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dent for his action. He may be given the broadest discretion possible. Do you understand that?

As to the exercise of a function which is legislative in character the law conferring the power upon the agent, whether he be the President or anybody else, must define the rule for his conduct, and if that rule is not defined in the law it does constitute an unwarranted and unlawful attempt to delegate legislative authority.

I do not say that that question particularly arises on this report. We will discuss that later.

Representative GIFFORD. Have you any independent commission that might be disturbed, while we simply say, "Hang it up on another hook"? Would there be divided responsibility when it comes to actual determination of rights?

The CHAIRMAN. If it is a commission like the Interstate Commerce Commission, which performs a legislative function-it should be understood, and I think it is generally understood that the Interstate Commerce Commission is not an executive commission, it is essentially a legislative commission, the principal duties are legislative, although, of course, necessarily it performs many executive and some quasi-judicial functions-but the rule to govern the President's conduct, in "hanging it on the hook", as you express it, or in "putting it in the compartment", as others express it, should be defined in the law, in my judgment.

Representative GIFFORD. Senator Harrison suggested, we thought, the precedent. I simply want to suggest that we ought to keep in mind the limitations necessary to avoid invading constitutional questions.

The CHAIRMAN. Are there any further questions of Mr. Gulick? Representative TABER. I have some questions, but I rather think it is pretty late, and I rather think that those questions ought to be asked after Mr. Merriam has been on.

The CHAIRMAN. Very well. Mr. Gulick, suppose Mr. Wren performs this service, gets the information called for by Mr. Byrd in that memorandum?

Mr. WREN. I would be glad to do so, sir.

The CHAIRMAN. And the information as to the number of cases that have been tried in court-well, I will say during the last incumbent's term of office.

Mr. WREN. I think that will appear in the record, as to just what you want.

The CHAIRMAN. And a summary of the decisions in the cases, as to what was involved in each case. That will require a little detail work.

Senator HARRISON. Mr. Chairman, I imagine the chairman of this committee, probably the chairman of the House group and probably the experts will be getting a good many communications inquiring about this and that, which will entail a good deal of work, so if it is thought advisable I would suggest that the chairman of this committee and the chairman of the House committee be authorized to employ such stenographic help as they need.

The CHAIRMAN. That calls for a discussion of the question raised by Mr. Taber to me personally this morning. I think you gentlemen may be excused. The committee will meet again on Tuesday, at 10 o'clock in the morning.

REORGANIZATION OF THE EXECUTIVE DEPARTMENTS

WEDNESDAY, FEBRUARY 24, 1937

JOINT COMMITTEE ON GOVERNMENT ORGANIZATION,

Washington, D, C.

The joint committee met, Senator Robinson presiding. The CHAIRMAN. Gentlemen, the committee will please come to order.

We had hoped that Mr. Merriam might be present this morning to proceed with his statement. Mr. Merriam was here yesterday, but on account of the death of the chairman of the House group, Representative Buchanan, of Texas, no meeting was held of this committee yesterday. In the meantime Mr. Merriam was compelled to leave the city to fill an important engagement heretofore made and is, therefore, not available for the hearing this morning. He expects to return in the near future.

The chairman of the President's committee, Mr. Brownlow, has an additional statement that he will present, and we will hear him now if there be no objection.

STATEMENTS OF LOUIS BROWNLOW AND C. M. HESTER

Mr. BROWNLOW. Mr. Chairman, at a previous meeting of the committee when some questions had arisen with respect to the draft of a bill which the President's committee had prepared to give expression in the form of legislative language to the recommendations in this report, it became apparent that the draft of the bill was not selfexplanatory, and so, with the consent of the committee, we have had a new draft prepared which is here this morning, and which has been prepared by the committee in consultation with our very excellent draftsman, Mr. Hester.

In most of the cases the changes that we have made here are, in our opinion, mere clarifications of our intent or making more explicit the intent that we feel was implicit in the language of the other draft.

