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Mr. Secretary, you said that these impoundments sometimes help decrease the tax burden. Isn't it the truth that sometimes the impounding of certain funds, and the slowing down of projects results in much higher costs in the future and, therefore, you really haven't saved anything?

Secretary Butz. That is entirely possible. I think in these cases, however, that would not be true.

Senator Chiles. Mr. Secretary, I just want to ask you quickly, this goes a little bit from the impoundment, but it is in the area that we are concerned with.

Now that you have become a counselor to the President, a member of the super cabinet, your Department is encompassing now, in addition to Agriculture, what other departments?

Secretary Burz. Well, first, Mr. Chairman, let me say the word super cabinet is an unfortunate term. At 11 o'clock this morning I met with representatives from all of the agencies that will be in the Division of Natural Resources and I said, "Don't let's use that word super cabinet," and that those of us who are counselors continue as cabinet secretaries just like any other cabinet secretary. The primary Departments that come under the Natural Resources category will include from Agriculture primarily, Forest Service and Soil Conservation Service, the great bulk of the Interior Department, not all, not the Bureau of Indian Affairs, for example. It will include the NOAA, National Oceanic and Atmospheric Administration from Commerce, it will include the Environmental Protection Administration, the Council on Environmental Quality. Corps of Army Engineers, Atomic Energy Commission, Tennessee Valley Authority. I may have omitted one or two.

Senator Chilles. Mr. Secretary

Secretary Burz. These are areas all of which impinge on the area of natural resources and energy.

Senator CHLES. My concern is this: Again back to the testimony of your confirmation hearing, there was a great concern there not only by the junior Senator from Florida but I think by some others. if you went on as Secretary of Agriculture you were going to be known as the voice representing and speaking for farmers.

Secretary Butz. Yes, sir, and I have tried very hard these past 14 months to do that.

Senator Ches. Isn't there a built-in conflict now in your role as being a voice to represent and speak for farmers and your role as being, I thought it was a super cabinet member, but if that is the wrong term, of counselor, which goes into all of the areas of natural resources, aren't there cortainly some potentials if not real conflicts?

Secretary Butz. There is always potential conflict, sir, but I do not see this as a serious problem. After all, we are talking about the connection between agricultural production and environmentalists for example. I get burned up when somebody infers farmers are not good environmentalists. They believe in clean water, they believe in the clean air, they believe in the proper use of chemicals and fertilizers and pesticides. I do not see any conflict between my speaking for agriculture and trying to push for a sane and sensible and feasible energy polier, for example, because right now some of our farmers are frarful they won't be able to get fuel for their tractors next spring.

Senator CHILEs. Don't you think sometimes, the voice of the farmers, isn't this a pretty natural thing, is going to be pitted against the voice of perhaps environmentalists or certainly the voice of other fuel users? Aren't these pretty natural things that these differences are going to occur and isn't the thing we are looking for is to be able to speak for all of these voices?

Secretary Burz. Last night, for example, I spoke to the annual meeting dinner of the Environmental Writers Association. We now have a specialized organization for environmental writers and I made the point that the job of all of us is to get emotion out of these issues we have here, to get the facts on both sides of the table so we can make sound judgments, make sound environmental impact studies and then be on with it and stop the business of needless delays in the courts that now impede action.

Senator Chiles. Mr. Secretary, not to limit your capacity, because you might well have it, but I don't see how any person is going to be able to wear the hats that you are wearing and be the spokesman and be the voice which you represented that you were going to be, the voice for the farmer. That is my particular opinion.

Secretary Burz. You watch me very closely in the next few months and if you see me not being the voice of the farmer, call me collect.

Senator Chiles. I would have had to call you a week ago already if you wanted to say that because I already have that difficulty, Mr. Secretary, frankly, by the actions that have already been taken.

Secretary Burz. Let's say our objective remains to increase farm income, to put cash in their pockets.

Senator Chiles. If you are talking about total dollars that may be one thing, Mr. Secretary, but I do not think that again that is talking about completely the representation of the farmer from the little one to the big.

