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by Congress that the President alone is in a position to make these decisions and that it must give him leeway for 60 days to stop any kind of spending that he desires.
What reason is there for not requiring the President to come back to Congress to lower spending levels, just the way he would do if he wanted to increase them? I see no difference in principle between a request for a supplemental increase in funds, which must be approved in the normal manner, and a supplemental decrease in funds which, under S. 373, can be done by the President for 60 days, and then can be approved by a nonamendable concurrent resolution without reference to the appropriate committees.
Why should Congress wish to employ an all-or-nothing system of approval on a hurry-up basis for matters of this importance! In partícular, it seems inappropriate for the Senate to adopt a form of closed rule for this type of decision. There is no justification that I can see for denying the relevant committees an opportunity to hear witnesses and otherwise inform themselves about the request just as would be the case for a supplemental appropriation.
Therefore, attached is a proposed statute which clearly and unequivocally forbids all impoundments, and thus requests for reductions in spending will be treated just like all other requests for legislation from the Executive.
The proposed statute continues the requirement of S. 373 that the request be published in the Federal Register so that ordinary citizens will have some chance of learning about the proposed impoundment before Congress acts on it.
The proposed statute would also expand the definition of impoundment to include a wide variety of practices which the President has used to avoid spending money for reasons unrelated to the criteria established for the program. In order to insure that the Antideficiency Act is not used to resurrect these impoundments, there is attached for the subcommittee's consideration a proposed amendment to that statute that will clarify its meaning so that no President will be able to rely on its vague authority to effect savings as a basis for impounding funds for anti-inflationary reasons.
Regardless of what legislation is enacted, serious consideration must be given to the relation of it to the Antideficiency Act, since the potential conflict between them is almost certain to be a problem for the courts.
In addition, there is the added problem that might arise if the President should not comply with S. 373. In such a case, the only person who could be a defendant in a lawsuit would be the President himself since he is the only one obligated to file a report or to cease impounding funds.
While I see no constitutional impediment to a court directing the President to comply with a duly enacted congressional statute, the political ramifications of having the President of the United States as à defendant cannot be overlooked. Therefore, the attached proposed statute would specifically forbid not only the President, but also the Director of OMB and the responsible agency head from impounding
5 There are some court decisions which indicate that there may be legal difficulties in this regard.
any funds, so that all of them would be proper defendants in a lawsuit to compel compliance with it.
On a slightly different but related question, the bill to require Senate confirmation of the Director of OMB, beginning with Mr. Ash, is highly advisable.
One of the defenses which lurks in the background in every case brought against an agency of the Federal Government is the claim of lack of standing,
Last year the Supreme Court, in the now-famous Sierra Club decision, gave a relatively narrow construction to the law of standing, but unequivocally stated that Congress could confer standing on whomever it chose to litigate any actual controversy. Thus, in view of the strong congressional interest in forestalling impoundments of all tyres, it is recommended that Congress, as part of the bill now being considered by your committees, enact a provision specifically extending standing to any Member of Congress to challenge any Executive impoundment, as well as any alleged failure to comply with S. 373. Citizens who are affected by impoundments already have such standing, and our proposal would simply enlarge the group of potential plaintiffs to include Members of Congress.
Our proposal also includes a requirement that the Government anstrer the complaint within 20 days in lieu of the b0 days to which it is ordlinarily entitled, with a further proviso that extensions of time will be granted only under extraordinary circumstances. The proposal also directs that all actions involving impoundments, not only those brought by Members of Congress, be given expedited treatment, and that any Members of Congress shall have the right to file an amicus brief in any such action, without consent of the parties.
In addition to the desirability of having Members of Congress assert their positions in the courts, our proposal is also based upon our experience with the victims of impoundments. A great many such organizations have been extremely reluctant to challenge those actions in court because of fear of executive retaliation. Whether or not those fears are justified, their existence cannot be denied. Thus, these fears may preclude challenges to some programs and will almost certainly delay the bringing of other lawsuits until the apprehensions of the cautions can be assuaged.
