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Now, you said that the President had the power to impound the funds appropriated for carrying on the activities of regulatory agencies to a degree. I am somewhat at a loss to see how that could be unless Congress has authorized it, because these funds are appropriated by Congress for the support of these agencies, and they are either signed into law by the President or passed over the President's veto. The President would absolutely, in my judgment, nullify the act of Congress establishing regulatory agencies, if after funds had been appropriated in that manner, he impounds the funds that have been appropriated to support the agencies forcing them to suspend their activities.
I would appreciate comments on that.
Mr. BRADLEY. Senator, regulatory agencies are included within the scope of the Budget and Accounting Act explicitly. They are also included within the Anti-Deficiency Act. Unavoidably we have to deal with them and how we do it is a matter of reasonable judgment, I would hope and respect.
Senator Ervix. Where is there any specific provision in the Budgetary and Accounting Act that gives the President the power to nullify an act of Congress which appropriates funds?
Mr. BRADLEY. I never suggested that, sir. They are explicitly included within the definition of agencies for which the budgets are dealt with by the President.
Senator Èrvix. Yes; but they are in there, but all the President could do with respect to that is make recommendations to Congress about what they should be appropriated.
Mr. BRADLEY. That is correct.
Senator Ervix. Now on the Anti-Deficiency Aet, I don't care to belabor that, because in my mind it is as clear as the noonday sun in a cloudless sky, that all the Anti-Deficiency Act is required to do is put upon fiscal officers of the Government an absolute obligation to apportion funds for expenditure, not for elimination, and it specifies the conditions as to how the funds can be apportioned and how to insure a wise expenditure, and to see the reserves are established to carry out the purposes of the appropriation. The only method provided there to eliminate appropriation, is if an officer who was the apportionment authority decides the expenditure of certain funds is not necessary to accomplish the objective of the appropriation, then he can report that to the Office of Management and Budget as an excess, or to the Budget Bureau and they in turn can report it to Congress, and Congress can eliminate it after receiving the information. In other words, the AntiDeficiency Act is, in substance, a statute which compels the executive branch to obey the appropriation act, and it goes so far as to say that if they disobey it by exceeding the appropriation, they can be fined or put in jail for it. So it is designed to secure the expenditure of the appropriation made by Congress in a reasonable amount and in an equitable amount, but not to permit impoundment of the appropriation.
Now, if either one of you gentlemen quarrel with that interpretation in the Anti-Deficiency Act I will be pleased to hear from you.
Mr. Asii. I will do so as I did the last time that we met. The President has a number of laws that he must deal with simultaneously and in this particular case one of those was the debt ceiling, and as a result
of living with those he also was able to find that the Anti-Deficiency Act provided, and I don't have the words, but in effect other events or-other subsequent events or facts that make necessary the reserving of funds and "other" in this case clearly includes the fact that had he not done so he would have violated another law which probably has an even greater penalty than the one you described for the AntiDeficiency Act.
Senator Ervin. And the statute expressly says that where he makes any reservation of funds for any of these purposes, that he shall review his apportionment four times a year and release any of those funds which are necessary to accomplish the purposes of the appropriations. So that doesn't justify it.
Now, also I agree that if you have to borrow the money in order to fund a program and the borrowing of that money will transgress the debt ceiling, the President has undoubted power, I think, to refuse to violate the debt ceiling law. In fact, it is his duty.
But that debt ceiling doesn't have any possible application to highway funds, the highway funds which have been impounded, because they are collected for a specific purpose and theoretically they are released in the possession of proficient people.
I don't see a syllable of evidence in the antideficiency law that the purpose of the act is other than to prevent having a deficiency. It erpressly says that when a person who has the authority to apportion finds it is not necessary to use those funds, he can't eliminate them, he can't eliminate the appropriation. He has to report the situation to the Office of Management and Budget and then they can call the attention of Congress to it, and Congress can eliminate the appropriation, not the President.
Mr. Ash. In that particular case I understand that yesterday there was testimony that quoted Attorney General Ramsey Clark providing advice to the then President and particularly with reference to the highway funds, that it was proper for him to not spend, to reserve some of those funds because not to do so would have contributed unduly to inflation and that also was one of the charges imposed upon the President.
Senator Ervin. Well, Ramsey Clark made a decision then that was clearly erroneous, and I don't think there is anything necessarily sancrosanct in the opinion of the Attorney General. He is just like the rest of us.
Mr. Asi. I don't usually quote Ramsey Clark.
