practices in the humid area and I had never met a limestone producer! Under ACP, the use of aglime went from 3 million tons a year to over 30 million tons a year. This means more and better legumes and soil held in place rather than polluting our waterways.

3. For the second five years I was in the South Building of the USDA in Washington and was in charge of the Conservation Materials Program for the 9 Northeastern States (rather a strange place for a Republican who had voted against FDR twice!). During this period, I saw the Eastern part of the U.S. literally blossom with legume production because of aglime use and the soil of the dust bowl was kept there and not on the window sills of Washington offices. 4. Then the American Farm Bureau Federation, that great "farm" organization that doesn't represent farmers any more than Wall Street stockbrokers do. began attacking this Program as did the so-called economizers.

5. I then left the USDA to organize this organization.

6. I put the American Farm Bureau Federation in their place by extensive farmer surveys. The record will show that after the farm bureau criticized my 48-state (we didn't have 50 then) survey as being unrepresentative, I took just the Iowa Farm Bureau Township Directors who had been elected by the Farm Bureau Members in their communities, and they voted more overwhelmingly to disagree with their state and National Farm Bureau leadership on this Program than the rank and file farmers I had previously surveyed. I took these ballots which had been signed to the respective Congressional Committees, to backup my own testimony. Ever since then, the American Farm Bureau Federation has stopped their Public Campaign to eliminate this Program although they have continued to snipe at it. As a member of your Administration told me just last week, The American Farm Bureau Federation highly approved of the drastic restrictions I was objecting to and as you can testify, they will applaud this latest action.

7. A point I want to make is that while many try to make a big thing out of the limestone industry's private gain from this Program-actually only 4% of our sales are aglime-the real fact of the matter is that the 9,000 County ASCS Committeemen and the 100,000 Community Committeemen-all elected by their peers are enthusiastically behind this Program. You and some of the OMB staffers will say it is because they benefit from it. True, but to a minor degree. and when 1,000,000 farmers will match the money put up by their government to carry out basic soil and water conservation practices in the greatest conservation effort ever developed by man, it should not be tossed off by the stroke of some bureaucrat's pen. And don't forget the average payment ranges from $100 to $200. And the benefits are long-range, not immediate.

8. Caspar Weinberger is a very able man-but also a very ignorant man. I don't say that in a derogatory or mean sense at all. When I first went to see him over 2 years ago, he told me, "Mr. Koch, this isn't a National Program, only the farmers of Vermont and Tennessee are interested in this Program, the farmers in the other states don't care about it!" Obviously, his staff-and let me point out the old budget bureau and present Office of Management and Budget contains some of the same people and much of the same thinking that they were trying to pass off on President Truman about this Program-were letting him make decisions with only part of the facts. He proceeded to expound on the Vermont and Tennessee angle. What had happened was the late Senator Wynn Prouty of Vermont, where this Program is extremely popular, under a very strong attack (he then thought) by former Governor Phil Hoff for his seat. brought all kinds of pressure on Mr. Weinberger. In fact, it was so intense that OMB even tried to get the USDA just to announce the Program for the upcoming year in the State of Vermont! Fortunately, the USDA officials pointed out the fallacy of this approach. And in Tennessee, Senator Albert Gore was making such an issue of it, then Congressman Brock, who tried successfully to unseat him, also implored OMB to release the announcement of the Program.

9. You must also know that your own very able Secretary of Agriculture Earl Butz, not only made an issue of the $55.5 million of REAP funds a year ago. that OMB had impounded, but was able to announce their release.

10. As I told Secretary Butz during our luncheon last Wednesday when he made an impassioned defense of your effort to balance the budget, no group wished him or you more success than ours. But as I told him, first I think the Secretary of Agriculture should have something to say about Agricultural priorities. And second, as I told him, do you realize that if every program had taken it's proportionate cut, that this program has, the U. S. A. would have no deficit today?

11. This action by Mr. Weinberger has made a joke out of the Evans-Novak column which appeared in the Miami Herald December 22nd. When they wrote but with Super-Cabinet member Butz taking policy-making in National Resources away from the Interior Department, Morton becomes a limousine puppet". Weinberger has proven once again that this non-elected official can -overrule the entire Congress and even Super-Cabinet member Butz. So we find the Program which has done more for protecting the environment than any other ever developed stopped in its tracks by a telex sent from Washington last Friday afternoon-by whom? A non-elected, non-informed man who has overruled not only Secretary Butz but the entire Congress and the majority of the Republican Members of Congress. For example, the following men have fought for this Program throughout their Senatorial careers: Senator George Aiken of Vermont-Dean of the Senate, Senator Milton Young of North Dakota, Senator John Sherman Cooper of Kentucky and I could go on and on.

