I wonder if we passed the legislation that you are asking, or Congressman Mahon is asking, or Congressman Anderson is asking that we pass-whether we can change the authorization legislation setting up these programs. I have in mind again the REAP program. We can't change that legislation. The legislation itself does not mandate the President of the United States to spend all of those funds. The legislation that we passed here in the House was changing the authorization, and the original language was "shall have the power to" spend these funds.

The chairman of the Agricultural Committee, Mr. Poage, knew this, so he asked the Congress to provide mandatory language to change it to "shall." So we will have to go back and change all of this authorizing legislation we have had to date in this House to make your legislation work, if we passed it. So there is more than just the impounding legislation that is being proposed.

Mr. PICKLE. May I briefly say that I am talking about impound

ment

The CHAIRMAN. My good friend from Ohio has always been accusing me of making speeches and not asking questions. Now I am going to return the mantle to him. He has the championship.

Mr. Matsunaga.

Mr. MATSUNAGA. Thank you very much, Mr. Chairman.

As a cosponsor of the Pickle-Eternal Pine bill, and I say "Eternal Pine" because Matsunaga means "Eternal Pine," I wish to commend the gentleman from Texas for a very well presented statement.

There is this difference, I believe, between your bill and the Mahon bill. Mr. Mahon, in testifying before this committee yesterday, said that he is not in any way raising the question of the President's constitutional authority to impound. He, in that respect, is following more or less the precedent of the Executive Reorganization Act where the President may act and then the Congress disapprove. On the other hand, your bill raises the constitutional question as to whether the President has this authority to impound or not, does it not?

Mr. PICKLE. I think Mr. Mahon's approach, if I understand it, is that he would make it primarily a procedural matter, if I read this statement that he made on the subject again yesterday correctly. I think he said his is procedural more than constitutional.

I really think mine is a more direct constitutional evaluation. I think it does become such a question. You may argue whether we really change the Constitution, but I think it is a constitutional matter that we must establish.

Mr. MATSUNAGA. So you are in fact raising the question of his constitutional authority to impound?

Mr. PICKLE. Yes, sir.

Mr. MATSUNAGA. That, of course, raises the second question: If you are raising that question, shouldn't that question be decided in the courts rather than by legislation?

Mr. PICKLE. I envision probably this question may end up in the courts. If we were to pass a bill not giving the President authority, then if the Congress didn't challenge the President, somebody probably would raise the question. The question would go to court and would eventually be decided there. Who knows?

Mr. MATSUNAGA. If the issue goes to court, it may mean a matter of 2 or 3 years, and we face the urgency of having to do something even for fiscal 1974.

I have another question: Would you be amenable to an amendment which would permit either of the two houses to veto Presidential action? I ask this in view of the fact that we are dealing not with a matter that the Congress has not dealt with before, and the President has not dealt with before, but a matter which the Congress passed and the President signed into law when we speak of impoundment. We are in fact dealing with a law already on the books, and an alleged noncompliance with the law. We are setting up a procedure whereby the Congress may veto the President's action, are we not?

I would think that the Mahon approach in this respect is like that found in the Executive Reorganization Act, there, whenever the President makes a proposal for reorganization strictly within the Executive, the Congress still retains the right, by action of either one of the two bodies, to veto such proposal.

Don't you feel that this may be a better approach than that which you propose?

Mr. PICKLE. This is what I propose, Mr. Matsunaga. By requiring both houses to act one could veto an impoundment. By not acting, one house is actually vetoing an impoundment. I prefer that both would have to act before an impoundment was ratified.

I think you make a good point and we have to make our choice. I think it is better for both to act.

The CHAIRMAN. Mr. Clawson.

Mr. CLAWSON. Thank you, Mr. Chairman.

Using the Chairman's pun, Mr. Pickle, it seems to me if we go ahead and adopt what you propose we might be in the position of Peter Piper who picked a peck of pickled peppers before we are all through with it.

You have placed in my opinion a very close parallel between President Nixon and the first man, Adam. I want to give you the reason why I think that.

