can keep his commitments to us, and so that we can continue with this $168 million construction program on an orderly and sane basis. This is the largest generation-transmission program underway in the Dakotas; when completed, the Basin Electric plant will be the largest single power station in the Dakotas If these facilities are late, they will affect the plans and operations of numerouS other power systems. We are all interconnected and interdependent. I am not exaggerating the importance to the power situation in the region of no more delay in our program.

We are convinced that Dave Hamil made his promises to Basin Electric ir. complete good faith and fully intended to keep them. Apparently, they meant nothing to whoever is issuing the orders in the Administration. However, We think the Government is obligated to finance this project as promised.

The Upper Missouri G & T group presently depends upon Basin Electric for one-third of their power. This proportion will continue to increase.

I know you will do whatever you can to help. If there is something we cat do to help, please let me know.

Sincerely yours,

JAMES L. GRAHL.

[From the Congressional Record, Aug. 3, 1972]

PROHIBITION OF IMPOUNDMENT OF HIGHWAY TRUST FUNDS

Mr. METCALF. Mr. President, I wish to extend my appreciation to the Senator from Oklahoma (Mr. Bellmon) for introducing S. 3877, a bill to prohibit the impoundment of funds from the highway trust funds which have been apportioned and appropriated. I hope the Committee on Finance can expedite handling of the bill so we may take early action upon it. I was prepared to support the Senator from Oklahoma when he offered an amendment to the debt ceiling legislation to achieve the same purpose. I will support his bill when it is reported to the Senate, and if need be, I will support his amendment when the debt ceiling legislation is again under consideration. However, I fervently hope we may be able to act upon his bill long before the debt ceiling legislation is again before us. My concern for early action is extensive unemployment in Montana as a direct consequence of Federal actions.

During the last 2 years, the highway construction program in Montana has been reduced about 35 percent. The immediate consequences of that employment reduction by the Office of Management and Budget were not immediately felt be cause simultaneously additional employment was being created through construetion of the ABM system.

However, this year both events came together to create an employment crisis in Montana. The steady reduction in the highway construction program is now painfully apparent in Montana because of the ABM construction cancellation. a result of the administration's SALT agreements with the Soviet Union.

Mr. President, in both of these situations, unemployment in Montana has been a direct consequence of Federal programs. When the orders to cease construetion of the ABM system in Montana were received, over 1,000 workers were dumped into the labor market with only 1 day's severance pay. Those 1,000-plus workers were directly involved in construction of the ABM system, while at least another 1,000 indirectly involved lost their jobs in the wake of cancellation of ABM construction.

Employment statistics for one county alone tell the consequence. In May, Liberty County's unemployment rate was less than 4 percent; 1 month later the unemployment rate was 9 percent. That increase in unemployment has been similarly felt throughout the State of Montana.

Many efforts have been made to alleviate that unemployment crisis. One of the efforts undertaken is the result of superb cooperation by the Montana Highway Department and its very able director, Mr. H. J. Anderson. Working closely with the congressional delegation and the Governor's office, the Montana Highway Department has identified highway construction projects for letting this fiscal year which would entail the release of $21.7 million in Federal funds within the five-county area most directly affected by cancellation of ABM construction. Some of these projects were scheduled for 1976. but have been advaned to generate employment now for the hundreds of workers displaced by Federal action. It has done so with a considerable investment of manpower and time. In addition, the Montana Highway Department has avanced two projects within the af

fected area for a special letting this month and will fund those with available funds.

It is incumbent upon the Federal Government to take action to alleviate the unemployment crisis in Montana generated by Federal actions. The Office of Management and Budget has over $48 million impounded which has been apportioned and appropriated for Montana, Senator Mansfield, Congressman Melcher, and I have asked for the release of $33.7 million, which we have been advised the State could match for immediate use this fiscal year.

The Office of Economic Adjustment in the Department of Defense has suggested the immediate release of $8.5 million for projects within the five-county area which can be let during the rest of the calendar year, with further reference to the release, after the first of next year, of an additional $13.2 million, for profects which can be let during the first half of calendar year 1973.

