(1963); F. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 (1966).

5. In the designs of the framers, the checks and balances system of the separation of powers was articulated with far greater clarity than the specifie institution of judicial review. Compare The Federalist, Nos. 47-57 with The Federalist, Nos. 78-82.

6. See generally, C. Rossiter, The American Presidency (2d ed. 1960); R. Neustadt, Presidential Power (1960); L. Fisher, Delegating Power to the President, 19 J. Pub. L. 251 (1970).

7. See A. Vanderbilt, The Doctrine of Separation of Powers and its Present-Day Significance (1953); Gwyn, The Meaning of the Separation of Powers. See also D. Keir, The Constitutional History of Modern Britain, 533 (8th ed. 1966), questioning certain modern developments in parliamentary democracy.

8. K. Martin, French Liberal Thought in the Eighteenth Century, 165 (1949). 9. H. Finer, I, Theory and Practice of Modern Government, 161 (1949). 10. K. Lowenstein, Political Power and the Governmental Process (2d ed. 1965). 11. Id. at 390. The author then continues with a passage which demonstrates a rather complete misunderstanding of the American version of the separation doctrine:

"But even in the United States, where the separation of powers scheme is still valid, the borderlines have become obliterated; Congress is constantly encroaching on the presidential prerogative, for example, in foreign policy, by the powers of the purse. The President usurps congressional functions. for example, by initiating, guiding, and vetoing legislation." (emphasis added) Id.

This statement overlooks the sophistication of a Madison, who nowhere remotely envisioned a complete separation of powers. See The Federalist, No. 47 (Rossiter ed. 1961); B. Wright, Jr., The Origins of the Separation of Powers in America, In J. Roche, ed., Origins of American Political Thought, 139 (1967). Moreover, it is precisely the assertion by each branch of its constitutionally enumerated powers which belies accusatory epithets respecting usurpation and encroachment.

12. See B. Wright, supra note 11.

13. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): United States v. Brown, 381 U.S. 437, 441 (1965); Powell v. McCormack, 395 U.S. 486 (1969); New York Times Co. v. United States, 91 S. Ct. 2140, 2142 (1971) (Opinion of Mr. Justice Black).

14. See The Federalist, Nos. 47-51 (Rossiter ed. 1961).

15. See, e.g., language in Justice Black's opinion in Youngstown Sheet & Tube Co. v. Sawyer, supra note 13, exemplifying the notion that categories such as "lawmaking" clearly separate the constitutionally permissible functions of the separate branches.

16. See Powell, Separation of Powers: Administrative Exercise of Legislative and Judicial Power, 27 Pol. Sci. Q. 215 (1912). Cf. Leventhal, J. in Amalg. Meat Cutters v. Connally, CCH Economic Controls Rptr., 9865, 9868 (D.D.C. 1971):

"There is no analytical difference, no difference in kind between the legislative function-of prescribing rules for the future-that is exercised by the legislature or by the agency implementing the authority conferred by the legislature. The problem is one of limits."

17. The Prize Cases, 2 Black 635 (1863).

18. See Field v. Clark, 143 U.S. 649 (1892).

19. See Yakus v. U.S., 321 U.S. 414 (1944) and Executive Order No. 11615 (August 15, 1971) superseded by Executive Order No. 11627 (October 15, 1971).

20. See Baltimore & Ohio R.R. v. Goodman, 275 U.S. 66 (1927), limited by Pokora v. Wabash Ry., 292 U.S. 98 (1934) (Supreme Court's "stop, look and listen" rule).

21. See Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).

22. See Powell v. McCormack, 395 U.S. 486 (1969).

23. L. Jaffe, Judicial Control of Administrative Action, 28-33 (1965).

24. Mass. Const., art. XXX (1780).

25. The Federalist, No. 47 (Rossiter ed. 1961); Myers v. United States, 272 U.S. 52 (1926); United States v. Brown, 381 U.S. 437, 443 (1965).

26. R. Neustadt, Presidential Power, 33 (1960); H. Monaghan, Presidential Warmaking, 50 B. U. L. Rev. 19, 24 (1970).

27. C. Black, Perspectives in Constitutional Law, 55 (Rev. ed. 1970).

28. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952).

