Assistant to the President, performing exactly the same functions that you are now performing and appoint a functionary to the Director's slot who would be subject to confirmation proceedings. Do you know whether there is any possibility of that? Mr. ASH. I have never heard of any discussion of that kind. To your point about the CIA, there is a difference. The Director of OMB only performs those functions as the President may from time to time delegate to him, because the Director of OMB does not perform statutory functions of his own. He only performs functions that the President delegates to him. It is different than the CIA. Senator PERCY. But the office has now been established by statute and reorganization, approved by Congress. The office has over 700 positions. The directorship has been categorized on the floor of the Senate by some of my colleagues as the second most powerful position in the Government, and certainly it cannot be described as an inferior office, not requiring confirmation under the Constitution. In your judgment, when considering such a powerful position with such enormous influence upon the budgetary process and the priorities of the country, does that not qualify in the spirit, if not the letter of the Constitution? Mr. ASH. The OMB has no authorities in its own right. Its only authority is derived from Presidential authority. It is no more than an extension of the personality of the President and it exists only by virtue of the President having delegated specific functions to the OMB and they are carrying out those functions, so in effect it is an integral part of the President's office. If they had a 10-man Government in total the President would probably perform all of these functions himself. So it is an integral part of the President's office and exists only on the authorities of the President that are from time to time placed in OMB to perform. Senator PERCY. But I can recall that the Government Operations Committee of the Senate that was voted to provide statutory authority for this position in which the management function was added to the budget function, because it obviously had grown into that particular category. Here you have a situation with statutory authority behind what everyone would recognize to be a very, very powerful job. I would like to ask how requiring confirmation would detract from your ability to perform your statutory obligations and responsibilities? Mr. Ash. Back to the same point, OMB is an integral part of the Persident's office. Therefore, it has no basis as do the other agencies, for a statutory independence. It is not independent of the President's office. It is a part of the President's office. As such, to require confirmation for that job would be tantamount to requiring confirmation to other forms of assistance that the President has serving him and serving him in his own capacity. Senator PERCY. Does not the Federal Reports Act give power to the OMB Director from Congress? Mr. Asи. No; because the Reorganization Plan of 1970, all powers theretofore vested in the Bureau of the Budget were instead placed into the President's office giving him the right to delegate them and have them perform as he would choose to do so. It is merely an extension of or an integral part of it. Senator PERCY. Doesn't the Reorganization Act No. 2 take effect and give this power because Congress agreed to this? Mr. ASH. That is what gives it its power. Congress agreed to Reorganization Plan No. 2, that all statutory authorities, all statutory base, all responsibilities theretofore in the Bureau of the Budget would no longer reside in the Bureau of the Budget, and instead would reside in the President who could place them throughout the Government for the best performance of the Government. He happens at the moment to have placed them in the Office of Management and Budget. He has no obligation to do so. He could instead remove them from the Office of Management and Budget, every function it exercises, and place them in any place else he felt would best serve the interests of operating the Government. (The Office of Management and Budget subsequently supplied the following information for the record:) The delegation of functions to OMB was made by Executive Order 11541, dated July 1, 1970. The only permanent statutory assignments of functions to the Director of OMB since that date have been by Public Law 92-463, with respect to certain advisory committee management activities, by Sections 201-203 of the Act of October 26, 1970 (Public Law 91-510), relating to budgetary and fiscal data, and by Section 102 of the Act of January 5, 1971 (Public Law 91-650), concerning review of the District of Columbia Budget. Senator PERCY. Well, I think basically we disagree on this point. If Congress in the spirit of the Constitution is required to confirm second lieutenants and captains and majors and so forth and many people who come before us who virtually have no policy authority whatsoever-and we spend the time confirming them-I would simply hope that if the bill is vetoed the Congress overrides that veto. If that does happen then I trust there will be no attempt to circumvent your being confirmed. I do want to note that in the history of this job there has never been a reluctance by this administration