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1971. I would hope the continued study of this issue will serve to shed more light on a situation that has already generated much heat.
Presidents have refused to spend appropriated funds in the past *** but this President has shown unusual contempt for the Congress by using impoundment as a kind of "item veto" power—which Congress does not have the right to override.
He has refused to spend $6.5 billion appropriated for the 1973 fiscal year. And his budget for the 1974 fiscal year contains no funds at all for no less than $17 billion worth of projects. When the last Congress authorized $24.7 billion to clean up the Nation's water the President vetoed the bill. After Congress overrode the veto he impounded $6 billion of the money simply by ordering that it not be spent. Among other cutbacks he has canceled the rural environmental assistance program-proved to be one of the tested tools for helping farmers save basic land, water, woodland, and wildlife resources. When conservation needs are so great, when so many pressures are being put on the farmers, and when the President himself has called for a "full national effort" to solve environmental problems, it seems strange that a program like REAP is terminated. We were told that REAP and the water bank were “terminated” because "these two programs are among those selected after a review of Federal programs to identify those of low priority that can be reduced or eliminated without serious economic consequences."
I feel it is the duty and constitutional responsibility of the Congress and not the President to create new programs if needed or to abolish them if that is necessary. There is, I feel, no more direct challenge to congressional power than President Nixon's refusal to spend money Congress has appropriated.
When Congress mandates funds for spending and the congressional mandate has been signed into law by the Chief Executive, the dangerous trend of impounding becomes a practice which could eventually destroy public reliance on Congress and seriously damage our tradition of separate powers.
Our Constitution's framers understood best how to avoid tyranny. While conditions in our modern world may well impel us to give the President some additional authority, we must still guard cautiously against the accumulation of all powers-legislative, executive, and judiciary in the same hands.” We must guard carefully our power of the purse as one of the Congress' few means for controlling the Federal bureaucracy.
Today the President is impounding funds as never before, using his Executive power to legislate, reshape, and reduce public programs mandated by the Congress. He argues that major portions of congressionally approved programs are so wasteful and ineffective that it is his duty to block expenditures the Congress has said it wants made.
The question of whether impoundment is justified or not requires close attention to specific cases and the complex interplay of court actions, politics, economics, and legislative procedures. Impoundment seems to be only one element in a tortuous appropriations process in need of reform. And we are perhaps foolish to expect reform in one area unless there is congressional reform in a number of related areas.
Impoundment is a clear instrument of executive power-and like all instruments of power, subject to abuse. These hearings are being
held essentially because there is serious concern that President Nixon has abused the impoundment power. The current battle between the legislative and executive branches must surely make at least one thing clear: If Congress is really going to “reassert” itself, we are going to have to find some mechanism in the Congress to hold down Federal spending. For a fight over impoundment and its legality is one that only the President can win until Congress puts its own house in order and develops the capability for self-imposing a lid on Federal spending. Balking at the President's attempts to cut Federal spending only draws sharper attention to our own budgetary inadequacy.
The best long-range solution to the impoundment problem is going to be one that does not attempt to make the administration a mere spending robot-doling out the dollars when Congress pushes the right button, but rather one that includes a thorough overhaul of the congressional appropriations process. The current financial performance of the Government-executive and legislative branches alikeconstitutes a serious breach of faith with the Nation's people. And those involved in this historic struggle between the branches must hold that thought central.
The President last year nearly persuaded Congress to let him reject appropriations in an effort to limit total Federal spending. And in the hectic closing days of the 92d, we did manage to establish a joint committee to recommend procedures for improving congressional control over the budget-a step in the right direction ***. Even last year Congress cut $20 billion from the President's appropriations request in an effort to significantly limit Federal expenditures.
But while reform plans are in the developmental stages, what is to be done? Can we afford to sit back and simply let the President exercise an informal line-item veto of appropriated money which cannot be overridden by the Congress? Can we sit back and allow declared congressional policy to be thwarted? Can we allow the Constitution to be violated in spirit and intent and the very existence and relevance of the Congress to be threatened?
I believe that while power has, in recent years, shifted and legislative direction has come to be expected from the President, some of the lawful powers of Congress have been consistently given up by the branch and thrust upon the Presidency because Congress has not been willing to carry the responsibility of exercising these powers itself. Congressional power, I am afraid, has been not so much usurped by the Presidency as given up to the Presidency by the Congress. I hope the 93d Congress will begin to reverse this trend.