29. L. Ratner, The Coordinated Warmaking Power-Legislative, Executive, and Judicial Roles, 44 S. Cal. L. Rev. 461, 462 (1971). Despite the distinction of its authors, and the weighty authority of its argumentation, these substantial difficulties ultimately detract from the constitutional conclusiveness of the so-called "Yale Paper." Part II, 116 Cong. Rec. $7591-S7593 (May 21, 1970). In view of the argument of this essay, however, it is significant and wholly proper that the constitutional argument was selfconsciously directed to the Congress, and not to a court.

30. E.g., the Steel Seizure Case.

31. C. Black, supra note 27 at 57.

32. See generally, D. Morgan, Congress and the Constitution: A Study of Responsibility (1966); L. Fisher, supra note 6.

33. L. Fisher, id. at 261–64.

34. See generally, W. Gellhorn and C. Byse, Administrative Law, 47-68 (5th ed. 1970).

35. Panama Refining Co. v. Ryan 293 U.S. 388 (1935).

36. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

37. Yakus v. United States, 321 U.S. 414 (1944).

38. P.L. 91-379, 84 Stat. 799, as amended, 85 Stat. 13; 85 Stat. 38. There is little to add to the comprehensive and scholarly discussion of the delegation doctrine by Judge Leventhal in Meat Cutters v. Connally, supra note 16. 39. See, e.g., Zuber v. Allen, 396 U.S. 168 (1969); Zemel v. Rusk, 381 U.S. 12 (1965).

40. See, e.g., K. Davis, A New Approach to Delegation, 36 U. Chi. L. Rev. 713 (1969); L. Jaffe, Judicial Control of Administrative Action, Ch. 2 (1965). 41. See authorities collected in H. Monaghan, Presidential Warmaking, 50 B. U. L. Rev. 19 n.2 (1970); L. Ratner, The Coordinated Warmaking PowerLegislative, Executive, and Judicial Roles, 44 S. Cal. L. Rev. 461, 462-467 (1971).

42. See, e.g., Orlando v. Laird, 443 F. 2d 1039 (2 Cir. 1971).

43. The point is obviously not conceded by all critics of Indochina involvement. 44. For discussion of the techniques for asserting congressional authority, see generally L. Fisher, supra note 6 at 278-82; Giannane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569 (1953); D. Morgan, Congress and the Constitution, Ch. 15 (1966); A. Vanderbilt, The Doctrine of Separation of Powers and Its Present-Day Significance, 70, 123–24 (1953).

45. See Fischer, The Politics of Impounded Funds, 15 Admin. Sci. Q. 361 (1970). 46. A recent Senate foreign aid authorizations bill contains a provision for withholding of foreign aid funds unless the President releases impounded funds previously approved by Congress for domestic programs, Washington Post, December 22, 1971, § A, p. 2. col. 6.

47. See Washington Post, September 21, 1971, § A. p. 1, col. 3.

48. R. Berger, Impeachment for "High Crimes and Misdemeanors," 44 S. Cal. L. Rev. 395, 448 (1979).

49. N. Nathanson. The Supreme Court as a Unit of the National Government: Herein of Separation of Powers and Political Questions, 6 J. Pub. L. 331, 332 (1957).

50. See New York Times Co. v. United States, 91 S. Ct. 2140 (1971); United States v. United States Dist. Ct. for E. D. of Mich., 444 F.2d 651 (6 Cir. 1971), cert. granted, 91 S. Ct. 2255 (1971).

51. Cf. L. Ratner, supra note 29 at 480-81.

52. See Velvel v. Nixon, 415 F.2d 236 (10 Cir. 1969), cert. denied, 396 U.S. 1042 (1970).

53. This may be one means of reconciling the difficulties posed by the "removal power" decisions in Myers v. United States. 272 U.S. 52 (1926) and Humphrey's Executor v. United States, 295 U.S. 602 (1935). While the difficulties of distinguishing law making and executive functions remain, in Humphrey's Executor Congress had spoken with greater clarity and in a field in which it had exercised plenary power. This arguably justifies both the assumption of Supreme Court jurisdiction, and the decision on the merits. Otherwise a legislative scheme for the exercise of power by Congress in a field it had already occupied would, pro tanto, be frustrated.

Even here, however, private parties, not the Congress, asserted the violation of constitutional prerogatives.

54. 2 Black, 635 (1863).

55. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 56. See Younger, Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers, 20 U. Pitt. L. Rev. 755 (1959); J. Bishop, The Executive's Right of Privacy: An Unresolved Constitutional Question. 66 Yale L.J. 477 (1957); R. Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A. L. Rev. 1043, 1287 (1965); P. Hardin, The Executive Privilege in the Federal Courts, 71 Yale L.J. 879 (1962).

57. United States v. Reynolds, 345 U.S. 1 (1953).

58. See Soucie v. David, 448 F.2d 1067, 1071 n. 9 (D.D.C. 1971). Cf. Committee for Nuclear Responsibility v. Seaborg, 40 U.S.L. Week 2249 (D.D.C. 1971).

THE IOWA STATE HIGHWAY COMMISSION,
Ames, Iowa, January 24, 1973.

Hon. SAM J. ERVIN, Jr.,

U.S. Senator, Subcommittee on Separation of Powers, New Senate Office Building, Washington, D.C.

(Attention Mr. Rufus L. Edmisten, Chief Counsel and Staff Director).

DEAR SENATOR ERVIN: The Iowa Highway Commission has been informed through the Executive Director of AASHO, Mr. Henrik E. Stafseth, that your Subcommittee on Separation of Powers proposes to hold hearings in late January and early February on Executive Impoundment of appropriated funds.

As this problem relates to the impoundment of highway trust funds, the Highway Commission has a very significant interest in the passage of your proposed bill.

The Iowa Highway Commission operates on a budget of approximately $180 million per year, of which approximately 3 is received from the Federal Highway Trust Fund. However, during the last five years, through administrative action, $30,340,116 of funds apportioned out of the Trust Fund, by the Congress to the State of Iowa for the construction of federally-aided highways, has been impounded and not released for our obligation purposes.

This action has had a seriously adverse effect on Iowa's highway program. In fiscal 1973, our estimated budget for construction of new highways has dropped to about $94 million from an average of $110 million during the past three years. At a time when the total revenues available to the Highway Commission are insufficient to meet our needs, the impoundment of a part of our apportionment aggravates an already serious problem.

The Iowa Highway Commission wishes to go on record as supporting any legislative action that would require the release of Trust Funds apportioned by Congressional action to the various States.

Yours truly,

J. R. COUPAL, Jr.,
Director of Highways.

SENATE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C., February 8, 1973.

Hon. SAM J. ERVIN, Jr.,
Chairman, Committee on Government Operations,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: I have very much appreciated the opportunity to serve on the Ad Hoc Subcommittee on Impoundments, a subject to which you have given such able leadership. The public hearings concerning the policy of Executive impoundment have been searching, enlightening and conducted in a most exemplary manner.

One method of impoundment which perhaps calls for additional examination is impounding which occurs within Executive departments, as opposed to such action by the Office of Management and Budget and the President. This is particularly relevant where Committees of Congress have written specific language into legislation mandating that funds remain available until the end of the fiscal year.

Accordingly, I have written to Secretary Weinberger concerning certain actions of the Office of Education which may have had the effect of impounding certain funds authorized under the Education Amendments of 1972 (P.L. 92–318). A copy of my letter is enclosed.

I have requested a reply within ten days in order that my letter and the response of the Administration might, with your permission, be made part of our official hearing record.

Secretary, Department of Health, Education and Welfare,
Washington, D.C.

DEAR SECRETARY WEINBERGER: As you may know, I am a member of the Government Operations Subcommittee on Impoundments which is currently holding joint hearings with the Separation of Powers Subcommittee on this subject under the Chairmanship of Senator Ervin. In connection with our inquiry, I would be most grateful if you would provide for inclusion in our hearing record certain information relating to non expenditure of appropriated funds in the education program area.

Under the Education Amendments of 1972 (P. L. 92-318), Congress provided for some educational assistance programs which have yet to be implemented by the Office of Education. For example, Sec. 411 of those Amendments provided for grants to local educational agencies to assist them in developing and carrying out programs specially designed to meet the educational needs of Indian children. Still another example is provided by Sec. 1001 (P.L. 92-318), which created a veterans' cost-of-instruction payment program entitling institutions of higher learning to receive grants to help offset the cost to them of actively recruiting veterans and developing special programs designed to aid veterans. In the Supplemental Appropriations Act, Congress appropriated $18 million for Indian education and $25 million for veterans' cost-of-instruction payments and in both cases the report of the Senate Appropriations Committee made clear that the funds were intended to be available for the second half of the 1972-73 academic year. Under both of these programs, the statute indicates that the Commissioner of Education must issue guidelines specifying the content, form, and manner and time of filing of applications for funds thereunder. However, even though the second half of the school year has already begun, the Office of Education has not yet finalized any application guidelines; consequently, the agencies and institutions entitled to payments under these programs have been unable to apply for funds. Moreover, the 1974 budget submitted to Congress by the President requests that the appropriations for these programs be rescinded. Specifically,

