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The President told his press conference Wednesday : "I will not spend money if the Congress overspends, and I will not be for programs that will raise the taxes and put a bigger burden on the already overburdened American taxpayer."

LIST BEING PREPARED

Even while this battle went on, the Office of Management and Budget (OMBI was preparing a list of funds voted by Congress and impounded (not spent) by the executive branch. That list, by a law passed last year, must go to Congress by Feb. 10.

OMB officials Wednesday insisted they still did not know how much money is involved. But a House appropriations subcommittee headed by Rep. Joe L. Evins, D-Tenn., has pegged the total of these impounded funds at $12 billion for fiscal 1973, which ends June 30.

According to Evins, $6 billion of the impounded funds come from the 1972 Water Pollution Control Act, passed over a Nixon veto. Congress gave the Environmental Protection Agency $11 billion to spend, but the President ordered the agency to spend only $5 billion.

Evins also listed these impounded funds:

$1.26 billion in farm programs, including the Rural Electrification Administration and Rural Housing Insurance Fund.

$523 million in housing and urban development,

$243 million for Commerce Department programs, including water, sewer and industrial expansion grants.

$112 million in Veterans Administration funds, including $60 million for hospital construction.

The battle of the purse has been waged before, but never with today's intensity. One reason is political.

Nixon is a Republican and wants to withhold funds from programs approved by Congresses dominated by Democrats. But the intensity of the battle also is linked to the number of domestic programs Nixon is curtailing. Those programs encompass the fields of agriculture, education, welfare, aid to depressed areas, school milk programs and transportation.

CONTROLLABLE FUNDS

Nixon officials say that only $40 billion of the President's proposed $250 billion fiscal 1973 budget represents "controllable" funds—those over which the executive branch has control. Thus, if the fiscal 1973 impoundment does total $12 billion, Nixon is balking at spending 30 per cent of the controllable budget.

It is true, as the White House frequently reminds, that previous presidents refused to spend money Congress voted. But in general, those refusals were limited and centered on defense and transportation programs. Those refusals centered not so much on presidential decisions to eliminate programs as on delaying expenditures.

In addition to slowing down spending for certain domestic programs, Nixon has made clear he intends to eliminate programs voted by Congress simply by not spending any money of them ever.

Sen. Sam J. Ervin, Jr., D-N.C., Congress leader in the battle of the purse, generally defines impounded funds as any withholding by the executive branch of funds appropriated by Congress, except for the most routine actions.

(From the National Observer (New York). Feb. 17, 1973]

A TWIST ON THE PURSE STRING BATTLE
THIS TIME CONGRESS IS VOTING THE CASH, BUT THE PRESIDENT REFUSES

TO SPEND IT

(By Richard Egan) President Nixon is seeking to "run the Government by fiat," complained one congressman. Congress is attempting to “transform the Chief Executive into a chief clerk," asserted an Administration official.

Congress and the White House were feuding again last week. The immediate issue was impoundment: whether the President has authority to refuse to spend

funds appropriated by Congress. But in a broader sense Congress and the White House were embroiled in another of their oft-occurring Constiutional clashes over division of powers between the legislative and executive branches. This time the squabbling was over control of the nation's purse strings and the right to determine which programs the American taxpayer's dollar is spent on.

BUDGETARY RESERVES

A report last week by the White House's Office of Management and Budget (OMB) showed that the President is witholding $8,723,000,000 appropriated by Congress. OMB officials said some of these “budgetary reserves" likely would be spent later; the OMB report on impoundment was ordered by Congress last year.

Few Government agencies, not even the White House, escaped the impounders' lock and key. And, though the President held back funds for some pet projets of congressmen and special-interest groups, he also set aside funds that many congressmen, despite their opposition to impoundment, might agree should not be spent.

Money was withheld from every Cabinet department except Labor. Funds were also withheld from 20 Government agencies, boards, and commissions, from the multibillion-dollar National Aeronautics and Space Administration ($32.5 million impounded) to the little-known Federal Metal and Nonmetallic Safety Board of Review ($85.000). The Transportation Department was hardest hit, with $2.9 billion withheld, including the biggest single appropriations item affected—$2.5 billion for highway construction.

