Mr. ST GERMAIN. That was a question to you and you answered you were afraid there might be a constitutional question involved. I am wondering about all of the people that are employed in programs that are going to be done away with, if the stated policies and goal of the impoundments continue in many of these programs.

Here are people that have jobs, have families to feed, and they will be thrown out of jobs after the fact, also.

Mr. Asн. I am not worried about my employment one bit.

Mr. ST GERMAIN. I am sure you are not, but I am worried about a lot of these people whose paycheck, sir, is what they need to feed their families. They don't have any outside income, independent income.

Chairman HOLIFIELD. I regret the gentleman has consumed his time. We are under the 5-minute rule.

Mr. AsH. May I just answer that with a very general but very factual answer?

The amount of money being spent out of the 1973 budget, as well as the proposed 1974 budget, is substantially greater for human resources programs, largely going to the very kind of people you are describing, than there has been in any previous year. The issue here is not reducing, or cutting down the amounts that are going to those in need of one of many kinds. The answer is, how much shall we increase the funding to them? That is really what these set of actions. relative to the 1973 budget relate to and clearly the 1974 budget.

So the answer there, I think, is very clear. It is how much shall they increase, not whether they shall be reduced.

Mr. ST GERMAIN. We must be reading a different budget.
Mr. ASH. I have got mine.

Chairman HOLIFIELD. Mr. Mallary.
Mr. MALLARY. No questions.

Chairman HOLIFIELD. Mr. Wydler?

Mr. WYDLER. One thought, Mr. Ash, strikes me as I listened to this debate. The thrust of the argument appears to me to be that this is a position of such great importance over the activities of the Federal Government, that the Congress should have something to say about who is appointed to the position. And if one were to buy that argument as a proposition to begin with, as a Member of the House, my question becomes this:

If this is indeed as crucial and important a position, why shouldn't the House, in addition to the Senate, play a role in the appointment? We, too, the body that really has the major responsibility for budgetary legislation, should have something to say about who should be the head of OMB.

I don't expect you to agree with that, because I presume your position is that you don't feel that any oversight is justified. But I have to make that point because it strikes me that if, the arguments being made are true, you will hold such an important position to the Congress that it would seem to me to follow that the House as well as the Senate should have something to say about the appointment of you or your successors.

Do you want to comment on that? I am perfectly willing to listen to you.

Mr. ASH. That is a very novel and intriguing line of thinking. I am sure it has precedent of its own.

As you have said, as a matter of principle, I would think that the OMB shouldn't be subject to any confirmation, but I think you have opened up something that would be probably very interesting in any discussion that would take place between the House and the Senate on the subject.

Mr. WYDLER. I think it would

Chairman HOLIFIELD. If the gentleman would yield, I suggest he introduce a constitutional amendment which would give the House the same power of confirmation that the Senate has under the Constitution. Mr. WYDLER. There may be ways to address the problem other than through the normal procedure that is called for in the Constitution. In a case, since we are really changing the effect of the Constitution as to what officers are going to be covered for confirmation by the Senate, it seems to me a logical time to think about the question of whether the House shouldn't also have a role in this procedure.

Chairman HOLIFIELD. The legislative branch frequently passes legislation in which it requires that heads of agencies or commissions, or other organizations be confirmed, and that is under that type of statutory power. But some positions are outlined in the Constitution. Mr. Fuqua.

Mr. FUQUA. Thank you, Mr. Chairman.

Mr. Ash, I regret I was not here when you delivered your statement. I did have the opportunity to read it this morning. I was in my office visiting with some city officials regarding the impoundment of some of the programs and how it is affecting them.

With the vast policymaking authority you have had delegated to you in your position as Director of the Office of Management and Budget, I find it somewhat inconsistent that you are not confirmed by the Senate. We require every military officer, every second lieutenant or ensign to be confirmed by the Senate. The Director of the Office of Emergency Preparedness, which is being phased out now, and his deputies, had to be confirmed. And they were carrying out certain policymaking responsibilities and had a privileged relationship with the President, and I don't think this inhibited their effectiveness one bit.

