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the statutory debt limit, which is referred to above. The second instance occurred in fiscal year 1959, and involved a request for a two percent reduction in employment levels to obtain maximum absorption of increased pay costs and to promote efficiency. In the first instance, the funds were released when the pressure on the debt ceiling was relieved, and the second instance involved no question of delaying or rejecting any specific project or function.
In any event, the President cannot be forced to use appropriations-a fact which has been frequently recognized in congressional debate. If the President directs an agency head not to spend funds, and the agency head is willing to comply, there is no legal means available to compel the Executive Branch to enter into the necessary contracts. Simply stated, the President has the powernotwithstanding any possible limitations upon his authority—to prevent the carrying out of the intent of the Congress. In the event the President should choose to exercise that power, the only remedy available to the Congress would be impeachment. This raises considerations which are essentially political rather than legal.
Under the provisions of the Antideficiency Act (31 U.S.C. 665), appropriations for agencies of the Executive Branch must first be apportioned by the Director of the Bureau of the Budget before they are available to the agencies. The Director is required to apportion annual appropriations in such a manner that they will meet the needs of the entire fiscal year without the necessity for a deficiency or supplemental appropriation; and he is required to apportion no-year appropriations so as “to achieve the most effective and economical use thereof."
The Antideficiency Act expressly authorizes the Director to establish reserves, but only for two specific purposes, as follows:
(1) To provide for contingencies; and (2) to effect savings whenever savings are made possible by or through-Changes in requirements; greater efficiency of operations; other developments subsequent to the enactment of the appropriation.
There is nothing in the statute or its legislative history to support a view that the Director's authority to establish reserves may be used to prevent the execution of projects or programs for which appropriations have been made by the Congress. The language of the Act, when read in context, seems to indicate rather clearly that the provisions permitting the establishing of reserves are to be used only to the extent that they do not interfere with the execution of the purposes for which appropriations are provided. There is nothing in the statute or its legislative history to support a view that the reserve authority may properly be used to prevent the use of appropriations because of overall fiscal considerations.
The authority to make apportionments and to establish reserves is vested directly in the Director of the Bureau of the Budget by the Antideficiency Act and is not dependent upon the Director's relationship to the President. However, the apportionment system was used, during the fiscal year 1958, as the administrative channel for the President's request that the agency heads curtail obligations and expenditures at or below the level for the fiscal year 1957 to the extent feasible.
In the fiscal year 1959 the Director of the Bureau of the Budget by letter conveyed to agency heads the President's request that each agency attempt to hold employment levels for that fiscal year at least two percent below those that could reasonably be financed from appropriations. However, when President Truman in 1949 determined to limit expenditures for the Air Force, he addressed the Secretary of Defense directly and directed him to place in reserve the funds which would have permitted increasing the structure of the Air Force beyond the program proposed in the 1950 Budget.
Thus, action by the President with respect to appropriations could take one of three forms: (1) a request to the Director of the Bureau of the Budget to apportion funds in such a manner as to achieve a particular result; (2) a request to the Director of the Bureau of the Budget to convey to agency heads the President's request that appropriations be conserved in a particular manner. without any direct action to reduce apportionments or establish reserves; or (3) a direct request by the President to agency heads.
Senator CHILES. Senator Ervin.
Senator ERVIN. I want to commend you for your statement, and the ultimate approach that you suggest certainly deserves serious con
sideration by the committee. Also the procedure you suggest providing for a ruling between the Executive and Congress, would be important in providing interpretation as to many appropriation acts and other related acts. I think it would provide good machinery of allowing appeal to the courts to get a decision by an impartial body that is not concerned with this side of right or wrong.
Now, it was suggested by Senator Byrd from West Virginia who testified just before you, that we should establish a joint committee which would jointly study these matters. Do you recall during the last session of Congress, the closing days of the last session of Congress, when the President suggested we ought to have an overall ceiling on expenditures of $250 billion, that the Republican Senator from Idaho, Len Jordan, had an amendment which would give the President authority to cut a proportion of all appropriations made by Congress during that session of Congress. The Senate passed it by a very strong majority, but it was defeated in the House largely as a result of the efforts and opposition of the administration.
Now, wasn't that a very desirable approach to the problem and a very simple solution to the problem of excessive spending which had the virtue of preserving veto priority placed by Congress upon the various programs and projects covered by all appropriations bills during that session?
