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Mr. GULICK. Your suggestion, Senator, is that the subsequent action by Congress with reference to consolidations that they do not believė in, or abolitions that they do not believe in, should be not in the appropriation act but by a separate act?
The CHAIRMAN. Well, it could not be in the appropriation act under our rules. The appropriation act, in theory at least, under our rules does not carry legislation, it simply carries the appropriation for existing legislation.
Mr. GULICK. Yes.
The CHAIRMAN. To meet the requirements of existing legislation. That is the whole theory of both Houses with respect to the authority of the Appropriations Committee.
Representative TABER. But, Senator, the Appropriations Committee can fail to bring in an appropriation.
The CHAIRMAN. Yes. Representative TABER. If it feels that function should cease. The CHAIRMAN. You cannot compel the Appropriations Committee of either branch of the Congress to make an appropriation that it does not want to make. The appropriating power is independent, there is no question about that. But that does not get away from the problem that I am presenting. Here you have a reorganization that is law. Your theory is that the Appropriations Committee, by refusing to respect the reorganization, could invalidate it. Now, I assume literally that is true. There is no question but what the Appropriations Committee could refuse to appropriate a dollar for any purposes it chooses.
Representative COCHRAN. Senator, on the other hand, if you had authorization on the floor of either House, it would be germane.
The CHAIRMAN. Yes; certainly. He is proceeding on the theory hat the reorganization to be made by the President is not final, that the Congress, through refusing to appropriate, can veto the reorganization. Now, I do not subscribe to that at all, and if I did, I would not want a reorganization under those conditions because I would see coming before me the immediate possibility, not to say probability, of an impasse.
Senator BARKLEY. Senator, the Appropriations Committees of the two Houses, or the two Houses themselves, would have no authority of withholding appropriation for the reorganization, any more than they now have of withholding from any department.
The CHAIRMAN. Certainly.
Senator BARKLEY. Of course, if they exercise the power which they now have as to the different departments and refuse to make an appropriation the result would be you would have a legal reorganization put into effect and find no money to carry it out.
Senator BYRNES. Mr. Gulick cited to you a case where the effect of failing to make an appropriation has the effect of abolishing the function. It is the only case that comes to my mind along the lines you have suggested; but I think we would have to admit, as a practical matter, that what Senator Robinson and Senator Barkley have said is correct. For instance, there would be no difference between the right of the Congress now not to make an appropriation for the Central Statistical Board which is authorized by the Congress, and the failure to make an appropriation for that organization if it should be hereafter included in the reorganization scheme by the President.
Mr. GULICK. That could be done by legislation. The reason I mentioned this, Senator Robinson, was not my thought that the Appropriations Committee, through its action, had the best remedy for dealing with what looked like an unsatisfactory piece of consolidation or coordination of activities, and the reason I referred to it was merely that I had in mind some of the recent decisions of the Supreme Court.
Take the case handed down 2 weeks ago, the Shipping Board transfer, where the Court held that since the Congress had made an appropriation for the work of the Shipping Board in the Department of Commerce subsequent to the transfer made under Executive order in accordance with the provisions of the Economy Act, that that represented an approval by the Congress. The CHAIRMAN. That is elementary, but you do not get away
from the practical problem that I presented. You have a reorganization made in conformity with law. You suggest that that reorganization, when it is budgeted, may be upset by a general refusal on the part of the Appropriations Committee to recognize it.
Mr. GULICK. No; my thought is not that it can be upset, but that it can be brought into question; that the best method of upsetting it is as Senator Byrnes suggested, through legislation, and that that is the practical result of the situation as it existed under the Economy Act.
Senator BYRD. It could be upset, could it not? There is no way we could deny Congress the right to say as to whether or not a certain department shall have appropriations in the future?
Representative TABER. But, Senator, while Congress has authority in the appropriations bill to refuse an appropriation in a recognized department, it has not the authority, under the law, to appropriate money in the appropriation bills for the situation the way it used to be before the reorganization was accomplished.
The CHAIRMAN. Appropriations are made pursuant to existing law, and no other appropriations can be made.
