will afford us a better utilization than we have heretofore demonstrated, of the congressional tools which we have at hand.

(4) Congress must try to devise workable, feasible legislation, which will be sustainable in the courts if they dare enter into this political thicket and which will protect its constitutional authority to determine how the people's moneys will be spent, how much will be spent, and for what purposes. To devise such legislation and to enact it into law will not, and I repeat, will not be an easy task, as we shall all eventually surely see. But try we must, and I congratulate the chairman of the Separation of Powers Subcommittee on the effort that is being made here.

No Senator is so preeminently qualified as he for such a difficult, such a challenging and important task. He has my support and the support of all Senators in both parties who view this matter, not as a partisan matter, except perhaps incidentally, but rather as a grave and far-reaching challenge to the rightful position of Congress in a constitutional system of separation of powers.

The separation of powers concept in the Constitution traces its development from Plato and finds its fullest development prior to the American Constitution in Montesquieu's "The Spirit of the Laws." There he states:

To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpose the other.

For the American Federalists, the system of checks and balances written into the Constitution so contrived "the interior structure of the Government that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." This they considered the prime advantage to be gained from Montesquieu's principle of the separation of powers. The principle itself they held to be "the sacred maxim of free government."

It is in this light that we must look at the delineated powers as they became expressed in the Constitution. There all legislative power is vested in the Congress (art. I, sec. 1) including the power to appropriate money (art. I, sec. 9). The President, on the other hand, is given no role in legislation except the power to recommend "such measures as he should judge necessary and expendient" (art. II, sec. 3) and the power to veto measures passed by the Congress (art. I, sec. 7).

He also has the responsibility to "take care that the laws be faithfully executed." (Art. II, sec. 3.) Certainly the founders did not intend the President any discretion when they imposed that duty upon him. On the contrary, it was intended that he faithfully execute all laws passed by the Congress. An appropriation bill enacted into law is a law, as much as is any other. The President has no authority to decide which laws will be executed or to what extent they will be enforced except through his veto power.

It is also evident that the founders intended to limit the veto power, giving the President a limited veto, subject to being overridden by the Congress.

Despite the clear intent of the framers to limit the President's power to legislate, and especially to not allow him the power of an absolute veto, by impoundment the President is, in effect, able to veto

measures absolutely after they have passed the Congress and been signed by him. Such a procedure grants to the President not only an absolute veto, immune from being overridden, but also a line, or item veto in that he may impound whatever part of an appropriation he wishes and enforce other parts of the same bill. Such a power clearly is prohibited by the Constitution, which only empowers him to veto entire bills. Thus, by impounding appropriated funds, the President is able to modify, reshape, or nullify completely laws passed by the legislative branch, thereby making legislative policy through executive power. Such an illegal exercise of power of his office flies directly in the face of constitutional provisions to the contrary.

Against this historical background, it is difficult to understand how the Congress has allowed the present practice of impoundment to go unchallenged. But it has come into being because, as I have already stated, we in the legislative branch have allowed the executive branch to usurp our job.

For years, as I have said, we in the Congress have appropriated huge sums of money for various programs that aided our various constituencies with little regard for their overall effect on the tax burden on the American people and the growing inflation in our country. We believed we could have "butter and guns" and that almost any social ill could be solved by pouring unlimited amounts of money on the problem.

In the name of holding down inflation and rising taxes, Presidents impounded more and more of the funds that we had appropriated.

În 40 years, and especially within the last 10, we in the Congress have let the executive branch arrogate to itself that one power that had been so carefully nurtured by the framers as the people's one great power against the Executive-the power of establishing priorities as to how the moneys were to be spent. Congress now belatedly realizes what has passed it "in the night." And it is this power which the Congress must attempt to regain and use wisely.

It must be the legislative branch that determines what programs are to be funded if the United States is not to become an executive form of government. To that end, the Congress has created a Joint Committee on the Budget, but much more is needed.

