which is not to be found in the wording of the Constitution or the power of the Commander in Chief, which is to be found in article II. It was exactly those two basics on which Mr. Truman rested when he seized the steel companies. That issue turned out to be justiciable. The Supreme Court of the United States in the Youngstown case, it seems to me, made it quite clear that the implied powers of the President are indeed minimal when they come in direct conflict with the expressed will of the national legislature.

I submit that you do have judicial construction on the question of the implied powers of the President and that judicial instruction is now inconsistent with the position now being taken by the administration with regard to impoundment.

Mr. SNEED. We distinguish, Professor Kurland, Youngstown v. Sawyer on the grounds of the remedy that was available in that case. It was quite easy for the court to take jurisdiction of that case and to strike down the Executive order and seize the steel company. It was quite another thing for the Court to undertake to direct the President with respect to how and what manner and in what way he would spend appropriations.

Mr. KURLAND. There are two propositions derived from the Steel seizure case. One is that under appropriate circumstances a case might become justiciable, as for example, it is possible that a body that has contracted under one of the statutes now being gutted might sue the Government for the benefits which the contract pursuant to the act purported to give him.

But let me put aside the question of justiciability for a moment, because that is a matter of hypothesis.

What I am talking about is the Supreme Court's description of the implied powers of the President when it is in conflict with a position clearly taken by the Congress of the United States.

Mr. SNEED. Professor Kurland, most of the cases that we are concerned with, they are not in the third category in Mr. Jackson's opinion

Mr. KURLAND. Certainly the water pollution position is stronger

Mr. SNEED. It seems to me we are in the second category, namely, where Congress has been inactive or silent with respect to the matter, and it is in that area that it seems to me we find ourselves in connection with the water bill. Congress has not directed the President, as we read the congressional history, to allot or allocate all of those

Mr. KURLAND. I submit Senator Muskie has answered that particular point better than I could possible do at this point.

Senator CHILES. Mr. Miller.

Mr. MILLER. May I make one point, Mr. Chairman.

I have been fascinated, Dean Sneed, about your facility in rewriting the Constitution. If I may say so, I think it is a contention which students will surely applaud.

Mr. SNEED. Professor Miller, if I may interject as a kind of collegial comment, I have been struck with students rewriting constitutions for a number of years.

Mr. MILLER. Well, not Attorneys General, sir.

I want to know the limit of this inherent power you assert the President has. You implied he has it in domestic affairs. You assert he has it in domestic powers and foreign affairs. Are there any limits?

Mr. SNEED. Professor Miller, the effective limit on his power lies in the political realm.

Mr. MILLER. I want the limits of law, speaking as a President's lawyer, and you are, are you not?

Mr. SNEED. I was sworn in as Deputy Attorney General.

Mr. MILLER. As Deputy Attorney General what are the limits in law as the President's power, inherent power that you asserted?

Mr. SNEED. These stand on the teaching of Kendall v. United States. where Congress said pay a specific sum to a specific individual, he, the President, must pay it. We go no further.

Mr. MILLER. Would you assert the power of the President to withhold funds from the independent regulatory commissions? Mr. SNEED. Yes, sir.

Mr. MILLER. In this connection

Mr. SNEED. (continuing). Subject to the political processes.

Mr. MILLER. Subject to the political-in this connection, hearings held last year by the Subcommittee on Intergovernmental Relations, a letter from Chairman Kirkpatrick of the Federal Trade Commission to Senator Metcalf and the letter begins on page 317 and goes to 321, and indicates that the President withheld $620,000 last year, which meant that according to Mr. Kirkpatrick he had to abolish 72 new positions for which funding had been granted by Congress. You are asserting that is within the lawful power of the President.

Mr. SNEED. Yes, sir.

Mr. MILLER. Now, Secretary Butz last week told Senator Talmadge and others that the President had power to withhold funds that Congress appropriated for the use of Congress. Do you agree with that? Mr. SNEED. For the use of Congress?

Mr. MILLER. Yes, sir; that is the statement.

Mr. SNEED. That poses a somewhat different issue.

Mr. MILLER. Do you agree with it or not?

Mr. SNEED. I would hesitate to make a statement without looking into it further.

Mr. MILLER. We are exploring the parameters of Executive power. Mr. SNEED. You have hit parameter on which I do not care to comment.

