Muskie contended before Ervin's committee that the President was not saving money in his budget requests but merely shifting it around. He said Congress would have to use whatever weapons it had at hand to combat the President, and that these might even include impeachment, which he described as "a crude kind of blunt instrument."

The question of what the administration may or may not do was pointed up in 1921 by Charles G. Dawes, the first director of the White House Budget Bureau, forerunner of the present sprawling OMB.

"Much as we love the President," Dawes said at the time, "if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty as a bureau-in an impartial nonpolitical and nonpartisan way-to advise the executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner."

What the Ervin hearings will lead to, no one knows at this point. It is likely that some form of anti-impoundment legislation will get through the Senate, but Rep. Carl Albert of Oklahoma, the House speaker, says he believes that law and precedent are on the President's side in impounding money.

Even if some bill challenging the President is passed, it may well be vetoed, and it is questionable whether the necessary two-thirds majority in both houses can be mustered to override.

Should the issue come to a court test-a second possibility-it is dubious whether the present Supreme Court would hear it. Similar cases have in the past been turned aside as being political in nature, not constitutional.

Other witnesses before Ervin's panel, including Senators Charles H. Percy (R-Ill.), Hubert H. Humphrey (D-Minn.) and William E. Brock III (R-Tenn.), have suggested that one effective way for Congress to get back its traditional powers is to redesign its own budgetary machinery.

In this way, Congress can set a ceiling on federal spending (which Mr. Nixon insists on), beef up its staff and bring some order out of the chaos that is the present system. But this, too, may be quixotic.

The betting is that Mr. Nixon and his White House aides will recognize that Congress is more concerned and angry than ever before in recent history. And out of this recognition may come the corollary that if the President wants to get his own programs through Congress, he had better start improving relations with Capitol Hill.

Perhaps the battle lines are too firmly drawn for that already, but Washington is the capital of the Kingdom of Compromise, and compromise requires two participants.

[From the New York Times, Feb. 4, 1973]

ERVIN ASSUMING LEADERSHIP IN EFFORT TO REASSERT THE AUTHORITY OF CONGRESS

(By James M. Naughton)

WASHINGTON, Feb. 3-Sam J. Ervin Jr. has a jowly, lined face resembling the Appalachian foothills. He frequently slaps his thigh and chortles as he tells courthouse anecdotes, and at the age of 76, he would seem to be about as rebellious in nature as a retired country preacher.

But Mr. Ervin is the senior Senator from North Carolina, his bible is the United States Constitution-in its original form-and if the Congress does more this year than just talk about reasserting its authority, it will be largely because of Mr. Ervin.

"He is the man to watch this year," Senator Mike Mansfield, the majority leader, said the other day. "He'll have his hands full."

The Senate Judiciary Subcommittee on Separation of Powers, headed by Mr. Ervin, conducted hearings this week and will again next week on his proposal to require the President to spend money the way Congress appropriates it.

Another Judiciary subcommittee headed by Mr. Ervin will take up later this month an examination of Government efforts to force newsmen to reveal their sources of information. Mr. Ervin will also be chairman of a full-scale Senate investigation of charges that the Committee for the Re-election of the President conducted political espionage and sabotage last year.

WHITE HOUSE CONCERNED

In his spare moments, Senator Ervin will push for limits on the Nixon Administration's use of "executive privilege," to withhold testimony from Congressional committees, on the power of the White House to enter into "executive agreements" with other governments and on the President's use of the "pocket veto" to kill measures enacted by Congress.

"We're going to have trouble," one White House official said.

The reason for the official's concern is twofold: After years of acquiescence in the absorption of power at the White House, Congress is suddenly awash with rhetoric about a resulting "constitutional crisis"; and, after 18 years in the Senate, Mr. Ervin has acquired a reputation as its foremost consultant on the Constitution.

"I have been fighting for years to try to enforce the doctrine of separation of powers," the Senator said as he sat recently in his bookstrewn office.

Until now, Mr. Ervin said, Congress has seemed reluctant to do much more than "engage in a certain amount of intellectual bellyaching" about such matters as a President's refusal to spend money as Congress directs.

