I sincerely wish that you and your colleagues would clean up your language on this matter so that you are reflecting the law and the facts. As I have previously testified, and as I wrote to the Washington Post, the substantive auhorizing legislation concerning the Government programs or projects which are at issue in this debate almost invariably use language of authorization (the Secretary is hereby authorized to construct, etc.), not language of mandatory direction (the Secretary shall construct, etc.). Thus, both the substantive authorizing legislation and the applicable appropriating legislation are couched in authorizing language, not mandatory language. I sincerely wish that you would look, for example, at the statute which authorized the Administrator of General Services to construct the Potomac River aquarium. If you should do so, you will notice that the text of the law merely authorizes such construction, without indication as to rate or schedule of progress or termination date. By the same token, the applicable appropriations act merely authorizes the appropriation of funds out of the Treasury with which to liquidate any obligations which might have been incurred as a result of construction. Neither law directs anyone in the Executive Branch to do any thing by any set time at all. And thus it is with the great majority of the laws about which you and your colleagues are dealing. I say, please clean up your language, at least, so as to come to the actual legal and factual point. It is regrettable, indeed, that you could resort to a truism (An appropriations bill is a law) to support your argument. If you would only read that law and be willing to follow its explicit text you would have to admit that the law in question was not mandatory, merely authorizational. I am concerned and disappointed that, according to newspaper accounts, Director Ash did not explain to you the constitutional and statutory basis by which personnel in the Executive Branch, under circumstances such as the Potomac aquarium act, are enabled lawfully to reduce or discontinue Government operations and the spending of moneys under authorized programs or projects. The constitutional basis that I would cite is not the "take care" clause, which was referred to by Director Ash. It, rather, is the legislative power which the Constitution gives to the Congress. I regret that I do not have facilities, while travelling, to submit a precise legal brief on this point. That I should be pleased to do upon return to my home in Arlington. However, the cases do indicate that when the Congress passes a statute which authorizes a member of the Executive Branch to perform a function, without specification as to time or rate of progress, or without a deadline being stated, then such authorization amounts to a delegation of Congressional discretion, not only on the matter of when and at what rate to proceed, but also on the matter of whether to perform the function at all. One case that I have cited on this point is Ferry v. Udall, U.S. Supreme Court, about 1962. My point can be simply stated in another way: The Congress, in such statutes, has delegated discretion to one or more members of the Executive Branch to proceed under such authorizations (both substantive and appropriations) at such rate or schedule as appears to such Executive Branch member as most appropriate in the public interest. If the Congress had intended otherwise, it could have, or should have, written into the text of such laws some kind of mandatory directive. Failing to have done so, it ill behooves you and your colleagues, in my opinion, now to complain that the President or his colleagues in the Executive Branch have "contradicted orders from Congress." The reverse is true: the President and his colleagues have been precisely carrying out orders given them by the legislation emanating from the Congress: they have observed the mandate implied from the authorizing language to use their discretion, in the public interest, in adjusting the rate or schedule of progress. Or, in some rare instances, such as the Potomac aquarium case, operations have been entirely suspended under such delegated Congressional discretionary power. So I must sharply differ with Director Ash: There is a specific law that stipulates that the President and his colleagues may suspend or reduce the pace of Government operations in instances such as the Potomac aquarium case. The specific law is (1) the substantive authorizing statute; and (2) the appropriations statute. If you will but reach such statutes, you will have to admit that by their terms, as well as by traditional interpretation of such terms, they do not direct or command that any Government operation shall proceed at any specific rate or pace or by any certain deadline. They merely authorize that such operation proceed, but under delegated legislative discretion, resting for its foundation upon the Constitution powers of the Congress, to proceed at such rate or schedule, if at all, as the Executive Branch personnel consider, in their judgment, to serve the public interest. Please, for the sake of legal and factual accuracy, stop saying that the President "impounds funds." What happens, both in legal theory as well as actual practice, is that the Office of the President formulates rates of progress under various authorizational statutes that, taken together, in the judgment of the responsible officers, will best serve the public interest. Then so-called ceilings are placed on the rate of employment in the