Senator KENNEDY. I would agree, Senator. I think it was responsive to the particular situation that faced the Congress then. It was a bipartisan effort by Senators Jordan and Packwood and many others, and I think presented the most desirable means for providing some restraint in terms of budgetary expenditures. I think it was certainly the appropriate way to proceed.
The administration rejected this congressional initiative approach toward doing something about the spending ceiling. I think it was preferable and obviously it would have been sounder from a constitutional point than the arbitrary and whimsical response reflected in the administration's meat-axing of programs that have been authorized
Senator ERVIN. Does not such a solution of the problem of excessive spending have the virtue of being very simple. It only takes a computer to determine exactly what the reduction has to be pro rata.
Senator KENNEDY. Exactly, and as suggested by the formula, it provides a standard-an equal standard-for all the various programs. It seemed to me that even though there may be some programs which any individual members of the Senate or group of Senators preferred as high priority or lesser priority, it did provide the most expeditious means for meeting our responsibilities toward budgetary restraint. I think it was constructive initiative by the Congress and I think that it is all too forgotten by the American people. I think to a great extent the American public felt at the conclusion of the last session that it was the President trying to get the ceiling and it was the Congress trying to block him in this decision.
I think Senator Byrd reviewed with the subcommittee, as the majority leader has at the end of each session, where the Congress over a period of the last 4 years cut $20.2 billion in appropriations from the President's requests.
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Senator ERVIN. Do you agree with me that there has developed in Congress a recognition of the desirability of setting the Federal financial house in order, and that Congress is anxious to do that, but the controversy that exists between the Congress and the Executive arises out of the feeling of Congress that it lies solely within the constitutional power of Congress to determine the objectives for which appropriations should be made, or the expenditure of Federal funds should be authorized, and the feeling of Congress that the President is endeavoring to usurp that power of priorities for expenditures for various projects?
Senator KENNEDY. The Senator has stated it accurately. I believe every schoolboy learns how laws are passed, and that is they are passed by the House and Senate and signed by the President, that they become the law of the land, that the President is committed to execute them and uphold them. That is what the Constitution says. That is what every child learns in this country. Yet we have seen by this President the very extensive use of the impoundment process to negate or frustrate various programs which have been passed by the Congress and signed into law by himself. I think that is completely contrary to the Constitution and exceeds any power which was granted to the President.
Senator CHILES. Do you have any questions? Mr. KURLAND. Senator, I am rather disturbed by your suggestion that impoundment is proper with regard to military expenditures.
Senator KENNEDY. I was not trying to suggest that I recognize it was proper. What I was trying to say was that traditionally and historically, from the time of the founding of the Republic there has been a different standard applied for military affairs.
I am not today willing completely to grant the legitimacy of impoundment in military and foreign affairs. I am noting what I think has been a reality, going back from the time of Thomas Jefferson's failing to spend the funds for the 55 gun boats on the Mississippi to President Kennedy's actions relating to the bombers. But I note clear differences between these historical precedents and the wholesale impoundment at the present time of domestic programs with which this administration has disagreed with. It is more a matter of according recognition than a willingness to accept it personally myself, I think is a reasonable interpretation of historical precedents, in light of the language of the Constitution itself.
I would be willing to inquire from you whether or not you would not agree that at least there has been this distinction?
Mr. KURLAND. There are no doubts that precedents exist.
I would note section 8, article 1 includes among the powers granted to the Legislature, the power to declare war, raise and support armies, maintain a navy, provide for a militia, provide for organization and disciplining an army and militia, and finally to make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by this Constitution by the Government of the United States or any department or office thereof. I conclude from this there is no constitutional authority in the military area any more than there is in the areas you discussed in your testimony.
Senator KENNEDY, I don't want to be put in the position of trying to defend a position with which I am not in full agreement. But I
have generally felt that under the provisions of the Commander in Chief authority under the Constitution that there was a greater opportunity or perhaps authority, implied authority, than certainly in the other areas of impoundment. I draw this as a historical reality rather than being one that I would like to support myself.
I personally feel that we ought to use the same rules for both areas but I think that there is this distinction in reading the history of the impoundment.
Nr. KURLAND. Thank you, Senator.
