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executive branch to furnish them with whatever information they requested. To understand the position of the Republican House of Representatives in the Eightieth Congress, it is necessary to examine the piece of legislation they introduced, House Joint Resolution 342 of the Eightieth Congress, Second Session.33
The intent and purpose of this joint resolution of the House of Representatives, is best revealed by a study of its legislative history,34 brief though it be, in comparison with that of many bills considered by Congress. As is true with much controversial legislation, the emotional attitude of the House of Representatives, when considering this resolution, was not especially calm and tranquil.
Before proceeding any further, it should be emphasized that House Joint Resolution 342 was never enacted into law. The history of this resolution, in fact, may be stated in a very few words.
The resolution was introduced into the House of Representatives on March 5, 1948, was referred to the Committee on Expenditures in the Executive Departments on that same date, and was favorably reported out of committee, without hearings, on March 22, 1948. Though accompanied by a majority report, included also was a stinging retort by the minority, and an answer to the minority report by the majority of the committee. 36 By special resolution, 57 House Joint Resolution 342 was taken up quickly on the floor of the House by the Committee of the Whole on the State of the Union,38 was debated for two days, after which
, it was reported favorably by the Committee of the Whole to the House of Representatives and finally was passed by the House of Representatives on May 13, 1948. Referred to the Senate Committee on Expenditures in the Executive Departments on May 14, 1948, the resolution died there. The reason for the demise of the resolution in the Senate Committee is quite apparent when one recalls that convention summer of 1948--the deliberate inactivity of a Republican Congress, endeavoring to obstruct the plans and hopes of the President, and his so-called must legislation—which the Senate refused even to consider.
33 H. J. Res. 342, 80th Cong., 2d sess. (1948).
34 Cf. ihe following statements concerning a "joint resolution" to be found in Cannon, Procedure in the House of Representatives (U'. Govt. Printing Office, 1948) p. 228:
"A joint resolution is a bill within the meaning of the rules and must be signed by the President, with the exception of proposed amendments to the Constitution.
“A joint resolution is the proper vehicle for authorization of invitations to foreign governments, correction of errors in bills which have gone to the President, enlargement of scope of inquiries provided by lazi', authorization of deviation from form
prescribed by bills.” (Emphasis supplied.) 85 Sce, for example, the two bound volumes, published by the National Labor Relations Board, which comprise the Legislative llistory of the Labor-Management Relations Act of 1947, popularly called the Taft-Hartley Law.
30 H. R. Rep. No. 1595, parts I and II, Soth Cong., 2d Sess. (1948). 37 H. Res. 575, 80th Cong., 2d Sess. (1948).
38 For information on the Committee of the Whole on the State of the Union, sec. Clarence Cannon, op. cit. supra note 16, at 95 ct seq.
As introduced, House Joint Resolution 342 was comparatively mild, its real teeth being inserted while it was in committee,—though, of course, the three section resolution, as originally introduced, was still highly unacceptable to the executive branch. It provided that all executive departments and agencies of the Federal Government, the Secretaries of the respective departments and agencies, and all persons acting under authority granted these agencies were authorized and directed to furnish the congressional committees any information, books, records and memoranda in the agency's possession that the respective committee might deem necessary for its investigation, provided that the request was made upon a majority vote of the members of the committee and provided that the request had the approval of the Speaker or the President pro tempore, depending whether it was committee of the House of Representatives or of the Senate. Under the resolution, the committee request would be accompanied by a certificate of the committee, signed by the committee clerk, attesting to the majority vote; and the approval of the Speaker or the President pro tempore was to be indicated by a letter over his signature. These provisions were found in Section 1 of House Joint Resolution 342, the real core of the Resolution as it was introduced.39
30 H. J. Res. 342, 80th Cong., 2d Sess., § 1, (1948) reads as follows:
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
“That all executive departments and agencies of the Federal Government created by the Congress, and the Secretaries thercof, and all individuals acting under or by virtue of authority granted said departments and agencies, are, and cach of them hereby is, authorized and directed to make available and to furnish to any and all of the standing, special, or select committees of the House of Representatives and the Senate, acting under the authority of any Federal Statute, Senate or House resolution, joint or concurrent resolution, such information, hooks, records, and memoranda in the possession of or under the control of any of said departments, agencies, Secretarics, or individuals as may, by any of said committees, be deemed to be necessary to enable it to carry on the investigations, perform the duties, falling within its jurisdiction, when requested to do so: Provided, That said request shall be made only by a majority vote of all the members of the committee voting therefor at a formal meeting of the committee: And provided further, That if the com
Under Section 2 of this resolution, which was added in committee, when information, books, records, or memoranda were received from a governmental department or agency or from any administrative officer of such an agency, as a result of a request previously made under the first section of the resolution, the committee would immediately meet and determine, by majority vote, what, if any, part of such information should be made public and what part should be deemed to be confidential. If any part of that portion of such records declared confidential were divulged by a member of the committee or by any employee of the committee or any other individual obtaining knowledge of such information because of the disclosure of such information to the committee, any such offender would be liable to prosecution for having committed a misdemeanor and could be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both, at the discretion of the court. In addition, if the offender was an employee of the United States, he would be dismissed from office or discharged from his employment.*'
mittee be a committee created by the Senate, upon approval of the President or the President pro tempore of the Senate: And provided further, That if the committee making such request be a committee created by or acting under the authority of the House of Representatives, upon approval of the Speaker or Acting Speaker of the House of Representatives, such majority vote of the committee to be shown by a certificate of the chairman of the committee, countersigned by the clerk; the approval of the President or President pro tempore of the Senate o- the Speaker or Acting Speaker of the House of Representatives to be shown by letter over his signature. Any officer or employee in any such executive department or agency who fails or refuses to comply with a request of any committee of the Congress made in accordance with the foregoing provisions of this section shall, upon conviction thereof, be punished by a fine not exceeding $1,000 or by imprisonment for not
exceeding 1 year, or both, at the discretion of the court." 40 H. J. Res. 342, 80th Cong., 2d Sess., § 2. (1948) reads as follow's:
"When, by virtue of section 1, any committee of the Congress shall have received information, books, records, or memoranda from any of the departments, agencies, Secretaries, or individuals in pursuance of a request made under the authority of said section, it shall forthwith, by majority vote of the membership of said committee, determine what, if any, part of such information shall be made public and what part shall be deemed to be confidential, and it shall thereafter be unlawful for any member of said committee or any employee thereof to divulge or to make known in any manner whatever not provided by law to any person any part of the information so disclosed to said committee and which has by said committee been declared to be confidential; and any offense against the foregoing provision shall be a misdemeanor' and shall be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, at the discretion of the court; and, if the offender be an employee of the United States, he shall be dismissed from office or discharged from employment."
