May I ask this: Would you have anything to do, under the language of this bill should it be adopted, with determining what powers should be put in departments?

Mr. BROWNLOW. No.

Senator BYRNES. It would be for someone else to decide?

Mr. BROWNLOW. Yes.

Senator BYRNES. You have set forth the general purposes that you think should be incorporated in the act?

Mr. BROWNLOW. The general purposes.

Senator BYRNES. The Congress may or may not even agree with you as to the language setting forth the general purpose, but in any event you will have nothing to do with the allotment of the powers to the departments?

Mr. BROWNLOW. No; because our report has specifically stated where we think that function should be carried on-by the President with the advice of the Bureau of the Budget.

Senator BYRD. The report shows where the committee thinks the functions should be carried on, and it is very clear here by the language itself where the different functions should be.

Representative GIFFORD. Senator, from what you read there, the literally translated opinion is that the Federal Communications Commission should go into the Department of Commerce. In your study of the whole thing is there any indication there as to where the Interstate Commerce Commission should go?

Senator BYRD. The Interstate Commerce Commission would certainly go under the Commerce Department. That is the only place it could go, if this definition is correct.

Representative GIFFORD. What is the definition?

Senator BYRD. It says, "communication and transportation."

Mr. GULICK. Mr. Chairman, you will note that the language deals with a broad, general blueprint of the program, that in the text of this act no such statement is made. The only departments that are defined in the act are the two new departments. The existing departments rest on existing laws, except as they would be changed by the application of this act.

Senator BYRD. But this report has been submitted to the Congress with the approval of the President. It is supposed to be the purposes and intentions of this committee. Now, we ought to understand that this means nothing, if no investigation has been made, and this set-up is no value whatever, or we ought to understand that there has been an investigation made and to the extent it has been made; we ought to get the details about it. Two new departments are decided on without considering 130 independent agencies whereby they could group them into the 12 departments. Senator BARKLEY. There is a very considerable argument or debate as to whether the Interstate Commerce Commission ought to go into any department, or whether the Communications Commission ought to go into any department, both of them being agencies of Congress for the purpose of the regulation of commerce. I think nobody would dispute, however, if they are to go into any department, that it would be the Department of Commerce, because they are both created under the commerce clause, which authorizes Congress to regulate commerce. Whether they should go into any department is a matter to be determined later.

The CHAIRMAN. This plan, as I understand it, this proposal of the President's Committee, does not contemplate that the quasi-judicial functions of these various commissions, like the Federal Trade Commission, the Interstate Commerce Commission, and the Communications Commission, shall be in anywise restricted or controlled by the Department. They are put there, as the courts for a long time had been placed under the Department of Justice, for supervision of certain administrative acts and for budgetary purposes. There is no more reason why, for instance, the Interstate Commerce Commissionat least not to my knowledge-should not be placed under, say, the Department of Commerce for administrative and budgetary purposes than why the courts should not be under the Justice Department for the same purposes.

Senator BARKLEY. You take the law that authorizes Federal judges to parole prisoners and to appoint probation officers for looking after these paroled prisoners; that is all under the Department of Justice. The appointment is recommended by the Federal judge, but it has to be approved by the Department of Justice. That does not in any way interfere with the jurisdiction of the judge in control of the case in determining whether there should be parole or imprisonment.

As far as what you have in mind is concerned, these administrative purposes, these independent commissions, might be put under a department but it would have nothing at all to do with their quasijudicial functions.

The CHAIRMAN. That is my understanding of the plan.
Mr. BROWNLOw. That is my understanding.

Senator BYRD. There is a great dispute about that.

The CHAIRMAN. As to whether the plan actually does that? god Senator BYRD. Yes; as to whether the plan actually does that. Representative TABER. The proposed bill would permit a much more radical action on the part of the Executive than just that.

Senator BYRD. The bill, as I understand it, gives the President, the right to determine what are regulatory powers, what are administrative powers, and there are certain other features.

The CHAIRMAN. Well, of course, that has to be determined in some way.

Senator BYRD. I think Congress should determine that.