These hearings were planned to take a close look at the overall issue of impoundment--and the ramifications that result from its abuse, in addition to hearing viewpoints regarding Senator Eryin's proposal before this subcommittee.
S. 373, the impoundment procedures bill, would, as you know, require the President to notify the Congress whenever he impounds or authorizes the impounding of appropriated funds and requires the President to cease that impounding after 60 days unless Congress approves his action by concurrent resolution.
I believe the Senator's proposal is a sound one and an immediate and practical alternative--not a panacea or instant cure-all to the problem.
The purpose of the hearings is to offer a channel for the expression of significant points of view on the issue of impoundment. And I want to assure everyone that I believe this committee is openminded and will give close attention to all the testimony that will be presented. But I believe that we are all determined that the blatant use of arbitrary impoundment will not continue; that it is about time the erosion of Congress power of the purse ends. The American people are beginning to feel that their attempts to appeal to their elected representatives are futile. And when that happens it is more than a regulation of the balance of influence between the legislative and executive branches of Government that we are speaking of—it is the survival of the Democratic process itself.
You may be interested to know of a study being conducted by the University of Florida College of Law on the impoundment question. This study, possible through a grant from the Josephine McIntosh Foundation, will hopefully result in a description of the impounding practice as it currently exists in the Federal Government, constitutional and other legal aspects of the practice and it will try to come up with an evaluation of the propriety of impoundment on constitutional, legal, and policy grounds. My office is working closely with the directors of the study, aiding their research in any way possible. I would like at this point to submit for inclusion in the printed record of the hearings a description of this research.
(The document referred to follows:)
McIntosh FOUNDATION EXECUTIVE IMPOUNDMENT PROJECT, HOLLAND LAW CENTER,
UNIVERSITY OF FLORIDA, GAINESVILLE, FLA.
(Jon L. Mills, Project Director)
ORIGIN OF THE PROJECT
As a result of the efforts of Professor Harold Levinson and the directors of the Josephine McIntosh Foundation, the University of Florida College of Law has been funded with $66,000 with which to conduct a comprehensive and objective study of what is currently termed the "impoundment" question, together with related issues and controversies surrounding the executive exercise of spending discretion.
By some definitions of the word, "impoundment" has been an American budgetary phenomenon since 1803 when Thomas Jefferson refused to release funds for allegedly unneeded gunboats on the Mississippi. The question as it has currently arisen is whether the actions of the executive in withholding appropriations are an encroachment on the congressional power of the purse." The evolution of the executive budget has further complicated the congressional role and has raised fundamental questions regarding the respective powers of the executive and legislative branches.
ORGANIZATION OF RESEARCH A preliminary collection of data is being performed by 14 advanced law students who have already compiled an extensive preliminary outline and working papers. Much of the research as well as formulation of the final product will be conducted by the Principal Investigator, Harold Levinson and the Project Director, with the assistance of professors from other relevant disciplines. Pursuant to our goal of obtaining a broad range of opinions and expertise, further information is being sought through discussions of the "impoundment" issue with informed sources in both academic and governmental realms. Additionally, we plan to continue correspondence with foreign governments, public officials, attorneys, and professors, which has already produced invaluable information.
To facilitate initial research, students were divided into four task forces to investigate various aspects of the issue: (1) Perspective of Impoundment-A Historical and Comparative Study; (2) The Federal Budgetary Process and Case Studies of the Impact of Instances of Impoundment; (3) The Budgetary Process in State and Local Governments, and Case Studies of the Impact of Instances of Impoundment; (4) Analysis of Constitutional and Legal Questions Raised by the Practice of Impoundment. The goal of these task forces is to raise and analyze a broad range of issues and discover pertinent resources for continuing study.
(1) The perspective study is researching the evolution of the theory of separation of powers and the intentions of the framers of our constitution. Study of the budgetary practices and relative powers of branches of other governments is also in progress. Through research as well as gathering data from foreign officials, the experiences of other nations will be used to evaluate the strengths and weaknesses of our own system. The possibility of a correlation between “impoundment" and governmental complexity produced by industrialization is also considered a relevant area of inquiry. Further, this task force is analyzing the history of congressional enactments affecting executive spending discretion such as the antideficiency acts. This analysis should provide insight into what has been called an abdication of power by the Congress to the executive branch. Finally, this task force is considering the definitional morass created by use of the term "impoundment." It is evident that the word has unfavorable connotations in some circles and that guidelines are necessary for the use of “impoundment” as well as terms such as "reserving," "withholding," "reprogramming" and "transferring."
