an individual concern. Compare Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U. S. 48, 58-59; Mahler v. Eby, 264 U. S. 32, 44; Southern Ry. Co. v. Virginia, 290 Ü. S. 190, 193, 194.

It thus seems that due process does not require special findings in the case of general regulations as distinguished from particular judgments or determinations under contingent legislation, though of course the particular statute might require them. Furthermore, it should be noted that the hot-oil opinion itself indicated that due process does not require the recital of findings in the application of contingent legislation where the subject is one "appropriately belonging to the executive province.' An example is calling out the militia.30 The hot-oil opinion seems to distinguish such an example from determinations made under contingent legislation connected with the regulation of economic enterprise.

In any event, one may agree with the Special Committee on Administrative Law of the American Bar Association when it says, in its 1936 Report, that findings expressed in terms of "meaningless generalities" are "a legal formalism that furnishes no safeguard to the person regulated. To require such a finding as a prerequisite to validity, places form above substance." This committee also says that "the Supreme Court, in treating of the finality of findings of fact by administrative agencies, has made little or no distinction between the legislative determinations and the judicial determinations of those agencies. There is much to be said for treating the two differently and for according the findings of fact of Congress or of an agency exercising delegated legislative power (promulgating a rule for example) greater respect than would be accorded the findings of an agency adjudicating a controversy."

Reverting to the limitations on the power of Congress to delegate, one may ask what the difference is between "policy" and "standard." Possibly the policy or standard need not be expressed in the delegation of rule-making power, if it may be implied with sufficient certainty and clarity. Possibly also the requirements are not so strict in connection with powers closely related to the constitutional powers of the President.40

Again one may agree with what the Special Committee on Administrative Law of the American Bar Association says on this point:

Of the approximately 1,300 instances of delegation of legislative power to be found in the Federal statute books, a large proportion define the subject of the delegation and by such definition keep the delegated power within comparatively narrow limits. The fact that the statute makes the exercise of this power [the rule-making power of the Federal Communications Commission] subject to the standard of "public interest, convenience or necessity" adds precisely nothing to the intelligible scope of the power conferred. There are many statutes... having no procedural

39 Martin v. Mott, 12 Wheat. 19 (1827).

40 See the recent case of United States v. Curtiss-Wright Export Corporation, cited above.

requirements for the adoption of rules and regulations, and providing no standards further than meaningless generalities. There are many other statutes which do not have even these generalities. As of January 1, 1935, the committee finds that there are approximately 192 instances in the Federal statutes where power is conferred upon an administrative agency to make any rules and regulations "to carry out the purposes of the act", and in a fairly large proportion of these instances the act contains no statement of purpose! The saving grace in all such instances is that the field of delegated legislation is narrow, i. e., "canalized", not that a standard or any particular procedural requirements are imposed.

one.41

In sum, then, the courts furnish important and adequate judicial safeguards to the delegation of rule-making power when they require that Congress must itself have power in the premises, that it must delegate the power to public officers and not to private persons or groups, and that it must in one way or another limit the power. One way to limit it is to define a general policy which the rule-making power is to concretize; but where the scope of the power is narrow, such a policy may often be implied with sufficient clarity. There is no categorical difference between a policy and a standard, and often the two ideas merge into The courts must, of course, insist also that the rules and regulations shall be infra vires. But undue stress upon statutory recitation of a meaningless formula, or upon an equally meaningless finding in terms of such a formula, except where such a finding is expressly required by Congress to be recited, offers no safeguard whatsoever, and diverts attention from a realistic appraisal of whether, on the whole, the delegation is limited in a way that is reasonably sufficient under the given circumstances. It is to be hoped that the courts will not hamper the necessary technique of delegation, either by such formalisms or by requiring Congress to limit delegated power to a degree that will stifle the development of what was called above the ideal relation between statutes and regulations.

In England there are no judicial safeguards against parliamentary delegations. The famous Committee on Ministers' Powers distinguished normal from what it considered exceptional delegations that should be made only when called for by emergency or other exceptional circumstances.42 Its list of exceptional delegated powers included powers to legislate on matters of principle, powers involving so wide a discretion that it is almost impossible to know what limits Parliament did intend to impose, powers in the delegation of which Parliament has forbidden control by the courts, and powers to impose taxation and to amend acts of Parliament.

It is clear that in the United States judicial checks offer sufficient safeguards against the first three types of exceptional delegation.

