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should be a more definite statement of the policy to be achieved in the draft of the act itself, as was done in the Economy Acts.
Senator HARRISON. Have you got the purposes of the legislation there as stated in the law ?
Mr. GULICK. I want to see if the text of the law here is adequate to answer that. It starts in this fashion: The title was “An act authorizing the President to coordinate and to consolidate executive bureaus, agencies, and offices, and for other purposes, in the interest of economy and the more efficient concentration of the Government." That is the title of the act. Then it gives the enacting clause:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the national security and defense, for the successful prosecution of the war, for the support and maintenance of the Army and Navy, for the better utilization of resources and industries, and for the more effective exercise and more efficient administraiton by the President of his powers as Commander in Chief of the land and naval forces, the President is hereby authorized to make such redistribution of functions among executive agencies as he may deem necessaryas it is geared primarily to the war situation. Well, the Overman Act expired with the passage by Congress of the resolution fixing the date of termination of the war.
Senator Byrd. What was accomplished, Mr. Gulick, if anything, under the Overman Act?
Mr. GULICK. Practically nothing under the Overman Act. Then the next legislation of this character
Senator TOWNSEND (interposing). Pardon me there. You say nothing was accomplished. What were the reasons that nothing was was accomplished ?
Mr. GULICK. Well, it was passed in May 1918.
Mr. GULICK. Mr. Hester, were any transfers made under the Overman Act?
Mr. HESTER. Oh, yes; there were quite a few transfers made. One Executive order making transfers was issued on or about May 31, 1918.
Senator Byrd. Were any bureaus abolished ?
Senator BYRD. Mr. Chairman, I think we ought to have a statement as to what was accomplished.
Senator HARRISON. I happened to be a Member of Congress at that time, and I suppose you were.
Senator BYRNES. Yes.
Senator HARRISON. My recollection of the purpose of the legislation was that the whole thing was to wipe out red tape in the conduct of the war and to give to the President very broad powers. I do not know whether the War Industries Board was created under that act or not, but it will be recalled that it was in the War Industries Board that many of these things were put together, in order to more efficiently conduct the war.
Senator BYRNES. Mr. Gulick, Senator Byrd has asked that if you have not the information now, you will supply hereafter any information you may have as to any transfers which resulted from the act.
Senator BYRD. Especially whether any bureau activity was abolished under the legislation.
Representative TABER. I wonder, Mr. Chairman, if that is in print at the present time.
Senator BYRNES. As to what was done under the act?
Representative TABER. No; the act itself. As I recall reading about it, it related to a considerable number of other things besides the consolidation power, or the power to transfer functions.
Senator BYRNES. Mr. Taber, Mr. Gulick says he has a copy of the act in this statement that he has before him.
Representative TABER. Has he put that in the record ?
Senator BYRNES. Yes. Will you proceed with your statement as to subsequent action? Mr. GULICK. The
subsequent action on this point, of real significance, was the two Economy Act provisions, one at the close of Mr. Hoover's administration and one at the beginning of Mr. Roosevelt's administration. You remember that President Hoover sent a mes. sage to Congress shortly before the end of his term outlining the need for reorganization of the Government, speaking of the necessity of splitting the executive and judicial functions of regulatory commissions, tying the executive functions into the executive branch and providing for a continued separate existence for the quasijudicial functions, the general program being very much like that which we have suggested in our report.
As the result of that message to Congress the Economy Act provided that the President should be given power to reorganize, to transfer, to abolish agencies in the interest of economy; and provided that when he took action, through Executive order, to carry out any of the powers there stated, that the Executive order should lie before Congress, and either House of the Congress, either the Senate or the House, might, by resolution, veto the Executive order so that it would not go into effect.
Under the provisions of that act, the President did submit a reorganization in a certain division,
Senator BYRNES. When?
Mr. HESTER. Well, it was very broad. All the Executive orders were printed in the Congressional Record. I should say there were about a dozen Executive orders. They also appear in House Document 493, Seventy-second Congress, second session.