I see our bell is ringing there, we are going to have to conclude. I want to thank you for Congress and I really think the thing you said in your testimony you strike really the note of truth, and I appreciate your doing that, but it really I think has more to say about the differences in the way you feel about this question and the way I feel about anything else when you say on page 3 of your testimony, people are not governed by laws alone. That was my school boy impression, that we were to be a country of laws and not of men. I think this kind of action that we are in right now is showing that we are not governed by laws, we are governed by subjective decisions, those have to be by a man or men, they cannot be by laws, and I think you have very truthfully said we are not governed by laws and everything that I have heard at these hearings today convinces me that that is absolutely true today, we are not governed by laws alone. I think that is one of the things that the committee is trying to get at.

We appreciate your testimony. This will conclude our hearings.
The record will stay open for approximately 10 days.
(Whereupon, at 3:55 p.m., the joint hearing was adjourned.)

ADDITIONAL STATEMENTS SUBMITTED FOR THE

RECORD

FEBRUARY 6, 1973.

STATEMENT OF THE BOSTON PUBLIC HOUSING TENANTS POLICY COUNCIL, INC.,

Boston, Mass., BY GERSHON M. RATNER, Esq., BOSTON LEGAL ASSISTANCE PROJECT

The Boston Public Housing Tenants Policy Council, Inc. (TPC) represents approximately 35,000 tenants in federally funded low rent public housing projeets in Boston, Massachusetts. These projects were created pursuant to the United States Housing Act of 1937, 42 U.S.C.A. Sec. 1401 et. seq. to provide "decent, safe and sanitary” housing for persons in the "lowest income group" at rents within their “financial reach". 42 U.S.C.A. Sec. 1402 (1) (2). To be eligible for occupancy in these projects the tenants' income must be so low that they cannot afford "decent, safe and sanitary” housing on the private market. See 42 U.S.C.A. Sec. 1402 (2).

TPC's tenants and their class of very low income persons have already suffered severely from Executive impoundment or failure to spend funds needed for adequate maintenance of existing public housing and construction of new public housing. TPC believes effective Congressional efforts must be undertaken at once to stop impoundment of funds for public housing.

In analyzing what steps Congress might take, we start with certain premises :

1. Congress desires to reassert its control over Executive expenditures and halt unauthorized impoundments.

2. Congress has the exclusive constitutional power to appropriate funds for expenditure by the Executive. U.S. Constitution, Art. I, Sec. 9, Clause 7, and the "exclusive constitutional authority to make laws necessary and proper to (arry out the powers vested by the Constitution in the Government of the United States or any Department or Office thereof". Youngstown Sheet and Tube ('o. vSawyer, 343 U.S. 579, 588–89 (1952): see U.S. Constitution, Art. I, Sect. 8, last clause.

3. “The Constitution limits (the President's) functions in the law-making process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad". Youngstoun Sheet and Tube, supra at 577.

4. Once any Congressional bill becomes law, either with Presidential approval or over Presidential veto, the President is constitutionally obligated to "faithfully execute" such law. U.S. Constitution, Art. II, Sec. 3.

5. Once laws are enacted the Constitution prohibits the President from "forbid (ding) their execution, " Kendall v. United States, 12 Pet. (37 U.S.) 524,613 (1838). The assertion that the President has a "dispensing power" to determine which laws he will execute and which not “has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice." Kendall, supra at 613.

6. Based on the above, Congress has the constitutional authority both to enact appropriation laws and to specify exactly how much of any given appropriation shall be spent in any fiscal year. Accord, State Ilighway Commission of Vissouri v. l'olpe, 347 F. Supp. 950, 953-54 (W.D. MO., C.D. 1972) (by implication); Housing Authority of the City and County of San Francisco V. United States Department of Housing and Urban Development, 340 F. Supp. 654, 656 (N.D. Calif. 1972) (dictum).

7. In most appropriation laws, however, Congress has not stated explicitly what amount of the appropriation, if any, the Executive must spend nor what criteria the Executive is to use to determine how much to spend.