41 Both these points seem to be illustrated by Buttfield v. Stranahan, 192 U. S. 470 (1904). 42 Pp. 30-41.

44

Indeed, the hot-oil case imposed a too narrow application of the rule against the delegation of untrammeled discretion. On the other hand, a number of our statutes authorize executive imposition of taxes and amendment of statutes. The flexible tariff clause authorizes both, and has been upheld by the Supreme Court.43 The Overman Act," during the World War, authorized temporary administrative reorganization through amendment of statutes by the President. The latest delegation of power for reorganization authorized statutory amendments by Executive orders which were to take effect only if Congress took no action within 60 days. This delegation has been considered but not directly passed upon by the Supreme Court.45 There seems, however, no solid reason for holding such delegations objectionable.

As a safeguard, judicial review has the drawback of cost and delay. This discriminates against the poor man. It compels compliance with regulations of doubtful validity because of the expense of legal action.

To meet this difficulty, two things are needed. The first is a prenatal check-up to insure the legality of proposed regulations. This would save the Government and the citizen the expense of the unnecessary upsetting of plans. An ounce of administrative prevention is worth a pound of judicial cure.

The second need is a means of challenging the validity of regulations by a simplified procedure, without delay and at a nominal cost. In this respect a lesson might be learned from France, where administrative regulations may be annulled, before being put into effect, by the Council of State for excess or misuse of power.

Adequate Publicity

The third principal purpose for which the President should employ his general power of direction is to insure the postnatal safeguard of adequate publicity, so that rules and regulations may be brought to the attention of those to whom they apply. Most agencies publish the regulations concerning a given subject in pamphlet form. In plant quarantine, the regulations are preceded by an explanatory memorandum which summarizes their provisions in simpler language and explains what changes they make in the preceding regulations. The notice of quarantine, together with this memorandum and the regulations, is sent out to a mailing list. In informing transportation companies, the Bureau of Plant Quarantine includes a receipt to be signed, so as to be sure that they have notice of the regulations. The quarantine regulations at the same time are made the subject of a press release. The Farm Credit Administration also attaches an explanatory memorandum to its rules. This is helpful, except that people sometimes merely read the

43 Hampton v. United States, 276 U. S. 394 (1928).

44 40 Stat. L. 556-57.

45 Isbrandtsen-Moller Co. v. United States, et al. (decided Feb. 1, 1937).

explanation in lieu of the actual rules and regulations. The Committee on Ministers' Powers recommended as follows: "The departmental practice of appending to a regulation or a rule in certain cases a note explaining the changes made thereby in the law etc., should be extended."

All these methods of insuring postnatal publicity are helpful. The matter is important because regulations relate to so many and such specialized matters. It is recommended that the President, by Executive order, require that the best practice in these matters be regularly followed in the exercise of the rule-making power.

Central Publication: The Federal Register

46

Under the Federal Register Act, which Congress enacted in 1935, a most important additional postnatal safeguard has been thrown around the rule-making power insofar as it affects the public. The Federal Register is designed to furnish postnatal publicity in the form of central publication. Its central purpose and its principal defect are summed up by Professor Erwin N. Griswold when he writes: "In its present form, it is far from perfect, but I am sure that any unbiased person must regard it as a great improvement on the chaos which surrounded administrative activity for many years before it."47

The Federal Register publishes all Executive orders and proclamations and all documents issued by Federal agencies in the exercise of their rule-making powers-that is to say, documents of general applicability and legal effectexcept those that are effective only against Federal agencies or against persons in their capacity as officers, agents, or employees thereof.48

The need for such a publication had existed for many years. The hot-oil case merely spectacularized this need. The need was greater during the life of the National Recovery Administration, but it is a permanent need that was recognized and met by most modern governments many years before the Federal Register was finally set up.

The Federal Register Act goes still further. Except in case of actual knowledge, it makes the effectiveness of those regulations that it requires to be published depend on their being filed with the Federal Register and made available for public inspection.49

The central purpose of the Federal Register Act relates to a comprehensive and authoritative publication in one place of all products of the

46 49 Stat. L. 500.

47 In a letter to the present writer of which he has made free use. See Erwin N. Griswold "Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation," in Harvard Law Review XLVIII, p. 198. The Regulations of the administrative committee of the Federal Register (approved by the President Mar. 11, 1936) are published as a separate pamphlet. See especially section 11 of the act, which contemplates publication of a compilation of all documents of general applicability and legal effect issued prior to the establishment of the Federal Register and still in force and effect.