We have copies of the bill here which will be distributed, but I shall run over briefly the changes which we have made in the draft. Senator BARKLEY. May we have those copies now to go over them with you?

Mr. BROWNLOW. Yes. In section 1 (g) we clarify the standard as to the reorganization of regulatory agencies by providing more specifically that quasi-judicial functions shall be segregated from policydetermining, prosecution, enforcement, or other administrative or executive functions, and that after transfer the functions shall be so segregated in the receiving agency.

Senator TOWNSEND. Is that the first change made in the bill? Mr. BROWNLOW. That is the first change made in the bill, original draft. I am going over the changes that have been made.

The CHAIRMAN. According to your interpretation, you have not changed the intention of the original tentative draft?

Mr. BROWNLOW. That is right.

The CHAIRMAN. You have merely made clear that intention!

Mr. BROWNLOW. Yes; that is true, sir. May I say there is one other change in the very first section of the bill where we specifically except the General Auditing Office from the agencies of the Government that might be transferred. That again was implicit in our other bill if you read it in connection with existing statutes.

Senator O'MAHONEY. Do you think there is any possible ambiguity with respect to the definition of the word "regulatory" in the first line of paragraph (g) considering the fact that the function of the Interstate Commerce Commission is in itself regulatory?

Mr. BROWNLOW. Well, it also has other functions.

Senator O'MAHONEY. Yes; but what you are doing here is segregating the regulatory functions from policy determining functions. I am raising the question whether in your opinion there would be any possibility of ambiguity there since the primary function of the Interstate Commerce Commission is regulatory.

Mr. BROWNLOW. I am not at all sure of that-it seems perfectly clear to me. It was clear to us in our report and we attempted to clarify that. Now, if on examination it is not sufficiently clear or is ambiguous, of course it should be made more definite. In section

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Representative TABER. Just a moment. Your section 1 would still cover the Supervising Architect of the Capitol and the Clerk of the House and the Chief Clerk of the Senate?

Mr. BROWNLOW. No, sir.

Representative TABER. NO? Without an exception?

Mr. BROWNLOW. The intent is that it does not cover that because it should be read in connection with section 501, in which the definition of agencies occurs, those in the executive departments and certain others.

In section 2 is a change by making section 2 of the former draft subsection (2) of the new draft, and by adding two subsections limiting the power of the President. These subsections are (b) and (c).

Subsection (b) provides definitely that the President may not abolish an executive department, or the municipal government of the District of Columbia, or the Federal Reserve Board, and further provides that he may not transfer all of the functions of an executive department or of the District of Columbia or any of the functions of the Federal Reserve Board to any agency. A similar proviso as to the District of Columbia Government has been eliminated from section 501.

We had a proviso about abolition and there was a place where we wanted to make the bill more clear in consonance with the report itself.

Subsection (c) provides that the regulatory functions of any independent regulatory commission which are quasi-judicial in nature, may not be exercised by or supervised by any administrative or executive officer, but shall be exercised by a regulatory commission which shall be appointed, removed, and have a tenure of office in the manner prescribed by Congress. There is a proviso, however, that in the

case of a large regulatory agency where expedite or routine action is necessary the function may be exercised by an administrative or executive officer subject to the review of the commission.

Senator O'MAHONEY. That calls attention again to the question I raised. Obviously you are using the word "regulatory" here in a different sense from that in which you used it in the first amendment. Mr. HESTER. If you read subsection (c) of section 2 I think you will see that they both read the same.

Senator O'MAHONEY. Well, you refer to the regulatory functions of any independent regulatory commission. Now, the word "regulatory" in those two places has a different connotation, does it not? Mr. HESTER. It is modified, though, in each case. Take, for instance, section 1 (g), it says:

To segregate in any agency of the Government regulatory functions which are exercised in essentially the same manner as the functions of a court are exercised

And in section 2 (c) it says:

The provisions of this title shall not be construed to authorize the exercise, or supervision of the exercise, by any administrative or executive officer, of the regulatory functions of any independent regulatory commission, which are exercised in essentially the same manner as the functions of a court are exercised

Representative TABER. It cannot be an independent regulatory commission if it is under the jurisdiction of a Cabinet office?