Thus, as he waggled his handlebar eyebrows and brushed ineffectually at stalks of chalk-toned hair that danced back across his forehead, he appeared to take an impish delight in the fact that what he views as excessive secrecy or arrogance in the Nixon White House has gained new allies for his cause. Mr. Ervin has 50 co-sponsors for a bill to require the President to release impounded appropriations unless Congress consents, within 60 days, to a request to withhold the money. Seventeen senior Democratic Senators joined him in filing a legal brief in support of a Missouri court test of the Administration's refusal to spend highway trust funds. The Senate Democratic Caucus voted unanimously to ask Mr. Ervin to lead the Watergate investigation.

At first glance, Mr. Ervin's Senate career seems full of contradictions and unlikely to make him the central figure in a campaign to raise Congress to a par with the executive and judiciary.

He filibustered against civil rights bills, but often initiated civil liberties legislation. He tried to defeat Federal housing programs, but challenged the President's refusal to spend the housing money. He backed the war in Vietnam, but fought Army surveillance of antiwar protesters. He came from the Bible Belt town of Morganton, N.C., but defended the Supreme Court ruling against prayer in public schools.

If there is a consistency in Mr. Ervin's record, it is that he views every bill he votes on in terms of his interpretation of the Constitution.

"I think," he said, "that apart from the faithful observance of the Constitution by the President, the Congress and the courts, our country has no protection against tyranny."

He recalls having gone through Harvard Law School backwards-third year first, then the second year and finally the first years classes-and would just as soon have the Supreme Court track back to the Constitution in its original form. "Sometimes I think the Supreme Court's reversed everything I ever knew on the subject and left me in a state of total ignorance." Mr. Ervin said-with the same laugh he uses to embellish his cracker-barrel stories.

Amid quotations from Thomas Jefferson or James Madison, he is just as likely to cite Lum Garrison, the town philosopher of Morganton half a century ago: "The first time I ran for the Legislature, Lum told me, 'Pass no more laws and repeal half of those we got.'"

Mr. Ervin's homespun gentility may be his biggest asset. He does not raise his voice in committee hearings. He does not hammer on his desk as some colleagues do to underline their seriousness. Instead, Senator Ervin smiles.

When he smiled last Thursday and said that he was "considering" issuing subpoenas for two Cabinet members who were reluctant to testify before one of his subcommittees, a White House official sped to Mr. Ervin's office and promised that the Cabinet officers would appear.

The Senator smiled as he listened to Roy L. Ash, the new director of the White House Office of Management and Budget, testifying that the President had the right to withhold appropriated funds. Mr. Ervin made his point by instructing an aide to give Mr. Ash a blue, paperbound copy of the United States Constitution.

[From the New York Times, Feb. 7, 1973]

WIDE SPENDING REFORMS URGED IN CONGRESS STUDY-OFFICIAL UPHOLDS NIXON

(By James M. Naughton)

WASHINGTON, Feb. 6-The new Deputy Attorney General, Joseph T. Sneed, told members of Congress today that President Nixon had an implied constitutional right to refuse to spend money as Congress directed.

But members of the Senate Judiciary Subcommittee on separation of Powers countered that the Nixon Administration was trying to rewrite the United States Constitution and that Mr. Sneed's attitude was reminiscent of the President Ferdinand E. Marcos when he recently abolished the Philippine National Assembly.

One Senator went so far as to tell Mr. Sneed that in explaining the President's cutbacks in domestic programs, "you put up the best possible defense you could for a guilty client."

VETOES FORECAST

The committee debate over a Senate proposal to require the President to spend congressionally appropriated money was by turns contentious, scholarly, humorous and esoteric. It represented the high point thus far of an angry clash between Congress and the President over conflicting views on national spending priorities.

Republican Congressional leaders declared after a meeting with Mr. Nixon this morning that the President was determined to hold down Federal spending and would veto a "very substantial" number of appropriation measures if they conflicted with the White House goal.