48 Section 12 of the act also provides: "Nothing in this act shall be construed to apply to treaties, conventions, protocols, and other international agreements, or proclamations thereof by the President."

49 The act also provides in section 7: "The contents of the Federal Register shall be judicially noticed."

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rule-making power that affect the public. A register is diverted from this central purpose if the rules and regulations are buried in an official gazette containing all sorts of official notices, or if they run along together so as not to be separable. The present Register has both defects. It publishes some notices, though by no means as many as the London Gazette. Its form is that of the Congressional Record.

It is accordingly recommended that the form of the Federal Register be changed to a ring binder for rules and regulations, which shall be published separately, as issued and filed, in slip form, with distinguishing Federal Register

numbers, and with punch holes in the margin. It is further recommended that no notices be included, except of course those which promulgate rules and regulations, and that the Federal Register publish all rules and regulations which affect the public, and nothing else. It is further recommended that the President appoint an interdepartmental committee to inquire into the question whether there is need for a separate and distinct Federal gazette, and whether such a publication would effect a sufficient saving in the advertisement of official notices to justify setting it up. Such a gazette would, of course, contain no news items of any sort whatsoever.

The Need for Coordination

A fourth principal purpose for which the President should use his power of direction is coordination of policy formation in general and of rule-making in particular. There is now no coordination of the policies of the many Federal regulatory agencies, so they must fight it out or appeal to the President. At the same time, there is crying need for such coordination.

Policy formation includes rule-making and a good deal besides. It includes the larger purposes and attitudes of administrators as well as those written down in formal regulations. Though this study is directly concerned with rule-making, reference is here made to coordination of policy formation in general for the simple reason that the coordination of formal rule-making is so intimately tied up with the larger question that it cannot be intelligently considered apart from it.

Serious conflicts not infrequently develop. Years ago one bureau taught the farmers to spray their apples and peaches with a preparation that killed fruit pests, whereupon another bureau in the same department had the job of protecting the consumer against the arsenic in this preparation, which happens also to be poisonous to human beings. Perhaps both these things needed to be done, but not without the most careful correlation. Sometimes a conflict arises in acute form and drags on for months-in one case, for 18 months.

In such cases it is difficult to keep the conflicts and resulting jealousies out of the newspapers. Officials have frequent press conferences; and once the press hears hints of a conflict, reporters naturally play the game of asking embarrassing questions of those involved. This demoralizes public administration.

Planning can produce coordination in the larger outlines of policy. But long-range planning is not easily woven into day-by-day policy. The National Resources Committee may prepare a conservation plan which the President approves; but there is no regularized method for insuring that this plan will be taken into account when an emergency decision needs to be made for flood control. Again, the President may make a general declaration of policy; but one Secretary's interpretation of this declaration may be quite different from that of another. The same thing applies to the mimeographed statement of a policy by a department

head. It is necessarily expressed in general terms and will be differently interpreted by different subordinates.

Coordination needs to be effected within the large departments, but the need does not stop there. The farm-use policies of the Agricultural Adjustment Administration need to be coordinated with the plans of the National Resources Committee and the lending policies of the Farm Credit Administration. The rulemaking power is at the center of this whole problem.

The President might consider the issuance of an Executive order requiring procedures designed to provide intradepartmental coordination. But for present purposes attention will be confined to interagency coordination.

Prerequisites of Effective

Coordination by the President

If the President is effectively to tap the reservoir of the general power of direction, especially to produce coordination, several prerequisites must be taken into account. The first is that he be relieved, so far as possible, of routine decisions. The second is that there be established a clearance procedure which will not only furnish him some relief from the consideration of routine matters but also present to him in systematic fashion the issues of policy on which he ought to pass. The third is that his office be somehow implemented by a staff which will serve as an agency for clearance and for giving him an effective basis for his crucial decisions. The fourth is that the statutory law be amended both to permit him to devolve routine decisions upon staff officials and to make sure that he has the power of direction in those spheres where it is not only appropriate but highly desirable. The fifth is that coordination of policy take place, so far as possible, in the formative stage, before men's views have been hardened, or they have taken public positions on the questions involved, or conflicts have been aired in the press. The sixth is clear recognition that the prevention and ironing out of conflicts is a task in which personnel is of paramount importance.