The apparent justification cited by the administration for impounding highway construction funds is that such impoundment serves as a curb to inflation. Regardless of the figure asked for release to Montana, that release could not be construed as inflationary. The ABM construction program would have entailed the expenditure of $210 million in Montana during the next 3 years. The immediate release of an additional $8.5 million for Montana would still leave our highway construction program with less funding than available during the fiscal year. Even the release of the entire $21.7 million for the five-county area would leave Montana's total highway construction program less than it was 2 fiscal years ago. Indeed, the release of the $33.7 million the congressional delegation has asked would leave the highway construction program roughly at the level of 2 years ago. The release of the entire $96 million alloted to Montana for highway construction is less than the total which would have been spent on the ABM construction and the highway construction programs as proposed by the Office of Management and Budget.

In view of these circumstances-an unemployment crisis generated by Federal action and the fact that the release of additional highway construction funds to Montana is noninflationary-I do not understand why the Office of Management and Budget hesitates to grant the request of the Montana congressional delegation.

If Senator Bellmon's bill were law today, many hundreds of Montanans would be engaged in productive work, work that is needed for the national interest. It clearly has been the congressional intent that these highway trust funds be committed and used. The failure of this administration to use funds duly apportioned and appropriated has caused economic chaos in Montana and elsewhere. The speedy passage of Senator Bellmon's bill will greatly reduce that economic chaos.

[From the Washington Post, Oct. 26, 1972]

(Letter to the Editor)

IMPOUNDING APPROPRIATIONS

The assertion by Secretary of Treasury Shultz (Post, Oct. 20) that the President believes he has authority to "impound" appropriated funds, should be compared with a statement by President Kennedy in 1963. When asked at a press conference if federal funds for projects in Mississippi could be blocked because of racial segregation, Kennedy flatly said that he had no such power.

Now we see a President asserting that a practice of impoundment runs back to Thomas Jefferson. That, to put it charitably, misreads the historical record. Hearings held by Sen. Sam Ervin's Subcommittee on Separation of Powers in early 1971 revealed: (a) more than $12 billion in appropriated funds were blocked by the White House (a sum far exceeding what any previous President had done); (b) that the Executive's spokesmen, including the present Associate Justice William Rehnquist and Caspar Weinberger (now head of OMB), could cite no express constitutional or statutory basis for it; and (c) most withholding in the past-which took a big jump under F.D.R.-dealt mainly with national defense appropriations (e.g., President Truman and the proposed 70-wing Air Force).

It therefore is simply not true that the President has constitutional (or statutory) power to impound funds, and that history backs him up. President Kennedy thought otherwise. To cite past practices, themselves of dubious legality at best, to justify present like practices (although exponentially higher in dollar

amount) is to make the puerile argument that because some people have broken laws in the past without punishment by some mysterious process, similar acts are legalized today. Not even the "President's lawyers" in the Department of Justice could validly make such an obviously weak argument and have it accepted. Congress doubtless has been at fault in not making appropriations mandatory in clear language. If it did so, and if it took on greater responsibility for budg etary matters, then there could be no question that the President would be stopped dead in the water when he tried to impound funds; Rehnquist so conceded in congressional testimony. There is no better place to begin to stem the flow of governing power to the Executive than to cut him off at the appropriations pass. Congress need not await judicial determination of the issue-and need not accept the President's legal opinions.

ARTHUR S. MILLER,
Professor of Law,

The George Washington University.

[From the Washington Post, Nov. 21, 1972]

IMPOUNDING APPROPRIATIONS

Prof. Arthur Miller (Post. Oct. 26) would have your readers believe that a President breaks the law when he "impounds appropriated funds" and that an appropriate remedy available to the Congress to stop this practice would consist in "making appropriations mandatory in clear language." According to Prof. Miller making appropriations mandatory (presumably requiring the executive branch to spend up to and including but not exceeding the last dollar of every appropriation item) would have the result that "the President would be stopped dead in the water when he tried to impound funds..."

I continue in the belief expressed to the Senate Judiciary Committee last year that Prof. Miller is wrong both in his diagnosis and the remedy which he suggests. In the first place the President or his agents in the Executive Office have not over the years "impounded appropriated funds" for the simple reason that there are no "appropriated funds" in the Treasury to be impounded. An appropriation in simple terms is an authorization to the Treasury to liquidate a valid obligation incurred by an agency of the government operating under a valid substantive authorization and within the limit of the applicable appropriation. The term "impound appropriated funds" unfortunately has grown up as an inaccurate synonym for an action of the executive branch which results in obligations falling short of the full amount authorized to be obligated under the applicable appropriation.