8. In light of the failure to specify, it is widely thought that Congress intends appropriations merely to establish a "ceiling" for spending, and not to require by their own force that the Executive spend all, or any certain portion, of an

(559)

appropriation. See Impoundment of Appropriated Funds: The Decline of Congressional Control Over Executive Discretion, Frank Church, 22 Stanford L. Rev. 1240, 1246 (1970); Separation of Powers and the Uncommon Defense: The Case Against Impounding of Weapons System Appropriations, John H. Stassen, 57 Geo. L.J. 1159, 1182 (June, 1969).

9. This failure to explicitly require spending arguably implies that Congress intended the Executive to have discretion as to how much, if any, of the appropriation should be spent. Further, the failure to provide standards in the appropriation laws themselves by which the Executive is supposed to determine how much to spend, arguably implies that the Executive has very large discretion and is to use its own judgment.

(This alleged implication of unfettered discretion is, however, legally unsupportable. The Executive has the clear duty to execute all substantive laws of Congress, including those, for example, for public housing, model cities and urban renewal. To determine how much of any appropriation to spend the Executive must therefore evaluate the substantive law involved and determine how much would be necessary to effectuate its purposes and satisfy the Government's duties under the law. See generally Separation of Powers and the Incommon Defense, Stassen, supra. Assistant Attorney General (now Justice) Rehnquist recognized this point in 1969. He wrote: “An appropriation is not in itself ordinarily interpreted as a direction to spend. To determine whether or not there is a duty to spend one must examine the substantive legislation." quoted in Impoundment of Appropriated Funds, Church, supra at 1246.)

10. In fact, a United States District Court recently refused to invalidate Executive impoundment of $150,000,000 of urban renewal funds on the explicit ground that Congress had not ordered the Executive to spend the money and that the Executive therefore had discretion not to spend it. Housing Authority of the City and County of San Francisco supra at 656. In the opposite situation, however, in which Congress explicitly prohibited impoundment the District Court invalidated and enjoined the impoundment. State Highway Commission of Jlissouri, supra.

11. As long as appropriations laws do not explicitly provide how much the Executive must spend or by what standards the amount of spending is to be determined, the Executive can argue that Congress has delegated to it the discretion to determine how much to spend. As long as the Executive can argue that Congress has legally authorized it discretion to impound, Congress is in a relatively weaker position to claim the impoundment is illegal or unconstitutional. In this situation the Executive may argue that one need not even reach the question of whether the Executive would have the constitutional power to impound funds in violation of an Act of Congress because no Act of Congress prohibits the impoundment; to the contrary, the Executive may argue, Congress has implicitly authorized impoundment.

12. Conversely, however, if Congress now enacted laws which explicitly provided that the Executive must spend certain portions of appropriated funds, or provideci exclusive standards by which the Executive must determine how much to spend, and the Executive then refused to spend the sums mandated, the Executive's action would then unquestionably become prima facie illegal. At that point the Executive could only justify impoundment by showing either that the law's mandating spending were unconstitutional or that, although they were constitutional, the Executive has some other independent constitutional authority to impound which is superior to Congress' constitutional power to prohibit impoundment.

13. For the reasons stated briefly in paragraphs 1-5 above, it seems clear that Congress has the constitutional authority by enacting laws, either with Presidential approval or over Presidential veto, to mandate that certain portions of appropriations be spent and to prohibit impoundment of approriated funds. Further, in light of the Supreme Court's opinion in Youngstouen Sheet and Tube supra at 588, in which the Court held, inter alia, that “The Constitution did not subject this law-making power of Congress to presidential . . . supervision or control ...", it seems highly unlikely that the Executive could find any independent constitutional authority to impound funds in violation of Act of Congress and superior to Congress' constitutional authority to prohibit impoundment.

Basert on the above analysis, we believe there are two gaps that need to be filled. First, Congres should explicitly provide that certain portions of appropriated funds must be spent or provide exclusive standards by which the

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