8. United States International Trade Commission (Section 174, P.L. 93-618). 9. Commodity Futures Trading Commission (Section 101, P.L. 93-463).

10. Labor Department (Section 16, P.L. 92-576, 33 U.S.C. 921a), provides that attorneys appointed by the Secretary of Labor shall represent the Secretary or the Benefits Review Board in actions under the Longshoremen and Harbor Compensation Act. In addition, Section 25e of the Federal Labor Standards Amendments of 1974, P.L. 93-259, authorizes the Secretary of Labor to enforce child labor provisions of the act and requires the Secretary of Labor to be represented by the Solicitor of Labor.

11. Some statutes conditionally permit agencies to use their own attorneys if the Attorney General has not acted within a given period of time.

a. Federal Trade Commission, 12 U.S.C. 45(m) (Alaskan Pipeline Act) permits commission's attorneys to appear in their own name if the Attorney General does not act in 10 days.

b. Environmental Protection Agency, (33 U.S.C. 1366) Public Law 92-500, Federal Water Polution Act Amendments of 1972 permits the administrator to request the Attorney General to appear and represent the Environmental Protection Agency and unless the Attorney General notifies the Administrator within a reasonable time that the Attorney General will appear, the Environmental Protection Agency attorneys may appear for the United States. Similar provisions are contained in 42 U.S.C. 1857h-c in regard to Air Pollution Control.

c. Interstate Commerce Commission, section 10 Public Law 93-496 (the Amtrak Improvement Act of 1974) permitting the Department of Justice to represent the Commission in all court proceedings relating to the improvement of certain limited provisions of Rail Passenger Services Act of 1930. Unless the Attorney General notifies the Commissioner within 45 days of a request for representation that he will represent the Commissioner, such representation may be made by the attorneys designated by the Commission.

d. Federal Trade Commission, Section 204 of Public Law 93-637 by the Mag nuson-Moss Warranty-Federal Trade Commission Improvement Act which amends section 16 of the Federal Trade Commission Act to authorize the Commission to control the litigation in the following types of actions: Section 13 actions relating to Injunctive Relief,

Section 19 suits relating to Consumer redress, judicial reviews of Commission rules, and,

Section 5 cease and desist orders and actions under Section 9 relating to subpena enforcement.

Apparently all other litigation under the act could be conducted by the Commission's attorneys if the Attorney General has failed to act within 45 days after receiving a Commission request to do so.

e. Judicial Review Act of 1950, 28 U.S.C. 2341, et seq. deals with several Commissions and the Secretary of Agriculture's final orders and the review thereof. 28 U.S.C. 2348 provides for the Attorney General to be responsible for the proceedings but permits the agencies to also be represented.1

Question. Would you explain your Department's reaction to recent legislation such as 15 U.S.C. 56 which have given agencies to represent themselves in court? Do these developments arise in part from a concern on the part of these agencies that the Justice Department is not vigorously representing their interests in court?

Answer. The amendment to the Federal Trade Commission Act (15 U.S.C. 56) by the enactment of Public Law 93-637 was objected to by the Department of Justice as a further erosion of the Attorney General's control of litigation. The Department feels that the Attorney General must control Government litigation

1 28 US.C. 2348 provides as follows:

"8 2348. Representation in proceeding: intervention

"The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order. The Attorney General may not dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute, defend, or continue the proceeding unaffected by the action or inaction of the Attorney General."

to insure that Government agencies do not take inconsistent legal positions in the Federal courts and that litigation is presented to appellate courts with the best possible case as a vehicle. It is not known specifically why Congress, in its wisdom, continues to make exceptions to the Attorney General's exclusive control of Government litigation. Subject to his control of litigation through exercise of his professional judgment, it is our contention that we do vigorously represent the interests of the agencies before the court.

Question. If Congress wanted to make sure that all of its laws are vigorously defended, would it be necessary for Congress to insert boilerplate language in every law it passes enabling the agency administering the law to defend that law whenever your Department is reluctant to do so?

Answer. It is our contention that the Justice Department presently vigorously defend the laws as passed by the Congress except of course as indicated in Mr. Lee's testimony regarding the Lovett case, and therefore it should not be necessary for the Congress to insert boilerplate language enabling agencies administering the law to attempt to defend that law in court when the Department of Justice "is reluctant to do so."

Senator ABOUREZK. I guess we have run out of questions for the time being. I want to announce that we will keep the record open for 30 days for additional submissions; if you need longer, let us

know.