Mr. PICKLE. The first what?

Mr. CLAWSON. The first man on Earth, Adam, according to the Biblical account. There may have been others but I am using that because of your strong religious convictions.

Last year both houses actually passed bills, although never signed into law, that fixed a $250 billion spending ceiling for the President. You have said that the President is nullifying law and actually violating law when he fails to go ahead with the appropriations bills, according to your statement. We had passed appropriation bills of $261 billion. So the President had to make a choice, apparently, about which law he would observe, whether he would observe the spending limitation or whether he would observe the appropriation bills. He had to make a choice between which laws.

The similarity is this between the President and our good friend Adam. Adam was told not to eat the forbidden fruit, but he was also told to multiply and replenish the Earth. When Eve ate the forbidden fruit and was cast out of the garden, Adam, of course, had to go ahead and make a choice between the two laws. He decided on the one

that you and I choose, too, and that was to eat the fruit and go along with Eve. This is what we did. I think we are having the President face the same situation. He has to determine which law to observe, and which he would violate. One or the other must be broken in this instance.

I have no questions.

Mr. PICKLE. Then I don't want to comment on Adam either, Mr. Clawson, except to say to you that the $250 billion ceiling was never the law.

Mr. CLAWSON. I said that. But it very well could have been the law and would have been the law if the technicalities had been overcome. It passed both Houses.

The CHAIRMAN. Mr. Murphy?

Mr. MURPHY. Mr. Pickle, you remember when you sat down this far on the committee, don't you?

Mr. PICKLE. Yes.

Mr. MURPHY. I enjoyed your comments today, Congressman Pickle, and I think they are very pertinent to today's problem.

What I really think we are doing is just touching the top of the iceberg. I think what you and Congressman Mahon and others are proposing is that Congress exercise what we consider our right. Of course, with every right there is a corresponding responsibility, and I go along with Congressman Anderson from Illinois in stating that in conjunction with exercising our right when we pass laws and fund those laws, there is a corresponding responsibility to watch our spending so that we will not have to be concerned with Mr. Quillen and Mr. Latta proposing a tax increase.

I think what we are coming down to is what our good friend from Missouri, Congressman Bolling, is attempting to do with his select committee here in Congress and that is to look at the overall function of Congress.

When we pass these laws and we fund these worthwhile programs, what are we doing to see that they are working? The Congress never follows through on anything. Take the crime legislation that we passed, LEAA funds. The purpose was fine. We funded it. We patted ourselves on the back and let the bill go out with proper funds but we never followed up on it. When we did take a look, we found that a lot of the funds were being wasted. What is causing this confrontation is that we in the Congress passed legislation concerning people, their wants and needs. That is the reason, I think, that this is coming to a head today. What we are really talking about is not highly legislation, concrete and steel, we are talking about people's needs the Headstart program, medicare and other things that directly concern people.

As I mentioned before, our good friend from Missouri has undertaken this gargantuan task of looking at the Congress to find out. what we are doing. I think we finally have come to grips with ourselves and realized that we don't have all this money to spend anymore. In exerting our right to have our legislation and our funding pass and get to the people, we also have a corresponding responsibility to limit what we pass here in the House.

I am glad to see you are in agreement with that, as I take it from your remarks today.

Mr. PICKLE. Yes, I am.

Mr. MURPHY. I have no questions, Mr. Chairman. Thank you.

The CHAIRMAN. Mr. Long?

Mr. LONG. Mr. Pickle, I too, would like to congratulate you on your statement, particularly the historical analysis of the precedents. I have been hearing and reading so much about Jefferson and the gunboats that I think perhaps like everybody else, I came to the conclusion that this was a precedent we could rely on. You analyze it, and I think correctly so, that it really is not a precedent for the action the President has taken here at all.

Second, it seems to me if it were a precedent for any impoundment at all, the particular circumstances of that situation were covered by the Anti-Deficiency Act. It might have been a factual situation that brought about the necessity of something comparable to the AntiDeficiency Act, but certainly that would remove it as any precedent for the situation that we have here. Would you agree with that?