Could you comment on that?

Mr. ASH. There are two comments I would like to make. The first is that sometime during these hearings you will be hearing from the Attorney General's Office, that will deal with the very important legal issues that are involved in the distinctions that you make. And, second, to reiterate again, at least what I believe is a key point here, is that the other officers do have, to a greater degree, an operational role in their own right, including the officers in the military at whatever rank, in contrast to that of the OMB and the Director of OMB, that views himself and is viewed by the President as just an extension of the President's own office and own activities.

And those are, I believe, quite distinctive ways.

Mr. FUQUA. How about the economic policies of the country? Mr. Shultz, who is the Secretary of the Treasury and is a Counsellor to the President, must be confirmed. The Council of Economic Advisers, they are all confirmed. The members of the Federal Reserve Board; they are all confirmed. They are carrying out policy as an extension, so to speak, of the President.

Mr. Asн. There is a very basic difference and I will state the one of the Treasury. They do make policy, they make policy that relates to the world outside of Government, policy to the public, in effect. And they interact with the public and their policy statements and their positions and actions relate to the public. OMB does not do that. The OMB's position is one of interpreting and translating the President's policy within the Government merely to other governmental agencies. It has no operations of its own, it has no outside relations of its own. It is a function which, if we had a 100-man Government, would probably be done by the President personally.

Mr. FUQUA. But you are not saying the action of OMB does not have some effect on the economy?

Mr. Asн. It certainly has an effect on the economy, but it has an effect only in the way that a statement of Presidential policy translated into action and operations by an agency have an effect on the economy or on the public in general.

It is that main difference that OMB is not an operational agency that has its own programs, its own activities, its own policy statements that bear upon the world outside of Government. We are used in interpreting matters within the Government.

Mr. FUQUA. But it has life and death powers over HUD, over the Department of Agriculture, over the others: because you determine whether or not they are going to have the programs. They can't even take a position on a bill without getting the approval of your office.

Mr. Asн. Its authority, if you would call it that, or at least influence, is that of and derives out of the Presidential authority, including the President does have a substantial amount of authority vis-a-vis HUD. The OMB is not exercising any independent authority or policy base that it has; it is doing no more than exercising the President's authority on the President's behalf and his authority is a strong one, we would agree.

Chairman HOLIFIELD. The time of the gentleman has expired.
Mr. FUQUA. Thank you, Mr. Chairman.

Chairman HOLIFIELD. Mr. Ash, I am very much interested in your definition of your agency. Now, in the February 2 Record, 1973, starting on page S1969. Mr. Ervin pointed out, among other things, the statutory duties of the OMB. But OMB goes beyond that, it goes to the point of making analyses and sending out circulars, questionnaires, surveys, reports, and forms to Government agencies. Together with the Chairman of the Civil Service Commission, OMB determines Federal salary comparability adjustments. Also, the Director and his OMB staff exercise oversight and control of management of expenditures for national security programs, international programs, defense expenditures, natural resources programs, and many others having a direct impact upon the economy and security of the Nation. Now, to say that you are not a policymaking group on your own is to avoid the issue, because, actually, you do the work that precedes the formulation of policy. You explore the problems before policy is made and your recommendations on programs go to the President and the President either accepts them or rejects them.

Now, also, you were speaking a few minutes ago as though all power came to your office from the President. As a matter of fact, 67

statutes and they are also found in this same February 2 Record-67 statutes have been passed by the Congress, prescribing particular actions on your part and giving you authority in particular things. They are contained in 13 titles of the United States Code.

In addition to that, there have been 14 Executive orders from the President, all transferring to you and directing you to do certain things. Many of those Executive orders prescribe operational roles for you.

So when you explore the basis of the Office of Management and Budget and then you take into consideration Reorganization Plan No. 2 of 1970, which transferred for the first time all of these powers over to the President, with the power of delegation-and now it is true you derive your powers from the President, and it is also true. the Congress puts those powers in the President.

But once he delegates those powers to you, to execute the programs which are set up in these 67 statutes, and in the 14 Executive orders, you become not only a policymaking organization, but you become an operational agency, a management agency.

