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order could also reach the President if he persisted in allowing his top officials to remain incarcerated. And of course, there is always the unspoken but constitutionally articulated action of impeachment which, in the case of defiance of such a serious court order, would seem to be entirely proper.
Any legislation prohibiting impoundment must be accompanied by other legislation providing an environment in which the anti-impoundment mechanism may operate effectively.
First, it is imperative that Congress bite the bullet in reforming its own budgetary processes. Presently, Congress lacks the tools adequately to appraise the President's budget, much less to initiate its own budgetary proposals.
I recall recently Senator Scott's stating that the President has impounded because, as the Senator stated, the Congress did not have the guts to control its spending. For such an argument which puts expediency to the foreground and the Constitution to the rear is nothing short of insidious. It is hardly an argument one would expect from a Member of Congress because it can be easily extrapolated into further arguments such as because the Congress did not have the guts to declare war, the President had to make war. This is a terribly underlying type of thinking that I think needs to be raised to the surface of critical appraisal
It is true the Congress has not upheld its responsibilities in this area, but that cannot be used as a justification for executive procedure.
As an important first corrective step, Congress must equip itself with the additional personnel and computer capability needed to perform its budgetary function in a competent fashion.
Second, Congress must rework its internal procedures so that it may review each year's expenditures in their entirety rather than, as it presently does, on a piecemeal basis.
One of OMB's principal justifications for impounding funds is that it is the only agency in the Federal Government that has an overview of the whole budget. Accordingly, if Congress is to retrieve its lost power over the Federal purse strings by prohibiting impoundment, it must simultaneously revamp its own procedures so that it can fulfill the managerial responsibility that necessarily accompanies this power.
I might add here that this is a particularly critical responsibility for Congress because it is not likely that there is going to be a popular uprising in the Nation demanding that this occur. It is an issue that is intricate, it is complex, it is not glamorous, and it is not very susceptible to the mass media throughout the land. An issue such as this is peculiarly an issue of Congress to recognize and resolve.
The creation of a Joint Committee on the Budget to perform the function of congressional overview has been proposed in legislation introduced in this session; such a committee might provide the needed mechanism to remedy the present patchwork approach to appropriations, provided that its powers are sufficiently limited, its membership sufficiently broad, and its inner workings sufficiently visible to insure that it does not accumulate oligarchial control over budgetary matters.
Third, Congress must equip itself with the legal assistance necessary to enable it to assess and, if necessary, to enforce by court action the
laws it passes prohibiting executive usurpations of its legislative power.
Senator Hartke and others have proposed that Congress should create an Office of General Counsel which would provide Congress with legal assistance in much the same manner that the GAO presently provides assistance with respect to the expenditures of funds. The creation of such an office would go a long way toward providing Congress with the tools necessary to curtail executive incursions on the legislative prerogative.
I think it is important to note, although there are exceptions, that the annual budget of Congress is about $500 million; that is, to operate Congress in its entirety costs $500 million a year. That is equivalent to just over 2 days' expenditure by the Pentagon and I just do not think it is possible to reduce the size of the executive with accuracy and reduce the raises and inefficiency without increasing the technical assistance support structures that the Congress must have under its own jurisdiction directly.
In conclusion, it is obvious that the responsibility under our Constitution for making the choices such as the taxing power, the appropriation power, reposes in the Congress, and it is the duty of the Congress to reclaim those rights from the executive before they are permanently lost by adverse possession.
When the executive branch appropriates power that belongs to the Congress, it appropriates power that belongs to the people, and when power that belongs to the people is controlled and administered by a highly invisible and giant bureaucracy, that is the executive branch, then we have clearly lost a good deal of the democratic metabolism in this country.
I think it is important to recognize here that the criticism of the Chief Executive does not rest on substantive disagreements on program cuts, but on a rapidly steepening tradition that the Presidency is becoming preeminent in making these judgments that belong to the Congress, which in turn belong to the people.