Mr. PICKLE. Yes. I hope that was the import of my statement. That is a misquoted precedent in the first place. I think the record ought to be made clear on it.

Mr. LONG. One other point is that many of the people who have been advocating this have been sort of taken over the coals by the minority for not having advocated it before, which disturbs me. As you say, the issue has now come to the forefront. I completely agree with what our gentleman from Illinois, Mr. Murphy, has said here in that it is now a matter that is dealing with the rights of people and the things that are getting impounded. That is the reason the issue has finally come to the forefront. It was very difficult for the Congress, under the Democratic administration of President Johnson, to get concerned because of a cutback in ships, but here we have programs dealing with people. This is, in my opinion, what has brought the issue to the forefront.

I think it will continue to stay in the forefront. I think really there are the abuses of the program, also. It is not just a question of impoundment, as I see it. I would appreciate your view on this. We have had impoundment and all have gone along with impoundment in the past as a part of a technique of management which appeared to us to be a good technique and a desired technique, as evidenced by the passing of the Anti-Deficiency Act.

Now, has the President not gone that one step beyond and quit using it as an effective step of management but to impose his own will as to the priorities by which this Nation's resources ought to be applied to the problems in this Nation?

Mr. PICKLE. I couldn't agree with you more. In the past, usually, impoundments or withholding of funds have been related in many respects to military or national defense matters. Now as we have become a more complex and growing nation, we are getting into the problem where we are faced with shortages of funds and these are cutbacks or impoundments of programs that actually affect people. I think what is passed and what we do is the prerogative of the Congress. We should not give the power to one man to set the policy. We ought to set the priorities and not the President.

Mr. MURPHY. Thank you very much.

The CHAIRMAN. We had planned to have Congressman Rhodes testify this morning, but he states that he would rather start this afternoon at 2 o'clock.

It is lunch time right now. If it is all right with the committee, we can recess until 2 o'clock. Mr. Rhodes will start at 2 o'clock.

We will reconvene at 2 o'clock, after lunch.

[Whereupon, at 11:15 a.m., the subcommittee recessed, to reconvene at 2 p.m., the same day.]

AFTER RECESS

[The committee reconvened at 2 p.m., Hon. Ray J. Madden, chairman of the committee, presiding.]

The CHAIRMAN. The committee will come to order.

Congressman Rhodes will be the next witness. Mr. Rhodes, would you please proceed?

STATEMENT OF HON. JOHN J. RHODES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA

Mr. RHODES. Mr. Chairman, it is an honor to appear before this distinguished committee today to testify regarding the general subject of impoundment and H.R. 5193, which you have before you.

Yesterday, my distinguished colleague from Michigan, the ranking minority member on the House Appropriations Committee, described the chaotic state of the Federal budget. I support his fine and factual statement. The budget crisis was created by Congress, and Congress must end it. Until we act to do so, it ill-behooves us to criticize Executive impoundments.

Today I want to take issue with the reasoning upon which H.R. 5193 is based, and in so doing call attention to the issue we all should be addressing.

In his remarks upon the introduction of H.R. 5193 the gentleman from Texas, the distinguished Chairman of the House Appropriations Committee, for whom I have the greatest respect and personal affection, stated that this legislation was designed to deal with the problem which arises when the Executive "frustrates the intent of Congress through impoundment actions." The distinguished chairman also worried about the Executive substituting "his judgment for the judg ment of Congress." I submit to you, if there is any frustration felt in our budgetary crisis, it is felt by those who try to figure out exactly what the "intent of Congress" is. I might also add that the Executive cannot substitute his judgment for judgments which are never made. For instance, we never make a rational decision as to whether the operations of the Government are to be deflationary or inflationary. No rational congressional decision is ever made whether to propose higher taxes or let the Government operate at a deficit. Nor does Congress ever make a rational decision as to whether its fiscal activities strengthen or weaken the dollar in international money markets, and in its acceptability at home.

Mr. Chairman, members of this committee, these are decisions which must be made. Since the Congress does not make them-the President