Part of the title of your agency is "Management," and management includes doing, operating, putting things into effect. And, of course, that is exactly what your agency does. So, to say you have no power is not exactly in consonance with the facts, because you do have tremendous powers. Those powers have been given to you by delegation of the President, and you can't say, well, they are the President's powers if you are having them and exercising them. You received them from the President, but you are utilizing that delegation of power to perform all types of policymaking, all types of operational programs, and it seems to me-it seems to me that with your argument that you are just a faceless nonentity in the scheme of things, you are doing yourself an injustice.

In my opinion, you have vested in you by statute of the Congress and by the Presidential delegation of powers, by the reorganization plan which was also passed by the Congress, you have tremendous power, more power, I think, than any Cabinet-level officer of the United States. And then to say that you shouldn't be confirmed is to say, also, that all Cabinet-level officers shouldn't be confirmed because they, too, operate under statutes passed by Congress and under Executive orders of the President and they, too, have a confidential role with the President, as well as an operational role upon our whole society.

So it seems to me your position to escape the requirement for confirmation is not soundly based.

And that concludes my 5 minutes. Would you like to respond to that?

Mr. Ash. I will make a very short comment.

Chairman HOLIFIELD. I will give you five.

Mr. Así. I am not suggesting that there is no power in the generic sense to the Office. I am merely suggesting that the power that it does have is not independent power; it is merely helping the President exercise his and parts of which have been delegated with different degrees of formality. And it does not really operate any substantive programs of any consequence. It is an "internal to the Government"

operational responsibility that it has, in contrast to those agencies that do have what we would call operating responsibility for programs that affect the public in general.

Chairman HOLIFIELD. Well, in some of these programs that have been scuttled by impoundment or by lack of allocation of funds, people feel like something has been done to their program by somebody. Mr. Аs. But not by the independent power of OMB.

Chairman HOLIFIELD. Well, not by the independent, but by the delegated power of the OMB.

Mr. AsH. Then, my statement says maybe what we are here perceiving is a Presidential exercise of his power

Chairman HOLIFIELD. Well, of course, the President exercises his powers on the State Department and all other executive branch offices. He is the Chief Executive Officer and he has that right to do that. I am sure that Mr. Rogers and the State Department will not proceed on any kind of a program unless it has the sanction probably of the President and his adviser, Dr. Kissinger, and probably Mr. Shultz, and all of the other advisers that he certainly has the right to call in, to discuss these matters beforehand.

So it is true that all power is vested in the executive branch that is exerted there by virtue of the statute, reorganization plan, or even by Executive order. His job is to implement the laws which are passed by Congress and to do those things which the Constitution says the executive branch should do.

Mr. Brooks.

Mr. BROOKS. Thank you very much, Mr. Chairman.

Mr. Ash, my name is Jack Brooks. I haven't met you but I feel that I will be meeting you for a long time.

I want to say, even Mr. Roback-I missed your testimony, but I read it with interest-Mr. Roback is confirmed by this committee. The chairman picked him out because he likes him, he believes in him, has worked with him for a long time. But if the majority of the members of this committee do not confirm that appointment, we would can him tomorrow.

That is the truth. That is true of all committee staff.

Now, in your statement, you said there are no laws or statutes which convey any significant power to OMB.

Isn't it true that OMB functions which were originally statutory have been transferred to the Office of the President in 1939, and in 1970, by reorganization plans?

Mr. Asн. That is true.

Mr. BROOKS. You suggest that the President should have a "neutral and trusted" agent as head of OMB.

Would not the Director, serving at the pleasure of the President, assure trustworthiness and would not confirmation by the Senate more necessarily assure his objectivity?

Mr. Asi. I think not. I think again we are back to the basic issue here. The President has been charged with carrying out his responsibilities as best he can and, in order to do so, it seems to me he must have the exclusive right to determine those that will help him in carrying out his authorities and responsibilities. To have that in any way encumbered to that same degree limits his ability to perform the responsibilities imposed upon him.

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