There is a very, very sensible reason, I think, why the Founding Fathers put the taxing and appropriating powers in the Congress, and that is because the Congress as it is structured is closest to public accountability and closest to the people, and when the taxing and the appropriately and the spending functions are generated by the Presidency, then the connection between the Congres and its public accountability to the people is rendered nugatory. And that is why I think it is very important in analyzing the future direction of our democratic system to focus relentless determination on this issue so it can be resolved with explicit standards and accountabilities imposed on the executive by the legislative branch of Government, and clearly interpreted by the courts in case no solution is reached between the former two branches.
In summary, the following recommendations are made with respect to any legislation prohibiting impoundments:
1. The approach taken by S. 373 should be reversed, so that no impoundment may be effectuated, even on a temporary basis, without the prior approval of Congress:
2. The Congress' approval or disapproval of any proposed impoundment should be handled procedurally in the same manner as requests for supplemental appropriations and should, accordingly, be subject to committee hearings when appropriate;
3. The definition of impoundment contained in any such legislation should be slightly broader than that contained in S. 373;
4. Any such legislation should contain provisions excepting from the definition of "impoundment” any routine establishment of budgetarmy reserves under the Anti-Deficiency Act, so long as that act is simultaneously amended to clarify its narrowness;
5. Congress should make certain that, in enacting anti-impoundment legislation, it does not give the appearance of tacitly approving past impoundments;
6. Legislation should be enacted granting standing to any Member of Congress to enforce the provisions of the statute prohibiting imporundment;
7. Congress should modernize its budgetary procedures and expand its staff so that it will be able to initiate its own budget proposals, to assess the Presidents budget adequately, and to obtain an overview of all Federal expenditures rather than viewing them on a piecemeal basis;
8. Congress should establish its own Office of General Counsel to provide it with legal assistance in riding herd on executive encroachments on the legislative prerogative; and,
9. Congress should pass legislation subjecting the Director of the Office of Management and Budget to Senate confirmation.
The Constitution has given Congress the responsibility for enacting the laws of this country, and the executive branch has been given the responsibility for carrying out those laws. For far too long, Congress has largely abdicated its responsibility, and it is now time for a reassertion of its constitutional rights and obligations.
If hard choices must be made in the budgetary process, it is for Congress to make them, and the voters and citizens to participate in or respond to the legislative process. If programs must be cut in order to control inflation, it is the responsibility of Congress to make those judgments. If taxes must be raised, Congress cannot be afraid to do so, nor can it shift any of these unpleasant tasks onto the Executive. The responsibility under our Constitution for making these choices is resposed in the Congress, and it is the duty of the Congress to reclaim those rights from the Executive before they are permanently lost by adverse possession.
Thank you for your invitation.
You have attachments to your statement and they will be incorporated in the record at this point.
(The attachments follow :)
PROPOSED SUBSTITUTE FOR S. 373 Section 1 (A) For purposes of this Act, the impounding of funds includes:
(1) the withholding, delaying. deferring, freezing, or otherwise refusing to expend appropriated funds (whether by establishing reserves or otherwise) ;
(2) the delaying, deferring or refusing to make any allocation of authorized funds (where such allocation is required in order to permit the funds to be expended or obligated];
(3) the delaying, deferring or refusing to permit a potential grantee to obligate funds (whether by establishing contract controls, reserves or otherwise);
(4) the cancellation or termination of any authorized projects or activities for which funds have been appropriated ; and
(5) any other action by the Executive which effectively precludes or delays the obligation or expenditure of authorized or appropriated funds. (B) Nothing contained herein shall require any person to approve the expenditure or obligation of funds not otherwise permitted by law.
(C) Nothing contained herein shall prevent compliance with section 3769 of the Revised Statutes, as amended." Section 2
Neither the President, the Director of the Office of Management and Budget, nor any other official in the Executive Branch shall impound, order the impounding, or permit the impounding of funds. Nothing contained herein shall be considered by any person or court to constitute a ratification or approval of any previous impounding of funds. Section 3
(A) If the President, the Director of the Office of Management and Budget, or any Cabinet officer or other agency head desires to impound any funds, he shall transmit to the Senate and the House of Representatives a request for legislation by means of a special message containing
(1) the amounts of the funds to be impounded ;
(2) the account, department or establishment in the Government from which the funds are to be taken ;
(3) the program(s) affected by the proposed impounding and, if more than one program is affected, the extent of impounding on each;
(4) the duration of the proposed impounding;
(6) to the maximum extent feasible, the estimated fiscal, economic, and budgetary effects of the impounding. (B) A copy of the request shall also be transmitted to the Federal Register and shall be reproduced there at the earliest possible date.