Senator Ervin. I won't say he is not a good authority on some occasions. My idea of authoritative opinion that has been rendered in this case, is that of a Republican, Justice Rehnquist.
Mr. Asir. Maybe some day somebody will be quoting us.
Senator ERVIN. Well, if they quote you to the effect that the antideficiency law gives the President power to impound anything, they will be quoting a very erroneous opinion, in my judgment.
Now, just two other things.
As the chairman of subcommittees I have written letters to various branches of various departments and agencies of various branches of Government asking them for their opinion as to the wisdom or unwisdom of legislation which has been proposed in the form of a bill, and which is under consideration by the committee's subcommittee, and
when get a reply from the agency or department it is always closed with a statement that, the Bureau of Budget it used to say, and now the Office of Management and Budget, do not object to sending this letter to me. Now, by what authority do they have to say that I can't receive a communication from my Government without their permission?
Mr. Ash. I haven't seen any such letter. I don't know the circumstances.
Senator ERVIN. I have seen literally hundreds, hundreds.
Senator CHILES. You think this shouldn't be the policy, then, of the Office of Management and Budget?
Mr. Ash. I don't even know why it is there, and before I reply I will quote a former President that said, “Don't tear a fence down until you know why it was built." I don't know why that one was built, so I should prefer to find out why it was built before I proceed to take a position.
Senator Culles. Your counsel is pretty nervous. I should ask him.
Senator Ervix. I am very curious about that, because wisely or unwisely, I have been elected by the people of a State with a population of about 51,2 million to represent them in the U.S. Senate and I just wonder why it is that I can't get an answer to certain types of inquiries from any department or agency, why they can't give answers to the elected branch of Government, without the consent of your agency.
Mr. Ash. I will have to find out why that is happening. Maybe they want to make sure the information is correct.
Senator Ervix. Well, they want to make sure they don't get it as long as that agency doesn't approve of it. They want to leave me in a state of ignorance. I think they want the horizons of the U.S. Congressmen and Senators, who make the laws of all our people, as independently ignorant of things as possible.
Mr. Ash. Reasonably--
Mr. BRADLEY. It is certainly not meant to convey that impression you suggest.
(The Office of Management and Budget subsequently supplied the following information for the record :
STATEMENT CONCERNING OMB CLEARANCE FOR AGENCY REPLIES TO COSGRESSIONAL
REQUESTS FOR COMMENTS ON I'ROPOSED LEGISLATION The statement in the letter to which Senator Ervin referred is the advice customarily included in all agency reports on legislation which have been processed through the legislative clearance procedure. This procedure is described below.
THE LEGISLATIVE CLEARANCE PROCEDURE
The legislative clearance function is intended to serve the needs of the President in carrying out his legislative responsibilities and is a joint activity of the Office of Management and Budget and the executive branch agencies. It can also be helpful to the Congress and the agencies in meeting their responsibilities.
The President's legislative responsibilities are founded in his constitutional duties and powers to: (1) require the opinion in writing of the principal officer in each of the executive departments, (2) take care that the laws are faithfully executed, (3) give the Congress information on the state of the Union, (4) rec
ommend to the Congress such measures as he judges necessary, (5) approve or disapprove bills passed by the Congress, and (6) convene either or both Houses of Congress.
The legislative clearance function originated in the early 1920's in the Administration of President Harding. In its initial years, the clearance function was largely confined to bills involving expenditures, but it was later extended by President Roosevelt to all bills. A detailed description of the development of the legislative clearance function is contained in an article by Richard Neustadt, "The Growth of Central Clearance,” in the American Political Science Rerieu of September 1954.
Office of Management and Budget Circular A-19, issued at the direction of the President, sets forth the basic guidelines and procedures for carrying out the function. These procedures have been substantially the same for the last 24 years.
DESCRIPTION OF CURRENT CLEARANCE PROCEDURES The clearance function covers agency legislative proposals, agency reports and testimony on pending legislation, and enrolled bills.
Legislative proposals.--All bills which agencies wish to transmit to the Congress are sent to the Office of Management and Budget for clearance. There thes are reviewed and a determination is made on what additional data and information are needed and what other agencies have substantial interests and should be asked to comment.
Agencies whose views are asked may favor a draft bill or have no objection. It is likely, however, that one or more of them will propose substantive or technical amendments, or perhaps a complete substitute. Divergent views may be recon. ciled by telephone or by letter. If appropriate, a meeting of the interested agencies will be arranged by Office staff.
In its review of draft bills, the Office applies existing Presidential policies. If significant issues arise which are not covered by such policies, it seeks appropriate Presidential direction.
