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sideration by the committee. Also the procedure you suggest providing for a ruling between the Executive and Congress, would be important in providing interpretation as to many appropriation acts and other related acts. I think it would provide good machinery of allowing ap
peal to the courts to get a decision by an impartial body that is not conscerned with this side of right or wrong:
Now, it was suggested by Senator Byrd from West Virginia who testified just before you, that we should establish a joint committee which would jointly study these matters. Do you recall during the last session of Congress, the closing days of the last session of Congress, when the President suggested we ought to have an overall ceiling on expenditures of $250 billion, that the Republican Senator from Idaho, Len Jordan, had an amendment which would give the President authority to cut a proportion of all appropriations made by Congress during that session of Congress. The Senate passed it by a very
strong majority, but it was defeated in the House largely as a result Time of the efforts and opposition of the administration.
Now, wasn't that a very desirable approach to the problem and a very simple solution to the problem of excessive spending which had
the virtue of preserving reto priority placed by Congress upon the menging various programs and projects covered by all appropriations bills
during that session ?
Senator KENNEDY. I would agree, Senator. I think it was responsive to the particular situation that faced the Congress then. It was a bipartisan effort by Senators Jordan and Packwood and many others, and I think presented the most desirable means for providing some restraint in terms of budgetary expenditures. I think it was certainly the appropriate way to proceed.
The administration rejected this congressional initiative approach toward doing something about the spending ceiling. I think it was preferable and obviously it would have been sounder from a constitutional point than the arbitrary and whimsical response reflected in the administration's meat-axing of programs that have been authorized.
Senator Ervin. Does not such a solution of the problem of excessive spending have the virtue of being very simple. It only takes a computer to determine exactly what the reduction has to be pro rata.
Senator KENNEDY. Exactly, and as suggested by the formula, it provides a standard-an equal standard--for all the various programs. It seemed to me that even though there may
be some programs which any individual members of the Senate or group of Senators preferred as high priority or lesser priority, it did provide the most expeditious means for meeting our responsibilities toward budgetary restraint. I think it was constructive initiative by the Congress and I think that it is all too forgotten by the American people. I think to a great extent the American public felt at the conclusion of the last session that it was the President trying to get the ceiling and it was the Congress trying to block him in this decision.
I think Senator Byrd reviewed with the subcommittee, as the majority leader has at the end of each session, where the Congress over a period of the last 4 years cut $20.2 billion in appropriations from the
Senator Ervix. Do you agree with me that there has developed in Congress a recognition of the desirability of setting the Federal financial house in order, and that Congress is anxious to do that, but the controversy that exists between the Congress and the Executive arises out of the feeling of Congress that it lies solely within the constitutional power of Congress to determine the objectives for which appropriations should be made, or the expenditure of Federal funds should be authorized, and the feeling of Congress that the President is endeavoring to usurp that power of priorities for expenditures for various projects?
Senator KENNEDY. The Senator has stated it accurately. I believe every schoolboy learns how laws are passed, and that is they are passed by the House and Senate and signed by the President, that they become the law of the land, that the President is committed to execute them and uphold them. That is what the Constitution says. That is what every child learns in this country. Yet we have seen by this President the very extensive use of the impoundment process to negate or frustrate various programs which have been passed by the Congress and signed into law by himself. I think that is completely contrary to the Constitution and exceeds any power which was granted to the President.
Senator CHILEs. Do you have any questions?
Mr. KURLAND. Senator, I am rather disturbed by your suggestion that impoundment is proper with regard to military expenditures.
Senator KENNEDY, I was not trying to suggest that I recognize it was proper. What I was trying to say was that traditionally and historically, from the time of the founding of the Republic there has been a different standard applied for military affairs.
I am not today willing completely to grant the legitimacy of impoundment in military and foreign affairs. I am noting what I think has been a reality, going back from the time of Thomas Jefferson's failing to spend the funds for the 55 gun boats on the Mississippi to President Kennedy's actions relating to the bombers. But I note clear differences between these historical precedents and the wholesale impoundment at the present time of domestic programs with which this administration has disagreed with. It is more a matter of according recognition than a willingness to accept it personally myself, I think is a reasonable interpretation of historical precedents, in light of the language of the Constitution itself.
