ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Senator JAVITS. And it was not an appropriate

Mr. MORRISON. That matter is now being litigated in the Federal courts, both in Richmond, here in Washington, and several other places around the country. It is litigated as to the effect of what the

Senator CHILES. It does not give me any great confidence in that procedure if we are talking about one that we can have great progress in.

Senator JAVITS. That was not an appropriation, it was an allocation. The fact a veto and an appropriation bill having been overridden, there is certainly the clearest possible mandate the Congress can give. Senator MUSKIE. I must say it was not a normal authorization bill because it provides contract authority which poses the bill in a different framework, but I would still call it framework.

Senator ERVIN. It is a veto followed by impoundment.

Senator MUSKIE. Am I next?

Senator CHILES. Yes.

Senator MUSKIE. First of all, I would like to commend you on a thoughtful and perceptive statement. I find many of your suggestions persuasive.

I have two or three questions that may lead to others. I think one of the reasons there has been a deterioration in congressional power is our inability as an awkward institution to put a handle on problems and to come to grips with them, even when we can summon a will and develop the consensus for doing so.

For example, the legislation before us is legislation. If it is strengthened in ways you have suggested, it is still legislation. It would have to be enacted by both Houses of Congress, then go to the President for signature. If it is tough, effective legislation, we can expect a veto. If he vetoes, we must get a two-thirds veto override.

That is an illustration of the problem. If we do not get the twothirds vote, will we, by the exercise, confirm the executive authority to impound?

Mr. NADER. Mr. Jacks.

Mr. JACKS. Senator Muskie, I think that is the very reason why you must have both on the face of the statute and legislative history repeated references to the fact that by enacting this legislation you are not intending to ratify any past practices of the executive branch.

I am glad Senator Humphrey is in the room because I think he has done a beautiful job of that in his bill which was submitted recently to reinstate the REA 2 percent direct loan program. In the preamble to that bill, and in Senator Humphrey's statement on the floor he emphasized and reemphasized that the changes of the wording proposed by the bill did not-and were not intended to-mean that what had been done was all right. Even if Senator Humphrey's bill fails, and I certainly hope that it does not, he has covered himself, and the Justice Department cannot in some later court litigation hold up that statute as evidence of some legislative history as to the intent of Congress. That is what they are trying to do in the Missouri High

way case.

Senator MUSKIE. Going beyond that, if we pursue this route, in order to reassert our constitutional authority we have got to assume

we have to get a two-thirds vote. This is not a water pollution bill with all the goodies.

As you, yourself, said, that is not a sexy subject from the point of view of the citizen so considering this

Mr. MORRISON. Senator, it may not be sexy from the point of view of the average citizen, but it will be for the Members of the House and Senate, and we hope that they will realize this is important in asserting their prerogatives, more so than any other bill in Congress. It is hoped that some kind of strong measure and strong unity will be put forth on this matter and that a bill will be enacted into legislation.

Mr. JACKS. I just wanted to add one thing, that because of that very reason we added a statute that would give Members of Congress standing to challenge impoundments, standing in the courts. If the overriding two-thirds majority cannot be mustered on anti-impoundment legislation, then at least their court cases will be expedited so that these serious constitutional problems can be raised and adjudicated.

Senator MUSKIE. I wanted to raise two other questions to open up two possibilities now that you have started the questions.

With respect to appropriations, is there any way that we can strengthen the mandate implicit in appropriations to restrict this authority to impound? Is there any way, for instance, we could rephase an appropriation to direct the President to spend instead of authorizing? What would be the effect of that kind of language in an appropriation bill? Is there any other language we could insert in appropriation bills that would have the effect of tieing the President's hands?

Mr. MORRISON. The problem with inserting mandatory language in one particular bill is that the administration will now go around and point to every other bill where somebody has not been as absolutely careful to do that.

Mr. Rehnquist suggested, in 1971, hearings before the Subcommittee on Separation of Powers that a more sensible kind of way to view that problem is to look at the framework of the bill as a whole.