FOOD STAMPS AFFECTED

In all, 228 appropriation items were withheld in full or in part by the President, affecting many special-interest groups. Samples: development of minority business ($18 million), food stamps $158.9 million), higher education ($11.9 million), traffic and highway safety ($2.9 million), and urban mass transportation ($20 million).

Impoundment of funds for agricultural and housing programs particularly angered several congressmen. The House struck back last week by passing a bill ordering the Agriculture Department to spend $225 million on a rural-conservation program. President Nixon had scrapped the program last year by impounding its full $210 million appropriation.

In withholding some funds the President might gain the approval of congressmen critical of escalating Federal budgets. Nearly $90 million in Federal salaries and expenses was impounded. So was $2 billion in appropriations for the Defense Department, a perennial budget target of some congressmen. But most of the Pentagon funds are for shipbuilding and construction, and may be released later.

BELITTLING POSITION The impoundment issue has been heating up since ('ongress convened in January. Congress went on the attack when Sen. Sam J. Ervin, Jr., North Carolina Democrat, introduced a bill requiring the President to notify Congress whenever he impounds funds and forcing him to spend those funds unless Congress endorses the impoundment within 60 days. Impoundment, complains Ervin, "places Congress in the paradoxical and belittling position of having to lobby the executive to carry out laws [Congress] has passed."

White House officials argue that impoundment is necessary for sound fiscal management of the nation's economy. They say that since Congress sets no ceiling on its appropriations, it approves funds with little regard to their over-all effect on the economy. If the President had failed to withhold appropriations surpassing his $250 billion spending ceiling, higher taxes would have been needed to ward off a new surge of inflation, the officials say.

The impoundment issue also cropped up last week at several hearings of congressional committees, with congressmen threatening to withhold funds for OMB, to cut the defense budget, or to delay confirmation of key Presidential appointees unless the impounded funds were released. Partly out of pique over the impoundment issue, the Senate voted to require confirmation of OMB's two top officials, Director Roy L. Ash and Deputy Director Frederic V. Malek, both of whom already have been sworn in. Nixon, in turn, threatened to wield a “very substantial number" of vetoes of legislation this year.

JEFFERSONIAN PRECEDENT

At hearings on Ervin's bill, Ash and Deputy Attorney General Joseph T. Sneed conceded that the President had no "explicito Constitutional authority for impounding funds, but that the authority stemmed from precedent and legislation, and also implicitly from his Constitutional duties. They said many Presidents have impounded funds, starting with Thomas Jefffferson, who in 1803 kept back $50,000 appropriated for gunboats to protect navigation along the Mississippi from Indians: Jefferson said the funds were unneeded because a treaty was signed with the Indians after the money was appropriated.

Administration officials also cited the Antideficiency Act of 1905, which gare the President authority to create reserves to "provide for contingencies," and to "effect savings" made possible through changes in requirements, greater efficiency in operation, or other developments arising after appropriations were approved. For example, though Congress appropriated $20 million for a prototype desalting plant for Israel, the money cannot be spent because U.S.-Israeli negotiations on the plant are still under way.

But impoundments based on developments arising after Congress has appropriated funds, such as Jefferson's gunboats, are not what really bothers congressmen. Their objection is to the President's impoundment for reasons of economic stability, which they see as a pretext that enables the President to sift through congressionally approved programs and decide those he wants and those he doesn't. Of the $8.7 billion impounded, $6.2 billion was withheld at least in part for reasons of economic stability. According to the OMB report, the $2.5 billion in highway funds and some other items were set aside because of the "President's responsibility to help maintain economic stability without undue price and cost increases."

At the hearing on the Ervin bill, Sneed said the President derives impoundment authority from the Constitution's provision that the President "take care that the laws are faithfully executed." He argued that this provision requires the President to uphold all laws, and that when conflicts between laws arise the President may impound funds to resolve them.