particular programs or projects, or on the rate of procurement of supplies or services therefor. (In rare cases, as in the Potomac aquarium case, work is entirely stopped or postponed.) Obviously, the reduced level of personnel hiring and work results in reduced obligations against the authorized level of appropriations. Hence, less money is spent from the Treasury. There are no "funds" lying around unused in the Treasury because of some Presidential directive. As you know as well as I, the Treasury Department funds (cash) only to the extent necessary to anticipate current obligations. There are no billions of dollars lying around "impounded" in the Treasury as the language that you and your colleagues employ would have the public believe. What has been impounded, if one must use that term, is the work which the Congress, under its Constitutional power, has authorized to be performed by the Executive Branch. by terms of the substantive and appropriations acts, not at any rate or schedule fixed by the statutory language, but rather at a rate or schedule deemed appropriate, in the public interest, by Executive Branch personnel in accordance with legislative discretion delegated in such acts to Executive Branch personnel. As I testified before your Subcommittee earlier, and as I wrote to the Washington Post, the proper remedy for the problem is not the one you propose, but rather to experiment with mandatory authorizing and appropriations language which specifies the rate or schedule of progress. Then, of course, the delegation of legislative discretion as to rate or schedule would be removed, and the applicable Executive Branch personnel (other than the Presidency itself) could be held judicially accountable. Of course, such a course of action would impose a much larger obligation on the Congress than is now generally exercised to pass judgment upon the rate or schedule by which authorized programs or projects are implemented in the Executive Branch or in the independent agencies. This, I recognize, is the end result desired by many of the sponsors of the pending legislation. But I believe the proper method, following my analysis of the law and facts, should not take the form of the legislation now pending. which I consider a misdirected "meat-axe" approach. Rather, the proper remedy would be to experiment with specific mandatory language in the individual substantive statutes (or amendments thereto in the case of statutes now in effect) under which the applicable Executive Branch personnel would be obligated to proceed at indicated rates or schedules of progress. And it would not, in my judgment, be adequate merely to specify such rates or schedules once when the bill is originally passed. The rates or schedules would have to be reviewed almost continuously by the Congress. Times change and conditions vary, even within a year, as we all know. Hence, the Congress would have to be ready at all times to amend such mandatory statutes so as to change the mandatory rates or schedules, or possibly postpone the work, if necessary in view of changed conditions. Obviously, if the statute is couched in expressed mandatory terms, it would be enforceable upon the applicable Executive Branch officer (other than the Presidency itself) by judicial action. As I have previously indicated, I feel than any large-scale development of the kind I have proposed could only be satisfactorily accomplished by means of a major reorganization of the committee structure of the Congress. Preferably the function of passing upon new authorizing legislation should be combined with the function of passing upon proposed appropriations authorizations. In other words, if authorizations for work are to be made mandatory as to rate or schedule, the applicable appropriation authority, in identical amount, statute. By the same token, amendments which are proposed as to rates or schedules of progress should be accompanied at the same time, in the same place, and in the same document, by amendments in the applicable appropriations authorization. To do otherwise would end with Director Ash, who has pointed to contrary actions in the past by the Congress such as authorizing Government operations (even though largely discretionary on the part of the Executive Branch) far in excess of the current ceiling on the National Debt. Please consider me as totally out of sympathy with testimony reportedly given to your Subcommittee by Senator Fulbright to the effect that so-called “impoundments" left the President free to decide which laws to carry out and which to ignore. The applicable substantive statutes, as I have pointed out above, and if Senator Fulbright will only read them, have delegated legislative discretion to the Executive Branch as to rates of progress; and they have inferred to a responsibility on that Branch, heretofore largely ignored by the Congress, to "impound” rates of progress, if we must use that term, under general supervision by the President under his "take care" Constitutional mandate. Yours truly, KARL S. LANDSTROM. ALBANY, N.Y., February 8, 1973. Hon. SAM J. ERVIN, Jr., Senate Judiciary Subcommittee on Separation of Powers, DEAR SENATOR ERVIN: Over the past twelve (12) years Congress and the Nation have witnessed a proliferation of presidential power. Beginning with the Vietnam war, continuing with Presidential impoundment of CongressionallyAppropriated funds and perhaps ending with the first budget of the second Nixon Administration, Congresses' Constitutional powers have been ignored, circumvented