article II, section 3. The question whether impoundment is necessary to protect the economic health of the country is profoundly important and weighted with policy considerations and Congress, in my judgment, should not delegate to a subordinate official its power to review a Presidential decision to impound funds.

Senator Ervin's bill, S. 373, differs with the Mahon bill by requiring that the President must discontinue his impoundment unless, within 60 days of his action, the Congress has approved the impoundment. The Mahon bill, by contrast, would forbid the impoundment only if within 60 days the Congress by concurrent resolution had voted to forbid it. I believe the Mahon approach is preferable as a matter of constitutional principle.

I would like to embellish my prepared statement for a moment on this point, to articulate my underlying reasons. I think there are problems of a constitutional dimension here for two reasons. One, the President is, after all, a participant in the legislative process. Although he is directed faithfully to execute the laws, he is also given authority to sign or to withhold his signature from the laws.

That means that he is entitled under the Constitution to reach a judgment at the time that he signs laws about what the laws contain, what is desirable, what is not. That means, in my view, that when the President acts by signing two bills and they subsequently appear inconsistent, the President, too, is implicated in the inconsistency. He also has approved, for example, both the Economic Stabilization Act on the one hand and various appropriations acts on the other. To say he is implicated because the Constitution gives him review authority is also to say that he is expected to have some independent judgment about what these pieces of legislation contain. When the President sees that there is inconsistency between two laws he has signed, it is not inappropriate for him to reach a judgment about how the various conflicting purposes of his and of the Congress shall be carried out.

Then the question is, how is the Congress to tell the President that he is wrong? Senator Ervin's bill says, in effect, unless the Congress tells the President that he is right, he can't go forward. That, to me, really seems to be based on the premise, and I think it is fair to say from Senator Ervin's statements on this matter that this is his premise, that the President has no constitutional authority at all to do this.

That is to say we are basically dealing with an illegal action by the President. So, in a way, there is no reason for any institutional mechanism except an extra jab at the President to get him to do something which he has to do by law anyhow, which is to spend all of those appropriated funds.

If the matter is, as I think, more complicated than that, it seems to me it is appropriate when the President says, "Look, there are inconsistent purposes and this is the way I weight them," for the Congress then to have to say something in order to overrule the President. But under Senator Ervin's approach, silence by the Congress for 60 days is the end of the matter and then the President has to resolve the inconsistency that he has seen in favor of spending.

This argument essentially suggests that there are constitutional underpinnings to the Mahon approach. I don't want to suggest that I think the Ervin bill is unconstitutional on this point. Instead, I am suggesting that there is more of a spectrum, that given the constitu

tional justification for the President's action it more comports with the President's constitutional authority to require affirmative action by Congress to override him rather than nothing.

Let me conclude by pointing out another aspect of this problem. That is, what happens if the Mahon or the Ervin bill is enacted and the President still does what he is doing, and refuses to spend money even after the Congress has directed him to. If that comes about, if the President impounds funds after the Mahon or the Ervin bill is passed, and if both Houses of Congress disapprove his action, that will provide something we don't now have, which is a clear-cut test of the President's claim to inherent constitutional authority irrespective of what the Congress has said.

As Justice Jackson stated in his classic opinion in the Youngstown Steel case, "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” At that point, the courts might be more willing to intervene, or the President might more clearly see his vulnerability and pull back from contesting the explicit judgment of the Congress. But until Congress has provided an institutional mechanism such as envisioned by the Mahon bill, the current stalemate will continue without real hope of definitive resolution, and the legitimate prerogatives of the Congress will go by default.

The CHAIRMAN. Please make your answers as brief and direct as possible. We have another witness this afternoon.

Mr. BURT. I apologize, Mr. Chairman. It is one of the ills of being an academic.

The CHAIRMAN. After a long hard fight we finally got a park on the shore of Lake Michigan. That fight went on for 20 years. We finally succeeded in getting it. The President now thinks we don't need that park so we can't get any money down there. Do you think he has power to do that?

Mr. BURT. You are backing me into a corner now.