The CHAIRMAN. The Congress may define the rule that will govern the decision as to what is regulatory and what is administrative, and it may be that there are instances in which each shades into the other. I think that is probably true.

Senator BYRNES. May I ask this: Where would you put the activity of the Interstate Commerce Commission for the inspection of boilers or engines? There is quite an activity for which there is a large appropriation. Those questions, I imagine, would have to be determined by somebody.

The CHAIRMAN. What would you say as to whether those are regulatory or administrative?

Senator BYRNES. It would be a difficult thing to determine. I am told Justice Holmes held that was an executive function.

The CHAIRMAN. I think it is. That is an administrative matter rather than a regulatory matter, although, in a sense, it is regulation, but it does not require the determination of a question of law, it does not involve a judicial function and, therefore, it would probably fall within the administrative classification.

Senator BYRD. What would you say to this, Senator Robinson, on page 3, title C, in regard to these regulatory agencies? It says:

such functions shall be exercised by the regulatory commission, the members of which shall be appointed, removed, and have tenure of office in the manner and for the term hereafter prescribed by the Congress: Provided, That, in cases involving the exercise of such functions—

that is the regulatory functions—

in which the volume of business is large and expedition of routine action is necessary, the exercise, or supervision of the exercise, of such functions may be conferred upon administrative and executive officers, and decision in such cases by such administrative or executive officers shall be subject to review by the appropriate regulatory commission.

All of these commissions have large volumes of business and under that, as I construe it, they can assign a large part of the work to the administrative agencies of the Government only subject to review by the regulatory commission.

The CHAIRMAN. That, I understand, is designed to provide for delegation to the staff.

Senator BYRD. It gives them power to do regulatory work, simply subject to appeal to the court.

Mr. BROWNLOW. Routine work.

Senator BYRNES. What was the purpose of the language?

Mr. BROWNLOW. For instance, I will give an illustration. I have no particular case of this kind, but suppose a case has been determined, let us say, in a regulatory body like the Federal Trade Commission, the rule has been laid down in that case, and it has been applied administratively to a great many people that were not parties to the controversy, and that is a routine and expedited action that could be transferred to the administrative side of the work, and then if any of those people who were not parties to the original cause when it was tried, if they had reason to complain then they can ask for a review by the court of appeals.

Senator BYRD. It is much broader than that.

The CHAIRMAN. Many things become settled by well-established precedent, and that class of cases would probably be under the control, in the first instance, of administrative officers.

Senator BYRNES. The section to which Senator Byrd refers, specifically provides, that in cases involving the exercise of such functions in which the volume of business is large and expedition of routine action is necessary, the exercise or supervision of the exercise of such functions may be conferred upon administrative or executive officers, but decisions in such cases by such administrative or executive officers shall be subject to review by the proper regulatory commission.

Representative GIFFORD. Who imposes those duties, Mr. Chairman? Who will impose such duties on the administrative officers? The CHAIRMAN. The commission itself.

Senator BYRD. The Secretary of Commerce.

Mr. BROWNLOW. We have a good many regulatory functions that are carried on in the regulatory department without any commission.

Representative GIFFORD. Senator Robinson, I thought what you were suggesting was the criticism this morning in the newspaper that the President would have complete control of the purse strings under this set-up.

The CHAIRMAN. The what?

Representative GIFFORD. The purse strings; that the independent officers would come before the various appropriating committees and ask for the amount of money they desired.

The CHAIRMAN. Oh, it would be budgeted just like any department or bureau is budgeted.

Representative GIFFORD. I read this morning that the President would have complete control of the purse strings.

Senator BYRNES. What does that mean?

The CHAIRMAN. That, of course, is not either legally or actually sound. Congress controls the purse strings. It is not compelled to make an appropriation even when the President recommends it.

Representative GIFFORD. But even after it has been appropriated the President can say, "You need not pursue that further", and they would spend no more money.

Senator BYRNES. He can do that now.

Representative TABER. Not in the appropriations for your regulatory commissions.