Senator BYRNES. To solve that, unless they are very voluminous, I would like to have you give those orders to the committee.
Mr. GULICK. Well, we could summarize the individual orders that were prepared.
Representative TABER. If they are in the Record, you could put the page of the Record and the date in.
Representative GIFFORD. Why not let the President's message itself go in there?
Representative TABER. I am afraid it would be pretty long.
Senator BYRNES. I think Mr. Taber's suggestion is sufficient, that you just refer to the page, and the date of the Record. I was merely
asking it for my own information, to recall to my mind the things that were done as the result of that act. If you put the pages in the record, as suggested by Congressman Taber, it will be satisfactory.
Mr. GULICK. All right.
Senator BYRNEs. If you are going to give the history of what occurred as the result of the Executive order, I think that would follow.
Mr. GULICK. As the result of the presentation of that Executive order, a resolution was passed in the House vetoing the action that was taken.
Senator BYRNES. Nothing was accomplished.
Mr. GULICK. Mr. Hester, can you tell us what reorganizations were accomplished under it?
Mr. HESTER. That resolution of the House killed all those Executive orders and then later on Attorney General Mitchell rendered an opinion to the President (reported in 37 Ops. Attys. Gen., p. 56) in which he held that the provision in the Independent Offices Appropriation Act, which set up a congressional committee to pass upon refunds of internal-revenue taxes, was unconstitutional, and in that opinion he pointed out that the provision which authorized one House to disapprove reorganization Executive orders was unconstitutional. Senator Byrnes will recall that later on he discussed this opinion on the floor of the Senate, and that led to the amendment, on March 3, 1933, which required an act of Congress to veto one of these orders. The reason for it was, as Mr. Mitchell pointed out, that the Congress had made a proper delegation—that is, within safeguards—to the President, and that therefore the only way that Congress could veto such an order would be by an act of Congress.
Senator BYRNES. You may proceed, Mr. Gulick.
Mr. GULICK. Then that same principle of veto through an act of Congress was introduced into the Economy Act which was passed immediately after that.
Mr. BROWNLOW. No; it was March 3. Mr. GULICK. March 3; that is right. It was just the end of the Hoover administration, but it was amended to continue it for 2 years in the Roosevelt administration. Will you explain that, Mr. Hester?
Mr. HESTER. There was a strange thing about that. It was thought that that amendment extended the act to 20 years from the date of the amendment; but, as it was afterward construed the amendment did not extend the time and the act expired 2 years from June 30, 1932, the date of the original act.
Mr. GULICK. Yes. As the result of that opinion of the Attorney General necessitating that there must be a careful specification of the standards which were to be applied by the President in reorganization, the bill which we have drafted—Mr. Hester has draftedto represent the point of view presented by the committee, you will remember, in its opening sections, establishes with considerable care and practically within the language of the prior provisions of reorganization acts, the last two Economy Acts, the standards under which the President must act in carrying forward all reorganizations. Senator BYRNES. I do not like to interrupt, but you stated the history up to this time, and you have recited the act in the closing days of the Hoover administration. In the beginning of the Roosevelt administration there was another act, was there not?
Mr. BROWNLOW. Those were Executive orders.
Senator BYRNES. Did not the Economy Act adopted in the Roosevelt administration give powers to the President?
Mr. GULICK. It continued the powers.
Senator BYRNES. It did not change it as to the submission to the Congress at all!
Mr. GULICK. No; that was changed on March 3.
Senator BYRNES. I thought at that time there was another change, but if I am wrong, you may go ahead.
Mr. GULICK. Therefore, the situation that existed during the first part of the Roosevelt administration provided that the President, by Executive order, could, within the límit established by the standards in the Economy Act provide for transfers to accomplish certain purposes, that Executive orders of that type were to be presented to the Congress, to lie before Congress, and the method of veto by Congress is the passage of an act subject to approval by the Executive, in accordance with the constitutional opinion that had been handed down by Attorney General Mitchell that that was the only constitutional method of arranging it.
