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Senator MUSKIE. I am sorry.
Mr. RUCKELSHAUS. But he realized in any question of what is legal and what isn't, and in questions involving the Constitution, that the courts might interpret otherwise than he felt.
When the bill was before the Congress there was at that time a bill that had been submitted by the President to give him the authority to limit expenditures to $250 billion. That bill was defeated by the Congress right at the end of the last session, as you remember. I think at that time, because of this expression of will on the part of Congress that he not hare this authority to limit spending, and because, though he felt his interpretation was sound, he knew that it was controversial and that people, I think in all good faith, like yourself, have a different interpretation of what the law means, he realized that by signing the bill with the amount of money that was in it, it was entirely possible that some court would take a different interpretation of what the law was than he did and that in and of these cases it is not 100 percent sure that something is legal. You are talking about an interpretation given to him by the Justice Department and by our own legal counsel's office, that the chances were that it was legal and that he could restrict the spending—but you never know what a court might do in a given case.
Senator MUSKIE. So that what you appear to be saying, first, you thought he might be held to be on shaky ground in using the impoundment authority which he believed he had; that was one reason why he vetoed it?
Mr. RUCKELSHAUS. I don't know if shaky ground is the way I put it.
Senator MUSKIE. The courts might digress with him on the use of his power?
Mr. RUCKELSHAUS. The courts can do a lot of things that don't neces. sarily lead to the conclusion you are on shaky ground. It may lead you to believe the courts are wrong.
Senator MUSKIE. Shaky or not, one reason was he felt the courts might disagree with him, lets put it that way.
Mr. RUCKELSHAUS. Yes.
Senator MUSKIE. All right, then, second, having decided to veto. what interpretation did he place in advance upon the action of the Congress if the Congress should override his veto what effect did he think that would have on public policy or what effect did he think that should have on his own authority, if any?
Mr. RUCKELSHAUS. Well, I can't speak for what was in the President's mind at that time, obviously.
Senator MUSKIE. What effect do you think. I mean is the action of a Congress in overriding a Presidential veto, which after all is a Constitutional instrument, is the action of Congress designed to be a meaningless thing?
Mr. RUCKELSITATS. No: it is not, Senator. I thought at the time, prior to the Congressional override, that this might in fact weaken the legal position of the administration in seeking to limit the allocation of funds, but I think the debate that occurred on the floor of both Houses when the override took place, in fact, strengthened the President's position because it was made abundantly clear, particularly in the House debate, that what they had intended was that the President have the authority to limit the spending. I think that if there is any
ambiguity in the statute at all it would simply be used to buttress the President's exercise of that authority.
Senator MUSKIE. Let's get down to that.
Would you agree that the phrase "not to exceed” originated in the Senate bill?
Mr. RUCKELSHAUS. Yes.
Senator MUSKIE. So the conference in accepting that language, accepted the Senate bill?
Mr. RUCKELSHAUS. That is right.
Senator MUSKIE. Then the Senate intent with respect to that language should be relevant, should it not?
Mr. RUCKELSHAUS. Yes; as should the House intent in accepting the language of the Senate.
Senator MUSKIE. You have referred to my language or to something I am said to have said on the floor of the Senate with respect to this language but you didn't quote any of my language. I thought it might be useful if I quoted some of it.
Mr. RUCKELSHAUS. That was a quote. I should have put quotes around it.
Senator MUSKIE. What is the quote?
Senator MUSKIE. You say I point out the control of funds was partly in the hands of the President.
Mr. RUCKELSHAUS. Yes; it is on page 5 of the testimony, the second full paragraph, the last sentence, to give the administration some flexibility concerning the obligation of construction grant funds.
Senator MUSKIE. Exactly.
may. First, with respect to the
Mr. RUCKELSHAUS. Senator, would you refer to the page that you are reading from?
Senator MUSKIE. I am now reading from the Record, the Congressional Record.
Mr. RUCKELSHAUS. Could you give me the page?
