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contribution in this regard. But I do wish to raise this question for the committee's consideration here today.

(5) I note that section 4 of the bill provides special procedures to be followed during floor debate, and some of them apparently are modeled after the procedures set forth in the Reorganization Act of 1949 dealing with reorganization plans. I question, however, whether amendments to ratification resolutions should not in all cases not be in order. Perhaps a time limitation could be placed on amendments, to come out of the time allotted for debate on the resolution, with nongermane amendments being out of order.

I think we have to keep in mind that Congress, in considering reorganization plans, was considering plans which it had authorized and had required and instructed the executive branch to do, the President to do, and in its device with respect to procedures on the floor I think it attempted to make as easy as possible the approval of the reorganization plans suggested by the President.

It even allows those reorganization plans to go into effect in debt if neither House of the Congress acts within the period of, I believe, 90 days to reject such a plan.

Incidentally, I think we ought to change the reorganization plan approach and require a positive action on the part of both Houses so that debate would be stimulated and positive action required for such reorganization plans to go into effect.

I mention this here only because we are dealing now with a bill or an attempted approach which will deal with Presidential actions not required by the Congress and which are unwanted by the Congress. I think we ought to be very careful, although they do need to provide a mechanism whereby such resolutions will be expedited on the floor of either House, we need to be very careful that we not pattern these procedures too closely after those involving the reorganization plans.

Finally, Mr. Chairman, and this is an item which you and I discussed on the floor of the Senate yesterday, the committee may wish to consider redrafting the bill to require that the President, if he wishes to impound budget authority not already sanctioned by the Congress, first submit a formal request to the Congress for such permission which, if denied, would preclude the President from carrying out such impoundments. In this way, the consent of Congress would be sought and would be required as a condition precedent before budget authority could be impounded-except where previously sanctioned by antideficiency legislation, congressional mandate, et

cetera.

Senator CHILES. Could I stop you right there, if I might?
Senator BYRD. Yes.

Senator CHILES. You feel, then, that we should allow impoundment to continue under the antideficiency statutes?

Senator BYRD. Mr. Chairman, there are many impoundments that are legal, many mandated by the Congress. Not all impoundments carried out by the President are illegal.

For example, if there is an airbase and Congress appropriates moneys to build a hospital on that airbase and it is later decided that the airbase should be phased out, obviously there would be no reason

to proceed with building the hospital on that airbase. Consequently, the President should have the legal right there to impound such funds without congressional approval because the original need for which they were provided would no longer be in existence.

Senator CHILES. The point I am raising, you think the bill, either 373 or the bill that we draft, should exclude those type impoundments and should allow antideficiency impoundments?

Senator BYRD. Yes; I think antideficiency impoundments are necessary because it is necessary from time to time for the executive branch to impound funds so as to guarantee that there will be no deficiency in the funds needed to carry out that program in the future which has been mandated by Congress some time previously.

It is going to be extremely difficult-I am almost prone to say it is going to be impossible-but I think our chief hope is to enact legislation that the courts will sustain and in this way we can have a showdown once and for all as to where we stand with respect to impoundments that are carried out purely as an instrument of fiscal and economic policy.

That is what we are quarreling about here, not the legal impoundments, not the mandated impoundments, not the antideficiency impoundments. The executive branch is making these impoundments and using the antideficiency law as an excuse for them.

Senator CHILES. If they are using the antideficiency law as an excuse, now, if we exclude it from any act we draw, have we really done anything if Congress does not get a chance to look and review these impoundments?

Senator BYRD. Yes; as I say, if we can require the President to come to the Congress and say, I think we ought to impound this budget and give us reasons, we can look at the antideficiency acts and determine whether indeed the impoundment of those laws is being made to protect against a deficiency which will occur in 1975 and 1976 and

so on.

If, in our judgment, Mr. Chairman, we decide on the other hand that there is no justification under the Antideficiency Act for the impoundment of these funds, and that it is merely being used as an instrument of-in the implementation of economic policy, whatever that may be, then we can say "No." That is why I am suggesting it be a condition precedent.

Senator CHILES. You are saying being a condition to any impoundment you would have the executive come before the Congress? Senator BYRD. Yes.

In others words, the consent of Congress would have to be gained before the fact rather than after the fact, viz after the impoundments have occurred, as is envisioned by S. 373, the bill which we are here discussing.

Mr. Chairman, I appreciate the indulgence of the committee in allowing me to appear at this hour, and I am grateful for the courtesy that has been accorded me. I do not envy you your task. You certainly have my support in the effort to find a way to legislate a workable solution to the problem we face.

Senator CHILES. We thank you very much for your statement. I think maybe the chairman has a question he would like to ask. Senator BYRD. While the chairman is coming back, Mr. Chairman, I think we also have to keep in mind here when we are talking about ceilings, the fact that the Congress really does not have 100-percent control over all of the budget outlays or over all of the new obligational authority, that is being requested.

I think it is important to remember this in the context of this whole subject that we are discussing-ceilings, impoundments, and

so on.

Senator ERVIN. You covered this ground so fully and expressed your views in respect to the pending proposed legislation so clearly that I refrain from asking any questions.

I want to say that you have given us a most excellent statement, and I am mighty glad you did, because in my book you are one of the greatest students of the constitutional structure of our Government, and you have made some most valuable suggestions here which we we will give consideration to for the impoundment of the bill. Senator BYRD. Mr. Chairman, I thank you.

I would like to insert in the record, if I can be permitted to do so, a table which appears on page 31 of the book, the Budget of the U.S. Government, 1974. I want to do this because this sets forth the various kinds of budget authority that we have been talking about.

(The table follows:)

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1 Includes allowances for All-Volunteer Force, retirement systems reform, and civilian and military pay raises for the Department of Defense.

2 Less than $50,000,000.

Senator BYRD. I would like also to insert in the record, if you will allow me, Mr. Chairman, the table on page 333 of this same book, which shows that of the $269 billion in outlay which is suggested by the President in his budget for fiscal year 1974, only 25 percent is controllable by the Congress at this time.

(The table follows:)

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1 Less than $50,000,000. The total cost of the January 1973 pay raise is about $300,000,000 for civilian agencies; most of this amount is expected to be offset by savings.

Senator BYRD. I would also like to insert in the record, if I may, a table, "Budget estimates of new budget (obligational) authority and budget outlays for fiscal 1974," which will show that of the $269 billion in budget outlays recommended by the President as a ceiling for fiscal year 1974, only 45 percent, or $120 billion, will go through the Appropriations Committees of the two Houses, and of that, we have to remember that a great deal of that is not even controllable. Hence, when it is all boiled down, only about 25 percent of the $269 billion will be subject to control of the Appropriations Committees of both Houses, which makes it pretty difficult when we talk about establishing a ceiling and making cuts in budget outlays, and new budget authority that will bring us within that ceiling. It is an extremely difficult task, Mr. Chairman.

(The table referred to and a table on uncontrollable funds follow:)

COMMITTEE ON APPROPRIATIONS, U.S. SENATE

BUDGET ESTIMATES OF NEW BUDGET (OBLIGATIONAL) AUTHORITY AND BUDGET OUTLAYS, FISCAL YEAR 1974

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1974 BUDGET AUTHORITY OF RELATIVELY UNCONTROLLABLE ITEMS CONSIDERED IN APPROPRIATION BILLS

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