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the particular actions of any one of them, he would not be obligated to reappoint them.
Mr. BEALL. At the present time the President does not have his Chairman, his man there to police them.
Mr. HOLIFIELD. I think he has his man there, regardless of who is chosen on the Commission as Chairman. He has been appointed by the President.
Mr. BEALL. Appointed as Commissioner by the President, but elected as Chairman by the Commission.
Mr. HOLIFIELD. I realize that, but he is still appointed by the President and with the knowledge that he may be the Chairman.
Mr. BEALL. Yes, sir; but he does not have any of the duties and powers as Chairman that do not come to him through the Commission. Here we propose to have a Chairman with powers and duties flowing from the President and not from the Commission that he is Chairman of. It is like having a president of a corporation not being responsible to his own board of directors, which is an unheard of thing.
Mr. KARSTEN. What are these powers that are flowing from the President! Could you
Mr. KARSTEN. If the plan is adopted, it would not be a Presidential thing; it would be a law.
Mr. BEALL. It has the effect.
Mr. KARSTEN. It will not have the effect, it will be the law of the land, and it is not an act flowing from the President. You are creating the impression that you are putting a Chairman in there that is going to be dominated and controlled by the President, and actually his authority does not stem from the President at all. It comes from this, and if this is adopted it will become the law of the land and not a Presidential decree.
Mr. BEALL. All right; let us hope it does not become the law of the land in that way.
Mr. KARSTEN. I may agree with you in that respect.
Mr. BEALL. The Commissioners are appointed for comparatively short terms, and I believe I pointed out that it is reasonable to presume that reappointment would be influenced by the views of the Presidentially appointed, powerful Chairman. The President now appoints the Chief Justice of the Supreme Court of the United States, but the Associate Justices are appointed for life, which is entirely different from the 7-year terms under which the Commissioners serve.
The practitioners' association does not believe that Congress would agree to abolish the Commission and transfer its functions to a transportation czar under the executive department, and, of course, the association does not think that the same results should be accomplished under the guise of a reorganization plan.
Plan No. 7 is vague and indefinite with respect to the establishment of divisions and the duties of divisions, as provided for under existing statutes-section 17 of the Interstate Commerce Act.
Fortunately we do not know who the Presidentially appointed Chairman or his successors may be; therefore the association is spared any inferences of personalities.
Being of these views, the Association of Interstate Commerce Practitioners strongly urges that Reorganization Plan No. 7 be disapproved.
That completes my prepared statement.
I would like to elaborate for just a moment, Mr. Chairman, if I may, on the powers under section 1 to be transferred which include the executive and administrative functions of the Commission. The terms, "executive and administrative" in combination certainly are very inclusive. It is hard to conceive just what you have left to the Commission. The powers have transferred to the Chairman. The Chairman has authority with respect to the distribution of business among such personnel and among administrative units of the Commission.
If the Chairman has the sole power, as it appears that he has under this plan, to distribute the work, what you have left in the individual commissioners is a bare, stripped-down power to vote if, as, and when something comes before them to vote on. Nothing more that I can see.
The assignment of work, the development of the administration from the beginning to the end is taken away from them and placed in a Chairman. True, they can vote when it gets to them.
Mr. HOLIFIELD. I know that you do not want to tell this committee that the different Commissioners would not have the same duties that they have at the present time as far as hearings and in their particular field of endeavor, and presenting their cases to the Commission as a whole for final Commission vote. You do not mean to tell us that?
Mr. BEALL. Mr. Chairman, I must just exactly state that position.
Mr. HOLIFIELD. In other words, you think the Chairman is going to do everything except call in the Commissioners to vote on the different things that he wants to vote on.
Mr. BEALL. I am saying that he has that power, that you have not left any residual powers in the Commission.
Mr. HOLIFIELD. Is that in accord with the complete body of law and precedent? You are straining at words here.
Mr. BEALL. Mr. Chairman, you have stated here in very pretty language that the Chairman shall be governed by the general policy of the Commission and by such regulatory decisions, findings, and determinations, as the Commission may by law be authorized to make.
On its face that would seem to be a reservation of powers in the individual Commissioners.
Mr. HOLIFIELD. All the great body of law that applies will still apply to the Commission. Such administrative duties as they have apportioned among themselves would be the responsibility of the Chairman. We have no statute that allocates to any commission or commissioner the power to decide any particular duties; that is a function that has been left to the Commission to make their own provision for allocation of work. You take from the Commission as a whole and place in the Chairman as an individual all of those powers which have heretofore resided in the Commission.