Mr. MILLER. How about the Supreme Court of the United States? Mr. SNEED. It seems to me you are involved there in the separation of powers, which is certainly quite a different situation.

Mr. MILLER. If he has inherent power, and this is my last question. Mr. Sneed, if he has inherent power to withhold funds from the FTC or any other executive agency, then can he withhold funds from a special committee, select committee the Senate is planning to establish to look into the Watergate situation?

Mr. SNEED. I rather doubt that.

Mr. MILLER. There is a limit to the President's powers.

Mr. SNEED. Yes, sir; I recognized the limit in Kendall already. Fine. Senator CHILES. We want to thank you for your appearance, Dean. I do not think anyone is ever going to say about you that you narrowed the powers of the Presidency.

We will reconvene our hearings at 2:30 this afternoon.

(Whereupon, at 1:47 p.m., the joint hearing was recessed to reconvene at 2:30 p.m., the same day.)

AFTERNOON SESSION

Senator CHILES. We will reconvene our hearings and our first witness this afternoon will be Mr. William Ruckelshaus, the Administrator of the Evironmental Protection Agency.

We are happy to have you here today.

STATEMENT OF WILLIAM D. RUCKELSHAUS, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY ROBERT SANSOM, ASSISTANT ADMINISTRATOR, ADMINISTRATOR, AIR AND WATER PROGRAMS; JOHN QUARLES, ASSISTANT ADMINISTRATOR, ENFORCEMENT; AND GARY BAISE, CONGRESSIONAL LIAISON

Mr. RUCKELSHAUS. Thank you very much, Mr. Chairman.

Since I undertand there has been a good deal of discussion in these hearings relating to the President's allocation of $5 billion out of the $11 billion authorized for the Water Pollution Control Act that was passed in the last session of Congress, I felt that I should direct my short statement this afternoon to that specific point and I am here today to discuss with you the action taken by the Environmental Protection Agency on November 28, 1972, to allocate $5 billion of the $11 billion authorized for obligation to fiscal years 1973 and 1974, under section 207 of Public Law 92-500, the Federal Water Pollution Control Act Amendments of 1972.

Mr. Chairman, I might mention that I have with me, today the Assistant Administrator in charge of Air and Water programs, Mr. Robert Sansom, on my left, and on my right, the Assistant Administrator for Enforcement, Mr. John Quarles, and on my immediate right, Mr. Gary Baise, who is in charge of our congressional liaison.

On November 22, President Nixon wrote me, directing that I allocate to the States, for construction of municipal waste treatment facilities, $2 billion for fiscal 1973 and $3 billion for fiscal 1974. The President so instructed me, and I made the allocations, on the basis of the authorities contained in sections 205 and 207 of the act. Section 205 reads, in part, as follows:

Section 205 (a). Sums authorized to be appropriated pursuant to Section 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized * * *

I should also like to quote part of the authorization provision, section 207:

Section 207. There is authorized to be appropriated... for the fiscal year ending June 30, 1973, not to exceed $5 billion for the fiscal year ending June 30, 1974, not to exceed $6 billion ***

It is my firm belief that these sections, taken together permit the Administrator to allocate less than the total amount authorized. I am convinced that this interpretation is supported by the legislative history of the enactment of these two sections, which I should like to review with you.

As I have stated before, the two sections which I just cited cannot be read separately, but must be read, in effect, as one. Section 205 directs the Administrator to allot "sums authorized" in section 207.

90-538-73-27

It does not say "all sums." Furthermore, section 207 authorizes the appropriation of sums "not to exceed" certain amounts. It thus allows room for the exercise of discretion.

I believe that the Congress deliberately wrote that discretion in the bill. In S. 2770, as passed by the Senate on November 2, 1971, section 205 read: “*** all sums appropriated or authorized to be allocated pursuant to section 207 *** shall be allocated among the States * * *” in the law.

No attempt was made to amend either section during Senate passage, and there was no discussion of the importance of the word "all" in section 205 or the meaning of the phrase "not to exceed" in section 207. As reported by the House Public Works Committee on March 11, 1972, H.R. 11896 read:

Section 205 (a). All sums authorized to be appropriated pursuant to Section 207 *** Section 207. There is authorized to be appropriated for the fiscal year ending June 30, 1973, $5 billion, for the fiscal year ending June 30, 1974, $6 billion * The "not to exceed" language was not in the House version of the bill as it came out of the committee.