The CHAIRMAN. We elected 435 Congressmen from every district in the United States. Do you think after the Congress, which represents the sentiment of the country, passes a piece of legislation and it goes to the White House, if the President dislikes it even after signing the measure, he can impound the money?

Mr. BURT. As I say, you are backing me into a corner. I live in Michigan and I would like that beach more.

The CHAIRMAN. You were one of the big sponsors.

Mr. BURT. That is right.

The CHAIRMAN. Do you approve of what he is doing now, impounding that money?

Mr. BURT. That is the corner you are backing me into.

The CHAIRMAN. You said that before. You are against that? You don't like that?

Mr. BURT. The problem is I would like that park to be put in Michigan.

The CHAIRMAN. Do you think the President has a right to do that? Mr. BURT. What the President says is:

There is a park in Michigan, in Arizona, and California, and when you start aggregating all these parks, then it turned out the Federal Government is going to spend so much money we will start an inflationary spiral.

The CHAIRMAN. There are about 8 million people within 1 hour's ride of that park by automobile. You are comparing it with parks where they have to take a jet to get there. Where we have 8 million people within 1 hour of this park, you have maybe two hundred thousand within, say, 600 or 700 miles of the park in Arizona.

Mr. BURT. What this bill would do would be to permit the Congress to say, "Look, we have heard you talk about the overall economic

The CHAIRMAN. You are not answering my question directly. Answer this yes or no, please. Do you think the President has the right to impound the money that the Congress has appropriated for that park to be built? Do you think he has a right to do that.

Mr. BURT. Right now?

The CHAIRMAN. Yes.
Mr. BURT. Yes, sir, I do.
The CHAIRMAN. Why?

Mr. BURT. When you look at all the overall expenditures he can say, "This will create an inflationary spiral."

The CHAIRMAN. Who will decide? There has been $150 billion spent in Southeast Asia and still being spent over there. Is he going to take charge of everything here so we can't have a park because he likes to stay in Southeast Asia and send billions over there?

Mr. BURT. The President right now has the best of both worlds. The CHAIRMAN. You are not answering my question.

Mr. BURT. That is the academic ill, Mr. Chairman. I have to wind up.

The CHAIRMAN. Do you think he has the right to send billions into Southeast Asia and refuse money for this park when he has been directed by the Congress to build the park where about 10 million people can drive to it? They don't have enough money to go to Arizona, or Alaska. Do you think he has a right to do that; yes or no?

Mr. BURT. Mr. Chairman

The CHAIRMAN. You can answer that yes or no.

Mr. BURT. Yes, I believe he has the right.

The CHAIRMAN. That is it.

Mr. BURT. I think he is misguided to do it. I think the Congress can tell him that they want the President to build it.

The CHAIRMAN. He was against a social security increase a few months ago. He was opposed to the 20 percent increase.

Mr. BURT. I disagree with him on all those policies. I just regret to say that this is what my analysis brings me to.

The CHAIRMAN. Mr. Bolling?

Mr. BOLLING. I am grateful to the gentleman for his statement. I think it is very useful to bring out these points because there are a great many people in the Congress who are totally opposed to treating the Mahon bill seriously on what I consider to be the wholly specious ground that no argument can be made in the President's right or his behavior.

I am delighted that a distinguished scholar who has had considerable congressional experience would come and tell us about it. The chairman is the only member of this committee except for one other who was then a member of the United States Senate who is familiar

with the Employment Act by firsthand experience because they were here. I speak, of course, of the distinguished former Senator from Florida, now the committee member from Florida, Mr. Pepper. But have had the privilege of serving for a very long time on the Joint Economic Committee.

The point that Professor Burt has made is a very important and precise point, that the Employment Act of 1946, which was enthusiastically supported by some of the strongest opponents of the President's present actions, and I find myself in the same position precisely, makes it very clear that it is the duty of the President, as well as the Congress, to do things in such a way as to maximize employment, purchasing power, and so forth.

There is a clear conflict there, and there are others. I think it very important that people take seriously the constitutional arguments in favor of the President's position so that they may contrive a constitutional response and an effective response.