Mr. HESTER. It can and will be as to the exercise of its quasi-judicial functions, as is clearly indicated by sections 1 (g) and 2 (c) of the bill. Representative TABER. You would have to have a definition of independent regulatory commission.

Mr. HESTER. What was that point again?

Representative TABER. You will have to have a definition of an independent regulatory commission if you are going to do what you say, to make it clear.

Mr. HESTER. I think they are pretty well understood today, such as the Interstate Commerce Commission, the Federal Trade Commission, and Federal Power Commission.

Representative TABER. It will not make any difference after you pass this bill.

Mr. BROWNLOW. The point Mr. Taber is raising is that if they report to the department

Senator O'MAHONEY. We have some commissions where they make a report to the department for transmission to Congress. Isn't that true, Mr. Hester?

Mr. HESTER. That is right.

Senator O'MAHONEY. As far as those commissions are concerned, they are independent; they are independent of control by the department to which they submit their reports for transmission to Congress. Mr. HESTER. I think since the Humphreys decision in the Supreme Court there can be very little doubt about what is an independent regulatory commission.

Mr. BROWNLOW. But in any event, this is a draft which attempts to express what we put in our report; and, in any event, in the wisdom of the Congress the insertion of the definitions would not be difficult.

In section 211 (a), in the chapter on the "Reorganization and extengion of the merit system", title II, we make a slight amendment just

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for clarification by exempting specifically judges of legislative courts from appointment by the heads of executive departments or independent agencies.

Senator BYRD. What page is that?

Mr. BROWNLOW. Page 12. It is section 211.

Representtaive TABER. You have excepted what?

Mr. BROWNLOW. Legislative courts. That was in there in section 501 anyhow.

Representative TABER. But you have not excepted the members of the regulatory commissions? They are going to be under a department and that would be necessary at that point?

Mr. HESTER. They would come within the meaning of the term "independent agencies."

Mr. BROWNLOW (reading):

Heads of executive departments and independent agencies.

Representative TABER. They would not be independent if they were in a department.

Mr. BROWNLOW. That is our definition; it is the same question we had before.,

Senator BYRD. Mr. Brownlow, to what extent does this limit the power of the Senate to confirm appointments as it exists now?

Mr. BROWNLOW. This particular section? It takes away, as is explained more in detail in our report, a great many Presidential appointments.

Senator BYRD. Could you submit to the committee for inclusion in the record a statement that indicates to what extent the power of the Senate to confirm has been reduced?

Mr. BROWNLOW. We can get up a number of the positions.

Senator BYRD. In other words, what I would like to see is a list of those appointments which the Senate now confirms but which they will not confirm if this bill is passed.

Mr. BROWNLOW. There would be a good many because we have recommended the extension of the merit system on a career basis to all except policy-determining agencies, following the exact language of the Democratic platform and the language of Mr. Landon's telegram to the National Republican Convention.

Senator BYRD. You still believe the Democratic platform ought to be carried out?

Mr. BROWNLOW. I believe that both of those platforms should be carried out as we have set. forth in our report.

Senator O'MAHONEY. Wouldn't that be a rather difficult matter, to carry both of them out?

Mr. BROWLOW. Not on this point.

Senator O'MAHONEY. I meant generally.

Mr. BROWNLOW. Where they were in agreement.

Senator BARKLEY. Do you believe, for an important position like this, which is almost as important as that of a Cabinet officer, where the President ought to be able to survey the qualified men of the whole country for this administrator, you can get the best man for it out of a list of three who are sifted up through a civil-service examination?

Mr. BROWNLOW. The appointment of the United States Civil Service Administrator, of course, would be subject to confirmation

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