process or leaving the appropriation process to be followed later, that the discretionary powers vested in the President, and certainly this construction, gives Congress authority to prohibit the impoundment, for Congress had authorized, in effect, that the President exercise discretion.

Mr. SNEED. That would reduce the scope of the bill in a beneficient way, but I think the administration would continue to oppose it. Senator ERVIN. I think it would increase very much the scope of the bill. That is what I think the bill constitutes. But if there is any change in phraseology that would make that more apparent I would be glad to have suggestions about it.

I believe you have stated and agree with me that section 1 of article I of the Constitution vests all the legislative powers of the Federal Government in Congress.

Mr. SNEED. That is correct, sir.

Senator ERVIN. And what is ordinarily called the necessary and proper clause in section 8 expressly gives Congress the power to pass all laws that are necessary and proper for carrying out any of these foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or any officer thereof.

Now, the President is undoubtedly an officer of the United States within the purview of that section of the clause; isn't he?

Mr. SNEED. He certainly is an officer of the United States. Senator ERVIN. So Congress has the power to pass laws to tell the President he must exercise powers given him by statute?

Mr. SNEED. I would not be prepared to concede that in the breadth in which you stated it.

Senator ERVIN. Well, I can't think of any words that have been selected by the writers of the Constitution which says Congress shall have the 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 officer thereof. That seems to me to be so plain it does not require any construction.

Mr. SNEED. One must read article II, Senator Ervin.

Senator ERVIN. I am going to article II in just a minute. You take the position the necessary and proper clause does not mean what it says?

Mr. SNEED. It must be harmonized with the powers under article II. Senator ERVIN. Don't you agree that an act which appropriates money is a law?

Mr. SNEED. Yes, sir.

Senator ERVIN. Isn't that made plain by this clause of section 9 of article I which says no money shall be drawn from the Treasury except in consequence of appropriations made by law?

Mr. SNEED. Yes, sir. There are two things clear from that. An appropriation act is a law. Number two is that an appropriation itself must have been made by Congress in a matter in accordance with law. We do not in the administration accept the notion that the appropriation is a law which necessarily precludes impoundment. The impoundment authority may be derived from the discretionary language of the particular appropriation act, language of other statutes or in the last analysis under the powers given to the President in article II.

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Senator ERVIN. Let's see if we agree on this: That the President of the United States does not have the right or duty to do anything of a governmental nature unless he is authorized to do so either by some provision of the Constitution or by the provision of some act of Congress?

Mr. SNEED. I would accept that.

Senator ERVIN. Yes.

What provision of the second article of the Constitution renders inoperative, under any circumstances, the necessary and proper clause of section 8 of article I?

Mr. SNEED. Senator, article II, section 3, provides that he shall take care that the laws be faithfully executed.

Senator ERVIN. Now, this word "execute" has several meanings. For example, the law used to say that a person should be executed for certain crimes, did it not? In such laws the word "execute" is used to mean his life will be terminated.

Now, this provision in the Constitution that the President shall take care that the laws are faithfully executed does not mean the President shall kill those laws?

Mr. SNEED. Senator, I don't think the word "execute" as used in the Constitution in article II, section 3, is used in the same sense that it is used in the phrasing of sanctions for penal purposes.

Senator ERVIN. As it is used there, when it says the President shall take care that the laws be faithfully executed, doesn't it mean he shall take care to see that the laws are carried out, or enforced, or carried out and made effective according to their terms?

Mr. SNEED. Senator, he has a responsibility under the Constitution as we have said and as you have indicated to see that the laws are faithfully executed. He has, however, at all times, to consider all the laws, and that has been our position as my statement indicated, that he is confronted and was confronted in the 1973 budget issue with laws consisting of appropriation acts, laws consisting of the 1946 Full Employment Act, laws consisting of the debt ceiling, laws consisting of the Economic Stabilization Act. Above and beyond that, he was looked to in part by Congress and certainly by the public as one having a very profound responsibility for price stability.

Now, when we put all that together the problem is how best to faithfully execute the laws.