(1) Will the Office of Education issue guidelines so that institutions and agencies may begin to submit applications for funding under the provisions of Secs. 431 and 1001 of the Education Amendments of 1972? If so, when?

(2) If the Congress does not rescind appropriations for these programs, will the Office of Education expend funds under these programs or will it impound some or all of the sums appropriated?

(3) In the mean time, will the Office of Education promptly begin to accept, process and approve qualified applications under these programs and to make payments to qualified applicants, at least until such time as Congress acts on the request that the appropriations be rescinded?

(4) If the answer to either 2 or 3 is "no", what is the legal basis for the decision of the Office of Education in light of the facts that:

(a) in both sections of the statute applicants which meet the statutory requirements are said to be "entitled" to payment;

(b) the language in both sections is mandatory with respect to the Commissioner's duties (i.e., "shall carry out", "shall from time to time pay", etc.);

(c) Sec. 406 of Title IV of the Elementary and Secondary Education Amendments of 1967, as amended, provides that, notwithstanding any other provision of law, funds appropriated for any fiscal year to carry out programs of the Office of Education shall remain available until the end of such fiscal year; and

30-538 O 73 - 48

(d) the Senate Appropriations Committee indicated that it intended the money appropriated for these programs to be available for the second half of the school

year.

Actions within the Executive departments which have the effect of impounding appropriated funds, as opposed to impounding brought about by the direct action of the Office of Management and Budget or the President, are also of concern to our Subcommittees.

In view of the fact that our hearing record will close in ten days, I would very much appreicate expeditious handling of this request.

With best regards,

Sincerely,

JACOB K. JAVITS.

Hon. JACOB K. JAVITS,
U.S. Senate,
Washington, D.C.

THE SECRETARY OF HEALTH, EDUCATION, AND Welfare,
Washington, D.C., February 22, 1973.

DEAR SENATOR JAVITS: I appreciate the opportunity to respond to your concerns, expressed in your letter of February 8, regarding the plans of this Department with respect to funds appropriated for Indian education and the veterans' cost-ofinstruction programs.

Your letter requests response to four questions you would like answered for purposes of inserting in the hearing record of the joint hearings which are being held by your Subcommittee and that of Senator Ervin.

I will answer each of these questions in order:

1. Will the Office of Education issue guidelines so that institutions and agencies may begin to submit applications for funding under the provisions of sections 431 and 1001 of the Education Amendments of 1972? If so, when?

It has been the policy of the Department not to issue regulations unless we intend to fund and implement a program. To do otherwise would, it seems to us, raise false expectations on the part of applicants. As you know, we are asking the Congress to rescind the funds already appropriated for these two programs, thus signifying our intent not to implement them.

2. If the Congress does not rescind appropriations for these programs, will the Office of Education expend funds under these programs or will it impound some or all of the sums appropriated?

At this point in time, our request is that the Congress rescind the appropriations. We believe that the Congress should consider this on its merits and not in the light of actions that may later occur. Our determinaion of what steps to take if the funds are not rescinded will be dependent upon a number of factors which are currently unknown, such as the status of Congressional action on other fiscal year 1973 appropriations and where we stand with respect to our firm target of maintaining outlays below $250 billion in fiscal year 1973.

3. In the meantime, will the Office of Education promptly begin to accept. process and approve qualified applications under these programs and to make payments to qualified applicants, at least until such time as Congress acts on the request that the appropriations be rescinded?

In view of the situation described in response to the previous questions, it would be inappropriate to commence now to accept, process and approve applications under these two programs. A decision on these steps will await Congressional action.

4. If the answer to either 2 or 3 is "no," what is the legal basis for the decision of the Office of Education in light of the facts that:

(a) In both sections of the statute, applicants which meet the statutory requirements are said to be "entitled" to payment;