After review, analysis, resolution of issues, and obtaining appropriate polier guidance, the Office advises the proposing agency that (1) there is no objection from the standpoint of the Administration's program to the submission of the proposed draft bill to the Congress, (2) the proposed bill is consistent with the Administration's objectives, or (3) the proposed bill is in accord with the Pres. ident's program. This “advice” is conveyed by the submitting agency to the Congress in its transmittal letter. On the other hand, if the agency is advised that its proposed bill conflicts with an important Administration objective, or is not in accord with the President's program, it may not transmit the bill to the Congress.
The above are simply illustrative of the range of advice given, and there are many possible variations or qualifications, including suggested amendments to eliminate other agencies' objections.
Reports on pending legislation.-If agencies are asked by congressional committees to report or testify on pending legislation or wish to volunteer a report, similar clearance procedures are followed. Agencies are given “advice” which they transmit in their reports or include in their testimony. Receipt of advice OMB contrary to views expressed by the agency does not require an agency to change its views. In such cases, however, the agency will review its position. If it decides to modify its views, the agency shall consult with OMB to determine what changes, if any, in advice previously received is appropriate. If, after the review the agency's views are not modified, it shall incorporate the advice received in full in its report.
Enrolled bills.--After Congress has completed action on a bill, it is enrolled and sent to the President for his approval or disapproval. The Constitution provides that the President shall take action within 10 days after receipt of the bill, not including Sundays.
To assist the President in deciding his course of action on a bill, the Office requests each interested agency to submit within 48 hours its analysis and rer ommendation in a letter to the Office, signed by the head of the agency or other Presidential appointee. The Office prepares a memorandum to the President on the enrolled bill which transmits these views letters and summarizes the issues and rarious views and recommendations. If an agency recommends disapproval or a signing statement, it is responsible for preparing a draft of an appropriate statement for the President's consideration.
RELATIONSHIP TO THE PRESIDENT'S LEGISLATIVE PROGRAM The legislative recommendations of the President in his three regular annual messages-State of the Union, Budget, and the Economic Report-together with those in any special messages or other communications to the Congress generally constitute the President's legislative program. These recommendations have had their origin in many sources. One major source is the agencies themselves. Each year, along with their budgets, departments and agencies submit to the Office of Management and Budget proposed agency legislative programs for the coming session of Congress. The more important items are identified and referred to the White House for consideration.
Other major sources include bills introduced in the Congress, and proposals of commissions, panels, and task forces established by law or by administrative order to examine and recommend on particular subjects.
In conjunction with the legislative clearance function, the Office and the agencies assist the White House staff in the development of the President's program. Each President develops his legislative program, of course, through methods of his own choice; and the form and nature of OMB and agency assistanae vary, depending on the President's wishes. Almost always, however, it has involved the application of clearance procedures to the draft bills which are prepared to carry out the President's legislative recommendations.
The existence of the President's program gives the legislative clearance process coherence, a set of goals, and greater significance. It provides general guidance for the executive branch, both in shaping proposals which are not part of the President's program and in commenting on bills before the Congress.
PURPOSES OF THE CLEARANCE FUNCTION As noted earlier, the function is essentially a staff service for the President performed in accordance with his wishes and designed to assist him in carrying out his legislative responsibilities. It has several purposes, of which some assist the Congress and the executive branch agencies themselves, as well as the President:
It provides a mechanism for bringing togeth and staffing out agency legis. lative proposals which the President may wish to include in his legislative program;
It helps the executive agencies develop draft bills which are consistent with and which carry out the President's policy objectives;
It is a means of keeping Congress informed (through the "advice" transmitted br the agencies) of which bills are part of the President's program and of what the relationship of other bills is to that program;
It provides a mechanism for assuring that Congress gets coordinated and informative agency views on legislation which it has under consideration;
It assures that bills submitted to Congress by one executive agency properly take into account the interests and concerns of other affected agencies and will therefore have the general support of such agencies;
It provides a means whereby divergent agency views can be reconciled.
Is it not true that the Office of Management and Budget has the duty to assist the President in making determinations as to what the President should request Congress to appropriate for various activities of the Government?
Mr. Asu. That is true.
Senator Ervix. It is also true, is it not, that the Congress has power to make appropriations for the funding of the activities of various agencies and departments of the Government in various Government activities?
Mr. Ası. That is particularly true.
Senator ERVIN. And is it not true that Congress has created appropriations committees both in the Senate and the House to assist Congress in making determinations and in reporting bills which provide for appropriations?