I would be willing to inquire from you whether or not you would not agree that at least there has been this distinction?
Mr. KURLAND. There are no doubts that precedents exist.
I would note section 8, article 1 includes among the powers granted to the Legislature, the power to declare war, raise and support armies, maintain a navy, provide for a militia, provide for organization and disciplining an army and militia, and finally to make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by this Constitution by the Government of the United States or any department or office thereof. I conclude from this there is no constitutional authority in the military area any more than there is in the areas you discussed in your testimony.
Senator KENNEDY. I don't want to be put in the position of trying to defend a position with which I am not in full agreement. But I
have generally felt that under the provisions of the Commander in Chief authority under the Constitution that there was a greater opportunity or perhaps authority, implied authority, than certainly in the other areas of impoundment. I draw this as a historical reality rather than being one that I would like to support myself.
I personally feel that we ought to use the same rules for both areas For but I think that there is this distinction in reading the history of the 1impoundment.
Mr. KURLAND. Thank you, Senator. Mr. Miller. May I ask one question, Senator? Have you had an opportunity to study Senator Muskie's OMB bill which would require that Congress would get the same information ?
Senator KENNEDY, I think it is a very positive and useful suggestion, a rery constructive suggestion.
Mr. MILLER, In other words, Congress should get the same information from the Department that OMB gets at the same time.
Senator KENNEDY. Exactly. I think it was a very constructive proposal, hopefully to be accomplished.
Senator Chiles. How did you envision this would be done under provision one where you were going to have less than 10 percent in a period pursuant to antideficiency statutes? You would have these before they take effect come to the Appropriations Committee?
Senator KENNEDY. Any proposed impoundment, statutory or anti
deficiency, would be noticed but the Congress would have to act aflirmimatively only if it was to be over 10 percent. If it is over 10 percent,
Congress would have to act in such ways to repeal or rescind the authority on appropriations. If the Congress did not act within 60 days as has been outlined in the Ervin proposal, then the funds would have to be spent. The impoundment would be vacated if Congress did not act to grant the authority within that period of time.
I think there are some factual situations which I know have been suggested here as to whether the President can impound if Congress goes out, or to keep doing it for successive 60 day periods to try and frustrate the clear intention of the impoundment bill. I am willing to recognize the difficulty that imposes and to anticipate it in advance.
Senator Chules. If it was over 10 percent Congress would have to confirm it?
Senator KENNEDY. That is correct. I think we ought to have notification even in statutory situations. We don't gain that at the present time, and even under the Anti-Deficiency Act I think we ought to have notification.
But it seems to me the 10 percent is a reasonable cutoff level, where We wouldn't be getting into the situation where we are just rubberstamping. If it were required for every impoundment we might get in the situation of rubberstamping. But over 10 percent you would have this type of requirement.
Senator Ervix. I think that Professor Kurland was making the point which I would make in this way: That regardless of the practice with respect of Congress for appropriations for military purposes, that the constitutioinal provisions clearly gives Congress the right to control these powers, and it is sort of analogous to the situation that we have had murder committed in every generation, but that hasn't made murder or larceny legal.
Thank you very much. It was a very fine statement.
Senator CHILEs. Our next witness will be the Honorable Joseph T. Sneed, the Deputy Attorney General, Department of Justice.
We are delighted to have you appear before the committee.
STATEMENT OF HON. JOSEPH T. SNEED, DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
Mr. SNEED. Thank you, Senator Chiles. I am very happy to be here this morning.
I read the other day, Senator Chiles, in the transcript of these hearings that perhaps the representatives of the administration should be equipped with a copy of the Constitution and Dale Carnegie's book on "I low to Win Friends and Iníluence People." I frankly could not find the other volume.
