impounding of funds, brought attention to the issue, demonstrated the need for legislative action, and helped to lay the groundwork for the reassertion of congressional power and prerogatives that resulted in the passage of the landmark legislation, the Congressional Budget and Impoundment Control Act of 1974. THE POCKET VETO POWER The effort of the Subcommittee to define the scope of the pocket veto power of the President and to codify the procedures under article I of the Constitution regarding the President's power of approval or disapproval of acts of Congress, which it began with hearings in the 92d Congress, was temporarily held in abeyance during the period of this report, because of a pending test court case of the President's pocket veto power in a suit brought by Senator Edward M. Kennedy. Senator Kennedy, on August 9, 1972, filed a complaint in the U.S. District Court for the District of Columbia, in Kennedy v. Sampson, Civil Action No. 1583-72, in an effort to obtain a judicial determination of the legal and constitutional issues surrounding the President's pocket veto of the Family Practice of Medicine Act (S. 3418), which the President undertook to pocket veto during a 4-day Christmas recess of the Congress in 1970. On August 15, 1973, U.S. District Judge Joseph C. Waddy found in the case that the pocket veto was invalid and that the act became law without the signature of the President in accord with Article I, Section 7, Clause 2 of the Constitution. The case was appealed, and at the time of this writing was pending in the U.S. Court of Appeals for the District of Columbia. Judge Waddy's decision, however, did not undertake to define the term "adjournment," a definition crucial to the central controversy of the constitutional issue. Judge Waddy stated: The plaintiff has urged the Court to hold that the Pocket Veto Clause is applicable only to sine die adjournment within a session. Such a holding is not necessary for the determination of this case and the Court declines to swim in waters that the Supreme Court pointedly avoided in Wright.' All that is determined here is that the short recess of the Senate in this case, extending only 2 days beyond the 10 day period the President had to sign or disapprove the bill, did not prevent the return of the bill to the Senate in which it had originated. The question remained: Does a recess during a session of Congress constitute an "adjournment" as contemplated by Article I, Section 7 of the Constitution? Clearly, the constitutional principle of separation of powers was involved in this issue, since, when the President vetoes a bill passed by both Houses of Congress he is exercising a form of legislative power, and when he pocket vetoes a bill, he is imposing an absolute veto. The Subcommittee on Separation of Powers reacted immediately to the Christmas assault on the power of Congress to make laws. Hearings were scheduled, and the next month, on January 26, 1971, the Sub 1 Wright v. U.S., 302 US 587 (1937). committee's hearings on "Constitutionality of the President's Pocket Veto Power" were held. On April 23, 1971, Senator Ervin introduced his Pocket Veto bill (S. 1642,) which was reported unanimously by the Subcommittee. However, there was no further action on the measure in the 92d Congress; and, in the 93d Congress, 1st Session, Senator Ervin again introduced his bill (S. 1042). The purpose of these bills, which are identical, is to prevent Presidential abuse of the pocket veto power during recesses of Congress by providing that an Act of Congress can be pocket vetoed only when either or both Houses of the Congress adjourns sine die. In addition to defining the meaning of "adjournment"-that is, that an adjournment comes only at the end of a session of Congress or at the end of a Congress, and not during a session even though a recess is taken an eminently practical provision of the bill would establish that either House of Congress can designate an officer to receive veto messages from the President during recesses, thus obviating a contention that the Congress by its absence "prevented" the return of the bill. The return to a designated officer of either House while the body is not actually in session would constitute a return to that House. The subcommittee has held in abeyance any further action pending the decision in Kennedy v. Sampson. This issue is far from settled, and will remain on the Subcommittee's agenda until the need for legislative remedy appears no longer to exist. EXECUTIVE ORDERS An item prominent in the planning syllabus for the Subcommittee on Separation of Powers devised soon after the Subcommittee was created, in 1966, was the topic of Executive orders, their use in the broad exercise of Presidential power, and the possible usurpation by the executive branch through Executive orders of the prerogatives of the other branches of government, particularly the constitutionally exclusive law-making power of Congress. Executive orders are acts of the President. They usually cite as their authority, specific Federal statutes or implied general powers of the President derived from the Constitution of the United States. In operation, they assume the force and effect of law. No legal definition of the term "Executive order" appears