to have a director of OMB come before Congress. George Shultz set a fine example. He has appeared many times before us and you have already appeared before us twice in the last week. No one can say there is reluctance or executive privilege being exercised in connection with your testimony, and we very much appreciate that. I think the very fact that you have been called so very frequently is evidence that we consider your responsibilities tremendous and have some differences of opinion in trying to interpret them-where congressional authority leaves off and Executive begins. With a thought to the impoundment problem, we must be clear as to the basis for the presidential withholding of funds. Last week you directed yourself to the Anti-Deficiency Act and went on to cite those constitutional bases which in your view justify impoundments. I will read what you said: Authority for some reserves or impoundments in the past has been derived from the President's constitutional authority in the area of foreign affairs, his role as commander-in-chief and his constitutional duty to take care that the laws be faithfully executed. Is that list in your statement exhaustive or are there in your view any other constitutional bases for impounding funds? Mr. ASH. The bases set forth for the items in the report rendered on February 5, that is pursuant to the Federal Impoundment and Information Act, included many supporting reasons and each of them is indicated in that report alongside each particular item that is set forth in the report. I would not want to put forth here the legal opinion that we look to the Attorney General to put forth, and for that matter, as you may have observed even in this report, while we indicate the reasons we make clear to say that these aren't necessarily exhaustive of all the possible reasons for each and every one of these items, but it certainly provides a very good starting place for the many different kinds of reasons for which these reserves were setup and reported here earlier this week. Senator CHILES. Senator, we have been going around. Senator PERCY. I vield. Senator ERVIN. I have to go to the floor in a few minutes on account of the resolution. I do have one or two questions. Senator METCALF. I would be delighted to yield to the Senator from North Carolina if I am next. Senator ERVIN. I stated the other day that I thought somebody ought to read the Constitution a little more and I am compelled to reiterate that after hearing your recent statement. Don't you consider that the Director, and the Deputy Director, of the Office of Management and Budget are officers of the United States? Mr. Asи. I would presume that is what it is all about, yes. Senator ERVIN. I would think so. Now, I am informed that the Office of Management and Budget has the duty to administer 56 different acts of Congress. I made reference to a number of them in a speech I made the other day on the floor of the Senate concerning my bill which would make the Director of OMB and his deputy subject to Senate confirmation. Now, the Reorganization Act is, in effect, an act of Congress. The President has no legislative power whatsoever, and if he had not been permitted by an act of Congress to submit a Reorganization Act, that would have been totally void. The act of Congress allowed him to submit it and provided that Congress could veto it within a certain period of time. unless Congress had no objections to it. So it is an act of Congress. Do you have any idea how many statutes your agency administers? Mr. Ash. The number, you probably do, but I do not. Senator ERVIN. Yes. So to administer the acts of Congress, you say that you are only a part of the President. You don't consider the office you occupy or the office which the Deputy Director occupies to be an inferior office; would you? Mr. ASH. I would hope not, but maybe some do. Senator ERVIN. Let's see what the Constitution says about that. The Constitution says that "he." that is the President shall nominate and by and with the advise and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the Supreme Court. and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. There is no provision in the Constitution establishing anything about the Office of Management and Budget. It is a recent creation apparently. This section of the Constitution says that all offices of the government have to be subject to Senate confirmation, unless the Constitution provides for other means for their appointment, the Constitution adds this, which is the only thing that allows Congress under any circumstances to exempt any officer of the United States from Senate confirmation- but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of Departments. Congress has no power to exempt from Senate confirmation any officer of the United States except inferior officers. I am glad you agree with me that your office is not an inferior office. Not only that, there is another provision. Congress may pass a law to describe how the President is to exercise his powers under the Constitution, unless those laws attempt to deny him his constitutional powers. Article 1, section 8 of the Constitution says this: The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, .. That is congressional powers ... And