Perhaps even more disturbing is the fact that the impoundment practice enables the President to effect an item or line veto. Such a power clearly is prohibited by the Constitution, which empowers the President to veto entire bills only. By impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy-a power reserved exclusively to the Congress. Such an illegal exercise of the power of his office violates clear constitutional provisions.

Neither I nor my many colleagues who are cosponsoring this bill desire that the executive branch expend the taxpayers' money foolishly. Indeed, I always have been in favor of a balanced Federal budget, as have numerous of my colleagues. Nor is this a partisan problem, for impoundment has occurred under Democratic and Republican administrations; it is as objectionable under one as under the other. Our concern is with maintaining the constitutional role of the Congress and not with t..e performance of either political party.

In my capacity as chairman of the Subcommittee on Separation of Powers, I have come to realize that the Congress cannot long survive as a viable institution if it does not develop the capacity to gather, retrieve, and analyze budgetary data and to exert control over the budgetary powers. The power of the purse is one of the most basic powers of the legislative branch, and if it is not exercised in a decisive and fiscally responsible manner, the Congress itself may rightfully be accused of abrogating its role under the separation of powers doctrine. While I feel that the Congress has indeed been a spendthrift on occasion, I do not believe that the President's impoundment of the amounts appropriated constitutes a cure for our Nation's fiscal and economic woes. Impoundment does not save anybody any money, nor does it lead to lower taxes. It merely provides a means whereby the White House can give effect to the social goals of its own choosing by reallocating national resources in contravention of congressional dictates.

Congress is constitutionally obligated to make legislative policy, and is accountable to the citizens for carrying out that obligation. The impoundment practice seriously interferes with the successful execution of that role and places Congress in the paradoxical and belittling position of having to lobby the Executive to carry out the laws it has passed.

The bill we have under consideration will give the Congress an opportunity to review its choice of priorities and rearrange them if changed conditions make such action desirable. But it will insure that any rearrangement will be effected by the Congress and not by the President, who has no legislative power under our Constitution.

The impoundment control bill actually is rather simple. It requires the President to notify each House of the Congress by special message of every instance in which he impounds or authorizes an impoundment by any officer of the United States. Each special message must specify, first, the amount of the funds impounded; second, the date on which funds were ordered to be impounded; third, the date the funds were impounded; fourth, any account, department, or establishment of the Government to which the impounded funds would have been available for obligation except for the impoundment; fifth, the period of time

90-538 O-73-2

during which the funds are to be impounded; sixth, the reasons for the impoundment; and seventh, the estimated fiscal, economic and budgetary effects of the impoundment.

The reporting provisions of the bill are identical to those of Senator Humphrey's amendment to the Debt Ceiling Act of 1972.

The bill further provides that the President shall cease the impounding of funds specified in each special message unless the Congress approves the impoundment within 60 calendar days of continuous session after the message is received.

The intent of the bill is to preclude any form of impounding, withholding, delaying expenditure or obligation of funds, or the termination of authorized projects or activities unless such action is specifically mandated by Congress, and to that end it defines "impounding of funds" in such a way as to foreclose the use of semantic strategems. This measure is the first of a series of proposals I intend to submit to the Congress to help it restore itself to its intended role under our Constitution. The Subcommittee on Separation of Powers and Committee on Government Operations plans to engage in sustained efforts to restore the proper balance of power between the executive and legislative branches of our Government, including further investigations of such practices as abuses of the pocket veto power, the invocation of executive privilege, the widespread use of executive agreements to circumvent the treatymaking provisions of the Constitution, and numerous other manifestations of the existence of legislative power by the executive branch of the Government.

I hope that the hearings we begin today will alert the Congress and the American people to the constitutional crisis that we face and to the urgent necessity that some redress be found if our form of government is to survive.

(Senator Ervin's introductory remarks in the Senate, the bill, and other pertinent material from the Congressional Record of Jan. 16, 1973, follow :)

INTRODUCTORY REMARKS OF SENATOR ERVIN ON S. 373

IMPOUNDMENT CONTROL

Mr. ERVIN. Mr. President, on behalf of 45 other Senators and myself, I introduce for appropriate reference a bill to protect the legislative function by requiring the President to notify the Congress whenever he impounds or terminates or authorizes the impounding or termination, of a Federal program, and to provide that the President shall cease such impounding at the expiration of 60 calendar days unless the Congress shall approve his action by concurrent resolution.

The bill also establishes a procedure whereby the Senate and House of Representatives can approve each impoundment reported by the President-an action which would be required in order for the impoundment to continue beyond 60 calendar days after it is reported to the Congress.

Mr. President, this bill is very similar to a bill (S. 2581) I introduced during the 92d Congress, on September 27, 1971. I believe the new bill is an improvement over the earlier version.