The chairman and the majority of the committee explained their position very fully and very well in the Committee Report," which accompanied the resolution, as reported to the Congress. The report stated that an executive branch had never denied information to Congress when the information would aid in the passage of legislation which the executive branch deemed beneficial or helpful to itself. In such instances, in fact, "the various departments of the Government, when favoring legislation proposed by the Administration in power, have been quick to assert the right to have their representatives appear and testify before congressional committees."2 It was only when opposing some action, thought to be contemplated by the Congress, that the President or his subordinates have challenged this right of Congress.
The majority indicated, however, that the policy of the Executive of denying information to congressional committees seemed to be widening in scope continually. Committees of both Houses of Congress were finding that their efforts to ascertain how money appropriated by Congress was being spent, how the laws were being interpreted and administered, or whether certain legislation was effective or ineffective, were being hindered or delayed by the refusal of various officials and departments of the executive branch to make available information sought by congressional committees. The report then proceeded to indicate instances where the various congressional committees were denied their requests for documents and testimony by agents of the executive branch. For instance, the Department of Justice had denied information concerning the parole of four members of the underworld, reputed to be remnants of the Capone gang; Doctor John Steelman, the Assistant to the President, had, on the advice of the President, refused to testify before a subcommittee of the House Committee on Education and Labor on the manner in which the Taft-Hartley Act was being administered; the Civil Service Commission had refused to furnish a congressional committee with a so-called "key loyalty list” of governmental employees and this was followed some months later by the President's “Loyalty Order", by which the label of "confidential” was placed on all loyalty records; and finally-and perhaps most important of all—the Secretary of Commerce had refused to submit to the House Un-American Activities Committee the Federal Bureau of Investigation letter concerning Doctor Edward U. Condon. 43
41 H. R. Rep. No. 1595, part I, 80th Cong., 2d Sess. (1948). 12 Id. at 2. 1 Id. at 34; see also minority report at 12.
40377 0—59-pt. 1-14
The majority of the committee presented the issue before the Congress and then proposed the remedy. They did not claim, they insisted, that the Congress had the right to challenge the actions of the executive or of the judiciary while the latter branches were acting within the scope of the authority given by the Constitution; those departments, they admitted, were created by the Constitution, and congressional power over them was limited to Congress' power of removal from office through constitutional procedure. The majority contended, however, that, inasmuch as the Congress was charged with the authority to create, and it had created, various executive departments and agencies, and that since it was charged with the duty of appropriating funds and enacting legislation for the proper and effective activities of these agencies, it not only had the right but the duty to seek and obtain from every agency created by it and dependent upon congressional appropriations, all relevant information necessary to the enactment of proper legislation. Summing up, the majority stated the issue to be as follows:
Shall the Congress insist that departments created by it, dependent upon its will for existence, give to its committees the information necessary to enable it to act intelligently and wisely, or shall it permit its crcatures to arbitrarily
determine what information the Congress shall or shall not have? 44 The majority concluded their report by submitting that the proper remedy seemed to be not special legislation enacted to meet a particular situation, but over-all legislation by the Congress, which, subject to court decision, would settle the question as to the authority of the Congress to demand information from the esecutive departments. It was expressly denied that the members of Congress were any less discreet or loyal than the heads of, or the subordinates in, the various executive departments. But the committee made it clear that they were placing the best possible safeguards around the receipt of confidential information from executive departments.
The minority report,45 which was signed by six members of the minority on the committee, including the minority leader, Mr. McCormack of Massachusetts, as was to be expected, called for the defeat of this resolution. This report presented the usual arguments of the executive branch, which this writer has chosen to label as the "precedent" and "legal" arguments, and while not specifically citing the opinion of former Attorney-General Jackson, paralleled its substance almost exactly. Unlike their pre
44 H. R. Rep. No. 1595, part I, 80th Cong., 2d Sess. 4 (1948). 45 Id. at 7. 48 40 Op. Atty. Gen. 45 (1941).