and eroded until we now find ourselves in a crisis situation. I shall not dwell on the various reasons that might explain this erosion of power, but strongly urge you to begin immediately to exert once again Congressional power in order to control and stop the "Presidential Establishment." The following are several steps which I urge you to take in establishing control: 1. Challenge impoundments of Congressionally-Appropriated Funds by supporting and voting for bills which will require the President to spend all the funds that are appropriated for urban problems including: (a) Federal Water Pollution Control Act, Fiscal Year 1973, where Congress voted $5 billion and $1.1 billion has been held back by Administration; Fiscal Year 1974 where $6 billion was voted by Congress and $3 billion has been held back by the Administration. (b) H.U.D. Water & Sewer Grants where $300 million of $500 million carryover funds appropriated by Congress for use in previous fiscal years has been held back by Administration. (c) H.U.D. Rehabilitation Loans, Fiscal Year 1973, $70 million of $120 million voted by Congress has been held back by the Administration. 2. Support and vote for a Comprehensive Child Development bill. New York State will be drastically reducing their day care services due to the steps taken by the Administration to place a ceiling on Federal spending. 3. For the present time, continue to support the categorical grant programs including Model Cities, the Neighborhood Youth Corps and the Community Action programs of the Office of Economic Opportunity. 4. Find a way to stop the dismantling of O.E.O. By redistributing its responsibilities to other Departments, all power that the disadvantaged ever had in our society will disappear. 5. Recapture whatever is left of the $5 billion "peace dividend" from the Defense Department. These funds should be channeled into antipoverty and manpower programs. 6. Draft, support and vote for a bill to outlaw the so called doctrine of "executive privilege" that Presidents have used to continue the war in Vietnam. It is essential and must be demanded that the President and any of his staff be held accountable not only through the ballot box but also through inquiries conducted by Congress. The above are just a few ways in which you can begin to re-assert Congressional authority and responsibility. I know you will act today to restore our Constitutionally guaranteed system of democracy through appropriate checks and balances applied by each branch of Government. Sincerely, Hon. SAM J. ERVIN, Jr., U.S. Senate, Washington, D.C. PAUL J. MITCHELL. FEBRUARY 12, 1973. DEAR SENATOR ERVIN: When I testified two weeks ago at the impoundment hearings, one subject of discussion was whether a bill such as S. 373, which gives the President the right to impound funds for 60 days, is preferable to a bill such as one submitted with my testimony, which would require the President to obtain Congressional approval before impounding any funds. During that discussion, it was my understanding that you indicated a preference for the alproach taken by S. 373 on the grounds, among others, that (1) the President might be more amenable to complying with the procedure specified by S. 373 than with that suggested by the proposed substitute; and (2) the President might be less likely to veto S. 373 than the substitute bill. Since our discussion, the President has made a public statement concerning impoundment which destroys any hope that he will not veto any anti-impoundment bill or that, if any such bill is passed over his veto, he will consider it binding. On January 31, 1973, the President stated during the course of a press conference that "[t]he constitutional right for the President of the United States to impound funds *** when the spending of money would mean either increasing prices or increasing taxes for all the people, *** is absolutely clear." Otviously, if the President is convinced that the Constitution empowers him to impound funds, then he will not sign any bill which impinges on the exercise of that power, and even if such a bill is approved in a Congressional override, it will not, in the President's view, be binding upon him. There is no longer any reason, therefore, for Congress to enact anti-impoundment legislation which goes only halfway toward prohibiting the unlawful withholding of funds. It is more clear than ever that the impoundment question will be settled in the Supreme Court, and it is thus more important than ever that any anti-impoundment legislation assert as strongly as possible the Congressional authority over federal spending policy and make more precise the limited diseretion provided in the Anti-Deficiency Act. I offered specific suggestions which seem to be in accord with the imperatives of the situation created by the President and his aides both in their outright determination to continue impounding wherever they want to seize legislative powers to achieve their ends and in their defiant assertion of a non-existent Constitutional power. It is hoped that these suggestions will be useful in your determination to restore the separation of powers between the two branches. Sincerely, RALPH NADER. Senator SAM J. ERVIN, NATIONAL ASSOCIATION OF STATE FORESTERS, Chairman, Separation of Powers Subcommittee, New Senate Office Building, Washington, D.C. DEAR SENATOR ERVIN: The January 10, 1973 action of the Forest Service in withdrawing $4,027,000 from Cooperative Forest Fire Control funds previously allotted to the States under provisions of Sec. 2 of the Clarke-McNary Act of 1924 is a breach of contract in our opinion. We would appreciate it very much if you would request the Attorney General of the United States to render an official opinion in this matter. In order that he may do so, copies of the following documents are being provided: 1. Memorandum of Agreement in which the State agrees to provide fire protection on private forest lands under a plan approved by the Secretary of Agriculture and the United States agrees to reimburse the State for the Federal share of funds expended. 