It is no light matter that the President has an unbelievable number of routine decisions to make. He has to approve exemptions from the retirement rule and from the civil service rules governing appointments. He has to

"approve" certain regulations-for example, those of the Administrative Committee of the Federal Register. He issues Executive orders regulating the speed limit for automobiles in the Panama Canal Zone.1 Under Executive Order No. 7070 he has to approve transfers of employees where the transferee is to get a higher salary to be paid out of emergency funds. These are but random examples. An exhaustive list would be startling.

In order to relieve him of some of the burden, he is frequently handed a long list of, say, transfers under No. 7070 to approve with one signature. But this merely indicates the absurdity of placing the burden upon him at all. For it means that his approval must be perfunctory. The net result of such routine is to take up time which should be devoted to the consideration of the really crucial choices of policy.

Under the Constitution the President has to commission all officers. He used to sign each separate commission personally, but during the World War there were so many nilitary officers to be commissioned that, without some relief, President Wilson would, in the words of a White House official, still be signing the commissions of second lieutenants. So a legal opinion was obtained to the effect that the President might sign a single authorization for the commissioning of a large number of officers. Later, the same procedure was applied to the commissioning of first-, second-, and third-class postmasters. But President Harding preferred to sign the actual commission of every postmaster.

This example illustrates three important points. One is that when government was a simple thing, when the Federal Government was largely routine, the burden on the President was not so serious as it has become in the past few decades. The second is that, if necessity requires, ways and means can be found to reduce this routine. And the third is that a good deal depends on the temperament of the President. One Executive will desire to devolve many duties upon his responsible and trusted subordinates, whereas the next will prefer to do everything himself. Presidents vary like other big executives. It is easier, as Woodrow Wilson once said, to speak of the President than of the Presidency.2

Nevertheless, it is generally recognized that the best business executives are usually those who set up series of routine decisions which they can safely devolve upon subordinates, under general directions and subject to a periodic check-up. It seems wise so to arrange the functions of the Presidency as at least to make it possible for every President to follow this method.

There are, however, several obstacles in the way. One is inertia. Another is that since his is the final responsibility, it is often felt that his

1 See Executive Order No. 4729.

a Wilson, op. cit., p. 54.

should be the final choice, even in matters of routine. 3 A third is that in some cases, like a Congressman's request that a constituent be exempted from the civil service rules, the President may want to decide for political reasons. Again, since everybody wants to take his plea to the head man, it is frequently felt there is nobody else who can finally say "No", or, civil service reformers would fear that spoilsmen could break down the merit system if exemptions were made by anybody but the President. Finally, statutory law may stand in the way. Though the courts have held that action by the appropriate department head is, in many cases, in contemplation of law equivalent to action by the President, there are exceptions, and there seems to be an inhibition against seeking to carry these decisions to their logical conclusion.

The President may commit himself to the performance of routine decisions by signing an Executive order like No. 7070. But there should be some means of checking abuses in such matters without having to run to the President to find out whether a clerk may be transferred from the Department of Agriculture to the Public Works Administration at an increase of salary from $1,200 to $1,260. Accordingly, it is recommended that, in the clearance of bills and of Executive orders no provision be permitted which imposes unnecessary routine upon the President. It is further proposed that some central agency prepare a report on the extent to which devolution of routine may go under existing law, work out lines of routine decisions to be made in the President's name under general instructions from him, and prepare amendments to existing statutory law and Executive orders which will make possible an extension of this technique.

Relief from routine is a prerequisite of more effective over-all management by the President. A word needs to be added on statutory changes. Congress should not freeze details in its legislation, whether in the substantive definitions of its policies or in the administrative provisions which accompany them. But since it has often done so, it should remedy the situation by authorizing the President by Executive order to modify such statutory details. In new legislation it should, instead of going into detail, delegate to department heads, under general standards and within defined limits, discretionary rule-making powers the exercise of which the President could then control through his general power of direction.

This argument is refuted by the stubborn fact that such choices become perfunctory. See Ray Stannard Baker, Woodrow Wilson; Life and Letters, (Garden City, N. Y.: Doubleday, Page & Co., 1927-35), v.IV, pp. 43-49.

• Wilcor v. Jackson, 13 Pet. 498 (1839); Wolsey v. Chapman, 101 U. S. 755 (1879). James Hart, The Ordinance Making Powers of the President, ch. VIII; Tenure of Office under the Constitution, 344 ff.

63.

Runkle v. United States, 122 U. S. 543 (1887); Ex parte Field, 5 Blatch.

In the case of purely administrative details the need for such authorization is clear. Where private parties will be affected, it might be required that such Executive order shall go into effect unless rejected by either House of Congress within 30 days.