The Justice Department would require tinkering with the language in each appropriation bill to be sure it absolutely has every single "shall" in every single place. By doing that it concedes, or could be argued to concede, in the way you suggested before, that because you did not do it that way in some other case, it is therefore mandatory. If you have an Executive who is bound to try to find a way out of spending legislation as Congress has intended it be developed

Senator MUSKIE. If you can develop the boiler plate it is easy to put it on every bill. If there is a determination on the part of the Congress

Mr. JACKS. I agree that if we can be assured it would be on every bill there should be no problem. But you can run into a problem where some individual Members of the Congress disagree on particular cases. As you know, on the water pollution bill there were some minor changes in the wording in conference, and statements were made on the floor when the bill came back as to the effect of those changes. and there was some legislative history created which I am sure the Government in this case will seize upon to justify the impoundment of this contract authority.

Senator MUSKIE. I think our case is clear only with respect to the allotment procedure, not the obligation of the things in the program. Mr. NADER. Senator, there is a deeper thrust to the question, and that is when the accountability to conform to a congressional statute is purely institutional how do you insure that accountability?

When the bill talks about agencies and departments, how can we assure accountability?

I think, as in so many other problems between the Executive and Congress, there has to be a thinking there, based on principles-if we do not have individuals held responsible. Somehow the Congress is going to have to develop a system of designating people in the executive branch to be held in compliance and develop a system of enforcing it; otherwise, you have only one institution against another-collective power-the confines of which can only be determined in a power collision such as that discussed by Senator Ervin. This is why we thought it very important to develop the problem. of civil accountability, not only through the Civil Service Commission, but also accountability by individuals in the departments and agencies. involved when they defy the laws of Congress; these individuals know they can defy the laws of Congress without being demoted or fired, because basically we are expecting compliance with the law only by the institution.

Senator MUSKIE. If the chief law enforcement officer breaks a law there isn't much you can do to enforce it.

What is your view of the present status of the courts and the way they resolve these issues?

What is your view of the statute to which Senator Ervin and his associates have filed this brief? What is your view of the visability on the water pollution allotment? Several States broadly contemplated it, the city of New York. Is there reason to believe that is a viable approach now without the modification in the legislation proposed?

Mr. NADER. There is reason to believe the courts will not dismiss impoundment cases as nonjusticiable.

There is also reason to believe that present law permit the kind of loopholes that can be exploited by the judicial branch. You have to deal with the problem of having explicit statutory standards and accountabilities in any legislation prohibiting impoundment. Senator MUSKIE. Thank you very much, Mr. Chiles.

Mr. CHILES. Senator Metcalf.

Senator METCALF. I want to concur with my colleague that your statement. Mr. Nader. has been very cogent, and I think it is going to have an important effect on the legislative history of this legislation if it does get into court.

I notice that you have said that you filed in connection with your statement a copy of a brief in the Eighth Circuit case. What is the status of that case?

Mr. MORRISON. It is under advisement.

The briefs were argued on the 10th of January and the court is now considering the matter further.

Senator METCALF. I would be interested in the course of these hearings to know what the contention of the Government is in that case. Are briefs. Mr. Chairman, are the Federal briefs available?

Mr. MORRISON. We have made a copy of that brief available to Mr. Edmisten. I think it will be a part of the record, but I am not certain. (See p. 948.)

Senator ERVIN. The courts made it very explicit that these funds should be spent, and the Government maintained that the very language in the statute which limits gave the Government, it increased power to impound.

Senator METCALF. It frequently happens in internal cases.

Senator ERVIN. To my mind, the Missouri Highway case represents the clearest opportunity to get a court decision on an appropriation bill, because the statute is explicit. The impoundment was made on the theory that the President had the power to do it without authorization of Congress merely to fight inflation. That is the excuse given for it. I think if there is any existing set of statutes that would be subject to judicial subjugation it would be those.

I agree who prepared the briefs on the amicus curiae

Senator METCALF. To pursue that, I agree it is probably the strongest case, there is trust fund, there is appropriation, there is money collected by taxes and it can only be expended for the purposes for which the taxes were collected and the purposes set forth in the

statute.

