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approvingly quoted remarks of Members of Congress in the debate in support of the change when that matter was before Congress. The Court also quoted the report of the congressional committee in which it was stated that the point as to the removal of the Commissions from under the influence of the executive department "lay in the fact of its independence and it was essential that the Commission should not be open to the suspicion of partisan direction."
The Supreme Court, on its own account, said that the Commission should not be subject to anybody in the Government but "only to the people of the United States"; that it should be kept free from the "probable or possible suspicion of such influence." It should be kept "separate and apart from any existing departments of the Government and not subject to the orders of the President."
In further comment the Supreme Court said, "It is quite evident that one who holds the office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will."
Further, the Court said, "The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there."
The decision above quoted is highly interesting as indicating the unwarranted assumption by the executive department that it should share in controlling the affairs of an independent regulatory commission of Congress. The independent commission is intended to be master of its own house and the master of another house should not invade that harmony of jurisdiction that must be exercised by the independent commission if it is to preserve its reputation for impartiality and freedom from political or other control by agencies of the Government. The comment of the decision clearly indicates the undesirability of the injection of the executive department into the affairs of an independent commission such as is proposed in Reorganization Plan No. 7.
THE ENTERING WEDGE
Under the proposed plan No. 7, the Commission would be denied the power that naturally belongs to it of selecting its own Chairman. The President would appoint his man. The appointee would have control over the selection of the employees, the assignment to their functions, and the use and expenditure of the Commission funds. He would be the go-between of the Commission and the President. He would inevitably be the agent of the President, to influence its action and to deter contrary action.
He would be Chairman of the Commission. He would have the duplicate duty of the chairmanship and the administrative functions involving control over the major part of all employees of the Commission running into hundreds in numbers.
CENTRALIZATION OF POWER
In 32 years of service in the House, under six different Presidents, I have observed a constantly increasing centralization of power in the Federal Government. One Executive after another has sought increased powers under claim of more effectually discharging his duties. In fact, this tendency of Congress to place accumulated powers under the control of the executive department is a distinct evolution of 120 years. Today the President of the United States has more power than any other executive in the world, with the sole exception of Stalin.
I recognize that in the main this increasing accumulation of power has not been solicited by the executive departments for what they regarded as illegitimate purposes. It represents just a natural inclination of nearly all men trusted with power to visualize a greater performance if they are clothed with additional power.
The accumulating powers of the President have developed through the overgenerous use of the veto to the disparagement of congressional importance; through the vast control of the patronage power under which the prestige and pride of innumerable men are served by presidential favor. The President is conceded the active leadership of his dominant political party. Ordinarily he does not fail to have an active interest in his own and his party welfare,
The President is head of the greatest Nation in the world. He has a vast control over expenditures, over funds in an amount incomparable to that of any other nation, with the opportunity and temptation of personal interest to which few men are immune.
In Stanwood's book, the author makes a comprehensive review as to the accumulation of presidential power. In its concluding paragraphs it is stated: "In the foregoing pages the successive steps have been outlined by which the Presidents have increased their power and influence in the Government. In no instance has there been a surrender of anything previously gained or a recurrence to earlier standards.
16* * * A little further advance in the same direction the constitutional initiative of Congress on important matters will disappear and an executive initiative will take its place. That will be an introduction not of the British system, where the executive is but a committee of Parliament, but a system not unlike that of the German Empire.
"Fortunately there are and will still be wise and farseeing men who will guard the country from permitting too large a share of Government to fall to any man-for in that direction lies the danger to American liberty."
The placing of such control in the hands of an executive agency would inevitably be the beginning of the assumption of greater powers. It would place in the hands of the executive department a great temptation to exercise such control to serve political ends of dominant groups. It would be hard to assume that such exercise of power would not increasingly result. If the legislative branch of the Government, by its nonaction, makes these further concessions against the exercise of its own powers and to the executive branch, it will be difficult to ever restore them to the legislative branch. We would build a Frankenstein which within a few decades the Nation may have much cause to regret.
The time remaining for this Congress is too short to anticipate well-considered, comprehensive legislation dealing with the problems of transportation. However, the Interstate Commerce Committees of the two Houses of Congress are now engaged in broad studies of our transportation problems. They are assembling a vast store of useful information which will greatly aid their work toward securing comprehensive legislation dealing adequately with the over-all picture of transportation in the next Congress.
These proposals are of a piecemeal nature and consideration thereof should well be postponed to the time when Congress can give every proper consideration to their importance and proper place in our transportation system. That can be done in connection with the more fundamental issues that will be presented to Congress in its next session.
A REGRETTABLE AND INDEFENSIBLE SPECIAL PROCEDURE FOR HANDLING REORGANIZATION
Congress has provided a special and unusual procedure for action on reorganization plans of the Government agencies recommended by the President. This special procedure in effect provides:
1. That one House of Congress must disapprove of a proposed plan within 60 days after its presentation to the Congress or the plan becomes effective automatically.