Given the strong congressional interest in preventing impoundment of any appropriated funds, it seems to me to be altogether proper for Congress to confer standing upon any Member to bring an action to challenge the conduct of the executive in this area.
One assumption which is at least implicit in the bills now being considered is that the President will obey the laws once they are clearly written. That is a speculative assumption, particularly given recent history and the extraordinary flexibility of interpretation generated bra determined Chief Executive.
It should be made perfectly clear to the President that the power of the court to impose contempt citations against members of the executive branch will back up these laws. If, after a court order, the Director of OMB or a Cabinet officer refuses to release the impounded funds, he can be incarcerated until he does comply. A well-written court
* Sierra ('lub v. Morton, 405 U.S. 727 (1972).
order could also reach the President if he persisted in allowing his top officials to remain incarcerated. And of course, there is always the unspoken but constitutionally articulated action of impeachment which, in the case of defiance of such a serious court order, would seem to be entirely proper.
Any legislation prohibiting impoundment must be accompanied by other legislation providing an environment in which the anti-impoundment mechanism may operate effectively.
First, it is imperative that Congress bite the bullet in reforming its own budgetary processes. Presently, Congress lacks the tools adequately to appraise the President's budget, much less to initiate its own budgetary proposals.
I recall recently Senator Scott's stating that the President has impounded because, as the Senator stated, the Congress did not have the guts to control its spending. For such an argument which puts expediency to the foreground and the Constitution to the rear is nothing short of insidious. It is hardly an argument one would expect from a Member of Congress because it can be easily extrapolated into further arguments such as because the Congress did not have the guts to declare war, the President had to make war. This is a terribly underlying type of thinking that I think needs to be raised to the surface of critical appraisal.
It is true the Congress has not upheld its responsibilities in this area, but that cannot be used as a justification for executive procedure.
As an important first corrective step, Congress must equip itself with the additional personnel and computer capability needed to perform its budgetary function in a competent fashion.
Second, Congress must rework its internal procedures so that it may review each year's expenditures in their entirety rather than, as it presently does, on a piecemeal basis.
One of OMB's principal justifications for impounding funds is that it is the only agency in the Federal Government that has an overview of the whole budget. Accordingly, if Congress is to retrieve its lost power over the Federal purse strings by prohibiting impoundment, it must simultaneously revamp its own procedures so that it can fulfill the managerial responsibility that necessarily accompanies this power.
I might add here that this is a particularly critical responsibility for Congress because it is not likely that there is going to be a popular uprising in the Nation demanding that this occur. It is an issue that is intricate, it is complex, it is not glamorous, and it is not very susceptible to the mass media throughout the land. An issue such as this is peculiarly an issue of Congress to recognize and resolve.
The creation of a Joint Committee on the Budget to perform the function of congressional overview has been proposed in legislation introduced in this session; such a committee might provide the needed mechanism to remedy the present patchwork approach to appropriations, provided that its powers are sufficiently limited, its membership sufficiently broad, and its inner workings sufficiently visible to insure that it does not accumuate oligarchial control over budgetary matters.
Third, Congress must equip itself with the legal assistance necessary to enable it to assess and, if necessary, to enforce by court action the
laws it passes prohibiting executive usurpations of its legislative power.
Senator Hartke and others have proposed that Congress should create an Office of General Counsel which would provide Congress with legal assistance in much the same manner that the GAO presently provides assistance with respect to the expenditures of funds. The creation of such an office would go a long way toward providing Congress with the tools necessary to curtail executive incursions on the legislative prerogative.
I think it is important to note, although there are exceptions, that the annual budget of Congress is about $500 million; that is, to operate Congress in its entirety costs $500 million a year. That is equivalent to just over 2 days' expenditure by the Pentagon and I just do not think it is possible to reduce the size of the executive with accuracy and reduce the raises and inefficiency without increasing the technical assistance support structures that the Congress must have under its own jurisdiction directly.