Mr. KARSTEN. Your Commission has two main functions. One is judicial and the other is administrative or executive in character. Am I correct?
Mr. BEALL. I would add, legislative.
Mr. HOLIFIELD. You might say, quasi-judicial, too.
Mr. KARSTEN. This reorganization plan seems to deal only with executive orders and administrative matters. It does not touch the legislative or the quasi-judicial.
It says, executive and administrative.
Mr. BEALL. It says, the chairman shall have power to allocate the work and that must be all of the work.
Mr. KARSTEN. The allocation of a case or work is an administrative act not requiring discretion. That could not be classified as quasi-legislative and quasi-judicial. The ministerial act of assigning a case is a ministerial decision, and the decision of the case is judicial.
Mr. BEALL. It would be qute important if you did not want an adverse man to get hold of your case.
Mr. KARSTEN. Your courts are presumed to be fair, and so is the Commission. You must run a democracy or civilization as we have it on the premise that people are fair.
Mr. BEALL. I think an important point to be borne in mind is that under section 17 and the other provisions of the Interstate Commerce Act, which we have been trying to perfect, to bring about reasonable procedure, which has vested in the Commission vast powers and duties, but has always given the Commission the power to set up an internal organization, the mechanics for carrying them into effect. They have been given the authority to divide themselves into divisions and act by divisions. They have also been given power to delegate duties to employees.
řír. HOLIFIELD. Who gave them that authority ?
Mr. BEALL. Yes. I understand that in this bill all those powers that the Commission has heretofore exercised in the distribution of its work are now passed to this Chairman.
Mr. HOLIFIELD. I think you are right there, sir.
Mr. KARSTEN. Those are simply ministerial functions. They are not quasi-legislative or quasi-judicial. It is not the setting up of a dictatorship, as has been said here.
Mr. BEALL. I think you are right, sir; they will still have the power to vote; yes. They will still have the power to vote on a quasi-judicial matter. They will still have the power to vote on a legislative matter if, as, and when the division of work, whatever it may be, may bring the matter before the Commission.
Mr. KARSTEN. You agree with me that this does not in any way affect the legislative or judicial prerogatives?
Mr. BEALL. Insofar as voting is concerned. I must agree with you. .
Mr. KARSTEN. On anything that is decided by a vote that is true. That is the most important thing we do down here, is to vote. It is a very simple thing, but it is the most important thing. If their right to vote is preserved and they are not interfered with in a quasi-legislative or quasi-judicial function I cannot see your complaint, unless it might be a case assigned to an unfriendly commissioner before whom you must go to practice. You intimated that a moment ago. I do not know just all about it.
Mr. BEALL. Well, if this is accepted in the spirit it is meant; just for illustration I say that for many years we have all heard of legislation being pigeonholed in this, that, and the other committee in Congress.
Mr. KARSTEN. Yes.
Mr. Beall. There have been lots of complaints. Maybe they were justified and maybe not. You are setting up a Chairman with the power to allocate work. I take it that under this bill he can pigeonhole anything, and the Commission will never get a chance to vote if he does not want them to.
Mr. KARSTEN. I think that is just a matter of opinion, sir.
STATEMENT OF GILES MORROW, EXECUTIVE SECRETARY AND
GENERAL COUNSEL, FREIGHT FORWARDERS INSTITUTE Mr. HOLIFIELD. Would you like to make your statement now?
Mr. MORROW. Mr. Chairman, if I might be recognized just a minute in connection with filing this I would appreciate it.
Mr. HOLIFIELD. You may proceed.
Mr. HOLIFIELD. You wish to file the statement, and make a few remarks?
Mr. MORROW. Yes, sir.
Mr. MORROW. Mr. Chairman and members of the committee, my name is Giles Morrow. I submit this statement for the record. I presume it will appear at this point in the record.
Mr. HOLIFIELD. Yes, it will; in its entirety.
STATEMENT OF GILES MORROW, EXECUTIVE SECRETARY AND GENERAL COUNSEL,
FREIGHT FORWARDERS INSTITUTE
My name is Giles Morrow. I am executive secretary and general counsel of the Freight Forwarders Institute, and I appear in behalf of that organization, by direction of its members, to urge favorable consideration of House Resolution 545.