2. In other words, nonaction by Congress is to be accepted as tantamount to affirmative approval by Congress.
3. In computing votes that Congress may cast as to approval or disapproval of the recommended plans, what is called a "constitutional majority" must disapprove or else the vote of approval, whether it be a minority or majority, will be accepted as an approval of the plans.
4. The plan of procedure in effect denies most of the regular committees of Congress having jurisdiction of the subjects involved, from any participation in determining whether the proposed plan shall be approved.
In my judgment, the adoption of this specialized treatment in the procedure of Congress is a fundamental departure from the ordinary procedure that should not be followed in any legislative body in a popular form of government. By this procedure Congress seems to confess its own inability to legislate for the best interests of the country. Congress ties its hands with its own rope.
On the 13th day of March the President presented to Congress 21 different plans of reorganization, having far-reaching effect upon the normal activities of the Government. Each of these proposed plans, without consideration by the appropriate committees of Congress, is to become effective if one of the two Houses of Congress fails to denounce it by a so-called constitutional majority. In the normal procedures of Congress, the majority of those voting in favor of
a proposal with a quorum present, determines the action of Congress. That is a wholesome and natural rule of popular government. Under this special procedure this wholesome rule is discarded. Absentee Members of Congress are in effect counted as if they had voted for the approval of any proposed reorganization plan.
The vice of this special procedure is illustrated by the roll call votes that have occurred in Congress since the reorganization plans were presented on the 13th of March. There have been 16 roll calls, with a total absentee record of 1,365 Members, or an absence of an average of more than 85 Members on each roll call. Under the special procedure, these 85 absentees would be counted as in favor of the adoption of the proposed plan. The result of one of these average roll calls, as applied to a vote on reorganization, would be that 133 Members would dominate the action of Congress even though 217 Members voted against the proposed plan. Under this distorted rule 133 Members would approve a plan while 217 could not reject it.
Thus we have a form of procedure that is regrettable, it is unfair and by which Congress deprives itself and the country of the benefit of proper consideration and determination of the merits of these proposals.
At the present time the Members of the Congress have a legitimate and great interest in the primary elections that concern their political future. They have many other weighty problems. It is practically impossible to secure an intelligent consideration of even a small part of these proposals before they will become effective by the nonaction of Congress. To me it seems very regrettable that Congress should be responsibile for such an inept practice and so violative of correct parliamentary procedure.
IMPROVEMENT OF OUR TRANSPORTATION REGULATORY SYSTEM
The administrative powers of this independent commission of Congress, the semijudicial and the semilegislative authority exercised, are inherently a part of the make-up of the regulatory commission. Its personnel engaged in these activities are simply the arms of the Commission, its means of carrying out its duties of regulation. They are incidental but important and necessary to its efficient operation. They cannot be properly performed except in conjunction with the main regulatory duties of the Commission.
The proposal of Reorganization Plan No. 7 would cripple the Commission by dividing this authority that should be combined and coordinated in one independent organization. A plan of subordinating the Commission to the executive department, or dividing its authority with the executive department gives little prospect for the betterment of administration. Both as a matter of law as interpreted by the Supreme Court and also as a physical fact, these powers proposed to be given to the executive department belong to the independent regulatory commission.
It is true that under the revolutionary changes in the competitive system of transportation that has developed in the last three decades there is need of better synchronization and coordination of the powers of regulation and the incidental administrative duties in connection therewith. These administrative duties are so directly incidental and so closely related to the general regulatory powers of the Commission that they should not be divided between two separate agencies. The remedy lies in the better synchronization and coordination of these regulatory powers within the independent agencies of Congress and not division by transferring part of them to the executive department.
In the absence of any just system of acting upon these proposed reorganization plans, every Member has cause to stop, look, and listen before he grants his approval to any one of them.
The Hoover Commission report, together with the somewhat varying recommendations of the Executive, was reecived by the country with a hasty fanfare of uniformed approval by the press and other agencies of publicity. The Hoover Commission was a commendable effort to perform a service for the country. However meritorious it may be, it certainly did not relieve Congress of the duty and responsibility of thorough consideration of each proposal, in justice to the country. The method of special procedure provided in the Reorganization Act leaves the country to a great extent unprotected against the injustices
and deficiencies that may develop under these proposed reorganization plans submited to Congress in the main without any consideration by the public or by Congress itself.
In my judgment these proposals are so important that none of them should be approved until Congress, under fair procedure, has had a practical opportunity to consider their merits.
So far as plan No. 7 is concerned, I think it is fairly obvious that its adoption would be against the best interests of transportation and the interests of the country.
(Thereupon, at 11:15 a. m., the hearing was adjourned.)