all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Now, the President of the United States is an officer of the United States, and Congress has power to regulate, to pass laws, to enable the President to carry out the powers given him by the Constitution. The President has no omnipotent power, no divine right to appoint any officer to any office, except an inferior officer, without the consent of the Senate, and he has no power even to appoint an inferior officer unless Congress exempts that officer from confirmation. You said you had never seen a letter like this. First, aren't you the executive head of the Office of Management and Budget and isn't the deputy director authorized to discharge your duties in case of your absence or incapacity? Mr. Asн. Сorrect. Senator ERVIN. And don't you all have command of all of these 700-I won't say command-but you have supervision of the conduct and activities of all these 700 employees in the agency? Mr. Asн. Yes, sir. I have had that authority for all of 4 days and, I haven't caught up with the things they have been doing in those 4 days. I have known what they have done before those 4 days. Senator ERVIN. They certainly have a lot of laws to administer. You said you had never seen one of the letters where Congress was informed-chairman of congressional committees were informed, that the transmittal of the information had to be approved by your agency. I have seen hundreds. Senator McClellan, as chairman of the Government Operations Committee, wrote to the Secretary of the Treasury, or Department of Treasury, and asked their opinion with reference to S. 1637, a bill to establish uniform standards and procedures for Government advisory committees. The letter was dated June 22, 1971. The General Counsel of the Department of the Treasury replied to that letter of Senator McClellan, and giving the views of the Department with respect to that legislation, concluded that letter with this statement: The Department has been advised by the Office of Management and Budget that there is no objection from the standpoint of the Administration's program to the admission of this report to your committee. Senator METCALF. Mr. Chairman, would the Senator yield? Senator ERVIN. Your bill. Senator METCALF. That is my bill, and the report was adverse, now if the report had been favorable would we have received such an admission from the Office of Management and Budget? Senator ERVIN. Oh, yes; I think in either case. I think they put that on every letter they write back. Senator METCALF. It's on every such letter I receive. But sometimes those reports are stuck down there in OMB and aren't released until they are changed to comply with the President's program, which means he has overall authority over legislation. Senator ERVIN. Mr. Cohn, I am in sympathy with some of the views you express. I think we need some change in some of the procedures in Congress. I think this old custom of delaying passage of appropriation bills because the House claims it should be allowed to originate all of them, and the Senate none, should be changed I think that ought to be changed to let each House originate an equal number of appropriation bills. I hope the joint committee will come up with some recommendations to help bring the Federal financial house in order, and I personally think it could be done very simply. I don't like too much machinery. Too much machinery has a tendency to impede rather than make effective any kind of program. I think if Congress wants to bring the financial house in order, it can do so by a simple device, and that is, near the close of each session. like was provided in the Jordan amendment in the last session, the President shall have authority to proportionately reduce all appropriations made in the session of Congress, cutting them equally, to bring them within a certain ceiling. which the Congress fixes, either with or without the recommendation of the President, and then the Office of Management and Budget with all their employees and equipment could study the appropriation acts in the shortest time and use computers to find out how much each appropriation should be cut. I would advocate Congress doing that. Congress has responsibility, both the President and Congress have the responsibility, I think, of trying to set the Federal financial house in order. It certainly has been in disarray a long, long time. Thank you, and I appreciate your giving me the benefit of your observations and your willingness to come and testify and the very fine humor that you have manifested at all times during these discussions. Mr. ASH. Thank you. Senator CHILES. Senator Metcalf. Senator METCALF. Mr. Chairman, may I have just a few more minutes? Senator Muskie's Subcommittee on Intergovernmental Relations had considerable and lengthy hearings before whom appeared Mr. Weinberger who was then the head of the Office of Management and Budget. As a result of those hearings and as a result of other things I came to the conclusion that as a matter of principle the Director and Deputy Director of OMB should be confirmed. Now, one of the bills that proposed such confirmation was in preparation long before your appointment was suggested and announced by the President. That was a matter of principle no matter who the President suggested would be |