I want to thank you all for your appearance and frank answers to the questions. We appreciate it very much, and it will be very helpful to us. The committee will now recess, subject to the call of the chair.

Mr. LEE. Thank you, Mr. Chairman.

(Whereupon, at 12:40 p.m., the committee recessed, subject to the call of the Chair.)

REPRESENTATION OF CONGRESS AND
CONGRESSIONAL INTERESTS IN COURT

THURSDAY, FEBRUARY 19, 1976

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The_subcommittee met, pursuant to notice, at 9 a.m. in room 2228, Dirksen Senate Office Building, Senator James Abourezk, presiding.

Present: Senators Abourezk and Mathias.

Also present: Irene R. Margolis chief counsel and staff director, and Chuck Ludlam, counsel.

OPENING STATEMENT OF SENATOR JAMES ABOUREZK

Senator ABOUREZK. The Subcommittee on Separation of Powers will today continue its exploration of various policies of the Justice Department with affect the independence of Congress.

At the December 12, 1975, hearing, Mr. Lee, Assistant Attorney General for the Civil Division, testified regarding the Department's policies on when it will provide defense counsel for Members, officers, employees, and committees of Congress.

In particular, the subcommittee explored the Department's understanding of the conflict which have forced the Department to refuse to defend the constitutionality of certain statutes or to represent Congress. When the Department refuses to fulfill these duties, Congress has frequently been forced to hire its own counsel. In the case of statutes affecting the President's power or subpena enforcement or contempt actions brought by Congress against the executive branch, the Department acknowledged it would never defend the statute or represent Congress.

It is clear from the first day of hearings that, both with respect to defending the constitutionality of its statutes and in defending Members and committees of Congress, Congress presently relies heavily on the Department. The Department's refusal to handle many of these cases leads the subcommittee to believe that Congress must establish its own law office to handle its litigation. needs.

Today the subcommittee will explore in greater depth the extent to which the Department of Justice is under an obligation to defend the constitutionality of statutes enacted by Congress and,

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to the extent it is not, what provisions must be made to empower Congress to defend its own statutes. Second, the subcommittee will explore the kinds of conflicts in which the Department is involved when it handles cases on behalf of Congress.

The subcommittee is very pleased to have Mr. Simon Lazarus of the law firm of Arnold and Porter and Mr. Norman Redlich, Dean of the New York University Law School here today to discuss these issues.

Mr. Lazarus!

TESTIMONY OF SIMON LAZARUS, ARNOLD AND PORTER LAW FIRM, WASHINGTON, D.C.

Mr. LAZARUS. I am gratified by your invitation to appear today. I regret that a short and I think successful bout with the flu has prevented me from bringing a written statement with me.

My purpose this morning is to discuss the question of the obligation, if there is one, of the Department of Justice to uphold the constitutionality of statutes passed by Congress and signed by the President when they are challenged in court and to consider whether it is appropriate or when it is appropriate for the Department to fail to support the constitutionality of Federal laws, what problems that raises, and what remedies there might be, and in particular, whether there is reason for concern that the interests of Congress are not adequately being represented by the manner in which this problem is dealt with now.

This problem was raised in a very dramatic fashion several months ago, as I'm sure you are aware, when the Justice Department, through the Attorney General, announced last May or June that it intended to file an amicus curiae brief in the Supreme Court in the case concerning the constitutionality of the Federal Election Campaign Act Amendments of 1974, one of the most important constitutional cases in many years.

In this amicus brief, the Attorney General stated it would take a so-called neutral position with respect to the validity of the law, while at the same time filing a so-called advocate's brief, also signed by the Attorney General and the Solicitor General, which would support the law.

The reasons given by the Attorney General when it did this was that this was a tremendously important case raising new and unprecedented questions and it was necessary, the Attorney General stated, that the Department of Justice not simply take a partisan position in favor of the law but that it help the Supreme Court come to the correct determination by writing an objective appraisal of the statute.

Many people were, I think, quite disturbed by what Justice did in this case, particularly the Federal Election Commission, which was extremely disturbed. The Chairman of the Federal Election Commission implored the Attorney General not to submit this amicus brief. And the reason, I think, is reasonably clear.

1 A copy of the May 27, 1975, and June 5. 1975. letters of Mr. Thomas B. Curtis, Chairman of the Federal Election Commission, to Mr. Edward H. Levi. Attorney General, appear as exhibits 60 and 63 in the text at pp. 120 to 121 and 122 to 124.