That, I might say, is the effect of the provision in the draft of the bill that we have suggested to you for purposes of discussion. The bill itself, you will notice, contains no specific language on that point, because it is not necessary to provide in an act that Congress may take action on a question of reorganization. That is a matter that is a power of Congress and is not one that can only be granted by the passage of an act and it is not necessary to mention it.
Senator BYRD. Would you see any objection to inserting that same provision in this bill? The only difference is that there is a formal notice given to Congress as to these Executive orders. They lie before Congress and Congress can take action, if it chooses to do it.
Mr. GULICK. The Executive orders now are published, and there is official notice there.
Senator BYRD. Would you have objection to that same procedure, that same provision in this bill as it was in the economy bill?
Mr. GULICK. I think it is superfluous; that is all.
Senator HARRISON. Would not there be this difference, that the limitation was 60 days within which Congress had to take some action, and in this bill, of course, Congress has got a right to pass a law anytime, whether it is 60 days, 90 days, or 2 years?
Senator BYRD. That would not limit Congress to act after the 60 days, of course, if it chose to do it.
Senator HARRISON. No.
Senator BYRD. You see no objection to inserting that same provision in this act?
Mr. GULICK. Mr. Brownlow, do you see any particular objection to that?
Mr. BROWNLOW. It seems to me that there is this objection, Senator Byrd. That it limits the period in the year in which any of this work which our committee thinks ought to be a continuous process could be done, because the Executive order would have to be sent
to Congress 60 days before the expiration of Congress or else it would go over to the next Congress. Since the change, if necessary, to be made is by_act of Congress, perhaps you could meet it by saying that any Executive order should not be effective before 30 days after the issue of the publication. But to say that it had to lie in Congress for 60 days, and Congress is not in continuous session, I think, would operate to make peaks of activity at certain times of the year, and then you would know that you could not do anything about it at other times of the year, and I think that would militate against the orderly process of the continuous examination of these problems. In our opinion, it would take 3 years to do this job.
Representative TABER. The examination of the problems would not be interfered with. It would simply mean that the action should take place during the time that Congress was in session. Now, there are not any of these reorganizations of an emergency character, or anything of that sort, and there is no reason why they should not lie until they can be given proper consideration. It is a good deal better than making a mistake.
Mr. BROWNLOW. Mr. Taber, another thing is, as our report contemplates, that there should be two new departments. The organization of those departments should go on from time to time, you could not do it all at one time, and in the interest of orderly administration we do not see that there is any great advantage to the Congress, or to the people, in that 60-day arrangement. I think that perhaps a general notice of 30 days, now that the Executive orders are published, might very well be done. At any rate, that was what was in our minds in omitting that in our draft.
Representative GIFFORD. Mr. Gulick, the standard set up here you say is sufficient to inform the President as to what he may do, and therefore would not challenge the constitutional authority which you have hinted at this morning. The authority granted there is very broad. There is no recital of any limitations, hardly whatsoever, and if you want to get by a constitutional challenge would not it have the effect of congressional affirmation? If the 60-day clause was there and if Congress did not act it would be affirmatively interpreted as Congress agreeing to the change, and therefore, would get by the constitutional challenge. It seems to me that in the very broad powers it gives the President here, you will need to avoid constitutional questions. I brought that up before, if you will recall it.
Mr. GULICK. I wonder, Mr. Chairman, if I might ask Mr. Hester to speak on that point, because we have gone very carefully and precisely into it.
Representative GIFFORD. My point is that if it is referred to Congress, even if you do not act, you can affirm your act there, so that by not acting it is an affirmation. I think this constitutional question is a very serious question.
Before you answer, while I am speaking, having in mind that you are coming to the proposition of transferring the function here, take a case such as the Shipping Board of recent date, where the Congress by law got rid of the Shipping Board and a new organization was set up. This standard you have set here is broad enough, is it not, for the President to do that?
Mr. GULICK. Yes. In fact, the original transfer was done under the Economy Act's provisions.