Mr. MAHON. He still has that power. Mr. CLAWSON. But we have the power to veto. Mr. MAHON. We have the power to veto an impoundment and we should have the last word in case of controversy over a matter involving the purse. That is our authority under the Constitution. Mr. CLAWSON. That takes away, then, this limited and special power that has been given to the President under the acts you quote of 1905, 1906, and 1950. Mr. MAHON. I don't consider it takes away the basic right that he has under existing law. In the exercise of that right if Congress desires to prohibit an impoundment that might be covered, it has that authority to do so. But it would not take away the right of the President to make the impoundment. Mr. CLAWSON. It gives Congress the power to overrule that limited right that he has? Mr. MAHON. In specific instances the right to overrule. Mr. CLAWSON. It seems to me that the approach here is a very negative approach rather than a positive one in the legislation before us. I believe that we could use a positive approach by Congress taking the other direction, of controlling these expenditures rather than just having the power of veto. Mr. MAHON. The President is required under the Anti-deficiency Act, when he is not going to spend funds, to submit a recision request to Congress. Past Presidents have not done this as a general rule. He has done it in a few instances, I believe, but that has not been the case normally. This bill is not going to solve all of our fiscal problems. It just faces one issue that should have been dealt with a long time ago. Mr. CLAWSON. I think it is going to aggravate our fiscal problems because there is no discipline, no restraint at all in this bill. There is no provision for restraints on the Congress. There is only a provision for making the President spend more money and no restraint or discipline on excessive spending. Mr. MAHON. Discipline comes from the mind, from within, and from the attitudes of the Congress and the executive. You can't really enforce discipline in a bill very well. This bill, as I say, is procedural. It is not otherwise. Mr. CLAWSON. It is more than just procedure, it seems to me, because you are going to discipline the President into mandatory spending. Mr. MAHON. This bill does not mandate any spending at all. Mr. CLAWSON. It has the potential for it with the concurrent resolution that is to be provided later on. Mr. MAHON. It can be used as the Congress might desire to use the legislation. The CHAIRMAN. Mr. Matsunaga? DISAPPROVAL OF EITHER HOUSE VERSUS CONCURRENT RESOLUTION Mr. MATSUNAGA. You have asked for an open rule. Is it not true that under the Administration Reorganization Act any proposal of the President may be vetoed by one of the two Houses? What if we were to offer an amendment to change your bill to provide that the veto 94-228 0-73-pt. 1 power be vested not in the Congress acting by the two Houses by concurrent resolution, but by disapproval of either of the two Houses? Would such an amendment be acceptable to the gentleman? Mr. MAHON. When you come to the matter of resolving a problem between the legislative and executive branch you need the full weight of the Congress, which means the full weight of the House and the Senate. One body should not act for the Congress. Mr. MATSUNAGA. But that is the case in the Reorganization Act, is it not, where one body can veto the action of the President? Why couldn't that be taken as the precedent for this bill? Mr. MAHON. Disagreement in this area, to some extent, involves a showdown of the power of the Congress versus the executive over money. I don't want the other body speaking exclusively for me, and I don't think the other body wants us speaking exclusively for them in this very sensitive area of control and power of the purse. Money means almost everything in government. Mr. MATSUNAGA. But in the case of money, the Constitution, I believe, vests the right in the Congress to appropriate, to authorize and appropriate funds, and it is within the jurisdiction of the President to carry out the laws as passed by the Congress. In the case of the Administrative Reorganization Act we have a situation where the plan is delving into something strictly procedural, practically, that is, strictly within the workings of the executive and yet we retain for ourselves the power to veto any of his proposals in reorganization matters by the action of only one of the two bodies. Why should we not follow that pattern? I would think that we have a stronger case here for vetoing by one body only. Mr. MAHON. The Legislative Reorganization Act, as I understand it, provides that the President can submit a reorganization proposal, and it affirmatively goes into operation unless one of the Houses votes to the contrary. Mr. MATSUNAGA. Yes. Isn't this the same proposition? Mr. MAHON. I don't consider that this is on all fours with that kind of a situation. Mr. MATSUNAGA. But we are saying, under your bill, Mr. Chairman, aren't we, that the President may go ahead and impound but needs to report to the Congress within 10 days and within 60 days the Congress may, by concurrent resolution, veto