to exist, nor has the extent or limit to which Executive orders may be used been determined by the Congress or the judiciary; yet the Executive order always has been a powerful instrument in government. Governmental agencies possessing great power have been created by Executive order; for example, the National Labor Board and the War Trade Board. A recent example is the creation of the Federal Energy Office by Executive Order 11748, dated December 4, 1973. Executive orders may result in the expenditure of large amounts of tax money. For example, relief funds have been allocated by Executive order; and Executive Order 11708, dated March 23, 1973, which relates to the Executive Salary Schedules, may involve millions of dollars. Governmental machinery has been established by Executive order, and at various times Executive orders have been used to delegate Presidential power to subordinate officers. Executive orders, although acts of the President, are frequently drafted by government agencies. Executive orders, whether they are issued by the incumbent President or were issued by prior Presidents, remain in effect until they are modified or repealed by the incumbent President, by an act of the Congress, or by a decision of the judiciary, although they may expire automatically upon reaching an expiration date that was written into the Executive order when issued. The total number of Executive Orders issued is not known because many of the earlier orders were not systematically recorded or filed. However, since enactment of the Federal Register Act of 1935, all Executive Orders have been numbered consecutively and published in the Federal Register, with the exception of those that are classified by the President at the time of issuance. Available records show that from the beginning of President Lincoln's administration, in 1862, until February 28, 1974, 11,770 Executive orders had been issued, and that the number of Executive Orders issued by various Presidents has ranged from none in the administration of Presidents Hayes and Garfield, to 3,723 during President Franklin D. Roosevelt's terms, and 321 in the administration of President Nixon, through February 1974. In early 1973, as an approach to a comprehensive review of Executive Orders, the Subcommittee's legal staff undertook to assemble a complete file of Executive Orders and Presidential proclamations issued by the Executive since November 1963, the commencement of President Johnson's incumbency. At the request of the Subcommittee, The Library of Congress, through the efforts of Mr. Joseph E. Ross, chief, and Mr. Grover S. Williams, legislative attorney, of the American Law Division, brought together copies of Executive Orders issued during this approximately 10-year period, as well as the statutes referred to in the language of each Executive Order, and related Presidential documents previously issued. The Executive Orders thus assembled, totaling almost 600, commenced with Executive Order 11128, issued November 23, 1963, and ended with Executive Order 11726, dated June 29, 1973. Since the original cataloging of these Executive Orders and Presidential documents, the Subcommittee staff has routinely updated its records by adding those subsequently issued, relying upon the Federal Register as its source. Although original copies of unclassified Executive orders are now kept at the National Archives, there is no overall index or digest of Executive orders, nor is information readily available as to whether an Executive order is still in force and effect. Therefore, a major undertaking of the Subcommittee staff is that of ascertaining the current status of the individual Executive orders. It is estimated that approximately 80 percent of the hundreds of Executive orders documented by the Subcommittee have been affected in some manner by subsequently issued Executive orders. As perhaps an extreme example, Executive Order 11248 dated October 10, 1965, and dealing with executive salary levels of Federal employees, was amended 35 times before it was revoked by Executive Order 11708, dated March 23, 1973. Executive Order 11708 was then modified three times (by Executive Orders 11715, 11727, and 11736) and then superseded by Executive Order 11768, dated February 20, 1974. As another example of the constantly changing status of Executive orders, it was found that within a sequence of 156 Executive orders, 133 modifications had occurred. Two hearings held by the Subcommittee on Separation of Powers have related to specific Executive orders: hearings in the 91st Congress on "The Philadelphia Plan," Congressional Oversight of Administrative Agencies (the Department of Labor), which concerned Executive Order Number 11246; and hearings in the 92d Congress on President Nixon's Executive Order 11605 relating to the Subversive Activities Control Board. The Subcommittee believes that important separation of powers questions involved in the use of the Executive order require a continuing examination of this subject, including hearings to consider possible revision of 44 U.S.C. 1501, et seq. THE NATIONAL LABOR RELATIONS BOARD The place that the independent administrative agency occupies in our constitutional structure, and particularly its relationship to the three branches