THE OMB IMPOUNDMENT REPORT

Sneed held that if all congressional appropriations had been spent the congressionally established ceiling on the national debt would have been punctured, and Nixon through executing the laws would have violated the debt-limit statute. The OMB impoundment report cited two other Constitutional grounds for impoundment: the President's authority as Commander in Chief and his responsibility for the conduct of foreign affairs. No funds were impounded on these grounds, however,

Ervin and other congressmen insist that the Constitution allows the President to veto only an entire bill, not just a section of it. He argues that by deciding which appropriations will be withheld, the President in effect is making legislative policy, a Constitutional prerogative of Congress alone. Impoundment, says Ervin, is "merely a means whereby the White House can give effect to the social goals of its own choosing by reallocating national resources in contravention of congressional dictates."

(From the Evening Star and Daily News, Washington, D.C., Jan. 30, 1973]

MR. CONSTITUTION : It's ALL UP TO HIM

(By Shirley Elder) Samuel James Ervin, Jr., lawyer, judge, defender of the Constitution, took office as the junior senator from North Carolina on June 6, 1954.

Almost immediately he was in the middle of things—such issues as school desegregation and Sen. Joseph McCarthy's hunt for Communists.

Today Ervin again is in the middle of controversy, all coming at once. Acting as chairman of the Government Operations Committee, or one of two Judiciary subcommittees, or as chairman of a new special investigating unit, Ervin will lead some of the most important legislative battles of the new Congress.

His committees will be the focus of Congress' action on impoundment of appropriated funds, the protection of newsmen's sources and the investigation of the political implications of the Watergate incident.

In 1954, the controversies didn't seem to pile up so. Weeks before Ervin took office, the Supreme Court had jolted the South and ruled that separate-butequal public schools were not equal enough for black kids. Ervin, born in the South, quarreled with that ruling and helped draft the Southern Manifesto in protest.

And later that year, the new senator would figure prominently in McCarthy's fall, as one of those who solemnly contemplated the facts and recommended censure.

The world has changed since 1954 but not Sam Ervin. He looks to the future in terms of the past with unabashed reverence for the United States Constitution as written, opposing expansion of those words either to the left or to the right.

He criticized the Supreme Court for expanding the Constitution in 1954 to out law segregated schools; he criticizes the Supreme Court today for narrowing the Constitution to force a newsman to testify before a grand jury.

Starting Feb. 20, Ervin will conduct hearings on a basketfull of proposals designed to protect newsmen from court actions forcing them to reveal confidential information. He says legislation should not be necessary but the courts “missed the boat."

"I've always said all judges should possess wisdom as well as knowledge," Ervin said in a recent interview. “And I think if I'd been a judge out in California, I'd've exercised a little wisdom and tried not to compel that newsman (in one of the first test cases) to reveal his sources."

That lack of wisdom, Ervin said, carried on up to the Supreme Court which rejected the newsmen's plea for special protection in a 5-4 decision. "Five of them muffed a golden opportunity to do something constructive in this field." Ervin said, "and they just flatly held the First Amendment didn't give a newsgathering any privilege at all."

Ervin said that in his own opinion, each case should be decided on its merits. There are some situations where a newsman should be compelled to testify but there are others when he should not. The courts must balance the two interests of society--to know what is going on through a free press and to prosecute crimes in which newsmen may have knowledge.

Before he begins the news source hearings, Ervin hopes to be well started on his bill to give Congress a veto over impoundments-President Nixon's practice of refusing to spend money appropriated by Congress.

Then, as soon as a federal court trial is completed, Ervin then will take on the politically touchy issue of the bugging of the Democratic Party headquarters at the Watergate--and related tales of political espionage from the 1972 presidential campaign. He says it will be a thorough investigation and no witnesses will be allowed to duck behind a wall of "executive privilege."

"I think the Watergate is a very serious affair," Ervin said. "There are serious charges made about the spying on presidential candidates. There are serious charges made about attempts to disrupt political meetings. There are serious charges made about the misuse of campaign funds. And I think all of these things ought to be investigated.