That is the reason that the Mahon bill, which I strongly support, objectively and otherwise, was constructed, so that we would have a viable, effective, meaningful response that did not evade the issue. I think it is extraordinarily important that our friend at the end of the table has taken the trouble to come and help us out in dealing with the problem because it is a very major problem.

Some of our very best Members on the Democratic side who are most anxious to confront the President on virtually everything else, have made the argument that there is no reason at all for making any concessions to the President in this regard, that we can rely first on the courts—which I don't believe is so for the reasons outlined by Professor Burt-and, second, we can rely on some other set of exercises which I believe futile.

It seems to me this is a question which requires direct confrontation by the Congress if we are to have any satisfactory outcome, if we are not to leave this matter pending for the future. We may work out the details of this particular confrontation the way they have been in the past, informally, but we then are left again with leaving for the future. the same problem.

I think it is a very important statement that the gentleman has made and I am delighted that he has taken the time to be here.

My question: Would you like to expand on any part of your statement?

Mr. BURT. No, I think not.

The CHAIRMAN. Mr. Anderson?

Mr. ANDERSON. Mr. Chairman, I want to join my colleague on the other side of the table, the other side of the aisle, in telling Professor Burt I think it was an extremely fine statement, very analytical and scholarly and for the most part very persuasive.

I was struck with one point that you made, that you felt that it was sensible to insist that the Congress reform its own procedures so that we wouldn't in effect, put the President in the position where he has to impound funds if he is to be successful in carrying out the mandate of the Employment Act of 1946, or faithfully execute the Federal laws.

As the distinguished witness may or may not know, I have been the author of a bill, and some of the members around the table have cosponsored it with me, which takes this approach. We feel, in order not to lose the golden opportunity of the moment to push for this reform in congressional budgetary procedures, that any legislation that the Congress adopts that contains restrictions on Presidential impoundment power ought to also contain some provisions that will deal with this matter of Congress addressing itself in a more acceptable fashion to the budget and establishing its own ceiling, budget priorities, and so on.

Would you have any fundamental objection to that somewhat more all-encompassing approach that I would seek to take? I don't know whether the question is clear or not.

Mr. BURT. Yes, I understand what you are pursuing.

I have some reservations about that approach. My reservations are essentially along this line. Take, for example, the proposal to establish a Budget Committee and, therefore, as I understand the purpose of it, to see to it that the Congress is rigidly held to always being consistent, so that its total expenditures never go over the inflationary spiral line.

Mr. ANDERSON. If you will permit an interruption, I am not sure that is quite my own personal interpretation of what would be required to achieve reform of the congressional budgetary process. I personally don't believe we would have to be that rigid in our approach to congressional responsibility, vis-a-vis the budget.

Mr. BURT. I understand that. Let me oversimplify just for purposes of responding to your question though you can see there are gradations here as well. It seems to me the Congress' great strength as an institution, and I say this both as an observer and as a participant for a brief period of time, working in the executive branch and then here, the great strength of this institution is its particularism.

A lot of people say special interests are bad things in some way. Well, I don't believe that. It seems to me that one of the prime virtues of the Congress is that it gives a lot of opportunity for special interests to get a hearing which they wouldn't otherwise get.

To preserve this virtue requires the maximum amount of flexibility in the congressional process and even a lot of room for inconsistent things to happen, because we are a diverse country with diverse pulls on us. It seems to me that the current situation is really not all that bad. If the Congress just keeps saying, "Gee, there are a lot of parks in Michigan and a lot of individual things we want to have done," and pushes and pushes, and the President says, "Wait a minute, you can't have all of those things. Let's pick and choose amongst them," and then we have a mechanism to come back to the Congress like Mahon or Ervin would provide and say, "If we must, then, we will pick this, this, and this."

That seems to me to be more consistent with Congress as a spokesman for particularism and districts, and the President exerting a centralizing pressure rather than to have the Congress in the first instance, in effect, self-censor. If you do that, then you run the likelihood that a very few members of Congress will have much too much