Senator MUSKIE. It is October 4, S16871. With reference to the language that you are basing your testimony on, halfway down the middle column, there is this:
The conferees do not expect these provisions to be used as an excuse in not making the commitments necessary to achieve the goals set forth in the Act. At this time there may be instances in which the obligation of funds to a particular project in a particular state may be contrary to other public policies such as the National Environmental Policy Act. In these cases the conferees would, of course, expect the Administration to refuse to enter into contracts for constructions.
Let me give you another quote. This is on October 17, 1972, in response to a question by Mr. Dominick. I say this:
Under the amendments proposed by Congressman William Harsha, and others, the authorizations for obligational authority are quote not to exceed $18 billion over the next three years. Also all sums authorized to be obligated will not be committed although they must be allocated. They must be allocated.
In response to another question by Senator Scott, I said I made it clear, the committee made it clear, that what we were asking of the Congress was a commitment that these people in other levels of Gorernment and in the private sector could rely upon. Of course, there is a commitment. The President, 3 years ago, in his state of the Union address said he had a commitment to the environmental issue.
Now, it is clear through all of the deliberations of the Senate conmittee, and our understanding of the bill and debate on the floor, that what we were trying to define was the commitment as clear as we could make it.
Now, with respect to the need for flexibility and some control on the part of the administration and the Executive, we understand, of course, that you wouldn't necessarily sign up contracts in any given year totaling up to the figure authorized for that year. I made it clear in the debate that it would take probably 9 years to actually expend all of the moneys authorized.
So, giving recognition to the fact, try as you may, you might not get contracts in that total actually signed and in the pipeline. You obviously don't ask the Executive to spend money for which there is no contract. That is why you need flexibility. But there is nothing in anything I have ever said on the floor of the Senate, nor on this bill, to suggest that the flexibility we tried to write into the bill to make administrative sense authorized the President to cut the program in half. What we are talking about is flexibility in administration, not flexibility in legislation. As far as I am concerned, we made it clear in section 205, which is the allotment section, such sums as are authorized shall be allotted prior to January 1.
Let me ask you this question: You allotted a total of $5 billion of the $11 billion provided in the first year. Now, is it your view—is it the view of the White House, the President's advisers--that the amounts that were not allotted, as required by law prior to last January 1, can still be allotted by the President?
Mr. RUCKELSILAUS. Senator, let me respond to that question by responding to your earlier statement as to the legislative history of this bill, and why I believe as I stated in my testimony that the President is on sound legal grounds.
Let me make two points: No. 1, as you know, you don't reach the question of what the legislative history is unless there is some ambiguity in the statute itself; some question as to what the language actually means in the statute.
As I read the statute, it is very clear, in reading sections 205 and 207 together, what the language says. It says that the President is authorized to, there is authorized to be appropriated to carry out this title, other than sections 208 and 209, not to exceed $5 billion for fiscal year 1973, and not to exceed $6 billion for fiscal 1974.
You then read that in conjunction with section 205, where it savs sums authorized to be appropriated pursuant to section 207 shall be allotted. It is clear enough that there is no mandatory duty in that language on the part of the President to allot all of the $5 billion, or all of the $6 billion, because had there been the clear intent on the part of Congress to force the President to do so, through mandatory language, it would have been simple enough to write such a mandatory
language in the bill, and there would have been no need for any
discussion over what sections 205 and 207 meant.
My second point is, if we go to the legislative history, if there is some feeling of ambiguity in the language itself, we look not only to the legislative history on the Senate side, but also to the legislative history on the House side. It is clear that the amendments in which the word "all" was struck from the word sums in section 205, and the "not to exceed" language, was inserted in the House version in the conference report, as it had already been in the Senate version, were very strongly supported in the House by Congressman Harsha, who was a member of the Conference Committee. In his statement on the floor of the House, he makes it very clear what he thinks that language means.
Senator MUSKIE. I asked Mr. Sneed this morning, he was unsuccessful. Will you point to Mr. Harsha's language and tell me where he was very specific as to the allotment authority, where he refers?
Mr. RUCKELSHAUS. Let me read you from-
ahead. Mr. RUCKELSHAUS. Let me read you from the Congressional Record, page H9122. I don't know that he refers specifically to the allotment authority in order to make it clear.