Within a few weeks, the Judiciary Subcommittee on Separation of Powers, of which I am honored to serve as chairman, will conduct hearings on this bill, in conjunction with an ad hoc subcommittee of the Committee on Government Operations. I sincerely hope that the bill can be ready for consideration by the Senate before the heat of summer has beset the Nation's Capital.

The impoundment control bill is the outgrowth of hearings conducted in March 1971, by the Subcommittee on Separation of Powers, on the constitutional issues raised by the practice of Executive impoundment of appropriated

funds. The bill I introduce today will provide a practical and reasonable solution to the issues raised during those hearings and during the intervening time. Testimony and materials adduced at the subcommittee's hearings revealed that over $12 billion in appropriated funds were being impounded by the President at that time. Since then, President Nixon has asserted that he will keep Federal spending within a $250 billion ceiling by impounding funds appropriated above that limit. Already we have seen the termination of several agricultural programs, including the rural environment assistance program and emergency disaster loans to farmers. More than likely the list of impounded and terminated programs will grow. These actions are being undertaken with no prior approval by the Congress, which, pursuant to its constitutional responsibility, created and funded the programs in the first place.

While I would be the last to advocate deficit financing by the Federal Government-in fact, I always have been in favor of a balanced Federal budgetthis series of Executive actions demands the immediate attention of the Congress and swift remedial action. In my capacity as chairman of the Subcommittee on Separation of Powers, I have come to realize that the Congress cannot long survive as a viable institution if it does not develop the capacity to gather, retrieve, and analyze budgetary data and to exert control over the budgetary powers. The power of the purse is one of the most basic powers of the legislative branch, and if it is not exercised in a decisive and fiscally responsible manner, the Congress itself may rightfully be accused of abrogating its role under the separation of powers doctrine. While I feel that on occasion the Congress has indeed been a spendthrift and has appropriated money in an irresponsible manner, I do not believe that the President's impoundment of the amounts appropriated constitutes a cure for our Nation's fiscal and economic woes. Impoundment does not save anybody any money, nor does it lead to lower taxes. It is merely a means whereby the White House can give effect to the social goals of its own choosing by reallocating national resources in contravention of congressional dictates. In any event, the President's motive, however worthy, cannot legalize an inherently unconstitutional act.

Reserving of appropriated funds, that is, not spending an entire appropriation, is not a new concept, and when undertaken in a lawful manner it may be quite useful in effecting economy. Various procedures have been used over the years, the most common being the reserving of funds to prevent deficiencies in a Federal program, or to effect savings in accordance with provisions of the Antideficiency Act (31 U.S.C. 665). Freezing of funds has occurred when Congress, for some special reason such as war or economic uncertainty, passes appropriations as nothing more than ceilings for expenditures, leaving it to the executive branch to expand part or all of the funds at its discretion. Moreover, freezing may occur as the result of a specific congressional mandate. Under any of these forms of impoundment, the executive branch is permitted-or required-to withhold funds under certain specified conditions.

Unfortunately, impoundment often occurs under circumstances where the executive branch, for reasons of its own, desires to avoid expending funds which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation-of-powers doctrine.

One example of an impoundment which flies directly in the face of expressed congressional intent is the withholding from obligation of more than $5 billion in the Highway Trust Fund. On January 2 of this year 17 other Senators joined me in filing an amicus curiae brief in the case of Missouri Highway Commission against Volpe. The U.S. District Court on June 19, 1972, held in that case (347 F. Supp. 951) that the Secretary of Transportation and the Director of the Office of Management and Budget do not have discretion, under the Federal-Aid Highway Act of 1956 as amended, to impound Highway Trust Fund moneys except for very specific reasons. The district court's decision was based on language in the Federal-Aid Highway Act, and it is a more narrow case than if it involved a general appropriations act. This case was argued on January 10, 1973, before the U.S. Court of Appeals for the Eighth Circuit in St. Louis, and is pending decision by that court. If the Missouri Highway Commission wins this case, it should establish the precedent that Congress can mandate the expenditure of funds by inserting language to that effect in the particular appropriations act. We eagerly await the decision of the court.

Neither I nor my many colleagues who are cosponsoring this bill desire that the executive branch expend the taxpayers' money foolishly. Nor is this a partisan problem, for impoundment had occurred under Democratic and Republican administrations; it is as objectionable under one as under the other. After all,

we are concerned with maintaining the constitutional role of the Congress and not with the performance of either political party. The Congress must not become a stepchild of the Executive, and the Presidency must not be allowed to assume the powers of a divine monarchy.

Perhaps the most disturbing aspect of the impoundment practice is that it enables the President to effect an item or line veto. Such a power clearly is prohibited by the Constitution which empowers the President to veto entire bills only. By impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy-a power reserved exclusively to the Congress. Such an illegal exercise of the power of his office violates clear constitutional provisions. The bill I introduce today will give the Congress a chance to override this illegal and absolute veto and will give the Congress an opportunity to review its choice of priorities and rearrange them if changed conditions make such action desirable. However, that is not the task of the President under our Constitution.

