STATEMENT OF HON. CLAUDE PEPPER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

The CHAIRMAN. Congressman Pepper had long training over in the Senate and he graduated over there. So now he is in the House. Mr. PEPPER. Thank you, Mr. Chairman, and members of the committee for the privilege of making what I shall try to keep to a brief statement before the committee on this matter pending relative to the President impounding funds authorized and appropriated by the Congress, or terminating laws without the authority of Congress duly enacted by the Congress.

I regard there being three very important and serious questions involved in this controversy between the Executive and the Congress. First, I believe there is a very serious constitutional issue presented in this controversy; second, I believe there is a very serious political problem presented by the President having the opportunity to go before the country and tell the country that the Congress is being physically irresponsible: Third, it seems to me that the great importance in respect to the public interest to show that we have a responsible Congress and that we are amenable to some kind of reasonable discipline in the expenditure of the public funds.

On January 3 of this year, I introduced a companion bill to the Ervin bill that was introduced in the Senate. That was in substance that the President within 10 days after he impounded or terminated or attempted to terminate the law should give notice to the Congress— House bills—would you like to terminate now, Mr. Chairman?

The CHAIRMAN. We will recess and vote and come back immediately because I think we can hear the next distinguished witnesses in a very short time.

So immediately upon voting we will come back.

[Brief recess.]

The CHAIRMAN. The committee will be in order.
Proceed, Congressman Pepper.

Mr. PEPPER. Mr. Chairman, and members of the committee, I don't think it is necessary for anyone to labor further the point that, within the confines and the intent of the Constitution, the Executive, any Executive, does not have the power to terminate legislation enacted duly by the Congress or to fail to carry out the laws, including appropriation laws duly enacted by the Congress.

I have had the Library of Congress to search every memorandum that pertained to the constitutional convention that they could find.

We have heard witnesses who appeared here who are able authorities on the Constitution. Nobody has ever suggested so far as I am aware, anything in the Constitution or in the deliberations of the constitutional convention that would justify the President in taking such action.

Surely the constitutional framers and founders never contemplated anything like that. They thought they had prevented any Executive from attempting such action by putting in the Constitution the language the President "shall take care that the laws be faithfully executed."

Now they could have said the President shall see to it that the laws are executed. But they saw some reason to add the additional language in there "shall take care," shall be careful, shall be alert, shall be concerned, shall be sure, shall take care that the laws, not just be executed, but be faithfully executed.

A faithful servant is the one who well carries out the wishes and the will of his employer.

So it seems to me that it is very clear that under the Constitution the Executive does not have the power, either to terminate legislation enacted by the Congress or to fail to carry out laws, including appropriation bills.

The only argument I have ever heard asserted to the contrary is that other Presidents have done the same thing. Well, that's not the way to amend the Constitution of the United States by violating it. I don't care how many Presidents have violated it.

If that is in violation of the Constitution, that is not a way to amend it. There is a procedure prescribed in the Constitution if anybody wishes to amend the Constitution. Of course, that procedure has not been followed in this case.

So it does seem to me appropriate that the Congress shall take account of the seriousness of this question and shall proceed in some proper way to assert the proper prerogative of the Congress under the language of the Constitution which said all, not just some, or part of, but all legislative power shall be vested in the Congress of the United States.

I said the second issue is the political one. As long as the President can go before the country and say:

I had to terminate some of those laws enacted by the Congress because I had to save money, because this is an irresponsible Congress you have elected up here; they spend money without any sense of restraint, of responsibility, and the effect of their excessive spending is to increase inflation and to bring about the probability of increased taxation.

That is a very telling political argument. And if Congress is going to vie with the Executive in the form of public opinion, I think we have got to answer that argument by action showing we are not an irresponsible body financially.

It would take a very rich father to be able to afford, if he had several children, each one of the children spending all the money he wanted to spend or she wanted to spend.

Yet, to a great degree we have allowed all of the committees of the Congress to spend the amount of money that they respectfully thought we should spend and the sum total many times has been in excess of the budget, perhaps maybe in excess of what the Congress, if it had taken an overall look at it, would have preferred to spend.

So I think we in action have got to deprive the President of that argument in insisting upon the preservation of our constitutional prerogative, to be the representative of the people in the enactment of their laws, including the appropriation of their money.

The third issue, as I said, as I see it, is to show that we are a responsible body.

In the first instance, on January 3, as I said, I introduced the counterpart here of the Ervin bill in the Senate. Since that time the Senate has passed the Ervin bill with an amendment imposing a ceiling.

I have introduced that bill as a counterpart here, as it passed the Senate, H.R. 6805. That is the bill that I would very respectfully recommend that our committee report out and that the House of Representatives adopt rather than the Mahon bill or any other bill which has been brought to our consideration.

There are two or three good reasons for that. In the first place, I like the approach of the Ervin bill, which I have introduced the counterpart of here, and others have, too, Mr. Pickle and Mr. Matsunaga, my colleague, and many others.

I like the approach that it makes. It assumes that the President shall carry out the Constitution, to see to it that the laws, including appropriation laws, are faithfully executed unless Congress excuses him from doing that.

Under the Ervin bill, his impounding of funds or the termination of legislation is forbidden unless Congress approves it.

Under the Constitution the President has two prerogatives in respect to the action of the legislative body. He may recommend action or nonaction by the Congress, and he may veto action taken by the Congress.

Under the Constitution, I see no option other than the third one provided clearly by the Congress, he shall take care that the laws be faithfully executed.

But now we would say, let the President impound or terminate, if he will, but it becomes illegal under the act passed by the Senate, which was the original Ervin bill with an amendment, unless within 60 days Congress affirmatively approves the proposed modification. That is what I would consider impoundment to be: It is in the nature of a recommendation for a change in the law, like a supplemental appropriation, as it were, in respect to an original appropriation. Whereas, the Mahon bill would impliedly say, "All right, Mr. President, you may terminate or you may impound funds provided by the Congress if we don't affirmatively disapprove within 60 days."