The House of Representatives scheduled floor action tomorrow, nonetheless, on a proposal that would require Mr. Nixon to release $225-million in rural conservation funds that the White House has withheld from the current budget. Mr. Sneed, who was sworn in last week as the number two official of the Justice Department, said that a proposal to force Mr. Nixon to seek Congressional approval each time he wanted to impound appropriated funds was probably unconstitutional and would reduce the President to the status of a "chief clerk." The Deputy Attorney General, presenting the first detailed rationale for the President's refusal to spend more than $8-billion appropriated by Congress, said in prepared testimony that the President was sworn to uphold "all" the laws. Thus, he contended, if appropriations bill appeared to conflict with Congressional mandates limiting the national debt, curtailing inflation or seeking full employment, the President was empowered to impound appropriations.

ABOLITION RIGHT UPHELD

At one point during long questioning he told Senator Charles H. Percy, Republican of Illinois, that the President's powers allowed him to abolish programs by withholding their total appropriations.

Mr. Sneed also disavowed a 1969 memorandum in which William H. Rehnquist-an Assistant Attorney General later appointed to the Supreme Court by Mr. Nixon-advised the White House that the refusal to spend appropriated money "is supported by neither reason nor precedent.”

Senator Percy recalling that Mr. Nixon had described Mr. Rehnquist as "the President's counsel," asked if Mr. Sneed was suggesting the Associate Justice had used faulty judgment.

"We think it was erroneous," Mr. Sneed replied.

The crowded hearing room erupted in laughter when Senator Sam J. Ervin Jr.. Democrat of North Carolina, said "The President didn't appoint him [Mr. Rehnquist] to the Supreme Court because he gave him erroneous legal advice, did he?

Mr. Sneed's response was inaudible.

CHALLENGE BY MUSKIE

Senator Edmund S. Muskie, Democrat of Maine, sharply challenged the Administration viewpoint as Mr. Sneed gave it. Mr. Muskie said that Mr. Sneed's testimony was "very much like the tone of a speech made by the President of the Philippines as a justification for eliminating the National Assembly.”

Mr. Sneed told Mr. Muskie that he regretted "that the tone was interpreted in that fashion" but continued to assert that Congress could neither prohibit the President from withholding funds nor turn to the courts for relief.

Beginning with Thomas Jefferson in 1803, said Mr. Sneed, "such a longcontinued executive practice" of impounding funds, "in which Congress has generally acquiesced, carries with it a strong presumption of legality."

That statement prompted Senator Ervin to declare that homicide and robbery had ample precedent but that repetition of the crimes "does not make murder meritorious or larceny legal."

The climate of the constitution dispute appeared to have been exemplified by and exchange between Mr. Ervin and Mr. Sneed, who, as a former dean of the Duke University Law School, was a constituent of the North Carolina Senator. Mr. Ervin asked where the Constitution gave the President the right to impound funds.

CITES THREE ARTICLES

"We rest on Articles I, II and III," said Mr. Sneed, referring to descriptions of the powers of the legislative, executive and judicial branches.

"I can't reconcile that conclusion with what the words say," Mr. Ervin countered.

"Well, I've tried," Mr. Sneed said with a smile.

"You put up the best possible defense you could for a guilty client," concluded Mr. Ervin, a one-time justice of the North Carolina Supreme Court.

Mr. Sneed told the subcommittee that Senator Ervin's proposal requiring the President to release impounded funds unless Congress consented within 60 days to withholding them, would have the practical effect of forcing the Administration "to spend virtually all sums appropriated by the Congress."

"YOU BOGGLE MY MIND"

He said that the measure would undercut the President's authority to curb inflation, unemployment and other economic ills and, as a consequence, "is wholly impractical, profoundly unwise and of very doubtful constitutionality.” At one point, Senator Lawton Chiles, Democrat of Florida, told Mr. Sneed, "Dean, you boggle my mind."

Senator Muskie quarreled angrily with both Mr. Sneed and another Administration witness, William D. Ruckelshaus the administrator of the Environmental Protection Agency, over the President's refusal to allocate $6-billion of the $11billion Congress earmarked over two years for sewer system grants.