I know of no Program that accomplishes so much and costs so little and has so much bi-partisan Congressional suport. Nor do I know of any way you can stop a massive grass roots reaction that will eventually overrule this actually very stupid action. I could literally write a book about other aspects of this Program and its effect on the health of the Nation and so forth. But I think I will close and hope that you will arrange to listen to men like Earl Butz, George Aiken and Milton Young.

Hon. SAM J. ERVIN, Jr.,

U.S. Senate, Old Senate Building,

| Washington, D.C.

DUKE UNIVERSITY,

RULE OF LAW RESEARCH CENTER,
Durham, N.C., February 5, 1973.

DEAR SENATOR ERVIN: In connection with the current impounding controversy, I have a practical suggestion for handling at least part of the problem, growing out of some legal work I did back in 1940 in connection with Roosevelt's firing of A. E. Morgan from the T.V.A.

My suggestion would be for Congress to get certain jobs done by creating government corporations whose directors are both appointed and removable only by Congress.

In the course of preparing a long article on the T.V.A. case, and advising counsel to A. E. Morgan, I came to the conclusion that there is no reason why Congress should not create a corporation which is an arm of Congress, not of the Executive Branch. The controlling factor, of course, is who appoints and especially who fires the directors. In the past, Congress has almost automatically given this power to the President, for reasons of convenience if nothing else. It is admittedly a bit awkard for a large body like Congress to exercise appointive and removal powers, but this is a mere matter of mechanics that could be worked out.

Of course, this treatment would not suit every impounding problem, but it would suit some-perhaps REA, for example, and similar agencies that have a more-or-less self-contained function with clear limits.

I wish I had time to do a thorough legal job on this possibility, but perhaps you have some legal staff available to follow it up. I have mentioned the idea to several people on the faculty here, including Ken Pye and Walter Dellinger, and they see no constitutional impediment to it.

The article I referred to is: "Has the President an Inherent Power of Removal of His Non-Executive Appointees?" 16 Tennessee Law Review 259-90 (April 1940).

I have just this morning received a letter from Senator Harold Hughes rescheduling the Congressional Conference on "The Constitutional Question-the Congress and the Executive," for March 7 and 8. As you probably know, I have agreed to chair the meeting, as I have done a number of times in the past, and I will look forward to seeing you there. I am taking the liberty of sending a copy of this letter to Senator Hughes, since the idea might be worth mentioning at the conference.

With all good wishes,

Yours sincerely,

ARTHUR LARSON. Professor of Law.

Hon. ELMER B. STAATS,

NOVEMBER 9, 1972. Comptroller General of the United States, General Accounting Office Building, Washington, D.C.

DEAR MR. COMPTROLLER GENERAL: Public Law 92-334, 86 Stat. 402 (1970), as amended by P.L. 92-571, 86 Stat. 1204 (October 17, 1972), provides continuing appropriations for Fiscal Year 1973 for the programs of the Office of Education of the Department of Health, Education, and Welfare. In particular, Section 101 (d) appropriates “such amounts as may be necessary for continuing the following activities, but at a rate for operations not in excess of the current rate [including, in 101(d)(4)] . . . equipment and minor remodeling . . . for which provision was made in the Office of Education Appropriation Act. 1972."

The authorization for this appropriation is found in Title III of the National Defense Education Act of 1958, as amended, 72 Stat. 1588. Under the most recent amendment to the Act, P.L. 92-318, 86 Stat. 235 (1972), there is authorized to be appropriated up to $130 million for any fiscal year “ending prior to July 1, 1975." For fiscal year 1972, the program was funded at $50 million in the Office of Education and Related Agencies Appropriation Act, 1972, 85 Stat. 103 (1971), and this amount was carried forward into the Labor-HEW Appropriations Act of 1973 as passed by the Congress on August 10, 1973, and again on October 14, 1973. The portion of Section 101 (d) (4) which I have referred to above was intended to have the effect of appropriating such amounts as may be necessary for continuing NDEA Title III until an appropriations Act for fiscal year 1973 has been enacted to be expended at a rate not in excess of the fiscal year 1972 annual rate of $50 million. It has been suggested, however, that P.L. 92-334 may have the effect of authorizing expenditures for this program at the lesser of the current rate or the rate contained in the President's budget, that is, at a zero rate. I, therefore, request your opinion of the status of this appropriation for NDEA Title III under P.L. 92-334, as amended. Sincerely yours,

Hon. WARREN G. MAGNUSON,

WARREN G. MAGNUSON,
Chairman, Subcommittee on Labor,

Health, Education, and Welfare,
Committee on Apropriations,
U.S. Senate.

COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, D.C., December 13, 1972.

Chairman, Subcommittee on Labor, and Health, Education and Welfare, and Related Agencies, Committee on Appropriations, U.S. Senate.

DEAR MR. CHAIRMAN: Reference is made to your letter of November 9, 1972. asking our opinion regarding the status of funds presently available to the Office of Education for carrying out title III of the National Defense Education Act of 1958, as amended, 20 U.S.C. 441 et seq.

In view of your reference to section 502 of Public Law 92-318, which amended section 301 of the National Defense Education Act of 1958 so as to authorize annual appropriations of $130.5 million for certain title III purposes, it is assumed that your question concerns only those funds appropriated pursuant to the first sentence of section 301, 20 U.S.C. 441, relating to title III-A. Funds appropriated pursuant to that authority are available only for making payments to States to be used for the acquisition of equipment suitable for use in public elementary and secondary schools, and for minor remodeling of space used for such equipment, and for making loans to private nonprofit elementary and secondary schools to be used for the above-described purposes. The amount of $50 million was appropriated for title III-A purposes for fiscal year 1972 by the Office of Education and Related Agencies Appropriation Act, 1972, approved July 9, 1971, 85 Stat. 103.

The question regarding the status of funds now available for title III-A purposes arises because the annual appropriation act for the Department of Health, Education, and Welfare for fiscal year 1973, which would otherwise provide $50 million for title III-A, has not as yet been enacted into law. Pending such enactment the Department of Health, Education, and Welfare is fiscally operating under the provisions of the so-called “Continuing Resolution," Public Law 92–334, approved July 1, 1972, 86 Stat. 402, as amended. You state that it has been sug

gested that Public Law 92-334 may have the effect of authorizing expenditures for the title III program at the lesser of the current rate or the rate contained in the President's budget, i.e., at a zero rate. However, the basis for such suggestion is not indicated nor are we aware of any.

You refer in your letter to section 101 (d) of the Continuing Resolution which provides funds for fiscal year 1973 in—

"Such amounts as may be necessary for continuing the following activities, but at a rate for operations not in excess of the current_rate—*** (4) aid to land-grant colleges, grants for construction of undergraduate facilities, undergraduate instruction equipment, equipment and minor remodeling, and research and development for which provision was made in the Office of Education Appropriation Act, 1972 * * (Italics supplied.)

You state that by use of the italicized language it was intended to appropriate such amounts as may be necessary for continuing title III activities until such time as the annual appropriation act is enacted, to be expended at a rate not in excess of the fiscal year 1972 annual rate of $50 million.

Since the equipment and minor remodeling referred to in section 101 (d) of the Continuing Resolution is that for which provision was made in the Office of Education and Related Agencies Appropriation Act, 1972, and since the language contained in section 101 (d)-"equipment and minor remodeling"-is almost identical to that contained in the title III-A authorizing legislation-"equipment and for minor remodeling"-we think there can be no doubt that such language refers to the acquisition of equipment and minor remodeling authorized by title III-A, 20 U.S.C. 441. Further, it is clear from the language of section 101 (d) that the funds provided therein may be expended at the "current rate."

Accordingly, it is our opinion that funds for title III-A activities presently are available to the Office of Education for obligation or expenditure at a rate "not in excess of the current rate," which rate, of course, is the fiscal year 1972 annual rate of $50 million, as you state was intended by the use of such language in section 101 (d) of the Continuing Resolution.

Sincerely yours,

ELMER B. STAATS,

Comptroller General of the United States.

LEGAL MEMORANDUM-NOVEMBER 6, 1972

Re NDEA Title III-Mandatory Character of Appropriation.

I. CONCLUSION

Analysis of the system established by NDEA Title III leads to the conclusion that appropriations made under that title are mandatory.

NDEA III is chiefly a formula grant program, i.e., once the statutory criteria for State plans are satisfied, the Commissioner of Education is required to approve the State plan (§ 443 (b)) and allot to each State an amount derived from a statutory formula (§ 442 (a)).

While the use of "may" or "shall" or other language, in isolation, is not necessarily determinative in deducing congressional intent, the structure and mechanism employed in NDEA Title III clearly shows that, while some grants were to be made at and pursuant to the discretion of the Commissioner of Education (e.g., § 445 and § 453 (a)), the major portion of the grants were to be allotted to the States by mechanical application of a statutory formula (§ 442).