The institute, which has offices in the Dupont Circle Building, Washington, D. C., is a national organization, composed of and representing freight forwarders subject to part IV of the Interstate Commerce Act.
To identify the industry more specifically, freight forwarders are carriers specializing in the handling of less-than-carload or package freight. In 1948, the last year for which complete official figures are available, there were 95 freight forwarders operating pursuant to authority of the ICC, and they did a gross transportation business that year amounting to $266,000,000.
The industry is, of course, vitally concerned with our transportation policy and its administration. With our affairs subject to regulation in almost minute detail we want to know that the atmosphere in which questions of vital import to the industry are decided is as judicious and detached as that which prevails in a court of law. We want to preserve all proper checks and balances in our administrative tribunal so that we will have, as nearly as may be, government by law and not government by men.
Members of the industry have directed me to support House Resolution 545 because they are strongly opposed to Reorganization Plan No. 7. They oppose that plan because they think it represents a change in basic policy which has unexplored potentialities of harm. Whatever the immediate result might be, the members of the institute think that this plan is a step away from the direction in which we should go, from which additional and more drastic changes in our basic policy might ultimately stem. They do not think that any such step should be taken without much more careful consideration than it is possible to give to this proposed plan.
We realize that this plan comes largely in response to recommendations of the so-called Hoover Commission, which devoted much time and study to the problems involved. It is not easy to oppose something which looks in the direction of the Hoover Commission report, for with its objectives we must all agree. But first principles should not be lost sight of in our anxiety to improve mechanics.
While plan No. 7 follows some of the recommendations of the Hoover Commission, in one essential respect it goes far beyond anything there recommended and adopts a policy which may be said to have been specifically rejected by the Commission. I refer to the removal from the Commission of its right to select its Chairman, and the vesting of that authority in the President.
Let me make it clear at this point that we do not question the good faith of the President. This is not a question of good faith or of motives. Undoubtedly this plan is presented in the best of faith and with the highest motives. But it raises a question of governmental policy as to which the views of those affected should be fully and frankly stated.
I said the Hoover Commission had rejected the policy of having the Chairman of the ICC appointed by the President because that was one of the specific recommendations of the task force of the Commission, published as Task Force Report on Regulatory Commissions, Appendix N. By failing to adopt this recommendation the Hoover Commission plainly rejected it and in so doing rejected the reasoning on which the recommendation rested.
The task force report stressed the importance of having the Commission remain an independent agency of Congress. It said: “That independence is quite real and has a definite and important effect upon the development of transportation policy.” We do not think anyone will dispute that statement.
When the task force recommended that the Chairman of the Commission be subject to Presidential appointment it took pains to explain that it did not think this would “impair or undermine the independence of the Commission.” This conclusion we must examine a little more carefully. If it has no bearing on the independent status of the agency, what does it do? The task force said appointment by the Executive would “contribute to the stature of the position and facilitate the centering of administration under him.” The two statements seem to me incompatible. If appointment by the President lends anything of stature, of influence, or of power to the office of Chairman-stature, influence, and power which it would not otherwise have—how can that help but affect the independence of the agency?
I do not think that the analogy of other agencies where the Chairman is now a Presidential appointee is applicable here. None of the agencies where this practice prevails have anything in their history from which to take a page as a model for the Interstate Commerce Commission. The converse is true. are to argue analogy perhaps we should shape these other agencies to fit the ICC pattern.
We hold this change in the method of selection of a chairman of the regulatory agency to be fundamental, and of such significance as to justify rejection of the plan irrespective of its other provisions.
Looking at sections 1 and 2 of the plan, it is difficult to know precisely what powers are transferred to the Chairman and what the effect might be. The functions transferred are described as "executive and administrative," but those terms are not defined. They are to “include,” but are not necessarily limited to, (1) the appointment and supervision of personnel, (2) the distribution of business among personnel and administrative units, and (3) the use and expenditures of funds. In section 2 the Chairman is given power to implement these transferred functions.
Certain functions are reserved to the Commission, including the right to pass upon the Chairman's appointment of the heads of major administrative units; the right to revise budget estimates and determine upon the distribution of appropriated funds among major programs and purposes; and the right of individual Commissioners to continue their control and supervision over personnel employed in their immediate office.
Between these delegated and reserved powers are many functions not spelled out by the plan, but obviously there can be no hiatus. We must assume, I think, that under the general language "executive and administrative functions" all functions which might fall within such broad terms are transferred except those specifically reserved.