That gives the Executive the benefit of dissension in the Congress, delay in the Congress which might include filibuster in the other body, disagreement even of goodwill between the bodies of the Congress.

It puts in jeopardy a great constitutional principle, and it weakens us in the protection of our prerogative if we allow the President the benefit of those practical factors which might enter into the solution, the final settlement of the matter.

In the last place, the advantage of the Ervin bill, as it passed the Senate with the amendment, is that we do meet the test of fiscal responsibility. We do it without waiting for our able, joint committee on the budget to follow up its report. They have already made it, and I commend them upon the excellence of it. I had the privilege of appearing before the committee to submit my views, but I dare say that the Congress is not likely to adopt those recommendations, however meritorious they may be, in time for us adequately to deal with the 1974 budget.

Whereas, under the bill that passed the Senate, what they have done, and what we would do if we joined in it here-it is already half through, as it were-is that the President recommended for fiscal 1974 a budget of $268.7 billion and this bill said $268 billion.

So the President can't go before the country and say, if we adopt this bill, that "that is a spendthrift Congress." We are $700 million under the President's budget for 1974. My able colleague here and many others have pointed out, that in many instances in the past our appropriation has been less than the budget request. But for the specific year, 1974, this bill, that has passed the Senate, puts a ceiling on congressional appropriation at $700 million lower than the President requested.

What can he make of us, if we do that? How can he say then we are the irresponsible spendthrift in the Government and perhaps not the Executive who would recommend nearly a billion dollars more. The last thing it does, it provides a formula for the reduction in the funds. I have been going over this morning the recommendation of our able Joint Committee on the Budget. I have read some of the criticisms of their proposal. And they are perhaps worthy of serious consideration.

But it is very difficult to have a committee in the Congress-as Mr. Mahon said here in response to a question I put when he testified on the Mahon bill here originally. We tried it one time and Congress didn't continue the practice.

It is very difficult over here, yet we must find a way to do it, I think we all agree, to fix our own limitation.

But according to this bill that passed the Senate, they first say except that no reservations-that is, the President shall not cut; page 16 of the bill that I happened to introduce; except that no reservation; that means no impounding; shall be made from the amounts available for, one; interest; two, veterans benefits and services; three, payment from social insurance trust funds; four, public assistance maintenance grants under title IV of the Social Security Act; five, food stamps; next, military retirement pay, medicaid or judicial salaries.

Those are exempted from any impoundment whatsoever. I think deservedly so because they are all critical areas.

Then the remainder, the sum total of all of those items that cannot be cut, deduct them from $268 billion, let's say, if this went into effect in fiscal 1974, you would have the amount of money that could be spent.

This bill then provides the President shall cut prorata across the board all of the rest of the appropriations of the Congress by the same percentage to get down to that ceiling of $268 billion.

We have as we all recall several times here in the House passed, you remember the amendments on several occasions, cutting 5 percent across the board, and some thought that was a wise procedure and some not. But it has been done by the Congress.

So it seems to me that at least until our Joint Committee on the Budget has been able to be heard by the Congress and Congress has time to act upon those recommendations which involved many other complex matters, that we could beat all of the arguments that are put against us, political arguments, and the argument that we are not meeting our responsibilities as a responsible, fiscal body; we can meet all of those by relatively simply formula, at least of temporary value, by using this formula of exempting certain critical areas from being cut at all; cutting all other appropriations on a percentage basis.

So that is the reason, Mr. Chairman and members of the committee, that I think it would be wiser-the Senate has already passed this bill and if we pass the Mahon or any other bill, of course the matter will go to conference. But the Senate has already passed this bill, and if we could conscientiously bring ourselves in accord with it, we would more likely expedite the solution of this matter of the enactment of whatever we pass here. And then we would probably have a greater degree of unity between the two bodies, because it is entirely possible the President is going to veto the bill anyway. We will probably need the maximum unity in the Congress if we are to make this principle stand before the Congress.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Congressman Pepper.

In connection with your statement I think there has never been in my experience such a repercussion against these so-called impoundments, and you might include vetoes, too, as I found during the Easter recess at home recently and since then. I was in Indianapolis Saturday to attend a big gathering out there. One of the pressing questions brought up was about impoundments.

The president of Purdue University was in my office about a week ago and he had a list of seven different departments of Purdue that are about to be closed. Three of them are curtailed and the others are going to be closed. One pertains to nursing education, and so on, and so forth.

I have had letters from any number of parents and students too who have made applications to universities and can't get in on account of the curtailment of funds for education over the country, on account of impoundments, on account of vetoes.

The President of the University of Purdue, stated that he is talking about just one of the universities of the hundreds over the Nation, and $3,400,000 will not be received by his university in Federal money that were received last year.

Just imagine how that is going to affect the education of millions of children. That is how important this impoundment legislation is we are considering here today.

That is why I am anxious to get the committee moving, so we can complete the testimony and get this bill on the floor of the House and let the people know that we are trying to do something about it. Otherwise there will be millions of students over this country today that will be denied an education. There were three vetoes of education bills in the last 3 years.

Millions of students today can't go to school on account of these vetoes and the impoundment.

The country is aroused. That is how important this legislation is. Mr. PEPPER. Mr. Chairman, it is unthinkable that the Congress of the United States cannot establish priorities in the way that public money is to be expended. Yet, under this practice of the administration and some others that have engaged in similar-I don't think to the same degree-the same practice, similar practices, we could not guarantee the American people a single bill, no matter how meritorious it might be, the Congress of the United States even by overriding a