This conclusion is buttressed by the conclusion reached in a memorandum on educational programs having a similar structure to NDEA prepared by William H. Rehnquist, then Assistant Attorney General, Office of Legal Counsel.1 He wrote:

We concluded that the President has no constitutional authority to refuse to spend funds appropriated for federal programs for assistance to education where

1 The memorandum, dated December 1, 1969. entitled "Re Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools," and a second one dated December 19, 1969, entitled "Memorandum for the Honorable Edward L. Morgan, Deputy Counsel to the President, Re Presidential Authority to Impound Funds Appropriated for Office of Education Programs," are printed in Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate. 92nd Cong.. 1st Sess., held March 23, 24 and 25. 1971, entitled Executive Impoundment of Appropriated Funds (hereinafter cited as “Hearings").

the substantive legislation, read together with the provisions of the appropriation legislation, constitutes a direction that such funds be spent.2

A. NDEA Title III

II. DISCUSSION

Title III of the National Defense Education Act is codified in Title 20 (Education) of the United States Code, Sections 441 to 445 (Part A. Grants to States) and 451 to 455 (Part B. Grants to Local Educational Agencies).3

The key sections, which establish the formula grant mechanism, are $441 ("Authorization of Appropriations"), § 442 ("Allotments to States"), § 443 ("State Plans") and § 444 ("Payments to States"). Section 441, in its first sentence, authorizes appropriations for "(1) making payments to State educational agencies . . . for the acquisition of equipment and for minor remodeling, described in paragraph (1) of section 443 (a) ... and (2) making loans authorized in section 445 of this title."

The second sentence of section 441 authorized appropriations for "making payments to State educational agencies to carry out the programs described in paragraph (5) of section 443 (a) ...

Section 442 ("Allotments to States") has three subsections. Subsection (a) allows the Commissioner of Education to reserve up to 3% for allotment to U.S. territories, up to 1% for allotment to the Secretaries of Defense and Interior, and exactly 12% for loans to nonprofit private schools (§ 445) from the "sums appropriated pursuant to the first sentence of section 441.

The residue, 84% or more of the appropriation, must be allotted to the States: "From the remainder of such sums the Commissioner shall allot to each State an amount . . ." derived by application of a mathematical formula set out in detail in the statute. (Emphasis added.) Paragraph 442(a)(2) provides a formula for skewing allotments in favor of States with a low per-capita income. But here as in paragraph 442(a)(1) the Congress requires the Commissioner to pursue that social objective by applying a statutory mathematical formula.5

In summary, subsection 442 (a) is a highly technical formula for the allotment of funds to States, leaving the Commissioner with no discretion is apply. ing the formula. This statutory system is very close to that analyzed by former Assistant Attorney General Rehnquist in his memorandum. There, the statute "requires the Commissioner to compute the 'entitlement' of a local educational agency under a formula . . .' Although some "discretion is involved in the computation of the entitlement of the recipient districts . . . the application of the appropriation to the payment of entitlements pursuant to. . . P.L. 874 might reasonably be regarded as a ministerial duty." Because subsection 442 (a) lodges no discretion in the Commissioner, allotment of funds pursuant to that subsection is clearly a ministerial act. "[T]he process of making payments becomes mechanical."8

Subsection 442 (b) is also mechanical, and the formula is less complex: it requires the Commissioner to allot 98% or more of sums appropriated pursuant to the second sentence of section 441 to each State according to the ratio of school-age population in the State to the total national school-age population. with the minimum allotment to be $50,000.

2 Hearings, p. 285.

3 The basic text of NDEA Title III is at 20 U.S.C. §§ 441-455, Subchapter III ("Financial Assistance for Strengthening Instruction in Science. Mathematics. Modern Languages, and other Critical Subjects"). Chapter 17 ("National Defense Education Program"). These provisions were amended by 82 Stat. 1014 (1968), 84 Stat. 121 (1970), and 86 Stat. 35 (1972).

The formula is found in the last sentence of paragraph 442(a) (1) :

From the remainder of such sums the Commissioner shall allot to each State an amount which bears the same ratio to the amount of such remainder as the product of (A) the school-age population of the State, and

(B) the State's allotment ratio (as determined under paragraph (2)) bears to the sum of the corresponding products for all the States.

*Throughout this memorandum the terms "Commissioner of Education" and "Commis sioner" are used interchangeably. Unless otherwise specified, the latter means the former. The "allotment ratio" formula subtracts the "product of (A) 50 per centum and (B) the quotient obtained by dividing the income per child of school age for the State by the income per child of school age for the United States" from 100%, "except that the allotment ratio shall in no case be less than 33% per centum or more than 66% per centum". This paragraph also directs the Commissioner to promulgate allotment ratios every two years.

Hearings, p. 280.

7 Ibid., p. 283.

s Ibid., p. 280.

The first sentence in subsection 442(b) allows the Commissioner to reserve "not in excess of 2 per centum" for allotment pursuant to section 588 ("Allotments to territories and possessions").