"If people are not guilty about some of the insinuations, they ought to be exonerated. And if they're not guilty, they ought to insist on their own exoneration."

Ervin said he is particularly concerned about the so-called "Canuck incident" in which Sen. Edmund S. Muskie, D-Maine, then campaigning for the Democratic presidential nomination, was accused of prejudice against French Canadians (by calling them "Canucks") in a letter to the Manchester (N.H.) Union Leader. The author of the letter, never located, was said to be a White House aide.

Ervin said the plea of executive privilege, often claimed as a general immunity from Congressional scrutiny for all White House staff, will not be accepted in the Watergate investigation.

Executive privilege is another area of Ervin concern and he enthusiastically backed a Senate Democratic Caucus resolution that would limit its use and provide for Senate review whenever a witness claims such immunity to avoid testifying.

There is a legitimate area of executive privilege, he said, but it is not an absolute right. It can be inferred from the constitutional grant of executive power to the President that there must be some confidential matters between President and staff, Ervin explains, just as investigative authority is seen as a necessary tool in Congress' power to legislate.

90-538—73 67

Ervin approaches his collection of assignments this year without hesitation: "My wife says if I see a controversy from far off, I come running right up and jump into the middle of it,” he said.

But, when it comes to the Constitution, and all these matters touch in some way on the Constitution-rights and powers—Ervin is ready. He is, as one aide said, a scholar as much as a politician. He reads constitutional law cases for recreation.

At 76, Ervin's hair is grayer than when he arrived in Washington. His tall frame is a bit stooped but his words tumble out in a mix of cornpone and wisdom that has become familiar over the years on Capitol Hill.

His trademark is the folksy anecdote that makes a point: “Way back younder when I used to practice law ..." or "We had a very fine poet in North Carolina some years ago ..." or "That reminds me of a story ..."

Sometimes the stories go on and on, punctuated by eyebrows that shoot up and down giving Ervin a slightly astonished look. But he obviously enjoys the stories and wants everyone else to. Often, as he speaks on the Senate floor, he will glance up to the press gallery to make certain the newsmen are getting the point.

But the great flow of words dries up when Ervin is asked about his personal life. He lives across the street from the Capitol in the Methodist Building with his wife of nearly 50 years. He is a private person. At home in Morganton, X.C., he likes to fish. In Washington, he reads.

[From the Evening Star and Daily News, Washington, D.C., Feb. 7, 1973]

IMPOUNDMENTS UNCONSTITUTIONAL, REHNQUIST TOLD NIXON

(By Shirley Elder) Supreme Court Justice William H. Rehnquist once advised President Nixon that the President had no constitutional authority to impound money appropriated by Congress but his advice was spurned as "erroneous" and a new ruling obtained from the Justice Department, according to Deputy Attorney General Joseph T. Sneed.

Sneed told a Senate committee yesterday that Rehnquist, who was then an assistant attorney general, had spoken informally as an adviser to the President, not as an official Justice Department spokesman.

In a memo dated Dec. 1, 1969, Rehnquist wrote:

“With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent."

DELICATE ADJUSTMENT “We think,” said Sneed, "it (that view) was erroneous ... We think Rehnquist took much too narrow a view of the President's authority to enforcé all the laws."

The current Justice Department position, presented by Sneed yesterday to the committee studying a law to end impoundments, is that the President does hare the power to withhold funds; that he must have that power, in fact, to intelligently balance the fiscal needs of the country,

Sneed said the executive is the only branch of government equipped to make the "delicate adjustments" involved in policy judgaments based on changing national needs and their effect on the economy.

Such questions should not be submitted to the Supreme Court, he said : "Judges do not make economic policy under our system. Nor are they technically competent to review such economic decisions."

POWER OF DIVINE RIGHT

Such questions should not be left to Congress, he added, because of its "chronic tendency" to respond to conflicting special interests: "The harsh reality is that time and time again Congress has passed swollen appropriation acts and failed to levy the taxes necessary to avoid inflation."

Sneed added fuel to the growing anger on Capitol Hill over Nixon's decisions to hold back billions of dollars in programs enacted by Congress.

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