Senator Ervin. Excuse an interruption, but unfortunately there are too many conflicting obligations around here for a Senator.
I have been called by the Rules Committee to come over to discuss the budget of the subcommittees of which I am chairman, in order to have money on which to operate, and they say I would have to speak now or perhaps hereafter hold my peace because they didn't want to hold a session this afternoon.
I regret that I must leave, but since we are going to need the money, I guess I had better go. I will be delayed for about 30 minutes.
Senator Cults. Mr. Chairman, I wonder if it could be possible if we could delay Dean Sneed for a few minutes and perhaps take one of our afternoon witnesses ?
Senator Ervin. That would be fine. I hate that I must leave, but I am on the Hill. Dean Sneed has been teaching law in a great institution in my State and I want to see that they get the true faith and deliverance of the Senate.
Nr. Sneed. That is perfectly satisfactory to me.
Our witness will be Dr. Barry Commoner of Washington University.
Doctor, we are delighted to have you with us this morning, and we will hear your testimony now.
STATEMENT OF BARRY COMMONER, DIRECTOR, CENTER FOR THE BIOLOGY OF NATURAL SYSTEMS, WASHINGTON UNIVERSITY, ST. LOUIS, MO.
Mr. COMMONER. Thank you, Mr. Chairman.
It is a privilege to appear before this committee, for the issue which you have chosen to confront is grave and momentous-10t only for the survival of the Nation as a democratic society but also for its survival in an environment fit for human life. I am not an expert on constitutional law and I am not going to discuss that, but I do know something about the environmental problem which has turned out to be the arena in which this legal problem exists.
1 See also statement on p. 358.
The point I would like to make is: Responding to a newly awakened ecological conscience, the Nation has begun a fateful effort to improve pin the environment before it degrades to the point of no return. In my
opinion-given the present trend of administration policy on the environment-unless steps are taken by Congress to require that the Executive authorize the programs and expenditures enacted by Congress for environmental improvement, we are likely, during the next fer vears, to lose enough ground to imperil the outcome of our race for survival.
It is fitting that the Nation's concern with environmental qualityas expressed, for example, in the Water Pollution Control Act of 1972-should become a major issue in the growing confrontation between the intentions of the Congress and the actions of the Executive. Congress is, of course, the branch of Government which by design is most sensitive to the public conscience; and the demand for environmental quality is one that clearly arises out of that conscience.
Surprise is often expressed over the unexpected emergence of intense public concern for environmental quality in the last few years. I believe that the explanation has a good deal to do with the general issue before this committee. What has placed the issue of environmental quality high on the Nation's agenda is neither the initiative of the President nor of the Congress. Rather, the initiative has come from the people; environmental quality is a truly grassroots issue. It arose everywhere in the Nation over the last decade; in the minds of the citizens, as they learned from the scientific community the long list of environmental blunders; and in their hearts, as they realized that the world that we are destroying is our legacy to our children. All the evidence I know shows that environmental concern originates not in any institution of Government, not in the news media, but primarily in the people themselves: the spontaneous outburst of Earth Day 1970, and its subsequent quieter, but deeper, celebrations every year since then; the citizens groups that have sprung up in most communities to defend the environment, and the realistic expression of their concern in the form of new bond issues for pollution control.
One point I want to make about the public experience here is that in the past that has been very difficult to get the kind of information the public needs from the Government, and to have it in a form that the public can respond to, and those of us who have been privileged to participate in public information on this have found it a very rewarding experience, particularly in these days of manipulative politics, because it seems to me a test of validity on the assumption on which the Nation was founded; that is, that its people are capable of deciding what qualities of life they deem to be good and of determining how to achieve them. In other words, the campaign for environmental quality I think is a healthy reminder that the fundamental source of democracy is the will of the people to govern themselves. This is a somewhat old fashioned idea and the chief point I want to make is that those of us who have been participating in the environmental campaign have had a healthy reminder that this old fashioned idea is something that really means something to people today.
Now, I have gone through all this for the obvious reason that the people of the United States have themselves discerned the urgency