that proposal. That is the same thing as in the Reorganization Act. We authorize one body to veto in the case of matters pertaining strictly to the administration, the executive. Here now we are dealing with matters of expenditure of authorization and appropriation of funds, which is a matter for the Congress to decide. Yet, you propose that we do it by concurrent resolution, not grant the power to one of the two bodies. Mr. MAHON. Only the two bodies can act really for the Congress, in my opinion. I think every member should reserve to himself the right to participate in the fundamental issues confronting the country. Maybe we ought to have a look at the Reorganization Act under which we now operate. The CHAIRMAN. Mr. Murphy. Mr. MURPHY. I have no questions. Mr. LONG. No questions, Mr. Chairman. The CHAIRMAN. Mr. McSpadden? Mr. MCSPADDEN. Thank you, Mr. Chairman. Did you state that you had a brief statement to make? Mr. MAHON. I had asked earlier for permission to place certain material into the record. [The material referred to follows:] EXCERPT FROM STATEMENT ON PROPOSED $250 BILLION EXPENDITURE CEILING BY HON. GEORGE H. MAHON OF TEXAS (OCTOBER 9, 1972; RECORD H9328) (Quoted in part by Mr. Latta) Is some retrenchment in spending programs and some restructuring of laws creating Federal programs a part of the solution to the fiscal crisis? In my judgment, yes. Should we surrender our legislative responsibility to meet this crisis to the Executive and ask him to do the job? In answer to that question, I must hold out for our constitutional system. It may be coumbersome and frustrating, but I do not believe that the American people are yet ready to throw it overboard for anything yet proposed as second best. If it is unreasonable for Congress to delegate its authority and responsibility to the executive branch to meet the fiscal crisis, the next question must be, "What alternatives are available to it?" The President's budget is the most comprehensive statement of policy available under our system of government. It invariably includes recommendations to eliminate or deemphasize outmoded programs and, just as invariably, proposals to strike out in new directions. During the course of any given budget year, changed circumstances often make particular budget requests obsolete. In such circumstances, it is the practice for the President to submit a budget amendment, taking account of the new set of circumstances and his restructured request. The alternative which I propose to the surrender of legislative power to the Executive is House Concurrent Resolution 713. It respectfully requests of the President a budget amendment indicating his recommendations for reductions and the changes in law necessary to bring them about. This would not deny the Executive the traditional and often exercised authority to defer spending of Federal funds, but neither would it sanction the amendment of existing law by Executive decree. House Concurrent Resolution 713 would not constitute a surrender by Congress to the Executive of the right to legislate. I am firmly convinced that Federal retrenchment is in the public interest and would expect the Congress to give careful consideration of the President's recommendations. I am concerned that many do not understand that the manner in which Congress goes about resolving this issue has far reaching implications for the future role of Congress. Mr. MAHON. Before you introduce Mr. Cederberg, I wish to say that I am very grateful for the attendance of your committee, Mr. Chairman, and for the give-and-take that we have had here. I think it is healthy and in the public interest. I am delighted to have this opportunity once again to appear before this high quality, top caliber Committee on Rules. I know you are going to try to do the best thing for the Government and the country and for the people in making your decision on this legislation. I want to say that Mr. Cederberg and I as members of the Appropriations Committee work together very closely. We try to serve the interest of the House and, of course, the interest of the people. The CHAIRMAN. The next witness is the ranking minority member of the Committee on Appropriations. Mr. Cederberg. STATEMENT OF HON. ELFORD A. CEDERBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Mr. CEDERBERG. It is a pleasure to be in this cool room this afternoon. I notice that the television cameras have departed, and the press table is almost empty, but I still think there are two sides to every story, and the two sides should be told. I am grateful to you and the members of the committee for giving me the opportunity to testify on H.R. 5193, the Mahon impoundment bill. At the outset, I want to state my conviction that all of us share a common objective; namely, to find constructive and responsible channels through which Congress can exercise its power of the purse. As an institution, holding what we have considered to be fundamental constitutional powers over Government spending, we in the Congress are finding those powers consistently frustrated. I am first and foremost a Member of this House, and I share that sense of institutional