Now if the Congress does pass mandatory legislation and we do get into a hiatus of that sort, as the Secretary has indicated, we will have a situation not unlike the Highway Trust Fund case. However, as the Deputy Attorney General testified previously before this committee, it is highly unlikely that the courts will attempt to resolve these eco

nomic matters.

Senator CHILES. Well, as I asked the Assistant Attorney General, if the courts do not resolve it, then that means they will not resolve the question of the legislation that Congress might pass setting requirements on impoundments. So that issue would not be justifiable either.

You cannot have it both ways, can you, counselor?

Mr. KNEBEL. It is not an easy dilemma that has a ready solution.

As you know, it is a matter, very frankly, of pragmatic application. Each impoundment gets looked at in a set of circumstances upon which the decision is made ultimately by the President for the impoundment itself.

Senator CHILES. Do you have a question?

Mr. MILLER. Yes. I may pose a couple of questions to the Secretary, please?

Senator CHILES. Yes, sir.

Mr. MILLER. I might pick up first, if I may, something Senator Chiles mentioned a moment ago about the termination of programs. You mentioned, I think I am accurate in saying, many examples of when Presidents have terminated programs in the past absent emergencies and so on.

Just for the information of the committee, could you give us a half-dozen?

Secretary BUTZ. I do not think I could give you a half dozen.
Mr. MILLER. Could you give us three?

Secretary BUTZ. You want specific illustrations?

Well, I think in the case the President mentioned the other night in the press conference when he talked about President Truman, in the case of the number of wings in the Air Force.

Mr. MILLER. Let me interrupt you. Mr. Secretary.

President Truman merely cut back the number of wings, he did not say the Air Force is not going to have any more airplanes.

Secretary BUTZ. But he did

Mr. MILLER. That is not a precedent for you, sir. I respectfully disagree.

Secretary BUTZ. You are talking about the complete stoppage of a program.

Mr. MILLER. Do you have any precedents?

Secretary BUTZ. I presume there are. I cannot supply them now.
Mr. MILLER. Does your counsel have any?

Mr. KNEBEL. As the counsel for the committee has indicated, complete elimination of a program is one thing. However, as the Secretary testified previously, there is a standby procedure under which some of the REAP-type practices will be continued by virtue of the Rural Development Act.

Mr. MILLER. I am merely asking

Mr. KNEBEL. Do you want something where there is a total and complete elimination versus previous precedents?

Mr. MILLER. I am just merely asking for illumination on the Secretary's statement that there are many instances of this in the past. I know of none except one prior to this administration. That was the aquarium which Congress authorized for the Potomac River.

There may have been others and I think the committee would be interested in when BOB. OMB, or any department or any case of the Chief Executive having done it.

I am merely asking as a point of information.

In the hearing which Senator Ervin's committee held 2 years ago there was only the aquarium instituted in those hearings, and I know of no other in the history of this country.

Now I think we ought to also get on the public record, Mr. Secretarv, something about the history of impoundment.

Secretary BUTZ. I might say the impoundments have been general. Whether or not they have actually stopped programs I am not prepared to say.

Mr. MILLER. That is what you say, that is why I wanted you to elaborate a bit on it to inform the Congress and the committee.

Secretary BUTZ. I am not aware that I said they had stopped programs. I said impounding had been practiced in many, many administrations.

Mr. MILLER. You sent a letter dated February 5 to Senator Ervin using the word "terminate."

You approved a memorandum by Mr. Shulman which ends up, “We are of the view that the Department's action is terminating the assistance under the REAP and water bank program is legally authorized." I do not know what that means, if it does not mean that you are abrogating, scuttling, or otherwise killing a program. Does it mean anything else other than that?

Secretary BUTZ. It means that funding of that particular program is being terminated, it doesn't mean we are terminating the pollution program.

Mr. MILLER. REAP is being terminated?

Secretary BUTZ. That particular program, yes, sir.