of government, have been persistent problems of American government. When the Subcommittee on Separation of Powers first began an examination of administrative agencies, it became evident that the contemporary aspects of this complex subject could be properly understood only if considered against the background of the legal and political history of the agency system. Basic research was begun by the Subcommittee in 1968, and the following year, the Subcommittee published a major documentary history of the administrative agency system, entitled "Separation of Powers and the Independent Agencies: Cases and Selected Readings". The compilation of this work was undertaken, in cooperation with the Subcommittee staff, by Dr. James R. Wason, while he was a specialist in labor economics and relations, Economics Division, Legislative Reference Service, The Library of Congress.' The 1,714page volume was printed as Senate Document No. 91-49. A second, companion compilation was published by the Subcommittee during the 93d Congress, 1st session. This latter compilation, entitled "Separation of Powers and the National Labor Relations Board: Selected Readings", actually a continuation of the earlier document, was printed in two volumes totaling 2,510 pages, as Senate Document No. 92-94. This second collection of background documents concerns the procedural history of the National Labor Relations Board. Dr. Wason brought the collection up to date with a section on developments from 1968, the date of the basic research. A selection of materials appearing since the completion of the original collection appears at the end under the heading "The Ervin Subcommittee and After". In a statement prepared for the Subcommittee's hearings on the National Labor Relations Board, reproduced in that section, Dr. Wason said: It is hoped that, in examining the problem of the separation of powers with respect to the Board, the Congress will look behind the surface charges to the basic truth, that, in creating a regulatory commission, like the Board, Congress gives to it a combination of powers, a power of delegation which Congress alone possesses. This renders the function of Congressional oversight of the utmost importance. Only 1 Dr. Wason is now Lecturer in Economics, University College, University of Maryland. Congress can exercise effective oversight over a regulatory The two collections, on administrative agencies in general and the National Labor Relations Board in particular, represent a balanced approach to the topic. Dr. Wason selected from the immense body of literature on the subject, cases and readings which present a diversity of opinion on the controversies surrounding the independent agencies, gathering together important materials necessary to an understanding of the constitutional problems. One objective was to provide a general background of comments on the separation of powers concept, since it is central to the conflict over the exercise of functions delegated by the Congress to the independent Federal regulatory agencies, and the role of discretion in administrative law. In making his selections, Dr. Wason endeavored to present a diversity of opinion so that the reader will be able to form his own views. This work provides an invaluable aid to an understanding of the unresolved constitutional and administrative issues surrounding the independent agency system and a ready reference for anyone interested in this complex aspect of the separation of powers doctrine. The Subcommittee is greatly indebted to Dr. Wason for his efforts in preparing this collection, as it is also to Mr. Lester S. Jayson, Director, Congressional Research Service, The Library of Congress, for his generous cooperation and support of the undertaking. HEARINGS IN PREPARATION REMOVING POLITICS FROM THE ADMINISTRATION OF JUSTICE In the closing weeks of the period covered by this report, the Subcommittee was preparing for hearings on two highly important subjects: a proposal that the Department of Justice be established as an independent establishment of the United States and a proposal relating to the establishment of a permanent independent Prosecutor. On December 12, 1973, Senator Sam J. Ervin, Jr., Chairman of the Subcommittee, introduced S. 2803, "A bill to insure the separation of constitutional powers by establishing the Department of Justice as an independent establishment of the United States." On February 7, 1974, Senator Alan Cranston introduced S. 2978," a bill to establish a special commission to study the establishment of an independent permanent mechanism for the investigation and prosecution of official misconduct and other offenses committed by high Government officials." Following the referral of these bills to the Subcommittee on Separation of Powers, the Subcommittee began preparing for hearings, which it was decided would be held simultaneously on the two bills because of their close relationship. The events of the Watergate affair, which had so deeply disturbed the Nation and shaken the public's confidence in its government, lead to many proposals for governmental reforms; the two bills under consideration dealt with the need for reform in one area, that of the administration of justice. The Subcommittee, therefore, early in the |