larly, President Nixon has attempted to use the impoundment device to accomplish two different objectives which he strongly believes to be be in the national interest:

(1) To veto in effect individual, specific programs which are deemed to be bad programs, and

(2) To hold overall expenditures to a particular amount.

The power of the President and his administration is to use his influence at the time legislation is being developed and to exercise his veto power following passage of a bill by both Houses. He is not free simply to ignore the law. The lack of constitutional authority for the President to act contrary to the legislative mandate of Congress and withhold appropriated funds wherever and whenever he deems it desirable is clear. To allow him to do so would be to confer upon the Executive the legislative power of the Congress.

The bill before the subcommittees today would provide a workable method whereby Congress could change its mind upon a showing by the Executive that circumstances have changed to such an extent that Congress should withdraw its commitment as embodied in a particular appropriation bill. I support the bill and have cosponsored it-although I may have some suggestions for clarifying some of its provisions, for example, by utilizing the supplemental appropriations process as a substitute for the mechanism provided in S. 373. I particularly look forward to seeing its constitutional framework developed in these hearings.

However, while this constitutional issue on the practice of impoundment must be resolved, we cannot ignore the fact that the role of the Congress in the Federal budgetary process must be more effectively organized.

The budget is a balance wheel for the national economy. It must be developed and executed rationally. The diffusion of responsibility throughout the committees of Congress in the authorization-appropriation-taxation process can leave it without an adequate focus on such broad issues as budgetary balance and selection of priorities.

The separate power and constitutional role of Congress must be preserved. But the magnitude and impact of our Federal budget is so great upon every individual, every corporate undertaking and every State and local government that, if Congress is to hold its authority, it must resolve to exercise it with responsibility and to staff itself and procedurally organize itself for that purpose. This too must be the subject of these hearings.

Senator CHILES. Senator Muskie.

STATEMENT OF HON. ROY L. ASH,1 DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET; ACCOMPANIED BY JAMES BRADLEY, ACTING GENERAL COUNSEL; AND SAMUEL COHN, ASSISTANT DIRECTOR-Continued

Senator MUSKIE. Well, I will say, Mr. Chairman, 10 minutes is not enough for what I would like to put to the witness. I will try to restrain myself.

First of all, Mr. Ash, I want to refer to something you said in your statement, because it is repetitious, something the President has also said and preface my reading of it by saying that I resent it. He said that at the same time that the meaning of extravagance is expanded by

1 See also, supra, p. 269.

requirements initially by legislative committees sympathetic to particular and narrow causes. These committees are encouraged by special interest groups and by some executive branch officials who are more concerned with expansion of their programs than with total Federal spending, than with taxes required to support this spending.

Now, would the President demand executive power on the grounds that this Congress is influenced by special interest groups? I resent that. And I must say that a statement on your part is a temptation to me to pursue that line with respect to examples of special influence in the executive branch.

I will not yield to that temptation because there are other questions that I want to get into. But I want to say at the outset I resent it. On my part I believe we are motivated by the general interest, as anyone in the executive branch, and I think it ill becomes the executive branch beginning with its principal spokesman, the President, to accuse Congress of being primarily motivated by such special interest considerations.

Having said that, I would like to get into some other questions. Yesterday I had an opportunity to meet with some of my constituents from Maine who have been concerned with the instructions they have received from the Budget Bureau, I assume, to dismantle the regional medical program by the end of this fiscal year. Now, to my knowledge, if that is the intention of the Executive to recommend dismantling of those programs, the Congress has not yet acquiesced. So I would like to ask what is the policy with respect to dismantling programs that have been authorized by the Congress which have been implemented pursuant to the mandate of Congress, which have been funded by the Congress, which has generated momentum, incurred obligation? What is the policy behind dismantling them without requesting congressional action or approval? Because they are dismantled, if the Congress should succeed in reversing the decision of the Executive, obviously a lot of ground will be lost, waste will be created, people will be disappointed and program momentum lost. Now I would like to know what that policy is.

Mr. Asн. The proposals of the President set forth in the budget did recommend that there be substantial changes in the programs, including those of a medical nature.

I do want to observe, however, that while individual programs might have been realined, the total amounts that are being spent for medical programs are going up, as I recall, 25 percent in the year 1973 over the year 1972. The actions taken in that budget were to constrain them from going up 30 percent in the year 1973 over the 1972. So medical programs in the aggregate are some of the most rapidly growing of all and there are realinements of individual programs to make them more effective in the results that they achieve.

