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 limit 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 underthe Economy Act's provisions.

Representative GIFFORD. Yes; and not only the functions were transferred, but there was an entirely new personnel as far as the policy-determining body is concerned; a new set of men were appointed.

Mr. GULICK. I haven't followed the precise arrangement of the personnel.

Representative GIFFORD. I want you to do that. When you transfer functions of these things, it means the heads are going to fall, does it not?

Mr. GULICK. It means normally that the heads would be carried into the department.

Representative GIFFORD. Was it done in the case of the Shipping Board, for instance?

Senator BARKLEY. What happened was that Congress created a Maritime Commission. The President appointed three men temporarily. My understanding is that the personnel of the old board, or bureau, whatever it was, was transferred practically bodily to the new Maritime Commission.

Representative GIFFORD. I am speaking of policy-determining functions. There were some heads that fell.

Senator BARKLEY. I do not know whose heads fell. I know a lot of heads that I would like to see fall now in all of these depart

ments.

Representative GIFFORD. The point I am bringing out-the standards set for the President in effecting this reorganization is so broad that he could actually do what the Congress did in this particular case. I am only bringing that up as one particular case.

Senator HARRISON. My recollection about the Shipping Board is that not only the heads but the personnel were abolished.

Senator BARKLEY. They transferred to the new Maritime Commission a lot of the personnel.

Mr. GULICK. It was first transferred to Commerce, and I think at that time there was not a complete personnel.

Representative GIFFORD. You acknowledge that under the standards set for the President he could do exactly what the Congress did?

Mr. GULICK. Within the limits set down here.

Representative GIFFORD. But the standards are so broad that he Icould do that?

Mr. GULICK. That has been construed.
Representative GIFFORD. By whom?

Mr. GULICK. The Attorney General and the courts in the Isbrandtsen and Maller cases.

Representative GIFFORD. You mean the act here now was construed by the Attorney General?

Mr. GULICK. The phrase used here in defining the standard. Representative GIFFORD. Is that sufficient not to allow any constitutional question?

Mr. HESTER. The language, Mr. Gifford, in the provisions of this bill is identical with the provisions of the old act, except in about three particulars, which are immaterial, and Attorney General Mitchell construed that act and sustained its constitutionality; Attorney General Cummings likewise construed it and sustained its constitu

tionality. There have been numerous Executive orders making rather extensive reorganizations in the Government issued under that act which have become law. Take, for instance, Executive Order No. 6166, June 10, 1933, which was a very extensive reorganization. It has never been challenged in the courts, except in one instance, and that was in the case of the transfer of the Shipping Board functions to the Department of Commerce, and in that case the position was taken that the act did not permit the transfer of regulatory functions to an executive department. A three-judge court in the southern district of New York decided the case. The opinion was written by Judge Chase of the Circuit Court of Appeals for the Second Judicial Circuit and sustained the constitutionality of the act.

Last June another steamship company brought up the same question before the Supreme Court of the District of Columbia, and the opinion of the court sustained the constitutionality of the act.

The southern district of New York case went to the Supreme Court recently and was sustained on other grounds. The Court did not have to pass on the constitutionality of the act.

You raised the question, Mr. Gifford, about ratification of executive orders by Congress. May I suggest that we have given that question very careful consideration and we have been unable to find any authority establishing the proposition that Congress, by silence, can legislate? Courts have held that, where regulations of the Government are issued which go beyond the statute, and Congress then appropriates money to carry out those regulations, such affirmative action constitutes a ratification of such regulations, but this is a different situation from that presented when an Executive order is submitted to Congress and Congress takes no action on the order. The order becomes law by virtue of the expiration of the 60-day period and not by reason of the fact that Congress has taken no action on the order.

Representative GIFFORD. Before you sit down, in the matter of the Shipping Board, you state that those decisions would apply to abolishing and regrouping of anything relating to independent commissions in general?

Mr. HESTER. Well, the decisions dealt with the old reorganization statute. Shipping companies challenged the authority of the President to abolish the Shipping Board and transfer its regulatory functions to the Department of Commerce.

Representative GIFFORD. And they could even do that with the Interstate Commerce Commission?

Mr. HESTER. Yes; they could have done that under the old act, and the only thing we have done in this bill with respect to the regulatory standard-that is, the last standard of section 1-is to revise the standard so as to make it perfectly clear as to what the President can do under the bill and thus avoid similar litigation.

Representative GIFFORD. Then, Mr. Hester, all we have got to do under that section 1 is to distinctly state what independent commissions we think are important enough not to be disturbed; is that right?

Mr. HESTER. We have got that in there.

Representative TABER. Mr. Hester, before you get away from this, would you give us the citations of those two cases?

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Mr. HESTER. I think the case in the Supreme Court in the District of Columbia is reported in the American Maritime Cases, and the other case is reported in 14 Federal Supplement at, I think, page 407. I will have to get you the citation in the American Maritime Cases. Senator BYRNES. Suppose you telephone for those and give them to us.

Mr. HESTER. I will do that. The citation is 1938 American Maritime Cases, 1790.

Representative GIFFORD. Just where is that limitation in the bill,

please?

Mr. HESTER. Section 1 (g).

Representative GIFFORD. What page?
Mr. HESTER. Page 2.

Senator BYRNES. Go ahead, Mr. Gulick.

Mr. GULICK. There was a question raised some days ago in the meeting of the joint committee by Congressman Gifford with regard to the extent to which it is necessary to lay out in advance the complete allocation of individual bureaus and organizations, and he raised, in very picturesque language, the question of the architecture of a house, you remember, the question of the location of the furniture, and so forth. It occurred to me after that discussion that the problem with which this committee is confronted is very much like that of an architect who is drawn in by the owner of a great library of books and he is asked to design a library to house them. He can proceed to design that library and decide about how many rooms they need on the basis of a general examination of the total number of volumes of the major divisions that they want, the European histories, reference works, encyclopedias, and so on, in the different rooms. He does not need to go in and read all the books to decide in just what order they shall be put on the shelves.

The thing we are confronted with, and you are confronted with, it seems to me, is to get this broad, over-all design in such shape that you know there is going to be room for your books without attempting at this time to decide in just what order they shall be arranged on the shelves. That is a task which must go on year after year. Things have to be readjusted.

We were convinced, on the basis of considerable experience in States and municipalities, and an observation of the history of the efforts of reorganization in Washington going back to the year 1912, at the time of the Taft Efficiency and Economy Commission, that it was impossible to make any progress in this Washington situation if at this time you endeavor to lay out a complete blue print which shows exactly what activities will go in these bureaus and exactly how these bureaus will be tied together in departmental bunches.

Representative TABER. In other words, you mean that the only way that you can do a job, in your opinion, is a cut-and-dried job, a kind of a patch-work quilt?

Mr. GULICK. No; that it has to be done on the basis of a broad scheme which is reasonable and rational. There has to be trial and error, but there has to be more than that, there has to be a careful examination of the activities.

The question that Congressman Gifford raises is an extremely difficult task. In the case of the long-established records of agencies like the Interstate Commerce Commission, to do a skillful job there of end product

have