frustration. However, I strongly believe that an impoundment bill-any impoundment bill-is a device which cannot technically achieve its objective, and addresses the wrong objective in the first place. It is important that these two points be fully explained. First, before I address the technical aspects of H.R. 5193, I want to emphasize my profound personal and professional respect for the Chairman of the Appropriations Committee, who is the sponsor of H.R. 5193. He is my good friend, and a capable and dedicated chairman. No one in the Congress is better equipped by experience and judgment to draft legislation dealing with Federal spending. The technical shortcomings of H.R. 5193 do not reflect on his capabilities, but rather on the impossible task of trying to draft a legislative item veto of individual administrative decisions made in the executive branch. Let me be specific. The bill would require costly and complex new reporting procedures, and most of the reports would never be used. The bill defines "impoundment" as any action which delays the obligation or expenditure of funds. It covers every such action, however routine or administrative in nature. Since "delay" is not defined in the bill, it must be assumed to mean any lapse of time after legal availability of obligational authority, or after the existence of an obligation to make an expenditure by issuing a Government check. In the course of 1 month, hundreds of actions take place in the executive branch which have the effect of somehow delaying obligation or expenditure. Most of them are not now subject to formal monitoring and reporting because they are routine exercises of administrative discretion. Yet the bill would require a report to Congress on every such action. Since most of these actions would not be contested by the Congress, most of the reports, and the money and personnel required to prepare them would be wasted. For us to require all of this new redtape is particularly ironic in view of efforts elsewhere in the Congress to reduce the Federal paperwork burden. In fact, we have directed the Comptroller General to identify unnecessary executive branch reports to Congress. If this bill becomes law, I strongly recommend that he immediately examine the reports thereunder. The bill contradicts existing law. The bill does not explicitly refer to or amend the Antideficiency Act, but it directly contradicts several basic provisions of that act. For example, under the Mahon bill failure to apportion immediately, and in the full amount, constitutes impoundment. Yet the Antideficiency Act allows a period of 20 to 30 days before appropriations must be apportioned or reserved, and authorizes apportionments by quarter, or by any other time period suited to a particular program or account. These practices, long considered essential to sound financial administration, would be impoundments under the Mahon bill. Therefore, if the bill becomes law, it will add to the list of laws governing debt, revenue, and spending which contradict each other, and require the President to decide which law he shall faithfully execute. The concurrent resolution feature of the bill is of doubtful constitutionality. The bill would employ a concurrent resolution, which is not presented to the President, and therefore not subject to veto, to wholly or partially disapprove impoundments. I am old fashioned enough to believe that the Constitution means what it says, and section 7 of article I says very clearly: Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives *** I realize that congressional practice and precedent support limited exceptions to this requirement. However, these exceptions do not appear to include the kind of positive legislative action which would be taken by concurrent resolution under H.R. 5193, Jefferson's Manual states: Although the requirement of the Constitution seems specific, the practice of Congress has been to present to the President for approval only such concurrent resolutions as are legislative in effect (IV, 3483, 3484), which is not within the scope of the modern form of concurrent resolution (section 110). And in Hinds precedents we find the statement that: A concurrent resolution is without force and effect beyond the confines of the Capitol (VII, 1037). Accordingly, the concurrent resolution as employed under H.R. 5193 appears highly vulnerable to legal challenge. If the challenge were successful, Congress would again appear impotent. In sum, Mr. Chairman, from a technical point of view, this bill demonstrates that legislation which is intended to permit the Congress to individually disapprove or modify administrative and managerial decisions in the executive branch would be impossible for the executive branch to administer, and for the Congress or the courts to enforce. Second, and on a more basic level, I am convinced that impoundment is not the central question in our shared concern over the congressional power of the purse. While that constitutional power is not fully explained by the Constitution, legal precedent and common sense reject the idea that an appropriation necessarily compels the President to |