Senator BYRNES. No.

Representative GIFFORD. That is what I am talking about.

The CHAIRMAN. I think one of the purposes of the plan-that is my construction of it-in this connection is to bring the independent commissions under some form of budgetary control. One of the difficulties that has grown up is that more than 100 agencies of the Government are running separate budgets without any supervision. Senator BYRNES. I can certainly confirm that. I have one instance where the budget had been submitted by the President, and after it had been submitted the officials of one of the so-called regulatory commissions came before the Appropriations Committee in an effort to get additional funds. I have no doubt it is constantly done. The difficulty of the Appropriations Committee, no matter whether it is a regulatory commission or department, is to keep down the appropriations. There is no modesty on the part of the departmental heads in trying to get additional funds.

Representative GIFFORD. May we acknowledge that the criticism is just, that the President would have control of the purse strings?

Senator BARKLEY. No.

The CHAIRMAN. No; not at all. If my answer implies any such conclusion, I am sorry.

Senator BARKLEY. The article referred to is an article in the New York Times by Arthur Krock. The article does have reference to purse strings, but it does not bear that out, except in an indirect

way.

Senator BYRNES. I think we have gotten away from the witness. The CHAIRMAN. I want to make just one brief statement, and that is that Congress has and retains what the gentleman from Massachusetts is pleased to call control of the purse strings. In a recent bill, my attention has been called to the fact by Mr. Cochran, the Senate struck out an appropriation for an agency or activity that had been budgeted, and if the House concurs in that action it will be out. Congress controls the purse strings. The effort of a budget. is to give some sort of regulation to expenditures, so as to prevent enormous outlays that might be avoided.

Senator BARKLEY. In other words, in that case the Congress abolished the purse and therefore there is no string.

Senator BYRNES. The House appropriated $170,000 and the Senate just struck out the entire amount, and it is now in conference. Representative COCHRAN. If that stands the statistical board

ceases.

The CHAIRMAN. In almost every general appropriation bill_the Senate increases some appropriation above the amount of the Budget. I can name from memory numerous instances in which I have moved the increase.

Representative GIFFORD. Senator, I cannot believe that you will support that act, that an appropriation committee should abolish, by lack of appropriation, what has been authorized and instructed by Congress for them to do. That is a peculiar way for an appropriating committee to act, that they are going to set aside, simply because of their own feeling about it, an act of Congress.

The CHAIRMAN. There is no power, Mr. Gifford, anywhere to compel an appropriation to carry out an act of Congress. I think there is a moral obligation to make an appropriation to carry out a statute while it is on the books-we are talking now about controland at last Congress can either appropriate or not appropriate; and if it does not appropriate it does not repeal the statute, it merely denies the funds necessary for the execution of the statute.

Senator BYRD. The Appropriation Committee cannot do it; it can only recommend to the Congress and the Congress can do it, if it is done at all.

Representative GIFFORD. A failure to appropriate for the particular department has aroused quite a storm.

Senator BYRNES. I hope the House can stand the storm.

Representative GIFFORD. I do not think they can. I would vote to have it abolished.

Representative TABER. There is no question but what it can be abolished by failure to appropriate, and I think the Senate's action in this particular instance was right.

Senator BYRNES. The Congressman will remember there are many acts authorizing appropriation for which purposes no funds have been appropriated.

Representative TABER. I hope there will be a lot more. Now, may I ask a question of the committee?

Senator BYRNES. Yes.

Representative TABER. Yesterday, Mr. Merriam was asked to place in the record a list of the one-hundred-and-thirty-odd bureaus or functions.

Senator BYRNES. Yes.

Representative TABER. I would like to have the committee segregate that list so as to show those which have, in their opinion, regulatory functions and those which have not, which are purely administrative.

Mr. BROWNLOW. That will be sent up this afternoon.

Representative TABER. Did you get my question?

Mr. BROWNLOW. Yes; you wanted a list of all of these agencies, and then you wanted, separately, a list of those that have regulatory functions.

Representative TABER. That is right.

(The list referred to is as follows:)

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