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Except for the hearing examiners, who may be afforded a measure of protection under the Administrative Procedure Act, the examiners of the Commission are under the safeguards of the civil-service laws not by virtue of any statute but by reason of an agreement between the Interstate Commerce Commission and the Civil Service Commission. The Interstate Commerce Commission has always had the right to terminate this agreement but has preferred to keep it in effect. Plan No. 7 would transfer this as well as other administrative functions. from the Commission to its Chairman thus placing in his hands authority to abrogate this agreement and to substitute in its stead a system under which the examiners would hold office at his pleasure. To place them, as well as practically all of the remainder of the Commission's staff, under the control of the Chairman would confer upon him the potential power of exerting a controlling influence on most of the activities of the Commission. How could these men be expected to withstand pressure from a Chairman possessed of such far-reaching authority? They could not lose sight of his right to hire and fire, promote and demote, advance and retard, unlimited except by the general provisions of Federal statutes. Nor could they overlook the significance of the Chairman's right to govern the assignment of duties. A man in a key position who failed to fall into line with the Chairman's policy might suffer withdrawal of important assignments and find himself instead delegated to unfamiliar, trifling, or distasteful tasks. Security of tenure as well as independence of thought and judgment of the key personnel could be impaired and the morale of the whole independent establishment could be detrimentally affected. Of course, it might be said that no Chairman would ever use his potential powers for any such purposes. Beyond the slightest doubt the present Chairman could be trusted not to do so. It is to be hoped that this may be true of those who may follow him in the future, but it would be wiser to leave in effect the present checks and balances and to avoid the potential danger that might come by dispensing with them. The processes by which power is extended to an unwholesome degree are sometimes subtle and gradual in operation, sometimes progressive by almost imperceptible degrees, but the whole history of man's efforts to govern himself shows that the danger cannot be lightly disregarded.
This concentration of power in the hands of the Chairman overrides the present provisions of the Interstate Commerce Act as well as the administrative practices and procedures of the Commission which have evolved from its experience in discharging its duties since it was established in 1887. It would change the system under which the Commission, the oldest of the regulatory tribunals, has built up a reputation for independence, impartiality, and efficiency—a reputation that has had much to do in leading Congress to create the other independent regulatory commissions of today."7
The Commission has been alert in making changes in its administrative structure and from time to time has revised them to meet new conditions, or to correct inadequacies which have developed from
17 The Commission is the oldest of the independent regulatory commissions. Established by the act of 1887. it has set the pattern for much of the subsequent developments of other similar bodies. Its reputation for impartiality, independence, and expertness in its decisions, and for full procedural safeguards for interested parties have undoubtedly contributed to the standing of the independent commission (Hoover Task Force Report on Regulatory Commission, January 1949, p. 82).
practical experience. We think it preferable to leave matters of this kind in the hands of the Commission instead of imposing upon it from without a reorganization of its internal affairs. As Justice Cardozo once observed:
When the task that is set before one is that of cleaning house, it is prudent as well as usual to take counsel of the dwellers.18
We do not of course purpose to speak for the Commission. We do know however that within the year it has expressed an adverse opinion with respect to a proposal very much like the present one to centralize administrative authority in the chairman. It did so in a letter dated October 11, 1949, addressed to Senator Johnson of Colorado, chairman of the Committee on Interstate and Foreign Commerce of the Senate, in response to his request for a report and comments on S. 2330. In that letter, a copy of which I have here with me and offer for the record, the Commission expressed its considered view that the present division of labor among the individual Commissioners and the other principal features of administrative organization have worked out well in practice and would not be improved by the similar changes contemplated by S. 2330.
PRESIDENTIAL APPOINTMENT OF CHAIRMAN WOULD IMPAIR INDEPENDENCE OF COMMISSION
The second major provision of plan No. 7 is the transfer from the membership of the Commission to the President of the power of selection of a chairman. As already noted, a provision of this sort was included in the report of the Hoover Commission task force but was omitted from the final report of the Hoover Commission itself. The task force recommendation was
that the practice of selection by the President be made the general rule by statute, and that the chairmen serve as such at the pleasure of the President in all cases although protected against removal as a member."