Mr. MILLER. Then you had no historical precedents; is that correct? Secretary BUTZ. I am not prepared to answer that; I don't know. Mr. MILLER. Well, you said a moment ago you had lots of them. Secretary BUTZ. Yes, I indicated where funds were impounded. Mr. MILLER. Well, as I understand it. then, there is no historical precedent other than the one I mentioned and the Secretary is unable to furnish any examples.

Secretary BUTZ. At the moment.

Mr. MILLER. I think the committee would, if I may speak for Senator Ervin, would be interested in a list of examples that you have complete terminations of programs by impoundment action, by any type. Senator, if I may, I think it would be very useful for the committee to have that.

Senator CHILES. If they had such a list, we would be delighted to have it.

(The following was subsequently supplied for the record by Seeretary Butz:)

EXAMPLES OF PROGRAMS TERMINATED BY PRESIDENTIAL ACTION

President Johnson: Aedes-aegypti-Mosquito control program.

President Kennedy: AEC-Aircraft nuclear propulsion program; Dyna-soar program.

President Truman: Supercarrier, the U.S.S. United States.

President Roosevelt: Numerous flood control projects amounting to about $500 million.

Mr. MILLER. I have another question. I would like to refer, sir, to your testimony which I have had the pleasure of reading before Senator Talmadge's committee last Thursday and I would like to direct my attention at least to this question of guidelines, the colloquy you had with Senator Dole.

I refer now to pages 97 and 98 of the transcript of the testimony. And you said this statement, if I may refresh your memory, sir.

"We get some guidelines in the amount of reductions which they expect us to take, expect HUD to take, expect HEW to take, and so on, and simultaneously work out these things.

"There are other candidates for cuts too."

Now my question is this:

I recall when the guidelines were given the entire Cabinet the comment was made, "When you see the figures it will not be a typographical error."

My first thought was it is a typographical error.

Now, my question is not to that, my question is to the articulation of the criteria by your office or by the Office of Management and Budget when impoundment should take place, how do you determine when a given impoundment is to take place?

Secretary BUTZ. After we got the guidelines on the amount of reduction that Agriculture would take. I think that we followed the same procedure as any other department followed unless they got word to work these out simultaneously with the cognizant offices.

Mr. MILLER. What are those guidelines, sir?

Secretary BUTZ. You have to simply establish some kind of priorities where you cut.

Mr. MILLER. Then how do vou establish a priority?

We come back to have they ever been published for elucidation, for example.

Secretary BUTZ. No, sir: except as I said, through half a dozen presidents attempts have been made substantially to reduce and often eliminate the old agriculture conservation program, now the REAP program. That was kind of a guideline.

It had a very low priority through half a dozen administrations and that was a kind of guideline, one that you take into consideration. The fact that a substantial number of practices under the REAP program were essentially income supplements rather than payments for pollution abatement practices. Income is up substantially to our farmers $3 billion.

That became a part of the guidelines. It went into the formula to determine its rank on the priority scale.

Mr. MILLER. Well, sir, I recognize from your testimony from what you said earlier today that you are not a lawyer but you would agree that this is a government of law, would you not?

Secretary BUTZ. Yes, sir.

Mr. MILLER. And you would agree that the decision, then, if this is a government of law, have to be made in terms of some articulated standard of judgment.

Secretary BUTZ. Yes, sir.

Mr. MILLER. That is the essence of the law; is it not, Mr. Knebel? Mr. KNEBEL. Yes, sir.

Mr. MILLER. I am asking for the articulated standards of judgment then that OMB has issued with respect to impoundments.

Secretary BUTZ. All I can say, we have acted on the counsel of the Attorney General's Office and our own General Counsel that the executive branch of the Government had in fact the power to do this. Mr. MILLER. But you are telling me that you have the power, you are not telling me how you do it.

Secretary BUTZ. I presume how you do it was back of the decision in the Attorney General's Office.

Mr. MILLER. Do you associate yourself with Mr. Sneed's testimony? Secretary BUTZ. I haven't read his testimony.

