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committee in 1971. Also, United States v. Price, 116 U.S. 43 (1885), and United States v. Louisville, 169 U.S. 239 (1898)].

3. Congress has not expressly or impliedly delegated power to the Executive to terminate the Rural Electrification Act loan program in the Rural Electrification Act, itself, in any of the appropriations requested by the Secretary and approved by the Congress under that act, or in the Anti-Deficiency Act (31 U.S.C. 655(c) (2)].

4. The Rural Development Act of 1972, was clearly not intended by Congress as a substitute for the Rural Electrification Act of 1936, but was intended rather to provide facilities such as community centers, firehouses, industrial parks, and fire and rescue equipment, including ambulances.

It was abundantly clear on the floor and in the committee reports at the time the Rural Development Act was passed last year the chairman of both the Senate committee, Senaor Talmadge and Congressman Poage did not intend this act to replace any of the programs for which authorities then existed, which would be in addition to and not in lieu of. Therefore, it certainly cannot be assumed that act conferred power on the Administrator or Secretary to terminate the rural electrification program.

It, therefore, implied no authority to terminate the Rural Electrification Act loan program. (H. Rept. 1129, 92d Cong., second sess. (1972); 118 Congressional Record S13928–32 (daily ed.) Aug. 17, 1972. Also 118 Congressional Record H1333 (daily ed. Feb. 23, 1972.))

5. The Senate, during its consideration of the public debt and expenditure limitation legislation of 1972 (Public Law 92–599), twice refused to grant the President authority requested by him to cut specific budget items without limit. (118 Congressional Record S18529, S18510, S18527 daily ed. Oct. 17, 1972.)

This came the second time on rejection of the conference report on that legislation.

6. It is doubtful that even under authority provided by the Reorganization Act of 1959 (5 U.S.C. 901-913), which was not invoked in this case, the President could initiate the complete terminations of a statutory program. (95 Congressional Record 916 daily ed. 27/7/ 49.)

That is the procedure by which the President sets up a reorganization procedure, gives it a number, transmits to the Congress, to the House and Senate simultaneously and it becomes law unless either the House or Senate passes a resolution in opposition to it. It was the opinion of Arnold & Porter that even under this kind of procedure by which the President can initiate a reorganization plan, he could not so do with a plan which entirely replaced a statutory program without providing that it be continued by some other agency.

In the broader sense, we view the entire matter as an overt challenge to the constitutional lawmaking power of Congress by the Executive; a challenge in which the Executive refuses to carry out certain selected statutory programs enacted through regular constitutional procedures and, by so doing, completely frustrates the power and the intent of Congress.

In enacting legislation over the years, Congress has proceeded on the assumption that a law once duly enacted would be carried out in good faith by the executive branch. Its statutes, therefore, have spoken permissively in terms of "authorizing” and “empowering" the Erecutive to perform certain acts, and of “making available" or "appropriating" money for specified purposes. Certainly, the Congress has not usually enacted laws in contemplation of situations created by a willful refusal of the executive to perform its constitutional responsibility. It seems to us that unless the Congress is willing to accept this challenge and to reassert its constitutional authority, it cannot avoid a serious deterioration of stature in the eyes of the American people

The present situation, we suggest, indicates a very clear need for Congress to reappraise the language of its statutory pronouncements so that in those cases where Congress so intends, the mandatory nature of its actions will be inescapably clear to even a reluctant Executive.

Specially, with respect to rural electrification, we are asking the Congress to enact S. 394 by Senators Humphrey, Aiken and 48 other Senators which would reaffirm the mandatory intent of Congress expressed in the Rural Electrification Act of 1936 by substituting the words "authorized and directed” in lieu of "authorized and empowered” in the operative language of the act, and would require expenditure of all funds appropriated by Congress in the year to which such appropriations are made. It would additionally provide that the authority contained in the Rural Development Act of 1972 is in addition to and not in lieu of any authority contained in the Rural Electrification Act.