(2) The second task force is examining the entire budgetary cycle from formulation to expenditure. The analysis will include a consideration of the relationship between revenues and expenditures. Additionally, the method of the implementation of fiscal policy and the economic rationales for government spending or nonspending are being studied. Because of the central role of the Office of Management and Budget within the budget cycle, a historical analysis of its genesis and contemporary and potential development as well as study of its predecessor, the Bureau of the Budget, is being conducted. The Government Accounting Office will also be examined in order to gain insight of its historical, current and possible future role. Accompanying the analysis of the budgetary cycle will be a case study of the discoverable instances of "impoundment" with an analysis of their historical economic and political context and their ultimate impact.
(3) The third group has directed its inquiry to the utilization of "impoundment" in state or local governments. While the term "impoundment" is not generally utilized at this level, executive spending discretion exists. This investigation will provide a further analysis of a myriad of budget systems including states that apparently preclude "impoundment" and others which constitutionally provide for non-spending of appropriations by the state's chief executives. This task force will also provide a means of measuring the efficacy of the often proposed alternative to "impoundment," the item veto. The majority of states. unlike the federal government, provide for such controls.
(4) The last initial investigatory team is studying whether or not judicial review of instances of "impoundment" is available or desirable. The threshold questions of standing and justiciability are central to the inquiry. Further, the constitutional provisions cited as a basis for “impoundment" and those said to forbid it will be assessed. This group is also monitoring the progress of current litigation.
The final report will consider all relevant data received and analyze viable alternatives which may be exercised by the executive and legislative branch. Presently, completion is set for sometime in August of 1973 with the possibility of a preliminary report at an earlier date, Suggestions will take the form of possible legislative solutions, possible structural changes in the legislative and/ or the executive branch, and the feasibility of litigation.
"Impoundment" may be viewed as a presidential response to an existing problem. In some instances it may be a justifiable response while in others it may not. It may be possible for congress to eliminate some of the major sources of the problem by instituting legislative or structural reforms in the budgetary process or supplementing its own expertise. Or, the President and the executive branch
might succeed in mitigating the problem through their own actions. Ultimately collaboration between Congress and the executive branch might be the vehicle for final resolution of the current conflict. If differences cannot be resolved, than the role of the courts or other tribunal could become crucial.
Senator Ervin. Do you have a statement, Senator Metcalf?
Senator MUSKIE. Mr. Chairman, I am scheduled to testify tomorrow so I would like to hold comment. I would like to compliment the chairman in holding these hearings, especially the timing. You couldn't have a better time to determine the prerogatives in the area.
Senator Ervin. I want to thank you and bear witness that the distinguished Senator from Maine has long been an advocate of reasserting powers of Congress.
OPENING STATEMENT OF SENATOR CHARLES H. PERCY OF
ILLINOIS Senator PERCY. Thank you, Mr. Chairman. I will apologize for the brevity of my statement, but I don't think anybody will object.
I believe these hearings are extremely timely from the standpoint of the presentations made by the President for spending on some of our social programs, because I could foresee a very sharp series of confrontations in the appropriations area. This confrontation extends to other aspects of the separation-of-powers problem.
I believe Congress and the Executive must agree on a new definition of their respective powers or we are going to risk valuable time in bickering and jurisdictional problems, but I hope we will face up to the problem that we do have twilight areas in here that need redefinition, and I think particularly today Congress has been stunned because of the charges against Congress that we have abrogated our responsibilities with respect to the Vietnam war, and warmaking powers in general are now in the appropriation process.
These hearings are also appropriate because they directly complement the studies of the congressional appropriation process now being conducted by the Special Joint Commission on Budget Control. It is possible to mitigate if not eliminate the impoundment problem to modernize use of its appropriation power. My year's service on the Appropriations Committee does not make me any better in the process, but I am appalled by the way we go about appropriating funds in the Congress. It certainly is subject to a great deal of improvement, and I think the study now underway will bring us toward that, and I have made some very specific recommendations on overhauling that system. I hope that we will get a recommendation of the joint committee by their deadline, February 15, for a workable, new appropriation system,
Finally, Vír. Chairman, I commend you for having convened this special joint panel of our two committees, and I do approach this with a very open mind. I have a great deal to learn as a result of these hearings. I look forward to hearing from witnesses on both sides of the issue.
This administration is not the first administration to impound funds. I can well remember when funds were impounded by Presi