Senator Muskie. There are two steps to this process and I interrupt yon long enough to make that point. At the time you exercise the authority in section 205, there were no appropriations or any consideration for appropriations. Under the contract authority provisions of this bill, we don't get to appropriations until the Congress is asked to provide the money to make the payments on the contracts that have been entered into that are
Mr. RUCKELSHAUS, I understand that.
Senator Muskie. But here you have to give the States notice in advance of what they are going to have to work with. That is why section 205 is written. To give notice to the States of what they have got to work with, and there are no qualifications in this section.
Mr. ROCKELSIIAUS. Senator, let me report, let me quote to you from page 9122 of the Congressional Record, which involved the House debate on the conference report. In the first column, the third from the bottom paragraph, where Congressman Harsha starts to speak, and he speaks in terms of allocations :
This need is recognized in the report and the language of the legislation where a needs formula is used to allocate grant funds to individual States. I believe the Committee has accurately assessed the need for such a large sum of money. Furthermore, I want to point out that 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. And he goes on in the last sentence on that column and says; Furthermore, let me point out, the Committee on Public Works is acutely aware that monies from the highway trust fund have been impounded by the Executive. Expenditures from the highway trust fund are made in accordance with similar contract authority provisions to those in this bill. Obviously expenditures and appropriations in the water pollution control bill could also be controlled.
However, there is even more flexibility in this water pollution control bill because we have added “not to exceed” in section 207, as I indicated before. Then he concludes; Surely, if the Administration can impound monies from the highwas trust fund which does not have the flexibility of the language of the water pollution control bill, it can just as rightfully control expenditures from the contract authority produced in this legislation by that same means.
Senator MUSKIE. I find no comfort for you in that language whatsoever. What we are talking about is flexibility to control spending, not flexibility to cut the authorization in half. Now, there is a mountain of difference between the two, Mr. Ruckelshaus. In that language you quote the large rate of spending. He didn't say anything about the total amount to be spent on these programs. In my judgment, what you did in December has cut the program in half in a way that would require legislation to correct. You haven't answered that question yet. Mr. RUCKELSHAUS. I am not sure I agree with that.
Senator MUSKIE. I would say to you that you should have been sure one way or another before you took this action in December. You don't take that kind of action lightly, I trust.
Mr. RUCKELSHAUS. No, I do not, and I don't agree with you that I needed to be sure before I took that action, because I think the President's authority in this bill to limit spending in the way he did is clear.
Senator MUSKIE. You say you did not need to be sure. That means if the answer, as I believe it to be, that is, that the effect of the President's action and yours, has been to permanently cut the program for these 2 years in half in a way that cannot be restored except by legislative action, what you are saying is in your judgment the President has that kind of legislative authority. That is a different proposition than the one you are trying to defend with Mr. Harsha's language, a far differont proposition.
Mr. RUCKELSHAUS. I don't agree with you, Senator. I don't agree with you at all.
. Senator MUSKIE. Let me ask you whether or not that is your view.
Mr. RUCKELSHAUS. My view is that the language of the statute clearly gives to the President the authority to limit spending in the manner that he did.
Senator MUSKIE. I am asking you whether in your judgment the President's action, the effect of the President's action, was to require further legislation to restore what the President cut out of the program?
Mr. RUCKELSHAUs. No; I don't think that that is necessarily true.
Senator MUSKIE. He has answered twice the same way. You are not sure, is that right?
Mr. RUCKELSHAUS. That is right.
You are not sure. Not being sure, you reach the conclusion that even if that were the effect of the President's action, that we in the Congress had given him the authority to do that.
Mr. RUCKELSHAUS. I am sure, Senator, in reading this bill and the legislative history, that the President had the authority to limit spending in precisely the manner in which he did, and that that was following the congressional intent. Now, I am not saying that that follows the language as you saw it in the debate on the floor of the Senate, as to how you felt he ought to be authorized to limit spending. I think it is clear from the language you quoted that you don't agree with me, that you don't think this is the way.
Senator MUSKIE. I didn't at the time it passed. It would seem to me in reading legislative intent, the intent of the original author, the