Have you had an opportunity to study Senator Muskie's OMB bill which would require that Congress would get the same information?
Senator KENNEDY. I think it is a very positive and useful suggestion, a very constructive suggestion.
Mr. MILLER. In other words, Congress should get the same information from the Department that OMB gets at the same time.
Senator KENNEDY. Exactly. I think it was a very constructive proposal, hopefully to be accomplished.
Senator CHILES. How did you envision this would be done under provision one where you were going to have less than 10 percent in a period pursuant to antideficiency statutes? You would have these before they take effect come to the Appropriations Committee?
Senator KENNEDY. Any proposed impoundment, statutory or antideficiency, would be noticed but the Congress would have to act affirmatively only if it was to be over 10 percent. If it is over 10 percent, Congress would have to act in such ways to repeal or rescind the authority on appropriations. If the Congress did not act within 60 days as has been outlined in the Ervin proposal, then the funds would have to be spent. The impoundment would be vacated if Congress did not act to grant the authority within that period of time.
I think there are some factual situations which I know have been suggested here as to whether the President can impound if Congress goes out, or to keep doing it for successive 60 day periods to try and frustrate the clear intention of the impoundment bill. I am willing to recognize the difficulty that imposes and to anticipate it in advance.
Senator CHILES. If it was over 10 percent Congress would have to confirm it?
Senator KENNEDY. That is correct. I think we ought to have notification even in statutory situations. We don't gain that at the present time, and even under the Anti-Deficiency Act I think we ought to have notification.
But it seems to me the 10 percent is a reasonable cutoff level, where we wouldn't be getting into the situation where we are just rubberstamping. If it were required for every impoundment we might get in the situation of rubberstamping. But over 10 percent you would have this type of requirement.
Senator ERVIN. I think that Professor Kurland was making the point which I would make in this way: That regardless of the practice with respect of Congress for appropriations for military purposes, that the constitutioinal provisions clearly gives Congress the right tó control these powers, and it is sort of analogous to the situation that we have had murder committed in every generation, but that hasn't made murder or larceny legal.
Thank you very much. It was a very fine statement.
Senator CHILES. Our next witness will be the Honorable Joseph T. Sneed, the Deputy Attorney General, Department of Justice.
We are delighted to have you appear before the committee.
STATEMENT OF HON. JOSEPH T. SNEED, DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE Mr. SNEED. Thank you, Senator Chiles. I am very happy to be here this morning.
I read the other day, Senator Chiles, in the transcript of these hearings that perhaps the representatives of the administration should be equipped with a copy of the Constitution and Dale Carnegie's book on "How to Win Friends and Influence People.” I frankly could not find the other volume.
Senator ERVIN. Excuse an interruption, but unfortunately there are too many conflicting obligations around here for a Senator.
I have been called by the Rules Committee to come over to discuss the budget of the subcommittees of which I am chairman, in order to have money on which to operate, and they say I would have to speak now or perhaps hereafter hold my peace because they didn't want to hold a session this afternoon.
I regret that I must leave, but since we are going to need the money, I guess I had better go. I will be delayed for about 30 minutes.
Senator CHILES. Mr. Chairman, I wonder if it could be possible if we could delay Dean Sneed for a few minutes and perhaps take one of our afternoon witnesses?
Senator Ervin. That would be fine. I hate that I must leave, but I am on the Hill. Dean Sneed has been teaching law in a great institution in my State and I want to see that they get the true faith and deliverance of the Senate. Mr. SNEED. That is perfectly satisfactory to me. (Short recess taken.) Senator CHILES. We will reconvene our hearings now.
Our witness will be Dr. Barry Commoner of Washington University.
Doctor, we are delighted to have you with us this morning, and we will hear your testimony now.
STATEMENT OF BARRY COMMONER, DIRECTOR, CENTER FOR THE
BIOLOGY OF NATURAL SYSTEMS, WASHINGTON UNIVERSITY,
It is a privilege to appear before this committee, for the issue which you have chosen to confront is grave and momentous-not only for the survival of the Nation as a democratic society but also for its survival in an environment fit for human life. I am not an expert on constitutional law and I am not going to discuss that, but I do know something about the environmental problem which has turned out to be the arena in which this legal problem exists.
1 See also statement on p. 358.