However, there must be some area where the President does not have to spend. I think it would be unconscionable in this country if we said the President has to spend every dollar that is appropriated. The Congress is critical from time to time when bureaucrats, when an appropriation is running out, get themselves a lot of people, send someone on a junket to India or that sort of thing. It seems to me, as Senator Ervin said, the clearest case is the Missouri case.

I am curious when the briefs are filed. I want to find out how the Government handles the case.

We increased the pension for disabled veterans and mine went up a little bit, and money was appropriated. Suppose the President said I am not going to spend the money for these pensions. Under the Missouri case couldn't he do that?

Mr. MORRISON. In the Missouri case there was some language. The language was "it is the sense of Congress that," and the executive branch and the Justice Department is contending that is permissive language. We agree with Senator Ervin that it is nothing of the kind. But they did rely upon those specific words so that any constitutional argument would not be available. There are other examples. For example, when Mr. Weinberger was before the committee a few years ago he stated that the President's duty to faithfully execute the laws gave him the power to impound. That argument could be advanced in later cases. We don't think there is much merit to it.

Senator METCALF. I recall when Mr. Weinberger was before it, and it was Senator Muskie's committee where he made a similar statement and I happened to be presiding over that hearing.

He said there is an inherent power to impound. I know the President would never impound funds on the national debt, Peter Flanigan would not let him. Suppose we go to the social security department. Is it correct when we increase social security and provide for an increase in social security? He could say, "No, that is inflation and so therefore

so those people won't go out buying Cadillacs and Rolls-Royces with their social security increase," they say, "No, we do not spend money." Is it the Government's intention or are they relying on theMr. MORRISON. I think we would prefer to let the Government's witness answer that when they come before your committee. Senator METCALF. That is why I am interested in seeing what the Government's position is.

Mr. MORRISON. They have not taken any position yet.

Senator ERVIN. I believe they took credit. When they sent out the payments they took credit for that increase.

Senator METCALF. I want to defer to my very distinguished colleague. Senator CHILES. I think Senator Humphrey wants to make a statement for the committee.

Mr. Nader, we want to thank you and your very distinguished colleagues

Senator ERVIN. I would like to point out that this proposal is selfexecuted in a sense. It says:

The President shall cease the impounding of funds set forth in each special message within 60 calendar days of continuous session after the message is received by the Congress unless the specific impoundment shall have been ratified by Congress by passage of a resolution in accordance with the procedure set out in Section 4 of this Act.

Senator Javits' private matter, and not referred to committee, would have received immediate consideration and only 10 hours of debate. I would like to have your opinion on this one point. Would it be possible to bring an amendment to this bill which would provide for a judicial review by the question, by the declaratory judgment process? Mr. MORRISON. I see no problem with that at all.

Senator ERVIN. As I recall, declaratory judgment can allow for making of adjudication of the courts, being that a statute is an obligation to parties. You have got to have the controversy.

As you point out in your statement, I think directly that the court has gone pretty far.

Mr. MORRISON. Senator, if I may make one comment-as your bill is self-executing in the sense that the President shall seek self-executing within 60 days, here he has to come back in to make the supplementary request. Both of the bills are self-executing and both present the same kind of problem if the President is unwilling to follow the mandate of either of them.

Senator ERVIN. That is a very serious problem which makes a great difference in this bill. This bill will have to survive a Presidential veto. I think it increases the President's likelihood of vetoing the bill if the remedy is going to be sending him or one of his assistants to jail for contempt of court.

Mr. MORRISON. But that, of course, is true under your bill, Senator, S. 373. The President is the only person with any duty under S. 373, so they have no choice but to send him to jail.

Senator ERVIN. I do not think my bill provides for sending him to jail. It relies on the assumption that the procedures followed here occur, as the resolution is rejected or the resolution is not introduced, at the President's will. I think we all agree that any law, whether appropriation bill, is just as much a law as any other act of Congress and the President has the duty to see that the laws enacted by Congress are

« ÀÌÀü°è¼Ó »