Some substantive legislative authorizations such as Social Security operate automatically to create obligations against appropriations beyond the control of the presidency. The problem posed by Prof. Miller does not relate to such programs, but rather to that class of substantive authorizations which involves executvie discretion as to rate or schedule; for example, public works. Surely Prof. Miller does not seriously contend that a public works authorization which allows executive discretion as to rate or schedule, depending upon conditions. should be countermanded by an appropriation act which demands that a fixed sum of money shall be expended during the year no matter what the circumstances. If the work should be held up for some reason, whether discretionary or involuntary, it boggles the mind to conceive of the recipient to whom the Treasury should continue to make payments. Surely Prof. Miller would not have had the Treasury continue to make payments under the Department of Transportation's appropriation for the construction of Three Sisters Bridge while construction is indefinitely postponed by reason by judicial process.

In the second place, there is no mechanism evidently available by which the Congress or its agents, or any other party, could obtain judicial process hy which to enforce against the presidency any so-called mandatory appropriation authorization, no matter how clearly stated. This is so because, under the sepa ration of powers provisions of the Constitution as it now stands, the presidency has been put beyond the reach of judicial direction in the exercise of the presi dential powers, whether they are constitutional, political, or otherwise (Mississippi v. Johnson, U.S. Supreme Court, 1867).

As I suggested to the Senate Judiciary Committee in 1971, the Congress might move in this matter in a way that is more modest and practical, and seemingly more amenable to existing constitutional constructions, than the radical way

suggested by Prof. Miller. That is, the Congress, in appropriate instances, could place mandatory rates or schedules of accomplishment within the provisions of the substantive authorizing statutes, and could amend such rates or schedules from time to time as necessary in the light of the current situation including budgetary considerations. Such provisions, under the principles of Mississippi v. Johnson, would likely be subject to judicial enforcement against heads of agencies and presidential subordinates. And, if the mandatory rates or schedules were followed, there would be no question of "impoundment."

There is at least one point of which I agree with Prof. Miller. That is that the process of developing appropriate mandatory rates or schedules by congressional edict would imply a much greater congressional responsibility for budgetary management than is now the case. My own preference would be for the rates and schedules to be developed in the substantive committees of the Congress rather than in the appropriation committees. Perhaps the substantive and appropriation processes could be combined. I think that either the solution I propose or that proposed by Prof. Miller would require a major congressional reorganization before it could be fully carried out. KARL S. LANDSTROM,

Former Director, Bureau of Land Management.

[From the Washington Post, Nov. 27, 1972]

ON IMPOUNDING APPROPRIATIONS: PROFESSOR MILLER REPLIES

Karl Landstrom's letter on impounding appropriations (Nov. 21), replying to mine of Oct. 26, lets us in on some secrets that should be widely disseminated. 1. He should tell Chief Judge Becker (U.S. District Court in Missouri) that "there is no mechanism by which . . . (anyone) could obtain judicial process by which to enforce against the presidency any so-called mandatory appropriation authorizations." Last June, Judge Becker ordered Secretary of Transportation Volpe and Caspar Weinburger, Director of OMB, to stop the "impoundment" or "witholding" of highway trust funds. The suit was brought by the State Highway Commission of Missouri. The decision rests squarely on a statute (Sec. 101, Title 23, U.S. Code).

Mr. Landstrom knows full well that the President as chief executive need not be a party defendant to such a lawsuit. After all, the Supreme Court in 1952 held that Secretary of Commerce Sawyer acted unconstitutionally when ordered by President Truman to seize the steel mills. So unless the Supreme Court is willing to overrule more than a century of precedent, Mr. Weinberger, as head of OMB, and other executive officials, are subject to the judicial process. That is elementary constitutional law, as Mr. Landstrom knows full well. Mississippi v. Johnson, which he cites as precedent for his position, is simply not apposite. 2. He should also let Justice Rehnquist in on his secret, as well as Rehnquist's successors in the Justice Department. For in 1971, in the same hearings in which Landstrom participated, Assistant Attorney General Rehnquist said in part: “. the Office of Legal Counsel (which he headed) has taken the position that the President must spend in the domestic area when it is clearly mandated that he do so." (Emphasis added.)

3. Mr. Landstrom should tell the attorneys for the state of Missouri and also Ralph Elliott of Jacksonville, Fla., who is attorney in a recent suit against the Secretary of the Army and Mr. Weinberger, that they are pursuing futile quests. In Florida, funds for a barge canal, as well as separate money for an environmental impact statement, are being held up by OMB.