Inasmuch as a great deal of the present controversy centers on the asserted discretion of the Executive to impound appropriated funds, the Congress, if it desires to cure the problem, might well begin writing its appropriation bills in terms of "directing", "mandating" and "requiring” the expenditure by the Executive of whatever portion of specific appropriation items the Congress feels should be beyond impoundment. That, I think, is the same thought expressed by Mr. Staats, the Comptroller General, that a great deal could be accomplished by Congress in using stronger language in its appropriation legislation.

Not only will the more liberal use of mandatory language in its legislative acts place a much heavier burden on the Executive who seeks to assert a discretionary power of nonexecution, but it will also give to the intended beneficiaries of such legislative acts a much clearer judicial remedy in a suit to require performance by the Executive of programs directed by the Congress.

There have been two cases decided so far under the impoundment proceedings by at least district courts. One of them involved a housing authority of the city and county of San Francisco versus the U.S. Department of HUD. The court concluded in that case that the underlying legislation included no mandate to use the entire amount of funds appropriated and the remedy was denied.

And as I am sure the chairman is well aware, the Missouri Highway Department brought a similar suit but since the Highway Trust Fund contains much stronger language with respect to restrictions on impoundments, the State of Missouri was successful at least in the trial court in that suit which is now on appeal.

As a general preventative measure against impoundment of appropriated funds under circumstances which thwart the will of Congress, S. 373 introduced by the chairman of this subcommittee and other Senators would also go along way toward solving the problem.

I think with respect to that legislation also Mr. Staats had some excellent suggestions, namely, a suggestion that it be amended to avoid recycling, as he phrased it, of impoundment by the President, namely, sending up the same impoundment several times in series, which would defeat the purpose of the act.

We know the hour is late and we are most grateful for your staying with us.

Senator CHILES. Thank you, sir.

Senator Ervin. Mr. Robinson, I just invite your attention to the opening words of the proposed legislation that whenever the President impounds any funds appropriated or otherwise obligated for a specific purpose or project or approves impoundment, such officers or employees of the United States shall within 10 days after, transmit to the Senate and House of Representatives a special message specify. ing certain things.

Now, it is true, is it not, in the case of many of the authorization bills which precede the appropriation bills, that in many cases Congress makes it more or less to the discretion of the President as to whether or not funds shall be expended.

Mr. ROBINSON. That is correct.

Senator ERVIN. And this proposed legislative program would not have application to bills which specifically give the President the discretionary power to expend or not to spend, or to contract for the expenditure, or not to contract for expenditure. Mr. ROBINSON. You are speaking of your bill, Senator Ervin? Senator ERVIN. Yes. Mr. ROBINSON. Mr. Hawke says you are correct. I don't know the answer to that.

Senator ERVIN. Well, I think that is clear from the opening statement, and from the opening provision of the bill. I want to make that clear because it would have no application where the discretionary powers are specifically given to the President. It is only where Congress appropriates funds or provides for the obligation of funds for a specific purpose, that the bill would apply. That is the objective of it.

Mr. Robinson. Senator, are you saying that if your bill passes it would then be still necessary to write appropriation bills in terms of mandating, requiring, and directing, rather than merely appropriating?

Senator ERVIN. No, I do not think so, because this bill would apply to any appropriation which was made by Congress as the bill says, for a specific purpose or project. Mr. ROBINSON. Well, then I assume

Senator ERVIN. Of course it would be very helpful for Congress to put mandatory provisions in the appropriation bill to make it clear it is a bill of that nature. Mr. ROBINSON. Yes, sir.

Senator ERVIN. And so your suggestion to that effect is very valuable because inclusion of mandatory language would make it very clear that it was a bill for a specific purpose or project within the purview of this act.

Mr. ROBINSON. My limited knowledge of appropriation bills, Senator Ervin, would indicate to me that most of the appropriations approved by Congress are for rather specific purposes. Maybe I am wrong.

Senator ERVIN. Oh, I think the majority are, yes, sir. I agree, but I just want to make it plain, if a bill does give the President discretionary authority to contract or refrain from contracting for the expenditure of funds, then this bill would not apply.