Representative TABER. Absolutely.
The CHAIRMAN. All right. You authorize the Executive to make the allocation. That becomes law when he carries out your authorization. Your old regime has been abolished and your new regime is in force. Your obligation and your authorization then is to appropriate for the new authorization, for the existing law, and you have no authority of law then to appropriate for the old regime. That is the very point I am making, and you must see it. While it is not a matter that is necessary to be settled at this time, it is so clear in my mind as a lawyer that I do not understand how another lawyer will question it.
When we give the President authority to put into effect this reorganization, and he acts upon that authority, that then becomes the existing law with respect to these various agencies, and the appropriations to be made in conformity with the law must be made pursuant to the reorganization. If they are made pursuant to the old organization they are made without authorization of law, because the old organization has been abolished by law. Now, that is as clearly as I can state it.
Senator BYRD. You used the word "allocation", Senator. Does this bill give the President the right to allocate money!
The CHAIRMAN. No; it gives him the right to ailocate agencies.
Senator BYRD. Suppose, for instance, we take the case of the Interstate Commerce Commission. Under this bill the President has the right to abolish it.
The CHAIRMAN. Yes.
Senator BYRD. Suppose Congress did not want the Interstate Commerce Commission abolished, could not they refuse to appropriate money for the new agency that the President sets up to take over the duties of the Interstate Commerce Commission?
The CHAIRMAN. Yes; but they would have no authority of law to reestablish the old.
Senator BYRD. They could not reestablish the old except by bill. The CHAIRMAN. That is right.
Of course, the Congress could repeal the reorganization act the day after it passes. Whatever act we report and pass we could repeal the next day, but that is another question,
Senator BARKLEY. In other words, if the President, exercising this broad general authority, made an allocation of the Interstate Commerce Commission, or a transfer of its activities into the Department of Commerce, we will say, Congress could the next day pass an act nullifying that and continue the Interstate Commerce Commission as an independent agency, of course, which would have to be done by a bill.
Senator BYRD. It must be passed over his veto.
Senator BYRNES. We might get back to that. What the Senator said is right. We would get back to it under any system of that kind. As a practical matter you cannot afford not to provide appropriations for the Interstate Commerce Commission as a division of the Department of Commerce, you would have to do it. The only way you can remedy it is by repealing it. The President could veto it, and then, if you wanted to go on, you would have to havo a two-thirds vote. I do not think there is any way around it.
The CHAIRMAN. Let us go ahead with the witness. Are there any further questions to be asked Mr. Gulick?
Senator BYRD. I wanted to ask Mr. Gulick a little more about the duties of the Auditor General.
I understood you to say a while ago that he would not have the right to examine the legality of expenditures, only the accuracy of them?
Mr. GULICK. No, no; the legality.
Mr. GULICK. It is in the existing act, in those duties that are not transferred. This must be taken in connection with that. The main job of the Auditor General would be to pass on the legality of the act, the accuracy of the financial records that are made, and the certification of those, just as a c. p. a. does it in a private concern, and then in cases where he thinks there is bad management he has the responsibility to report also, but not to hold it up.
Senator BYRD. That is not in this proposed act. It is in parts of the old act not repealed, is it not? There is nothing here that gives the right to examine it. In fact, he is specifically restrained.
The General Auditing Office and the Auditor General shall exercise no functions other than those vested in and imposed upon them by this act, and nothing contained in this act shall be construed as authorizing the General Auditing Office or the Auditor General to revise settlements of public accounts made by the Secretary of the Treasury, or to direct the manner in which the Secretary of the Treasury or the Director of the Bureau of the Budget shall exercise the functions vested in and imposed upon them by this açt.
Mr. GULICK. If this act as it stands does not do what I said, then it is not in conformity with the recommendation of the committee at that point.
Senator BYRD. Could you furnish us a memorandum to show specifically where the Auditor General would have the right to report on the legality of the different expenditures? It is not in here, as I see it. In fact, he is specifically restrained from doing anything except what is in this act.
