he acted within the limits of his constitutional power. The executive departments, however, were in an entirely different category, for they were created by an act of Congress and depend upon the Congress for their continued existence; "It is axiomatic that that which the Congress creates, it may destroy or regulate" The conclusion of this "Answer to the Minority Report" was that judicial decisions, logic and reason upheld the right of the Congress to the authority expressed in House Joint Resolution 342.58

55

Debate on the resolution, after the House had resolved itself into the Committee of the Whole on the State of the Union, was both diverse and interesting.

Congressman Hoffman of Michigan, who was in charge of the legislation on the floor of the House took pains to make clear to the House what the resolution did not do. He showed that the resolution in no way sought information from any individual holding an office created by the Constitution, that is from the President or from any member of the judiciary.57

Congressman McCormack of Massachusetts, the minority leader, chided his colleagues of the majority stating that this was the first time in the history of Congress that this endeavor to obtain information from the executive branch had ever been reported out by a committee and considered by either House in the form of a bill or resolution. But the majority was ready for Mr. McCormack's proposition, and they replied in the following fashion through their chairman:

... the opponents of this resolution argued that, inasmuch as 79 previous Congresses had not found this legislation to be necessary, this Congress should not adopt it. Seventy-nine Congresses never found the Marshall plan to be necessary. Seventy-nine Congresses never found it necessary to give to other nations more than $80,000,000,000. The statement that 79 Congresses never found legislation of this type necessary is no argument against the present need, for 79 Congresses never found executive departments so insistent in their refusal to deny to the Congress information which it needed and requested.

Never, during the existence of 79 previous Congresses, has the Nation been confronted by a bureaucracy which was so egotistical, so arrogant, so defiant of the power of the Congress as that which challenged the authority of the Eightieth Congress.58

Mr. Graham, speaking for the majority, told his colleagues that they were considering "one of the most grave, one of the most serious, and

55 H. R. Rep. 1595, part II, 80th Cong., 2d Sess., 6 (1948).

56 Id at 7.

57 94 Cong. Rec. 5704 (1948).

58 Id. at 5708.

one of the most far-reaching steps that any Congress of the United States will ever take," in this problem of the relations between the Congress and the executive branch. He exhorted the members to pass this resolution, by all means since "this great sprawling bureaucracy with these tremendous grants of powers and the subordination which past executives have sought to bring about in lowering the dignity, honor, and position of the Congress, can no longer be tolerated". He argued that the President should be told that he had gone so far and could go no further; then, the Supreme Court could pass on the whole matter and determine what the policy of the government should be.1 Congressman Graham was undoubtedly over-flowing with zeal and fervor for the cause he was espousing, but the writer questions whether the Congressman actually meant that the Supreme Court should determine governmental policy.

Congressman MacKinnon, on the other hand, believed that too much emphasis was being placed on the question of confidential, secret or restricted information in the course of this debate. It was his feeling that too many of the governmental departments, save the Army, Navy and Atomic Energy Commission, overclassified their documents and information. He claimed that the entire objective of these executive departments in so doing was to stop producing evidence on matters involving public business primarily because it would embarrass the administration. He continued:

. . . I have examined these claims of secrecy while I have been a Member of Congress. I ran into similar claims when I served in the legislature of my own State for a number of years. I have never yet seen the claim of secrecy made that when the information was dragged out and given to the public there was any real merit to the claim. I have never yet seen one. There may be some that exist, but I will have to be shown. I have never seen a good excuse for secrecy and I will say further that the reasons I get down here from the Federal departments I consider far inferior to those I get back home. They are equally ingenious.62

Following these and other expressions of opinion, pro and con, as to the merits of this resolution, a group of amendments were introduced,

59 Id. at 5721.

60 Id. at 5722. 61. Ibid.

62 Id. at 5728.

in an endeavor to settle differences as to the contents thereof and in order to perfect the resolution."

After sundry amendments had been accepted, the chairman of the Committee of the Whole House on the State of the Union reported the joint resolution back to the House of Representatives. The resolution was then ordered by the Speaker to be engrossed and read a third time." Congressman McCormack, then, made use of a procedural strategem and offered a motion to recommit the resolution to the Committee on Expenditures in the Executive Departments. The motion to recommit was rejected by a vote of two-hundred-seventeen nays to one-hundredforty-five yeas, with sixty-nine members not voting. The next and final action in the House on the joint resolution was "on the passage of the bill". The question was taken and there were recorded two-hundrednineteen votes in favor of the resolution, with one-hundred-forty-two against and seventy members not voting. In the end, then, the joint resolution was passed by the House by a substantial majority.