[From the New York Times, Feb. 8, 1973]

HOUSE VOTES BILL TO REQUIRE NIXON TO RELEASE FUND

CONSERVATION PLAN IS PASSED IN DEFIANCE OF PRESIDENT-FACES THREAT OF VETO

(By James M. Naughton)

WASHINGTON, Feb. 7-The House of Representatives voted today, in defiance of President Nixon, to require the Department of Agriculture to spend $210-million that the Administration had refused to release for the Rural Environmental Assistance Program.

But the measure faced a threat of a Presidential veto, and the vote in the House, 251 to 142, fell short of the two-thirds necessary to override a veto.

The vote was, nonetheless, the first major test of Congressional sentiment on the President's refusal to spend some $8-billion appropriated by Congress for a variety of domestic programs.

CONSTITUTIONAL ISSUE

The Senate is expected to go along with the House on the rural conservation program, but today it moved closer to a showdown with the White House on the broader constitutional issue of the President's right to withhold money Congress wants to spend.

The Senate Judiciary Subcommittee on Separation of Powers concluded five days of hearings on a bill that would force the President to seek the consent of

Congress each time that he impounded appropriated funds. The bill is expected to reach the Senate floor before the end of this month.

At issue in both the Senate and the House is the constitutional question of whether Congress alone has the power to determine how Federal money shall be spent.

The controversy took still a new turn today when an Administration official claimed the right to spend money for purposes other than those for which the money had been appropriated by Congress.

Paul J. Frasser Jr., manpower administrator in the Department of Labor, told a House subcommittee that the Administration planned to spend about $500million that was appropriated in the last two years for public service jobs to provide instead summer employment under the Neighborhood Youth Corps.

House Democrats, who beat back a series of Republican-sponsored amendments to the rural conservation bill, argued that the President had no right to withhold virtually all of the funds budgeted for the program and, in effect, kill it. But Republicans loyal to the President countered that the Administration was compelled to make cuts in the budget to avoid continued deficit spending and consequent inflationary pressures.

The Democratic majority had clear political and tactical considerations in mind in choosing the conservation program to make their first stand against the White House on the spending issue, the dominant concern of the young 93d Congress.

The conservation program, in existence for more than four decades, provides direct grants to farmers for soil and water conservation practices.

Carl Albert, the House Speaker, said in a conversation today that the rural program was among the most popular in the agricultural community and. because of its conservation aspects, enjoyed the additional support of the strong environmental lobby.

Representative Philip Burton of California, the chairman of the liberal Democratic Study Group, told House members that the President had flouted the will of Congress in withholding the conservation funds.

"I know." Mr. Burton said, "that this bill does not affect most of your constituences and, similarly, there will be other legislation that won't affect the majority of our constituents." But if partisans of different spending programs blocked by the White House “extended a helping hand, one to another, we are more apt to succeed," he said.

Only 20 Democrats voted against the bill. In contrast, 52 Republicans defected from the Administration's cause to join in the challenge to the President.

But Republican leaders appeared to have succeeded, for the moment, in holding enough of their House members in line to minimize the prospect of a vote to override a veto.

Representative John B. Anderson of Illinois, chairman of the House Republican Conference, told a reporter this morning that it was unfortunate that the Democrats had chosen the R.E.A.P. program-which he referred to as "statutory rape"-to initiate the challenge to the White House.

He said that the average payment under the program was only $239 a year, and that farmers would not go bankrupt if they failed to receive that amount. Representative Wilmer Mizell, Republican of North Carolina, asserted on the House floor that the bill should be defeated because "inflation is no friend of the American farmer."

Representative W. R. Poage of Texas, Democratic chairman of the House Agriculture Committee and the principal sponsor of the bill, retorted that Mr. Mizell "knows how undependable the President is."

In an undisguised appeal to urban members to support him, Mr. Poage said, "You want that clean water, that clean air, but it don't come free."

He said that all the bill was intended to accomplish was to tell the Secretary of Agriculture to "do what Congress told him to do.”

By coincidence, the Secretary, Earl L. Butz, was the final Administration witness before the Senate subcommittee exploring the impoundment issue.

REVENUE SHARING CITED

He testified that the rural environmental program involved only about 20 per cent of the nation's farmers in any given year and said that if the conservation practices were considered important enough, farm communities could allocate