(C) Congress shall act on any such request in the same manner as it acts on all appropriations legislation.
AMENDMENT TO THE ANTI-DEFICIENCY ACT Section 3679 of the Revised Statutes, as amended, is hereby further amended by adding thereto the following:
(j) Except as specifically provided for by particular appropriations or authorizations acts, nothing in this section shall be construed to authorize any officer or employee of the United States, for reasons other than those contained in subsection (c) (2) of this section, to expend, obligate, or otherwise commit within a fiscal year less than the full sums authorized or appropriated by the Congress for that fiscal year. The phrase 'whenever savings are made possible' in subsection (c) (2) hereof shall be strictly construed to include only those instances in which the programs, projects, or other purposes for which the appropriation, or authorization was made may be fully achieved or carried out without the expenditure or obligation of the full sums authorized or appropriated. The phrase "other developments subsequent to the date on which such appropriation was made available' in subsection (c) (2) hereof shall not be construed to authorize the impounding, withholding, reserving, deferring, or freezing of funds or obligational authority for reasons related to the control of inflation or the reduction of overall federal spending, or for any other reason not specifically authorized by other provisions of subsection (c) (2), as amended, by the laws providing for the particular expenditure or obligation.
1 The Anti-Deficiency Act, 31 U.S.C. $ 455, as amended.
Sec. 1. Any member of Congress may bring an action to enforce the provisions of [S. 373] or otherwise to prevent the impounding of funds as defined in Section 2 thereof in the United States District Court for the District of Columbia without regard to the amount in controversy.
Sec. 2. In any action brought by a member of Congress to enforce the provisions of [S. 373] or in any other action brought by any person to prevent the impounding of funds as defined in Section 2 of [S. 373), the defendant(s) shall have twenty days within which to answer or move against the complaint and an extension of time may be granted only for extraordinary reasons. Any such action shall be entitled to a priority in any court of the United States over all cases other than emergency matters. This priority shall also apply to all such actions commenced prior to the effective date of this Act.
Sec. 3. In any action involving the enforcement of [S. 373] or the impounding of funds as defined therein, any member of Congress shall have the right to file a brief amicus curiae in the United States Supreme Court or in a court of appeals at any time prior to oral argument. In a district court any member shall have the right to file an amicus curiae brief unless the court determines that the filing thereof will unduly delay the action.
Sec. 4. Nothing contained herein shall be construed as implying the absence of the standing of a member of Congress to bring any action in any court of the United States whether in his capacity as a member of Congress or as a citizen.
Senator CHILES. You have included a statute, a proposed statute for the Congress to pass. Would you just outline very briefly the changes your statute would make?
Mr. NADER. Yes.
One, that no impoundment may be effectuated even on a temporary basis without the approval of Congress;
Two, that the congressional approval or disapproval of any impoundment be handled in the same manner as a request for a supplemental appropriation;
Three, that the definition of "impoundment” contained in any such legislation should be slightly broader than that contained in S. 373;
Four, that such legislation should contain provisions excluding from the definition of impoundment of Anti-Deficiency Act reserves, so long as that act is simultaneously amended to clarify its narrowness;
Five. Congress should make certain that, in enacting anti-impoundment legislation it does not appear to be tacitly approving past impoundments;
Six, legislation should be enacted granting standing to any Member of Congress to challenge in court any violation of the statute prohibiting impoundment and then, as subsidiary recommendations not in our proposed statute, Congress should modernize its budgetary procedures, establish its own Office of General Counsel, and pass legislation subjecting the Director of the Office of Management and Budget to Senate confirmation.
Senator CHILES. Would you also summarize for us how vou think the proposals that you have set forth would have a better chance for being enforced by the court rather than S. 373 ?
Mr. NADER. Yes, Mr. Morrison will reply to that, if you will.
Mr. MORRISON. Mr. Chairman, there are two problems insofar as the courts are concerned.
No. 1 is that the definition of “impoundment" does not preclude erery practice that should come within S. 373. An imagina