65

One could, in fact, say that the majority is overwhelming, when the list of the members "not voting" is examined. It is to be noted that, of the seventy members not voting, twenty-three were Republicans and twenty-five were Dixiecrats. In a word, then, had this resolution passed the Senate and been vetoed by the President, an action certain to take place, there would have been a distinct possibility of overriding the veto. A party line vote, adding the forty-eight votes of the DixiecratRepublican abstainers to the admixture of two-hundred-nineteen members voting "yea", would result in two-hundred-sixty-seven votes, which is very close to the number required to override a veto in the House of Representatives.

The resolution, as amended by the House of Representatives and as passed by that body on May 13, 1948, was referred to the Senate, read twice in that body, according to the normal precedure, and referred to the Senate Committee on Expenditures in the Executive Departments. There, with all the activities of the pre-Presidential election summer and with the special session of the Congress, which, by its inactivity, lived up to the presidential appellation of a "do-nothing" Congress, the joint resolution died. In fact, there was little probability of its being enacted, once it reached the House of Representatives as late as

These amendments are not discussed in the body of this article, since they are relatively unimportant and have little bearing to the main subject under discussion. 64 94 Cong. Rec. 5820 (1948).

65 Ibid.

the middle of May in a presidential year. For, even though it passed the House of Representatives, there would have been a fair amount of debate in the upper body before passage, and following that, most assuredly, there would have been a presidential veto. Then, both Houses of the Congress would have been faced with the additional and timeconsuming problem of marshalling forces to override the veto.

In this struggle between the executive and legislative branches of our Government, the legislative history of the proposed joint resolution is quite important. In answer to the precedent argument of the executive branch, there has been presented in this article, thus far, the two-part reply of the legislative branch, the answer of the Senate during Cleveland's first term and the answer to the House of Representatives by this joint resolution during the second session of the Eightieth Congress. The joint resolution takes the legislative branch's answer a step further. The Senate, during Cleveland's first term, said that the precedent argument of the executive branch was not valid, since there was no actual precedent, the executive departments furnishing information to congressional committees willingly and without hesitation in a majority of instances. Refusal was made only where conflict existed between the two branches, more often based on political than on constitutional grounds. Going further, the argument of this Senate stated that, not only is there no precedent to prevent them from obtaining information from the executive branch, on the refusal of the latter branch, but that, in carrying out their function, they have the right to know anything and everything about the executive departments. This they considered particularly true, under the constitutional provision, requiring the President to submit information on the State of the Union.

The House of Representatives, in the second session of the Eightieth Congress, takes the further step of proposing that they have the right to pass legislation compelling submission of information and documents, as they require, under this right which allegedly has always belonged to the legislative branch.

One merely hazards a guess, under the make-up of our present Supreme Court, in submitting whether or not House Joint Resolution 342 would have been declared constitutional, if enacted into law and if brought up to our high court on a test case. When weighing the basic arguments of the executive branch, i.e., that there cannot and must not be an encroachment by one branch of the government on another branch under our doctrine of separation of powers-and of the legislative, that the Congress must know of the operations of the executive branch in

order to legislate properly and that there should be a spirit of cooperation between all branches of our government-it is well to consider the language of the United States Supreme Court in the case of O'Donoghur v. United States. This case was decided by a Supreme Court, which was probably closer to the present day Truman Court than to the Roosevelt Court. The Court there stated:

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If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others-independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution. . . .67 (Emphasis supplied.)

It is suggested that this language, which was quoted favorably by the court in Humphrey's Executor v. United States, probably the latest decision on the removal of governmental officials by the President, is important to the argument of the legislative branch. It brings out the fact that, while it is true the governmental branches must maintain their separate entity, all branches are working for a common goal-the making of a better government and the preservation of that government. However, neither case directly involves the exercise of the power of compulsion by the legislative.

In brief, it is submitted that a study of the debates during the Cleveland administration, of the legislative history of this resolution passed by the House of Representatives during the Eightieth Congress and of cases decided by the United States Supreme Court during the last twenty years show that the precedent argument of the executive branch is not as iron-clad as one might be led to believe. While it is not the writer's function at this juncture to present the argument on the merits of the respective positions, it is submitted that a future Congress, facing a President who is a member of the opposing political party, may well make use of these two series of debates-one by a Republican Senate during Cleveland's administration and the other by a Republican Congress during Truman's first term-and may well find the means of forcing their will upon the executive branch, by the passage of legislation, similar to House Joint Resolution 342, Eightieth Congress, Second Session, 1948.

66 289 U. S. 516 (1933).

67 Id. at 530.

68 295 U. S. 602 (1935)