As I have already indicated, but it is worth repeating, the legislative committees and the Appropriations Committees must work more closely to try to hold each program's needs down to a proper part of the whole. The Congress must face the issue of priorities in our Nation and allocate our resources in relation to those priorities. If each substantive committee exercises some self-restraint on its priority legislation, all of us will benefit by the more effective and judicious use of the limited appropriations available.

In order to properly determine what our priorities should be and to be able to budget properly, the Congress must also know what items have been impounded in the past and must have a mechanism to inform itself of impoundments in the future that the Congress feels are of high priority and without congressional sanction.

Mr. Chairman, as I stated earlier, the enactment of sound, workable legislation is going to require the best in all of us. Over the weekend, I have given a great deal of thought to S. 373, reviewing its parts care

fully. I, therefore, offer what I hope will be some constructive suggestions. They are as follows:

(1) In light of the history of the administration's respect or lack of respect for the word "promptly" as used in legislation seeking impoundment information, I wonder if the subcommittee ought not consider inserting the words "within ten days" in lieu of the word "promptly" on page 3, line 9, in section (d) of the bill, where the President is required to notify the Congress if revisions are made regarding information transmitted under section (a).

(2) I would recommend that, beginning on page 1, line 3, the words "funds appropriated or otherwise obligated for a specific purpose or project" be deleted and, in lieu thereof, the committee insert, after the word "any", the words "budget authority made available." The reason for this recommendation is that the bill, as drafted, speaks of "funds appropriated or otherwise obligated."

În my judgment, funds that have been "otherwise obligated" cannot be impounded. Moreover, the words "funds appropriated or otherwise obligated for a specified purpose or project" would not include contract authority or authority to spend debt receipts. Included in authority to spend debt receipts, for example, is the REA loan authority, and included in contract authority, for example, would be water pollution

control.

The bill as written leaves a large loophole in this respect.

The Congress needs to be informed regarding impoundments of any and all budget authority, whether the funds are appropriated, whether it is a contract authority (for example, the highway program and water pollution control program) or otherwise-not just "funds appropriated."

There would also appear to be no sound reason for the words "for a specific purpose or project," because such words appear to place a limitation on the information which is to be submitted to the Congress. It would be better for the Congress to be informed on any and all budget authority, whether it is for a specific purpose or project, or otherwise (for example, loan authorizations, appropriations, contract authority, et cetera, as I mentioned).

It should be noted that the fiscal year 1974 budget provides budget authority in excess of $10 billion on contract authority and in excess of $1.8 billion in authority to spend debt receipts. Certainly, if any of these items are impounded, the Congress should be informed. It may involve funds appropriated 1 year, 2 years, 4 years, 5 years from now.

Senator ERVIN. If I can interrupt at this point without inconveniencing you, we have received a report from the Office of Management and Budget giving us what they call the funds impounded on the appropriations. I have not had time to read the entire thing and analyze it, but I am informed it totally leaves out the $6 billion of funds authorized to be contracted by the Environmental Protection Agency, which required more appropriation.

It is very significant that that was omitted, notwithstanding the Virginia statute, the only statute really that the Office of Management and Budget invokes to justify the refusal to spend funds, and says that "as used hereafter in this section," the term "appropria

tion" means "appropriations, funds and authorizations to create obligations by contract in advance of appropriations."

Senator BYRD. Mr. Chairman, I have not had the opportunity to study this information to which you have referred. It was originally requested by Senator Humphrey in an amendment which he offered to the extension of the debt limit bill last year. But when H. J. Res. 1 was before the Senate last month, in which the administration was requesting additional time in which to submit the budget, I offered an amendment which required the submission of this information concerning impoundments by January 29. That amendment was modified to read February 5, and then the House-it was further modified to read February 10. But the information came up on February 5 by virtue of the fact that the administration wants very much to have Mr. Weinberger confirmed before the Lincoln Day holiday. So one of the price tags, one of the requirements placed on that confirmation was that this information concerning budget impoundments be submitted to the Congress prior to the confirmation and therefore earlier than February 10.

You will notice, Mr. Chairman, and I will refer to this in a moment, that this information is headed "Budgetary Reserves." It says nothing about impoundments, nothing about impoundments of funds. It is titled "Budgetary Reserves." I shall get to that shortly.

