raising of public money, otherwise than by giving its consent, liberty would be at an end; because it would become legislative in the most important point of legislation. . . . If the legislative power were to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would be no longer dependent; . . .".

For the American Fderalists, the system of checks and balances, written into the Constitution so contrived "the interior structure of the government that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." This they considered the prime advantage to be gained from Montesquieu's principle of the separation of powers. The principle itself they held to be "the sacred maxim of free government."

In Federalist No. 58, Montesquieu's expressions of fear of the Executive use of the appropriating function manifested itself in holding that power to the elected representatives of the people, the legislature:

"The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse-that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representative of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure".

It is in this light that we must look at the delineated powers as they became expressed in the Constitution. There all legislature power is vested in the Congress (Article I, Section 1) including, the power to appropriate money (Article I. Section 9). The President on the other hand is given no role in legislation except the power to recommend "such measures as he should judge necessary and expedient" (Article II, Section 3) and the power to veto measures passed by the Congress (Article I, Section 7).

He also has the responsibility to "take care that the laws be faithfully executed." (Article II, Section 3). Certainly the founders did not intend the President any discretion when they imposed that duty upon him. On the contrary, it was intended that he execute all laws passed by the Congress. An appropriation bill enacted into law is a law, as surely as is any other. The President has no authority to decide which laws will be executed or to what extent they will be enforced except through his veto power.

It is also evident that the founders intended to limit the veto power giving the President a limited veto, subject to being overridden by the Congress.

In fact, in Catherine D. Bowen's history of the Constitutional Convention, Miracle at Philadelphia, we find :

"On the question of an absolute veto for the executive, the Committee voted no, ten states to none. At some point in the discussion, Madison had suggested that a proper proportion of Congress be allowed to overrule the executive veto. No chief executive, Madison said, would have firmness enough to go against the whole of Congress. Even the King of Great Britain in all his splendor could not withstand the wishes of both Houses of Parliament !

"On these variations of the executive revisional power the states voted, but no agreement was reached, nor would be until June eighteenth, when the Committee finally granted the veto power to the executive, subject to overruling by two thirds of Congress. So it would stand in the Constitution.

Despite the clear intent of the Framers to limit the President's power to legislate and especially to not allow him the power of an absolute veto, by impoundment the President is in effect able to veto measures absolutely after they have passed the Congress and been signed by him. Such a procedure grants to the President not only an absolute veto-immune from being overriddenbut also a line, or item. veto in that he may impound whatever part of an appropriation he wishes and enforce other parts of the same bill. Such a power clearly is prohibited by the Constitution which only empowers him to veto entire bills. Thus, by impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch. thereby making legislative policy through Executive power. Such an illegal exercise of power of his office flies directly in the face of clear Constitutional provisions to the contrary.

Against this historical background, it is difficult to understand how the Congress has allowed the present practice of impoundment to go unchallenged. But it has come into being because, as I have already stated, we in the Legislative branch have allowed the Executive branch to usurp our job. The impoundment of funds was used to some degree in the 1930's under President

Roosevelt to effect savings during the Depression years. Impoundment was also used by the President during the Second World War to offset growing military expenditures by withholding funds for certain civilian programs. Due to the critical nature of the times there was no real opposition in the Congress to the practice, although Senator Robert La Follette, Jr., and, later, Senator McKellar questioned the legality of the action. Subsequent impoundments through the years have only rarely been challenged, as when Senator Lyndon Johnson challenged the impoundment of funds for construction of Polaris submarines in 1959 by President Eisenhower.

For years, as I have said, we in the Congress have appropriated huge sums of money for various programs that aided our various constituencies with little 1 regard for their overall effect on the tax burden on the American people and the growing inflation in our country. We believed we could have "butter and guns" and that almost any social ill could be solved by pouring unlimited amounts of money on the problem. In the name of holding down inflation and rising taxes, Presidents impounded more and more of the funds that we had appropriated. In forty years, and especially within the last ten, we in the Congress have let the Executive branch arrogate to itself that one power that had been so carefully nurtured by the Framers as the people's one great power against the Executive the power of establishing priorities as to how the moneys were to be spent. Congress now belatedly realizes what has passed it "in the night." And it is this power that the Congress must regain and use wisely.

It must be the Legislative branch that determines what programs are to be funded if the United States is not to become an Executive form of government. To that end, the Congress has created a Joint Committee on the Budget, but much more is needed. As I have already indicated, but it is worth repeating, the legislative committees and the appropriation committees must work more closely to try to hold each program's needs down to a proper part of the whole. The Congress must face the issue of priorities in our Nation and allocate our resources in relation to those priorities. If each substantive committee exercises some self-restraint on its priority legislation, all of us will benefit by the more effective and judicious use of the limited appropriations available.

In order to properly determine what our priorities should be and to be able to budget properly, the Congress must also know what items have been impounded in the past and must have a mechanism to inform itself of impoundments in the future that the Congress feels are of high priority and without Congressional sanction. To these ends, I offered an amendment last month to H. J. Res. 1, extending the time within which the President may transmit the budget message to the Congress. My amendment required the President to report to the Congress all impoundments from June 30, 1972, through January 29, 1973, by February 5. As amended by the House and agreed to by the Senate, the amendment now requires such a report by February 10, 1973. I offered this amendment because the Administration had failed to respond to Senator Humphrey's amendment to the 1972 Debt Ceiling bill, which amendment required that any impoundments made by the Executive branch be reported "promptly" to the Congress.