Senator MUSKIE. I am not talking to that issue. I am talking to a directive to destroy a program and dismantle it, a program that in my observation is one of the sources, innovative, creative approaches to the problem of delivering health care and especially in sparsely settled rural areas of the country, that is a good program wholly apart from its merits. So far as what I have been told, they have been told to dismantle it, not realine it or cut it back, but dismantle without awaiting Congress to indicate whether or not it agrees with that situation.

Mr. Asн. I believe there could be a misunderstanding, because as I indicated at the beginning of my comments, the proposals in the budget are set forth for congressional action. The States and elements of them have not been directed to dismantle any programs, but merely to do their own contingency planning in case the Congress does, and we would recommend it to agree with the proposals set forth in the budget.

Senator MUSKIE. What you are saying is that the regional medical programs have not been directed to dismantle?

Mr. Asн. They have not been directed to dismantle. They have been, however, directed to prepare their own plans and to consider the prospect of the Congress adopting the recommendations that are made by the President in the budget. So what we have in front of the Congress

Senator MUSKIE. You authorize me to say to those people that they misunderstand, that they are free to continue their ongoing programs until the Congress acts; is that what you direct me to tell them?

Mr. Asн. I don't know a particular program in a particular State. There are some other factors that bear on it, and I do know-and I can find out as to a particular program in a particular State. But for the general total of that whole program, that is a matter that is submitted for congressional consideration and for congressional action, and those recipients of those moneys have been told to prepare contingency plans for the possibility and with the expectation that the Congress will find full agreement with the recommendations put before it.

Senator MUSKIE. You opened up a broader question which I do not have time to explore in 10 minutes, but this narrow one I will expect to get from you, then, the true definition, the actual definition of your directive to these people in Maine which I assume is matched by similar directives, whatever they were, across the country, and if that directive conforms to their understanding of it, I am going to continue to be unhappy about it.

If it does not conform to their understanding of it, then I will be happy to tell them to keep on working.

Mr. Asи. We know that the OMB has not sent any such directives. It is possible that HEW has done so. We do not know what they are, but we will find out that, as well as confirm to you now that OMB has not sent out any such directive.

Senator MUSKIE. Would you be sure to give me that information before the process of dismantling has proceeded too far?

Mr. Ash. We will get that information to you. Maybe we can best find out from you or the recipients what they have that allows that interpretation, that allows us better to know where to go.

Senator MUSKIE. That may be a better way to get the information, notwithstanding its lack of efficiency.

Mr. Asн. We will look around to find instructions that were given. We know none were given from OMB. The next place is HEW.

Senator MUSKIE. You would not possibly have asked-you are more efficient than Congress.

Mr. Ash. We will know where they are. We would like to serve you as rapidly as possible and if you can serve us with any leads that will help us to do so.

90-538-73-32

(The Office of Management and Budget subsequently provided the following information :)

ANSWER TO QUESTION CONCERNING REGIONAL MEDICAL PROGRAMS
SERVICE OF HEW

The Director of the Regional Medical Programs Service in the Department of Health, Education, and Welfare on the basis of the decisions in the Presi dent's 1974 Budget-appropriately provided all RMP coordinators and grantee officials with instructions to assist them in assuring that Federal funds will not inadvertently be committed beyond the amounts available through June 30, 1973. In general, those RMP's which already have been awarded grants that extend beyond that date will be required, on grounds of equity and overall program flexibility, to not commit themselves to projects or other operations beyond June 30, 1973. A small amount of funds will be provided to certain RMP's to cover the costs of orderly termination through February 15, 1974, of certain limited activities already underway. The question of staff reductions or other administrative steps necessary to stay within the funds available to the Regional Medical Programs until June 30, 1973, are matters left entirely to the judgment of the grantees, as is the case generally with Federal grant programs.

Copies of the instructions follow:

DECEMBER 29, 1972. Telegraph to: Coordinators and Grantee Officials of [selected] Regional Medical Programs

Because the DHEW Budget allocation for FY 1973 is still under review, grant support for your program has been authorized only through the first half of your budget period to June 30, 1973. Therefore, the DOD [Division of Operations and Development] staff will negotiate your budget for that period. Support beyond June 30, 1973 will be determined after budget actions have been completed. I regret the inconvenience this action may cause you.

HAROLD MARGULIES, M.D., Director, Regional Medical Programs Service.

Telegraph to: All RMPS Coordinators and Grantee Officials

FEBRUARY 1, 1973.