Mr. GULICK. As we explained yesterday, that draft of an act was never drawn up for submission to the committee here; it was drawn up, as a working paper in the President's committee to see how the thing might be arranged, and primarily to test out the possibility of a statement in constitutional terms of the power of the Executive to shift and organize. That is the question that the chairman just now cleared up for us.
It was suggested yesterday that the President's committee take this material which came before us as a possible foundation for the draft of an act, and we plan to sit down with Colonel Wren, if he can be put at our disposal, and work out a more satisfactory statement answering these questions which have been raised by his memorandum and by various comments of the committee.
I can assure you the task of the Auditor General is to be the examination of the legality, the accuracy of the accounts, and the report to the Congress and the public on those items, and also to report with reference to any items where he feels there had been bad management in the Government.
Senator BYRD. Mr. Chairman, there has been specifically stated a number of times that the present administration of the Comptroller General's office has interfered greatly with the administration of the departments. I want to offer a resolution that the President's committee be requested to give specific instances of the alleged interference with the administrative functions of the several departments of Government by the Comptroller General's office. I think the committee is entitled to that.
Representative TABER. Why don't you ask the question of the witness?
Senator BYRD. I asked the question of the witness yesterday.
Senator BARKLEY. I know myself a number of cases where, in the operation of the P. W. A., the work had been delayed considerably by the Comptroller General holding up his approval.
Senator BYRNES. On that question I think I shall make a statement, because I stated yesterday, when the subject was discussed, I would, in addition to the one matter about the payment of the ginners. I referred to the statement that several years ago I had been advised about the examination of titles first in the Department of Agriculture, then by the Department of Justice, then by the Comp
troller General. I inquired since that time as to what is the practice at this time. I am advised it is not followed now; that when the Mount Vernon Highway was built the Comptroller General insisted that before vouchers were cleared that he should approve the title, and the Department of Agriculture took the position that the law, in section 355 of the Revised Statutes, specifically provided that no land should be purchased until approved by the Attorney General and a certificate in writing be forwarded to the Treasury, and that the Department of Agriculture refused to submit the abstracts for the approval, insisted on being paid, and that being held up for a while the compromised by saying that the Comptroller General could come to the solicitor's office of the Department of Agriculture and investigate the abstract, and as the result of it there was no investigation.
But since that time, or immediately after that, the vouchers were cleared, and they have been paid. So at this time the practice is not followed of the Comptroller General insisting upon examining titles, but he has become satisfied that it can be done under the statute by approval in writing of the Department of Justice.
Senator O’MAHONEY. Do you know whether the Comptroller is examining titles under the resettlement submarginal land purchases?
Senator BYRNES. I will relate this from my personal experience in the question of titles, that in the purchase of lands they were held up by the Comptroller. I do not know whether it was for the examination of titles. He said we did not have any right to buy land under the law for quite a while, but later he approved the purchase of land under the Resettlement Administration. I do not think it was a question of title; it was just a question of having authority to do it.
Senator BARKLEY. Heretofore in many cases the Comptroller General has refused to accept the legal opinion of the Department of Justice with respect to matters coming under his jurisdiction. The Attorney General is made the law officer of the Government. The President can ask him for his opinion about matters. It seems to me that it would work for confusion for the Attorney General to set himself up independently, whether he happens to be a lawyer or not, and to scorn the opinions of the Attorney General with respect to matters that are under the Comptroller General's jurisdiction. What do you do to clear up that situation? If the President desires the legal advice of his legal adviser, who is the Attorney General, on matters pending before the Comptroller General, or Auditor General, what do you do about that?
Mr. GULICK. We provide that the Attorney General will be the law officer in the case of a difference of opinion that is to be settled, and that would govern the actual carrying out of the work. You do not require the independent auditor to accept that decision if he disagrees with it. He may agree with the decision or he may disagree; and if he disagrees with it, then he reports to the Congress that he does not agree with the opinion which has been rendered by the Attorney General.
Senator BARKLEY. What happens if Congress is not in session, or if it is in session and takes no action?
Mr. GULICK. If it takes no action, then it stands.