Mr. Chairman, as I stated earlier, the enactment of sound, workable legislation is going to require the best in all of us. Over the week end, I gave much thought to S. 373, reviewing its parts carefully. I, therefore, offer what I hope will be some constructive suggestions. They are as follows:

(1) In light of the history of the Administration's respect for the word "promptly" as used in legislation seeking impoundment information. I wonder if the Subcommittee ought not consider inserting the words "within ten days" in lieu of the word "promptly" on page 3, line 9, in section (d) of the bill, where the President is required to notify the Congress if revisions are made regarding information transmitted under section (a)—since section (a) imposes a tenday time limit on the reporting of impoundments.

(2) I would recommend that, beginning on page 1, line 3, the words "funds appropriated or otherwise obligated for a specific purpose or project" be deleted, and, in lieu thereof, the committee insert, after the word "any", the words "budget authority made available." The reason for this recommendation is that the bill, as drafted, speaks of "funds appropriated or otherwise obligated." In my judgment, funds that have been "otherwise obligated" cannot be impounded. Moreover, the words "funds appropriated or otherwise obligated for a specific purpose or project" would not include contract authority or authority to spend debt receipts. Included in authority to spend debt receipts, for example, is the

REA loan authority, and included in contract authority, for example, would be Water Pollution Control.

The Congress needs to be informed regarding impoundments of any and all budget authority, whether the funds are appropriated, whether it is a contract authority (for example, the highway program and water pollution control program) or otherwise not just "funds appropriated." There would also appear to be no sound reason for the words "for a specific purpose or project," because such words appear to place a limitation on the information which is to be submitted to the Congress. It would be better for the Congress to be informed on any and all budget authority, whether it is for a specific purpose or project, or otherwise (e.g., loan authorizations, appropriations, contract authority, etc.). It should be noted that the FY 1974 budget provides budget authority in excess of $10 billion in contract authority and in excess of $1,800,000,000 in authority to spend debt receipts. Certainly, if any of these items are impounded, the Congress should be informed. In other words, Mr. Chairman, the ambiguity arises in the fact that contract authority is not "funds appropriated” nor is it "funds otherwise obligated." Other examples of contract authority which the present verbiage of the bill would not, in my judgment, reach, are urban renewal funds-capital grants; grants-in-aid for airports; Appalachian Regional Development programs; forest highways; and many others.

In this regard, Mr. Chairman, I would also suggest that the word "funds" be changed to the words "budget authority" wherever the word "funds" appears throughout the bill.

I would also suggest that, on page 4 of the bill, line 6, the words "expenditure or" be deleted, that being superfluous; and that following the parenthesis on line 8, all the words be stricken down to, but not including, the comma on line 11, and that the words "made available" be inserted in their stead. I suggest this change because the phrase "projects and activities" could very well limit the information which ought to be submitted.

On page 4, line 13, I would suggest that the words "or expenditure of the appropriated funds" be stricken and that the words "of budget authority" be substituted therefor.

I further suggest that on page 4, after line 14, the committee consider inserting a third paragraph, to read as follows:

(3) impoundments include the establishment of budgetary reserves pursuant to the provision of the Anti-Deficiency Act (31 U.S.C. 665).

I make this suggestion because, as far as I personally know, there is no clear, legal definition of the word "impoundments." Information heretofore furnished to the Congress by the Administration on impoundments, for instance, has referred to "budgetary reserves" pursuant to the provisions of the Anti-Deficiency Act. For this reason, it seems desirable to write into the law the impoundments we are talking about and at least include "budgetary reserves" set up pursuant to the Anti-Deficiency Act.

(3) I would suggest that it is not necessary to print as a document for each House, the special message referred to in line 1 of page 3. To avoid unnecessary expense, as well as unnecessary confusion which would result from having two differently numbered documents, I would suggest that a document printed by either House would be sufficient. Moreover, I think that the "special or supplementary message" referred to on line 12, page 3 of the bill, should also be printed as a document by one of the two Houses. I do not believe that Members of Congress should have to await the printing of such supplementary message in the "first issue of the Federal Register" subsequent to transmittal of such message.

(4) I come now to what I consider to be a major weakness in the bill, namely, no committee is designated as having the responsibility for developing the concurrent resolution referred to on line 1 of page 4 of the bill. Perhaps it was thought, in the preparation of S. 373. that no committee action would be necessary and that, in the interest of expeditious action, the procedures recommended in the bill would be preferred. However, I believe that unless clear responsibility is placed upon one or more committees of either or both Houses, the bill's provisions concerning the concurrent resolution would be infeasible. Are we to expect that a resolution will spring into full flower from the Floor of either House? Will just any Member of the Congress-Senator or Representative-be expected to take the matter immediately in hand and devise a resolution ratifying the impoundment of this or that budget authority and rejecting the impoundment of other budget authority?