Senator ERVIN. Well, now, the President doesn't have the responsibility, in a governmental sense, for anything except the responsibilities which the Constitution or the laws impose on him; isn't that true? Mr. SNEED. Yes, sir.

Senator ERVIN. And the fact that the people may look to him to do something doesn't give him the constitutional statutory authority to do it; does it?

Mr. SNEED. NO; I am merely injecting a political reality.

Senator ERVIN. Yes, but political realities are supposed to bow to constitutional government?

Mr. SNEED. Yes; indeed they do.

Senator ERVIN. I am informed that my 10 minutes are exhausted. Mr. SNEED. You go right ahead.

Senator CHILES. We will allow you to answer the question.

Senator ERVIN. The only question I want an answer to right now is, when the Constitution says that the President shall take care that the laws are faithfully executed, doesn't that mean that the President shall see that the laws are carried out according to what the laws provide? Mr. SNEED. Senator, the kind of problem that you are posing and that I have suggested was the context within which the impounding action in relation to the 1973 budget occurred is reminiscent of the situation of the President of the budget or at least the Secretary of the Navy. The issue I have in mind was confronted in the case of Decatur v. Paulding when Congress enacted laws that said the widow of Stephen Decatur was entitled to two pensions and the Secretary of the Navy refused to pay her two pensions and she sued and this led to a decision of the Supreme Court in 1840, upholding the refusal of the Secretary of Navy to pay her two pensions, notwithstanding the existence of the acts of Congress and in an opinion written by Chief Justice Taney, cited in my fuller statement, it is said that the interference of the courts with the performance of the ordinary duties of the executive departments of Government would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given. This was addressed to the courts, of

course.

Senator ERVIN. Even though I am very interested, I can come back to you later.

Senator MUSKIE. I think first of all have made two observations on your statement, Mr. Sneed. First of all, the tone is very much like the tone made by the President of the Philippines as a justification for eliminating the National Assembly. Some of the phrases ring a similar note.

Second, as I read it, there seems to be implicit in it the notion that the appropriations power rests primarily in the Executive and that the Congress is engaging in an unjustifiable incursion upon Executive prerogative.

In your statement, for example, you say, "I submit to you that the Congress has not demonstrated a capacity for exercising full and comprehensive control of these issues."

Upon that premise you conclude that we are not capable of exercising the appropriations authority which is given to us by the Constitution.

What our concern is, the Constitution clearly gives us the authority over appropriations and that the extent to which the Executive is involved in that constitutional authority is also a legitimate concern to us. So, with those two observations, let me make this third one, and it is illustrated by this sentence in your statement referring to S. 373, "It appears to proceed on the assumption-demonstrably erroneous as a matter of history-that appropriations acts mandate spending."

The obvious implication is that if Congress should mandate spending the Executive should honor it, but having taken advantage of that argument you then undertake to destroy the premise upon which it is based.

Let me give reference to the Water Pollution Board of last year, because you skipped reading that portion of your statement. I don't know whether this was out of some consideration of courtesy for me,

but in any case we might as well bring it out into the open. You say, "The history of that statute makes it plain that the proponents of mandatory spending simply did not have the votes."

Now, there is nothing in the recorded votes of the Congress with respect to this bill to justify that statement whatsoever. The act as it passed the Senate was approved unanimously. I believe it was approved unanimously in the House. The same thing was true with respect to the conference report and with respect to the override of the veto the President got a total of 35 votes in both Houses. How you get out of that record the conclusion he did not have the votes for mandatory spending escapes me, and I wonder if you could supply me with the evidence which will bring it to my attention.

Mr. SNEED. Senator Muskie, let me respond to your comments in order.

There is nothing in this statement that is intended to resemble the actions of President Morcos of the Philippines.

Senator MUSKIE. That has been suggested, its intent

Mr. SNEED. Certainly I regret that its tone was interpreted in that fashion.

