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." 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.48

41 H. R. Rep. No. 1595, part I, 80th Cong., 2d Sess. (1948).

42 Id. at 2.

43 Id. at 3-4; 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 creatures 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 executive 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.

45

The minority report, 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.16 Unlike their pre

44 H. R. Rep. No. 1595, part I, 80th Cong., 2d Sess. 4 (1948).

45 Id. at 7.

46 40 Op. Atty. Gen. 45 (1941).

decessors in the Senate during the first Cleveland Administration, however, the members of the minority did not admit, though discussing the same basic issue, that they were involved in a purely political argument, but rather, kept their discussion on the lofty level of a pressing problem of constitutional law."

47

The minority of the committee denied the assertion in the majority report that the refusal of information to congressional investigating committees had hindered these committees in carrying out their function. Returning to the "precedent" argument of the executive branch, the minority proposed that "the short answer to this assertion is contained in the history. . . of repeated Executive refusal to comply with such congressional demands ever since the time of President Washington."48 In conclusion, the minority examined the instances cited in the majority report and in regard to each instance declared that the President or the particular executive department was justified in refusing to submit the information requested by the congressional committee.

1149

Eight days after the minority report was submitted, the chairman of the House Committee on Expenditures in the Executive Departments, Mr. Clare Hoffman, submitted an "Answer to the Minority Report.' This document pointed out some prominent loopholes in the argument of the minority. It chided the minority report for its lack of judicial authority in support of the proposition denying the right of the Congress

47 Minority Leader McCormack particularly echoed this view which may be found in H. R. Rep. 1595, part I, 80th Cong., 2d Sess. 10 (1948):

"The development of our constitutional history from the beginnings of this country, and the relative ease with which we as a Nation have found ourselves able to work and run the Government within the concept of separation of powers which is embodied in our Constitution is a tribute not only to the founding fathers who wrote our Constitution but also to the statesmanship and good sense of the Presidents of the United States and the 79 Congresses which have gone before us whose duty it has been to work under that Constitution. We should respect and follow the statesmanlike and constitutional precedents which have become part of our heritage.

"Clearly this is not the time for the two branches of our Government to become locked in internecine warfare. Our Constitution is a great and mighty document. Its strength and vitality depends upon the statesmanship and good sense of those whose duty it is to operate under it. By ill-considered action, departing from the precedents of a century and a half, we may weaken our Constitution for all time. Passage of House Joint Resolution 342 would certainly be a step in this direction. There are too many other nations at this point in the world's history whose constitutional systems have been shaken and shattered. Let us not join them by taking such illconsidered action."

48 Id. at 11.

49 H. R. Rep. No. 1595, part II, 80th Cong., 2d Sess. (1948).

to subpoena witnesses who might be employed in the executive branch of the Government and from whom Congress, through its committees, desired to elicit testimony deemed necessary for the proper exercise of Congress' legislative function. It was pointed out by the chairman, in his answer, for no other member joined with him in signing this document, that opinions of Presidents and presidential advisers would not bear much weight, since such authorities would, as a matter of course, deny the right of the legislative branch to infringe upon what the President considered his exclusive function. Opinions of the Attorney-General merit most respectful consideration, Hoffman said, but they are not law. He denied that the President of the Senate, the Speaker of the House, a congressional committee, or a majority of a congressional committee had less discretion or patriotism than had the executive or his advisers, particularly since, in his opinion, the State Department and the Department of Commerce had "their full quota of indiscreet individuals, as well as some who seem to be unaware we have potential enemies."50

The answer denied that it was the purpose of the Resolution to lock these two branches of the Government in internecine warfare only a distorted view of the resolution would give rise to such a statement. The present situation was deplorable if these two branches of the government could not submit a difference of opinion to the third branch of the government, the judiciary, in a constitutional manner for a constitutional decision. The argument that seventy-nine Congresses have not seen fit to attempt such enforcement, so this Congress should not dare to do so was answered by the chairman in the following manner:

The very fact-if it be a fact-that we are still or, if you prefer, again confronted by a great national crisis or emergency, upon the correct solution of which our future existence depends (and we might begin to inquire when one emergency ends, another begins, or whether emergencies are not now continuous), is a cogent reason why, before we proceed further along the unusual and uncharted and variable course mapped out by the Executive, we should obtain a final, judicial decision road-marking the proper course.

The fact that "79 Congresses which have gone before us have not seen fit to attempt such enforcement" is no reason for further delay. None of the preceding 79 Congresses ever was asked to burden the American taxpayer with the obligation of policing, educating, rehabilitating the whole world.

If the executive departments and administrative agencies have authority to withhold some information from the Congress, do they not, by the same token, have power to withhold all information from Congress? If, when they

50 Id. at 3.

cause bills to be introduced and insist they be heard in support thereof, should they not give to the Congress the information it seeks and needs? Should the departments be permitted to hide their errors and maladministration behind a cloak labeled "confidential" and thus defeat a needed remedy?51

Mr. Hoffman pointed out in detail the New Deal trend of issuing rules and regulations, in great numbers, by the executive departments. It reminded the dissenters of the minority that these agencies only possess this rule making power under some act of Congress, conferring such authority on these rule making agencies. Remembering this fact and guided by numerous decisions of the several federal courts the "answer" reiterated that Congress had the power to require the executive to submit the information it deemed necessary.62

The argument that congressional committees would abuse this power, if it were granted by the passage of this resolution, found its reply in the decision of the United States Supreme Court in the case of McGrain v. Daugherty,53 wherein the Court made the following declaration:

The contention is earnestly made on behalf of the witness that this power of inquiry, if sustained, may be abusively and oppressively exerted. If this be so, it affords no ground for denying the power. The same contention might be directed against the power to legislate, and of course would be unavailing. We must assume, for present purposes, that neither house will be disposed to exert the power beyond its proper bounds, or without due regard to the rights of witnesses.54

It should be remembered, however, in evaluating this case, that the Court was not speaking of a direct demand by the legislative on the executive. Its authority as a precedent concerning any phase of the legislative power of inquiry over the executive is consequently weakened.

In concluding, the answer to the minority report differentiated between the executive office and the executive departments. The Congress, it was admitted, had no jurisdiction over the executive himself, when

61 Ibid.

52 The report cites: United States v. Josephson, 165 F. 2d 82 (2d Cir. 1947), certiorari denied, 333 U. S. 838 (1948); Fields v. United States, 164 F. 2d 97 (U. S. App. D. C. 1947), certiorari denied, 332 U. S. 851 (1948); United States v. Dennis, 72 F. Supp. 417 (D. D. C. 1947); United States v. Bryan, 72 F. Supp. 58, 61 (D. D. C. 1947); Townsend v. United States, 95 F. 2d 352 (U. S. App. D. C. 1938); McGrain v. Daugherty, 273 U. S. 135 (1927).

58 273 U. S. 135 (1927).

54 Id. at 175.