Although there was no discussion of either section specifically during House debate, the possibility that the executive branch would determine the allocations and/or obligations under the bill's provisions was raised. Several Members addressed the subject; for our purposes today, it may suffice to quote only one, the chairman of the Appropriations Committee, who observed:

Some seem to think that contract authority will guarantee full funding of the authorization. Of course, nobody is so naive as to think you can bypass the President or the Executive Branch. The President is the top official ... and he would permit or not permit full-scale application of the contract authority—or appropriations, for that matter.1

The conference report came before both Houses on October 4, 1972. It contained the wording of sections 205 and 207 which became law on October 18. The report did not address the reasons for the changesfrom both bills in the case of section 205, and from the House version of section 207. There was, however, considerable discussion on the floor in each House. From a review of that discussion I believe there should be little doubt that discretion in allocating funds by the executive branch was clearly intended by the Congress.

The first point of substance which the ranking Republican Member of the House Public Works Committee addressed was the funding level. He noted that while it was the same as in the House bill-$18 billion

*** the elimination of the word "all" before the word "sums" in Section 205 ( a ) and insertion of the phrase "not to exceed" in Section 207 was intended by the managers of the bill to emphasize the President's flexibility to control the rate of spending.

He went on to say:

The Committee recognizes that there are many competing national priorities. That is the very reason the Committee has placed in this legislation the flexibility that is needed for the Executive Branch.

1 Remarks of Congressman George Mahon, Congressional Record, Mar. 29, 1972, at H2721. See also other Members, at H2729 and 2730.

2 Remarks of Congressman William H. Harsha, loc. cit., Oct. 4, 1972, at H9122f.

This point was reinforced in a colloquy which Mr. William Harsha and Mr. Gerald Ford conducted, with the avowed intent of making a clear legislative history. The chairman of the conference committee agreed with their interpretation of the conferees' intent.

Similar discussion took place in the Senate on the same day. The chairman of the Senate conferees addressed the funding at length. He explained that the amendments to sections 205 and 207 were made "to give the administration some flexibility concerning the obligation of construction grant funds."4

-The subject came up again when the Senate voted on October 17 to override the President's veto and the House acted to do so on October 18. Senator Muskie again pointed out that control of funds was partly n the hands of the President, and reiterated the reasons why sections 205 and 207 were written as they were. In a written statement, subnitted for the record, Senator Baker pointed out that "*** the Congress has gone out of its way to make it clear*** that the funds * * * did not have to be spent in their entirety." 5

The commitment of the President and of this administration to the ause of environmental protection is abundantly clear. The President's environmental legislative proposals and the implementation of envionmental authorities are evidence of that commitment. The decision o allocate less than the maximum funding under the "water" Act is not a departure from or a contradiction of that commitment. If fiscal esponsibility is to be achieved, as the President has resolved it will be, ard decisions to fund Federal programs at less than their maximums nay be necessary. The inevitable criticism and controversy should not leter those decisions.

As I mentioned earlier, the responsibility to make the decision on unding was placed on the President's shoulders by the legislation itelf. It is a difficult and complex responsibility and it has been carried but in the full context of a comprehensive and long-range policy diected toward the health and prosperity of the Nation.

That is my statement. I would be glad to attempt to respond to any questions that you might have.

Senator MUSKIE. Mr. Ruckelshaus, as you may know, there was some liscussion of the issue which you have raised in your prepared statenent this morning in connection with Mr. Sneed's testimony. I am not sure that you have a rundown on that so I may cover the same points hat I covered in that.

First of all, let me ask you, since the President has asserted so trongly, beginning in December and now through the testimony of arious spokesmen, including yourself this afternoon, that you have the power, he has the power, to control the spending for this purpose to any level that he chooses, why did he veto the bill?

Mr. RUCKELSHAUS. Well, I think he vetoed the bill, Senator because here was at the time he vetoed it no question in his mind as to the egality of his ability to control the spending.

Senator MUSKIE. That is his reason for not vetoing it?
Mr. RUCKELHAUS. I am about to conclude.

Remarks of Congressman Robert Jones, loc. cit., at H9123.

* Remarks of Senator Edmund S. Muskie, ibid., at S16871.

Both Senators, Ibid., October 17, 1972, at S. 18546. See also Senator Muskie, at S. $550-51 and Senator Cooper, at S. 18551.