There is nothing in the statement, Senator, that in any way suggests that the administration does not recognize that the appropriation power lies exclusively in the hands of Congress. We simply do not believe that a part of that power embraces a prohibition against impoundment. Unless Congress appropriates money, there is no money to spend. If Congress appropriates money, it is available to spend. Our contention, of course, is that it need not be.

Now, with respect to the water bill, my statement in connection with the absence of votes to mandate spending is based, of course, on the legislative history, particularly those comments of Mr. Harsha, who was a member of the conference committee, and Mr. Ford on the floor, I believe, of the House, both of which indicated that it was their understanding that the President was not required under the terms of that act to make allotments, not required to obligate.

Senator MUSKIE. On that point, before you leave it, would you give me the language used by Mr. Harsha that refers specifically to allotments?

Mr. SNEED. Yes, sir.

The discussion in the Congressional Record of October 18, 1972, page H10268, and let me-also on October 4.

Senator MUSKIE. Would you read the language which contains the word "allotment?"

Mr. SNEED. Let me read the provisions, Senator.

I believe the action by the managers of the Committee on Conference, in eliminating the word "all" before "sum" in Section 205 (a) and the insertion of the phrase "not to exceed" in three places, 207 gave the President the authority and flexibility he needs to control the rate of spending. As a matter of fact, he refers to it in his veto message. The legislative history in the House and the conference report under consideration was clear on this point. [If] the legislative history had been as clear when the conference report was under consideration in the other body as it was yesterday in the other body there may not have been a veto in the first place.

I do not want to question their motives, but I believe the other body is not making abundantly clear in its legislative history the same spirit, comments and substance of the House legislative history, have left ambiguities as to the legislative intent.

Senator MUSKIE. The word "allotment" does not appear in any of that language.

Mr. SNEED. No, sir; it does not, but "full power to control spending” does.

Senator MUSKIE. I am focusing on the specific provisions of the bill, and I think you know I am.

Mr. SNEED. I know.

Senator MUSKIE. Which has to do with allotments against that provision of the bill which has to do with the phrase "not to exceed."

Let me make this point just so the issue is clearly out in the open. The language "not to exceed" did not originate in the conference, it did not originate in the House version of the bill, it originated in the Senate version of the bill. The House accepted Senate language. I suggest, therefore, that Senate legislative history, to which you have made absolutely no reference, has a greater bearing, more bearing upon the interpretation of the phrase "not to exceed" than the comments on the House minority leader, however estimable a gentleman he may be. There are two sections of the bill pertinent to this issue, section 205, which is the allotment section, and section 207, which is the authorization section. Now, the words "not to exceed" appear in the authorization section, and for what reason? Well, I will give you the reason. We understand that it takes time to initiate projects, to design them, to bring them to the contract stage, to bring them to the approval stage, to bring them to the funding stage, and as I indicated quite clearly in the debate on the veto on the Senate floor, it would take up to 9 years to actually spend the money that was authorized in the 4 years covered by the authorization. Obviously the Congress cannot predict the pace at which the administrative process of designing, applying for, and funding these projects can take place. Obviously, we are not going to mandate the spending of money for contracts that have not been negotiated, and it is for that reason that the "not to exceed" language appears in section 207, which is the direction to the Appropriations Committees that we should provide money only for those obligations that have actually been incurred.

Since you cannot predict with precision what those would amount to at the end of any given year, obviously you have to have administrative flexibility.

But now let's turn to the allotments provision, section 205, "sums authorized to be appropriated pursuant to section 207 of each fiscal year, beginning after June 30, 1972, shall be allotted by the administration not later than the January 1 immediately preceding the beginning of the fiscal year."

There is no "not to exceed" language there. There is no qualification of the total commitment, and moreover, that language is directed not to the President of the United States, but to the Administrator, and yet, in your statement, you say the President of the United States directed that something less than the full allotment be directed.

Now, let me ask you this question: We allotted $11 billion in 2 years, $5 billion the first year. The President has cut that in half. Now, could the President or could the Administrator, in your judgment, change administration policy and now allow the sums that were not allotted prior to January 1?