Mr. MILLER. Do you, Mr. Knebel?

Secretary BUTZ. Yes, sir.

Mr. MILLER. We will come back to that in a moment.

How can you reconcile the fact that you say that we are a government of law when you say that we do not have any standards by which to make decisions?"

You admit implicitly, Mr. Butz, you have no standards, now, the specific question, sir, did OMB direct you to make an across-the-board cut of all agriculture programs?

Secretary BUTZ. No.

Mr. MILLER. Or did it say cut program X, Y, but don't cut A, B. and C?

Secretary BUTZ. No, sir; we work these things out together.

As I said previously, once we got our guidelines on total reductions, then we worked them out together.

Mr. MILLER. How do you do it, I think Senator Muskie was asking and Senator Metcalf was asking.

Secretary BUTZ. Obviously this has to be on the basis of subjective judgment, basis of alternatives, basis of impact the selective cuts would have on the agriculture economy as well as nonagriculture economy: it has to be on the basis of other programs available.

Mr. MILLER. A subjective judgment, Mr. Butz, is a judgment without law; would you agree with that statement?

Secretary BUTZ. I do not know that I can agree with that statement. Mr. MILLER. Then what are the criterion judgment standards? Secretary BUTZ. In this case we had the opinion of the Attorney General that the President was acting within his authority.

Mr. MILLER. That is not the point. The point is how you act within that so-called authority. I happen to disagree with it but that is a different point.

The point is, assuming he has the authority, you have got to have criteria of judgment.

Secretary BUTZ. Quite right.

Mr. MILLER. Now, that is all I think the committee is really interested in.

I think Senator Chiles was asking that a few minutes ago. How do you determine that program X is not going to be funded but program Y is going to be funded and how do you determine that?

Secretary BUTZ. I presume the Congress made value judgments along the same line when they made the appropriations. Mr. MILLER. That is a political process.

I am not a politician, I am a poor country lawyer.

Secretary BUTZ. They must have made value judgments there that ultimately got translated into appropriations.

Mr. MILLER. I know, sir.

Senator CHILES. You did not follow any of our value judgments, did you?

Secretary BUTZ. We followed most of them.

We are just talking about three or four areas here in which we deviated from them.

Mr. MILLER. The question is this, and I will not presume to talk about the political process, because that, I take it is the job of Congress to make political evaluations, but you are telling me now, and I want to make sure because I think it is important to get it in the record, you are telling me that these impoundments are political judgments of the Executive?

Secretary BUTZ. I would say they are economic judgments of the Executive.

If we had made political judgments obviously we would not have cut anything, we would not be having these hearings.

The politically popular thing I guess was to spend the money as long as Senator Muskie would raise his eighteen and a half billion in tax.

Mr. MILLER. I don't want to speak to that and I am about to be cut off by Senator Chiles.

Senator CHILES. We have just been called to the floor for a vote. Senator Ervin left two short questions to be asked. I think we should hit those questions because we may be able to wind it up, if we can.

Mr. EDMISTEN. Mr. Knebel, we lawyers have ways of using words. Now you really had to strain the language to terminate these two programs, the REAP program, and the water bank program; did you not? Mr. KNEBEL. Well, it just depends on how you look at the words. It may have been a strain for you but perhaps for us counsel, it wasn't. As you know, I did not render the initial opinion, however, I have no problem in adopting it.

Mr. EDMISTEN. It was one of first impression. You just admitted a moment ago that to terminate these programs is a very unusual method of reconciling differences between the Congress and the Executive. So really the General Counsel who handed down this opinion would have had to strain in a difficult way, I would say, to come up with this conclusion.

Mr. KNEBEL. I haven't had the occasion yet but I fully intend to check on the previous General Counsel's opinion. I assume for the last five Presidents when they got ready to impound these funds similar opinions have been rendered, so I would not agree it is an opinion of initial impression.

Mr. EDMISTEN. I have only one more question.