In other words, Mr. Chairman, the ambiguity arises in the fact that contract authority is not "funds appropriated" nor is it "funds otherwise obligated." Other examples of contract authority which the present verbiage of the bill would not, in my judgment, reach are urban renewal funds-capital grants, grants-in-aid for airports, Appalachian regional development programs, forest highways, and many others.

In this regard, Mr. Chairman, I would also suggest that the word "funds" be changed to the words "budget authority" wherever the word "funds" appears throughout the bill.

I would also suggest that, on page 4 of the bill, line 6, the words "expenditure or" be deleted, that being superfluous; and that following the parenthesis on line 8, all the words be stricken down to, but not including, the comma on line 11, and that the words "made available" be inserted in their stead. I suggest this change because the phrase "projects and activities" could very well limit the information which ought to be submitted.

On page 4, line 13. I would suggest that the words "or expenditure of the appropriated funds" be stricken and that the words "of budget authority" be substituted therefor.

I further suggest that on page 4, after line 14, the committee consider inserting a third paragraph, to read as follows:

"(3) impoundments including the establishment of budgetary reserves pursuant to the provision of the Anti-Deficiency Act (31 U.S.C. 665)."

I make this suggestion because, as far as I personally know, there is no clear, legal definition of the word "impoundments." Information heretofore furnished to the Congress by the administration on impoundments, for instance, has referred to "budgetary reserves" pursuant to the provisions of the Anti-Deficiency Act. For this rea

son, it seems desirable to write into the law the impoundments we are talking about and at least include "budgetary reserves" set up pursuant to the Anti-Deficiency Act.

(3) I would suggest that it is not necessary to print as a document for each House the special message referred to in line 1 of page 3. To avoid unnecessary expense, as well as unnecessary confusion which would result from having two differently numbered documents— for example, House Document 43, Senate Docket 61-I would suggest that a document printed by either House would be sufficient. Moreover, I think that the "special or supplementary message" referred to on line 12, page 3 of the bill, should also be printed as a document by one of the two Houses.

I do not believe that Members of Congress should have to await the printing of such supplementary message in the "first issue of the Federal Register" subsequent to transmittal of such message.

(4) I come now to what I consider to be a major weakness in the bill, namely, no committee is designated as having the responsibility for developing the concurrent resolution referred to on line 1 of page 4 of the bill. Perhaps it was thought, in the preparation of S. 373, that no committee review would be necessary and that, in the interest of expeditious action, the procedures recommended in the bill would be preferred. However, I believe that unless clear responsibility is placed upon one or more committees of either or both Houses, the bill's provisions concerning the concurrent resolution would be infeasible.

Are we to expect that a resolution will spring into full flower from the floor of either House?

Will just any Member of the Congress-Senator or Representativebe expected to take the matter immediately in hand and devise a resolution ratifying the impoundment of this or that budget authority and rejecting the impoundment of other budget authority?

It just seems to me, Mr. Chairman, that the bill must establish a specific mechanism for the handling of such special messages from the President, and for the decisionmaking with respect to what budget authority will or will not be ratified, together with responsibility for preparation of the resolution of ratification. Unless such a mechanism is specified, I am afraid the bill will fail of its purpose.

In other words, Mr. Chairman, I do not see the wherewithal in the provisions of this bill to generate, to stimulate the action leading to the resolution of ratification. Moreover, I have been advised that impoundments of budget authority are going on daily or weekly throughout the executive branch. If this is so, then I would anticipate a continuous flow of information on such impoundments which, in turn, would require almost continuous study by a committee or committees of the Congress and which would also require repeated floor actioncertainly every 60 days or so-in connection with resolutions of ratification.

It is going to be extremely difficult to develop such a mechanism. Without the committee mechanism, it seems to me, I repeat, the approach which we seek to establish here would be unworkable. I would not want to venture a suggestion as to what committee or committees should have this responsibility. It may be that all committees having jurisdiction over the various impoundments would have to make some