But the great majority of the appropriation bills that I have presented are for specific objects or purposes and this bill, I think, would apply to the great majority of appropriation bills.

Mr. ROBINSON. That was my impression; it was an excellently drafted bill and would apply in most cases unless the Congress in its appropriation process perhaps expressly reserved additional discretion above that in the normal appropriation bill.

Senator ERVIN. You have touched on matters very much related, although not specifically covered by this bill, but you agree, do you not, with my view that where Congress passes a law establishing a certain program, that the President does not have the power to nullify that program?

Mr. ROBINSON. We are absolutely convinced of that, Senator, and that is the reason we retained this prestigious law firm of Arnold & Potter to look into that very question. Mr. Hawke can speak for himself if he disagrees that the President has no statutory or constitutional power to terminate a program of the type represented by the rural electrification program.

Senator Ervin. That is made very clear, it seems to me, by the case you cite, the Steel Seizure case, where a majority of the Court held, in about the most direct and most plain language that could be devised, that the President has no legislative power regardless of whether the times are good or bad, or whether peaceful or whether it is an emergency. All legislative power is vested in the Congress. Mr. ROBINSON. Yes, I think that is absolutely correct. Senator CHILES. Senator Metcalf?

Senator METCALF. No; I have no questions, Mr. Chairman. I want to commend Mr. Robinson for his statement and for coming up here and presenting to us one of the most flagrant violations of this business of comity between the two branches of Government, a problem that if permitted to be continued will destroy a great program such as the rural electrification programs that have had so much benefit to the people all over rural America.

Thank you very much.

Senator CHILES. We certainly want to thank you on behalf of the committee for your statement.

Mr. ROBINSON. We appreciate the opportunity to appear and let me emphasize one more time that we are not arguing on the basis of an impoundment in this case. This is a total, complete, absolute, irrevocable, and irretrievable termination.

Senator CHILES. Thank you, sir.
We will recess the hearings until 10 o'clock tomorrow morning.

(Whereupon, at 4:40 p.m., the joint hearing was recessed to reconvene at 10 a.m., Wednesday, January 31, 1973.)

IMPOUNDMENT OF APPROPRIATED FUNDS BY THE

PRESIDENT

WEDNESDAY, JANUARY 31, 1973

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY, AND THE Ad Hoc

SUBCOMMITTEE ON IMPOUNDMENT OF FUNDS,
COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 3302, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding.

Present: Senators Ervin, Chiles, Muskie, Gurney, and Percy.

Also present: Robert B. Smith, Jr., chief counsel and staff director, Committee on Government Operations; Rufus L. Edmisten, chief counsel and staff director, and Prof. Arthur S. Miller, staff consultant, Subcommittee on Separation of Powers; and George Patten, legislative assistant to Senator Chiles, chairman, Ad Hoc Subcommittee on Impoundment of Funds.

Senator CHILES. If the committee will come to order we will reconvene and continue our hearings which we recessed yesterday on the subject of impoundment and the Ervin bill that is before the committee.

This morning the committee is delighted to have as our first witness the Honorable Congressman Conte, and we are delighted to hear from you, Congressman. STATEMENT OF HON. SILVIO 0. CONTE, A REPRESENTATIVE IN

CONGRESS FROM THE FIRST CONGRESSIONAL DISTRICT OF THE STATE OF MASSACHUSETTS, ACCOMPANIED BY PAUL LINDSEY Mr. CoNTE. Mr. Chiles and members of the committee, my good friend Senator Gurney, Mr. Chairman, I want to express my appreciation to you.

Lately, the press has been playing up what they call the crisis in the Congress. They say that the Congress, often by its own inaction, has allowed a multitude of its powers and responsibilities to pass into the hands of the Executive. Two of the primary areas discussed are the warmaking power and the Executive practice of impoundment. We are here today to discuss the latter.

In a sense, the press is right. Congress has allowed a very significant portion of its responsibilities and powers to slip away. The time has come for the Congress to sit up and take a hard look at itself. I believe that we are starting to do this. These hearings and the various impoundment bills are a step in the right process.

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