2. Approved Financial Plan authorizing the State to proceed.1 3. Forest Service letter of January 10, 1973 withdrawing $4,027,000 of the $20.027,000 previously granted to States. This withdrawal of funds, coming as it does after more than one-half of the fiscal year has elapsed, is a severe blow to State fire protection forces. Many State legislatures are not in session, so the deficit can not be made up with State supplemental appropriations. Furthermore, a cut-back in protection crews makes the people laid off eligible for unemployment benefits which in turn must be paid from remaining project funds. And finally, this reduction comes just ahead of the Spring fire season which is critical in many States. Your assistance will be appreciated greatly. Sincerely, 1 Retained in committee files. KENNETH B. POMEROY, Washington Representative. U.S. DEPARTMENT OF AGRICULTURE AGREEMENT FOR FOREST FIRE COOPERATION (Under Sections 1-3, Act of June 7, 1924 (43 Stat., 653), as amended) This agreement, made under authority of Sections 1-3 of the Act of Congress, approved June 7, 1924 (43 Stat., 653), as amended, this 1st day of, July 1927, by and between the State of Indiana, by and through the Department of Conservation (hereinafter called the Department) of the first part, and the Secretary of Agriculture of the United States (hereinafter called the "Secretary”) of the second part, Witnesseth: Whereas, the said State has requested the cooperation of the Secretary in the protection from fire of timbered or forest producing lands, or watersheds from which water is secured for domestic use or irrigation; and Whereas, the Secretary has found that the system and practice of forest fire prevention and suppression provided by said State meets the requirements of said Act: Now, therefore, the said parties do mutually promise and agree with each other to maintain, in accordance with standards subsequently agreed upon, a cooperative fire protective system covering any or all private or state lands of the character above indicated within the State under the conditions hereinafter provided, to wit: Article I. The Department (the State Forester acting as its agent) agrees: 1. To supervise, and to be responsible for the proper functioning of, the cooperative fire protective system; 2. To provide protection as nearly as practicable of equal effectiveness for all classes of private and State lands of the character above indicated within the areas or regions to be given protection under the terms of the protective plan hereinafter provided for; 3. To make such inspection of the work done under this agreement as may be necessary to promote the effectiveness of said work, and to acknowledge the authority of the Secretary to make similar inspections; 4. To use every proper means to bring about the active cooperation of the owner with respect to all private lands afforded protection against fire under this agreement; 5. To make, either directly or through private and other agencies under State supervision, and to render a satisfactory accounting of, all original disbursements on account of maintaining the cooperative fire protection system, subject to reimbursement by the Federal Government, as hereinafter provided, for its share of the cost thereof. 6. To submit to the Forester of the U.S. Department of Agriculture (a) A protective plan, at such times as may be necessary, showing the location and area of private and State lands by the character above indicated which will be protected by the State, and by cooperating agencies within the State; and the character and extent of the protective measures which it is proposed to put into effect at the expense of these agencies; (b) A budget, annually not later than May 1 of each year, showing the estimated expenditures of all of the cooperating agencies (Federal, State, and private) within the State for all fire protection purposes throughout the Federal fiscal year beginning the first day of July following, and subsequently as may be necessary a statement showing any additional appropriations or sums made available for fire protection during the Federal fiscal year, or of any reduction in such sums, and of any revision of the budget thereby made necessary; (c) A voucher, at least quarterly, claiming reimbursement from the Federal Government as hereinafter provided; and (d) A report, annually not later than February 15, covering fire statistics, expenditures, and other information, as requested by the Forester, for the preceding calendar year. Article II. The Secretary agrees: 1. To make an allotment of funds for the purpose of reimbursing the State for the Federal share of the cost of maintaining the cooperative fire protection system during any Federal fiscal year; and 2. To reimburse the State for the Federal share of said cost on the basis of the percentage which the Federal allotment bears to the combined total of the approved State and private budget and Federal allotment: Provided, the amount |