In conclusion, it is obvious that the responsibility under our Constitution for making the choices such as the taxing power, the appropriation power, reposes in the Congress, and it is the duty of the Congress to reclaim those rights from the executive before they are permanently lost by adverse possession.
When the executive branch appropriates power that belongs to the Congress, it appropriates power that belongs to the people, and when power that belongs to the people is controlled and administered by a highly invisible and giant bureaucracy, that is the executive branch, then we have clearly lost a good deal of the democratic metabolism in this country.
I think it is important to recognize here that the criticism of the Chief Executive does not rest on substantive disagreements on program cuts, but on a rapidly steepening tradition that the Presidency is becoming preeminent in making these judgments that belong to the Congress, which in turn belong to the people.
There is a very, very sensible reason, I think, why the Founding Fathers put the taxing and appropriating powers in the Congress, and that is because the Congress as it is structured is closest to public accountability and closest to the people, and when the taxing and the appropriately and the spending functions are generated by the Presidency, then the connection between the Congres and its public accountability to the people is rendered nugatory. And that is why I think it is very important in analyzing the future direction of our democratic system to focus relentless determination on this issue so it can be resolved with explicit standards and accountabilities imposed on the executive by the legislative branch of Government, and clearly interpreted by the courts in case no solution is reached between the former two branches.
In summary, the following recommendations are made with respect to any legislation prohibiting impoundments:
1. The approach taken by S. 373 should be reversed, so that no impoundment may be effectuated, even on a temporary basis, without the prior approval of Congress:
2. The Congress' approval or disapproval of any proposed impoundment should be handled procedurally in the same manner as requests
for supplemental appropriations and should, accordingly, be subject to committee hearings when appropriate;
3. The definition of impoundment contained in any such legislation should be slightly broadler than that contained in S. 373;
4. Any such legislation should contain provisions excepting from the definition of "impoundment” any routine establishment of budgetarmy reserves under the Anti-Deficiency Act, so long as that act is simultaneously amended to clarify its narrowness;
5. Congress should make certain that, in enacting anti-impoundment legislation, it does not give the appearance of tacitly approving past imponndments;
6. Lexislation showd be enacted granting standing to any Vember of Congress to enforce the provisions of the statute prohibiting imporn ment:
7. Congress should modernize its budgetary procedures and expand its staff so that it will be able to initiate its own budget proposals, to assess the Presidents budget adequately, and to obtain an overview of all Federal expenditures rather than viewing them on a piecemeal basis;
8. Congress should establish its own Ollice of General Counsel to provide it with legal assistance in riding herd on executive encroachments on the legislative prerogative: and,
9. Congress should pass legislation subjecting the Director of the Office of Management and Budret to Senate confirmation.
The ('onstitution has given Congress the responsibility for enacting the laws of this country, and the executive branch has been given the responsibility for carrying out those laws. For far too long, Congress has larrely abilicated its responsibility, and it is now time for a reassertion of its constitutional rights and obligations.
If hard choices must be made in the budgetary process, it is for Congress to make them, and the voters and citizens to participate in or respond to the legislative nrocess. If programs must be cut in order to control inflation, it is the responsibility of Congress to make those judgments. If taxes must be raised, Congress cannot be afraid to do so, nor can it shift any of these unpleasant tasks onto the Executive. The responsibility under our Constitution for making these choices is resposed in the Congress, and it is the duty of the Congress to reclaim those rights from the Executive before they are permanently lost by adverse possession.
Thank you for your invitation.
You have attachments to your statement and they will be incorporated in the record at this point.
(The attachments follow :)
PROPOSED SUBSTITUTE FOR S. 373
(1) the withholding. delaying deferring, freezing, or otherwise refusing to expend appropriated funds (whether by establishing reserves or otherwise);
(2) the delaying, deferring or refusing to make any allocation of authorized funds [where such allocation is required in order to permit the funds to be expended or obligated);