This result is secured under plan No. 7 by the simple means of transferring from the Commission to the President the function of naming the Chairman. In the hands of the Commission the power of selection proceeds not from the Interstate Commerce Act, which is silent on the subject of a chairman, but from general principles of law under which the Commission now has the right to elect a chairman for any term it may see fit as well as to remove him at will so that he really serves at the pleasure of the Commission.
In the view of the task force, designation of the chairman by the President provides "an acceptable channel of communication between the Commission and the President." This was thought to be required for several purposes: (1) To facilitate coordination between the independent commission and other agencies; (2) to enable the President to obtain a sympathetic hearing for broader considerations of national policy which he feels the Commission should take into account; (3) to
18 Schecter v. United States (295 U. S. 495, 552).
19 Hoover Commission Task Force Report on Regulatory Commissions (1949), p. 31. This was the general recommendation. It was repeated in the portion of the report dealing more specifically with the Interstate Commerce Commission. At p. 82 the task force stated: "As explained in our general discussion, we think the most effective way to achieve this objective is to have the chairman appointed by the President. This will contribute to the stature of the position and facilitate the centering of administration under him."
obtain sympathetic help for the Commission from the Chief Executive with respect to its budgetary needs; and (4) to give the members some voice in new appointments to the Commission, it being pointed out that in the past where the President has had confidence in a chairman he has not unusually consulted with him looking for suggestions or comments regarding appointments.20
The task force recognizes that there is a question whether the provision of this "acceptable channel of communication with the President" might impair the proper independence of the Commission, but it concludes it would not do so. It says that the experience of the Commissions where the President has either directly or informally named the chairman indicates that this power does not interfere with independence from partisan influence in the decisions affecting individual rights and in the ordinary administration of the statute.21
In other parts of its report however the task force sets forth some of the things disclosed by its investigation which throw some doubt on the conclusion just mentioned. For instance, in its discussion of impartiality of regulation by independent Commissions the task force says:
In some instances the President appears to have interested himself in the general policies of some of the agencies and to have had some influence on them." In speaking of the Maritime Commission and its internal administration, the task force, commenting on the first two chairmen, noted that they
were energetic administrators with wide experience and they enjoyed strong backing from [the] President. * * * While important matters were decided by majority vote of the Commission it was clear that the chairmen exercised extensive authority and leadership. They could turn to the White House for support when problems of internal management or external relationship arose.2 In discussing the relationship of the Maritime Commission with the executive branch, the task force states:
In the last 3 years the Commission has not been so amenable to Presidential influence as during the previous 9.24
In its discussion of the Civil Aeronautics Board, the task force notes that
the tendency of applicants to resort to pressures to try to influence Board decisions has somewhat lowered its prestige.25
The complete statement relating to relations between the Maritime Commission and the President is as follows:
The external relations of the Maritime Commission also have followed a similar pattern. In the last 3 years the Commission has not been so amenable to Presidential influence as during the previous 9. On certain matters the Com
20 Id., pp. 31-32.
21 The previous chapter has stated our conviction that the Commission should be independent and free from partisan influence in the decisions affecting individual rights and in the ordinary administration of the statute. The experience of the commissions where the President has either directly or informally named the chairman indicates that this power does not interfere with such independence. The investigations of our staff have not revealed that the President has sought to interfere in, or influence the determination of, particular controversies or matters handled by such commissions. On the basis of this evidence, we discount the objection that such designation would impair their essential independence, although we would give it great weight if it appeared well taken (id., p. 31).
22 Id., p. 20.
23 Id., p. 62.
24 Id., p. 62. 25 Id., p. 73.
mission must receive the assent of the President before proceedings, as in ship construction, and there has always been close communication between the Maritime Commission and the White House. Nevertheless, by and large, the Commission has had a keen sense of its independence from Executive control. For his part, the President has rarely attempted to influence Commission policy. The Commission has worked closely with the Budget Bureau on budgetary matters, and to a somewhat less extent on policy questions. During the last 3 years the President's appointments do not seem to have been made with a view to influencing Commission policies (id., p. 62).
Again it is said that "political pressures would certainly have been at least as great on an executive agency." 26 No indication is given, however, of the channels used by the applicants in their attempts to exert such political pressure.
It is thus far from clear from the task force's own statements that past experience has indicated the groundlessness of the fear of executive pressure on the heads of independent establishments where they hold office at the pleasure of the Chief Executive.