In this era, the powers of the executive branch have become dominant in the operation of the governmental structure. The "power of the purse" is one of the few remaining tools which Congress can use to oversee and control the burgeoning Federal bureaucracy. Congress is constitutionally obligated to make legislative policy, and is accountable to the citizens for carrying out that obligation. The impoundment practice seriously interferes with the successful operation of that principle and places Congress in the paradoxical and belittling role of having to lobby the Executive to carry out the laws it has passed.

The impoundment control bill provides that the President must cease a specific impoundment unless he receives the approval of the Congress. It requires the President to notify each House of the Congress by special message of every instance in which he impounds or authorizes an impoundment by any officer of the United States. Each special message must specify, first, the amount of the funds impounded; second, the date on which funds were ordered to be impounded; third, the date the funds were impounded; fourth, any account, department, or establishment of the Government to which the impounded funds would have been available for obligation except for the impoundment; fifth, the period of time during which the funds are to be impounded; sixth, the reasons for the impoundment; and seventh, the estimated fiscal, economic, and budgetary effects of the impoundment.

The reporting provisions of the bill are identical to those of Senator HUMPHREY'S amendment to the Debt Ceiling Act of 1972, and I believe that they strengthen the impoundment control bill.

The bill also provides that the special messages submitted by the President be published in the Federal Register, and it requires the President to publish in the Federal Register a list of funds impounded as of the first of each calendar month. These provisions are designed to keep the Congress and the American people informed about the status of impounded funds, for a lack of up-to-date information has been a major impediment to solving the impoundment problem. The bill further provides that the President shall cease the impounding of funds specified 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 the Congress by concurrent resolution in accordance with a procedure based on provisions of the Legislative Reorganization Act of 1970 and set forth in the bill. Such concurrent resolution will be privileged business, and it will be considered promptly and with a reasonable period for debate. Such concurrent resolutions would not be referred to committee, for the appropriate authorizing committee and the appropriations committee already would have considered thoroughly the considerations underlying the original authorization and appropriation of the funds.

The bill also contains a definition of "impounding of funds" which is intended to include every instance of impounding, withholding, delaying the expenditure or obligation of funds, or the termination of authorized projects or activities. The definition includes "any type of executive action which effectively precludes the obligation or expenditure of the appropriated funds." The intent is to provide any form of executive action affecting appropriated funds from escaping the scope of the bill through semantic gyrations.

Hearings on the "impoundment control bill" will be held on January 30 and 31 and February 1 and 6.

Mr. President, I send the bill to the desk, and ask unanimous consent that its text appear in the RECORD following these introductory remarks.

There being no objection, the bill was ordered to be printed in the RECORD, as follows:

93D CONGRESS 18T SESSION

S. 373

IN THE SENATE OF THE UNITED STATES

JANUARY 16, 1973

Mr. ERVIN (for himself, Mr. BAYH, Mr. BIBLE, Mr. BROOKE, Mr. BURDICK, Mr. ROBERT C. BYRD, Mr. CANNON, Mr. CASE, Mr. CHILES, Mr. CHURCH, Mr. CLARK, Mr. CRANSTON, Mr. EAGLETON, Mr. EASTLAND, Mr. FULBRIGHT, Mr. GRAVEL, Mr. HART, Mr. HARTKE, Mr. HASKELL, Mr. Hatfield, Mr. HATHAWAY, Mr. HOLLINGS, Mr. HUDDLESTON, Mr. HUGHES, Mr. HUMPHREY, Mr. INOUYE, Mr. JACKSON, Mr. JAVITS, Mr. KENNEDY, Mr. MCCLELLAN, Mr. McGEE, Mr. McGOVERN, Mr. MCINTYRE, Mr. MAGNUSON, Mr. MANSFIELD, Mr. MATHIAS, Mr. METCALF, Mr. MONDALE, Mr. Moss, Mr. MUSKIE, Mr. NELSON, Mr. NUNN, Mr. PELL, Mr. RANDOLPH, Mr. RIBICOFF, Mr. SPARKMAN, Mr. SYMINGTON, Mr. TALMADGE, Mr. TUNNEY, Mr. WEICKER, and Mr. WILLIAMS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

JANUARY 23, 1973

The Committee on the Judiciary discharged, and referred to the Committee on Government Operations

A BILL

To insure the separation of Federal powers and to protect the legislative function by requiring the President to notify the Congress whenever he impounds funds, or authorizes the impounding of funds, and to provide a procedure under which the Senate and House of Representatives may approve the President's action or require the President to cease such action.

1

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That (a) whenever the President impounds any funds ap