The President has submitted his budget proposals to the Congress. While the amount for Fiscal Year 1973 for RMPS grants and contracts is shown as $125,100,000, the actual amount available to the program for grants and contracts during the present fiscal year is $55,358,000. The actual reduction in the amount available is detailed on page 384 of the appendix to the official submission. You are aware that we have been operating under a continuing resolution. Early in the fiscal year, 17 RMPs were funded for another year with start dates of September 1, 1972. This was followed by awards at the end of December to 18 RMPS with start dates of January 1, 1973. There remain 21 RMPs with May 1, 1973 start dates.

By telegram on December 29, 1972, I advised the 18 RMPs with January 1 start dates that because of the limited funds available, their awards were authorized only through June 30, 1973, funded at only half the amount established for one year. Similarly with the limited funds available we have determined that the 21 remaining awards with May 1 start dates can be extended only through June 30, 1973.

No grant funds are included in the President's budget request for RMP in Fiscal Year 1974. Therefore, with no additional funds proposed to be made available in Fiscal Year 1974, and with the limited funds available this year, the above funding decisions were made to avoid the possibility of overobligating Fiscal Year 1973 funds. Further, in order to treat all 56 RMPs as equitably as possible and attempt to provide funds for the most critical situations, all of Fiscal Year 1973 grant awards will terminate on June 30, 1973. It follows, then, that the 17 grants awarded as of September 1, 1972, will receive amended awards reducing the budget period by two months with appropriate prorated funds. As stated above, all RMP grants will be terminated on June 30, 1973. It is our intention to permit grant extensions beyond June 30 but to no later than February 15, 1974. Additional funds will not be awarded except as determined necessary to adhere to the principle of equitable treatment. This would be to accommodate only those activities and program staff identified by the RMPS

as requiring support beyond June 30, 1973 that cannot be terminated by that date due to need to finalize necessary reports, publish findings, etc. Upon receipt of your plans by March 15, 1973, for terminating grant support, we will announce on April 15, decisions regarding redistribution of any grant funds available through adjustment of awards which can be used to phase out RMPs support. It may well be that we will not be able to support much of what is considered essential by you because of the limited funds available. Your plan, then, for beginning an immediate phaseout of RMPs support to be completed no later than February 15, 1974, should be developed and submitted to us no later than March 15, 1973. The plan should reflect the following requirements:

1. Do not enter into any new contracts or agreements for activities or personnel which commit RMPS funds.

2. Request continued support for only those activities requiring RMPS funds that will produce a predictable result justifying the Federal investment, or

3. Request continued support for those essential activities where a mechanism has been established to continue without interruption support of the activiy from other resources.

It is requested that your plan be submitted in writing, accompanied by pages 1, 6, 15 and 16 of the application form 34-1, for phasing out all RMPs support by June 30, 1973, and a separate plan and set of forms for activities proposed for continuation beyond June 30, 1973, but in no event beyond February 15, 1974.

May I also remind you that your plan for phasing out operations must involve the grantee official and the RAG in accordance with their responsibilities de lineated in RMPS-NID dated August 30, 1972. Staff in the Division of Operations and Development are available to consult with you in the preparation of your plan.

It is expected that all expenditure reports under this procedure will be received in RMPs by no later than June 15, 1974.

I am sure each of you recognize that in the light of the President's recommendations we need to proceed with the development of phaseout preparations in an orderly and prompt manner.

HAROLD MARGULIES, M.D., Director, Regional Medical Programs Service. Senator MUSKIE. Thank you. I would like to ask what is the authority that has been used to deny that information to the Congress up to this point, and the relationships between the Executive and the Congress?

Senator ERVIN. The only thing I can think of to justify it would be the fifth amendment.

Mr. Asu. I'm sorry I didn't hear that.

Senate MUSKIE. The Senator suggested the justification was the fifth amendment.

Mr. ASH. No; I think it goes back to the Budget and Accounting Act of 1921. As you may know, preceding the enactment of that Act, there was considerable discussion of the difficulties faced by the Congress in having available to it the information that it needed to effectively consider budgetary actions.

That gave rise to the Budget and Accounting Act of 1921 I can provide some of the very applicable statements that were made at that time that will give a view of what the programs then were.

Senator MUSKIE. What you are saying is because the Congress is having difficulty getting information that legislation was enacted to prohibit giving information to the Congress.

Mr. Asн. No, sir, that legislation was enacted to make sure Congress got useful information.

Let me quote

Senator MUSKIE. That is an interesting point of view.

Mr. ASH. I am talking now about congressional consideration itself. In 1919, a select committee on the budget, observed some very basic