The messages to Congress of March 13, 1950, transmitting the 21 plans for reorganization of governmental agencies do little to allay this concern over the danger inherent in plan 7 of impairing the status of the Interstate Commerce Commission as an independent regulatory commission.
In the message dealing collectively with plans Nos. 1 to 13 those plans are characterized as a bold approach to the problem of delineating responsibility and authority for the management of the executive branch. Reference is made to the feature of four of the plans, including plan No. 7, of transferring the function of designating the Chairman to the President, thus changing the present system under which the Chairman is elected by the members of the Commission. The purpose of this feature is stated to be to provide clearer lines of management responsibility in the executive branch.
While any intention to affect the independent exercise of the regulatory functions of these commissions is disclaimed, it is nevertheless stressed that the plans will help to establish accountability for performance in office. This accountability is, of course, to the executive branch of the Government. But there is a fundamental antithesis between independence of a regulatory tribunal on the one hand and such an accountability and consequent subordination to the executive department on the other hand.
Mr. HOLIFIELD. I do not want to interrupt you in your presentation, but I have tried to refrain from it so far but in all fairness, do you not think that accountability is equally of vital interest to Congress as well as to the President? We have a great deal to do with the agencies downtown and the administration of laws which Congress has made, and we frequently find it very hard to find a person that is responsible for certain types of what we consider mistakes of administration—many times. And it seems like to me that that accountability is a two-way street. There is accountability of these agencies to the President, certainly for administration, but there is also accountability
26 Id., p. 73.
27 Thus it is said on p. 1, H. Doc. No. 504, 81st Cong., second sess.:
"Reorganization Plans Nos. 1 to 13 propose a bold approach to the problem of delineating responsibility and authority for the management of the executive branch. Clearer lines of responsibility and authority will strengthen our constitutional system and will also help to establish accountability for performance in office a basic premise of democratic government. I urge the Congress to add its approval to my acceptance of these recommendations of the Commission on Organization."
to the Congress for administration of the law according to the intent of Congress.
Mr. GIBSON. Yes, sir; that is right, and the task force report of the Hoover Commission considers that matter as to the relation with individual Members of Congress and these are administrative tribunals, these independent administrative tribunals. We must bear in mind that we are not dealing here with an executive department of the Government. We are dealing here with a quasi-legislative, quasi-judicial tribunal.
The CHAIRMAN. Where does it find its place for accountability in our form of government? We have the executive branch; we have the legislative branch; and we have the judicial branch. Those are the branches set up by our Constitution and therefore make the framework of our Government. Now, wherein is there any provision within that Constitution for some branch of the Government that is not accountable to some of those three?
Mr. GIBSON. There is ample accountability at the present time, Mr. Chairman. The President appoints the members of the Interstate Commerce Commission and every one of the independent regulatory commissions. The Senate confirms those members. That gives a very considerable power of bringing them to account. Then in case of the judiciary, the orders of these commissioners or this commission is subject to review under well established procedures by the courts. The CHAIRMAN. That is true of every law that we have passed. Mr. GIBSON. So there is accountability to the judicial department. The CHAIRMAN. That is true of every law we pass here and true of every act of the President. He must justify his coming within the framework of our Constitution and that is the check. The judicial branch is the check on the executive branch and the legislative branch. Mr. GIBSON. Quite true, but there is no check that is anything like so comprehensive or so complete or so effective by the judicial branch in the case of the executive departments which have very wide areas of discretion as in the case of these quasi-legislative, quasi-judicial tribunals.
Again it is to be mentioned that there are ways of accountability by Congress and those measures of accountability are frequently exercised.
In the first place, the independent tribunals are subject to
The CHAIRMAN. Let us, you and I, get straightened out on individual tribunals. The Hoover Commission judged that these regulatory commissions were a part of the executive department. Now, do you disagree with that?
Mr. GIBSON. I certainly do, sir. I have been unable to find in the report from the Hoover Commission any statement to that effect. These are not executive agencies. They are not executive departments. They are not executive tribunals. They are quasi-legislative, quasijudicial tribunals. Independent agencies within the framework of our Government that have an independent status and it was so contemplated from the very first.
The CHAIRMAN. They are not a part of the executive branch of our Government, in your judgment?
Mr. GIBSON. No, sir.
The CHAIRMAN. They are not a part of the legislative framework of our Government, in your judgment?