Other lawsuits are pending or are about to be filed. And in an analogous situation, Sen. Kennedy last August sued the head of General Services Administration and the Chief of White House Records in an effort to make them publish a bill (the Family Practice of Medicine Act) that the President purportedly “pocket vetoed" in December 1970. No doubt, Sen. Kennedy, as a lawyer, will be interested in Mr. Landstrom's secret.

4. Furthermore, Mr. Landstrom plays some puerile semantic games. Contrary to what he says, "impoundment" is the term usually used. True, it is not easy to define, as witness current efforts experienced after Congress tacked on to the debt-ceiling bill in October a requirement that it be informed of all impoundments. Sen. Charles Mathias called it a technique that permits the exercise of an "informal line item veto over appropriated money." No constitutional or statutory provision permits an item veto-but that is precisely what the extra-constitu

tional method of impoundment by OMB amounts to. As of June 30, 1972, about $12 billion were so impounded.

Almost everyone save Mr. Landstrom agrees that impoundments are deliberate attempts to scuttle projects authorized by Congress, but disliked by the Executive. As I said in my previous letter, President Nixon did not invent the technique. There is a lot of loose talk, in and out of Congress, that all Presidents since Jefferson have impounded, but any fair reading of the record soon shows that it really began with F.D.R. during World War II.

5. For Mr. Landstrom to mention the Three Sisters Bridge indeed boggles the mind. No one argues that money should be spent unlawfully (that is the thrust of the judicial order there). And certainly no one argues that efforts should not be made to be efficient and to save money. Every dollar of every appropriation need not be spent. What cannot be justified under law is the cancellation of entire projects such as the Florida canal and the Potomac River aquarium. If Landstrom can furnish any legal basis for such cancellations, he will then have a case for his position. But he cannot-as he knows full well.

6. It is faintly amusing to be called "radical" for daring to suggest that the Constitution means what it says-that Congress and only Congress has the power to appropriate money and that the President has the duty to faithfully execute all the laws. If Mr. Landstrom wants to rewrite the Constitution, he of course is at liberty to do so. The First Amendment merely protects speech; it does not require that the speech make sense.

7. Mr. Landstrom suggests that Congress could place "mandatory rates or schedules" in statutes and could amend them from time to time. Then he says (God save the mark!), "if the mandatory rates or schedules were followed, there would be no question of impoundment." Let me recast that: If Congress says funds must be spent and they are in fact spent, then impoundment must take place. I hardly think we need education in the obvious; as Little Abner might say, "any fool can plainly see" that if appropriated money is spent, impoundment has not occurred.

ARTHUR S. MILLER,
Professor of Law,
The George Washington University.

FEBRUARY 3, 1973.

Hon. SAM ERVIN, Jr.,

Senate Committee on the Judiciary,
Washington, D.C.

DEAR SENATOR ERVIN: I wish to be recorded in the hearings now in progress as very much opposed to your bill which would prohibit the President from "impounding appropriated funds" without the approval of the Congress. I have been traveling for the past several weeks, and I have not had the opportunity to study the text of the bill now under consideration by your Subcommittee. However, from newspaper reports of its purpose and method, I believe that you and your colleagues who support the measure are distinctly wrong on the law and the facts and that your remedy for the problem that has been encountered is unsatisfactory.

You will no doubt recall that I appeared before your Subcommittee in the last preceding Congress during its exploratory hearings on this subject. As a member of the Federal Bar Association's Committee on Administrative Law, as a former head of a bureau in the Department of the Interior, and now as an interested citizen, I reaffirm the information and advice that I submitted at that time, and incorporate it by reference in this letter. Please also refer to my letter to the Editor of the Washington Post which was printed in November of 1972.

From the newspaper accounts, you have again challenged the authority that has been used in the Executive Branch by which, as you and your colleagues have put it, the President "impounds appropriated funds." You are quoted as saying: "An appropriations bill is a law." Of course an appropriations bill, like any other bill, becomes a law if it is passed and duly enacted. That is beside the point. The point is to examine what the law says. You apparently did not consider my earlier testimony asking you, please, to read an appropriations act. The usual appropriations act does not command or direct the President, the Secretary of the Treasury, or anyone else in the Executive Branch to spend as much as a penny. All it does, by its own terms, is to authorize the appropriation, for specified objects or purposes, of any funds not otherwise appropriated from the Treasury of the United States.