However, if the President wants the emergency extended beyond the 6-month period, and the Congress does not, then when the 6-month terminal period-or the date Congress does not extend the emergency-arrives the President says: "That is interesting, the old emergency has not been extended so I now act as President to declare a new emergency, based upon the same set of facts or the same situation as I see it." And now we have a new emergency which will last 6 months more, or longer.

PRESIDENT, THEN, HAS NO DELEGATED POWER

Mr. GRISWOLD. On the facts as you have stated them, the President, in my view, would not have any powers under that statute after 6 months had expired. He was authorized to act for 6 months only, unless Congress extended the period. Congress did not extend the period so he no longer has any delegated power.

Senator CASE. Suppose the President were to say, at that point, that in light of the developments that have occurred within the 6 months the country faces a changed situation. Thus, based upon those changes, the President is declaring a new emergency to begin that day and that would then last another 6 months. Could he not be in a position to do that? Is there any way to foreclose that circumvention of the law?

Mr. GRISWOLD. You can't prevent the President from making such a statement, but I don't understand that it would have any legal force, effect or validity under that particular statute, and it would not give him the authority granted by that statute which depended upon a declaration of emergency by the Congress.

Now, I think I would have to put in a slight qualification. If this involved foreign affairs, the President may have some powers which are not dependent solely on statute. If it involved protection of troops of the United States who were in a foreign country, he might have responsibilities which are not entirely dependent on statute. I don't say he does, I say he might.

Insofar as an ordinary domestic situation, such as the depression in 1933 or price and wage controls now, is concerned, I would not have any doubt that Congress could declare an emergency for a 6-month period making authorizations during the period of the emergency. And if Congress, by law, did not extend the period then those authorizations would terminate.

Senator CHURCH. There is just one other question, and then I want to defer to Senator Mathias who is leaning forward and about to ask a question.

Senator MATHIAS. Straining at the leash!

BIAS AGAINST CONCURRENT RESOLUTION

Senator CHURCH. I follow most everything you have said, Dean Griswold, but I do not follow your argument that if Congress could provide by law, signed by the President, a termination date for the emergency why the Congress could not, with the concurrence of the President, provide that an emergency could be terminated not at a fixed date or a fixed period of months by operation of law but by a

concurrent resolution of Congress? If that is the law and it has been signed into law by the President or passed over his veto I am unable to follow what constitutional difficulty there is or the distinction between one method and the other, one being sound and the other not being sound, if both methods are properly written into law.

Mr. GRISWOLD. Suppose, Senator, that a law properly enacted one way or another provided that the emergency should terminate by a declaration to that effect by the Speaker I would not think you would think that valid.

Senator CHURCH. I would think that would not be a good law, but I don't think it goes to the validity of my point.

Mr. GRISWOLD. I don't think that is valid. Or that the emergency should terminate on a majority vote of the two Judiciary Committees of Congress in joint session.

Senator CHURCH. These are nice questions, but we have something comparable to that in the law today that has been upheld where either House has been given a veto action because it is part of the law.

Mr. GRISWOLD. Those relate almost entirely to Executive reorganizations which are internal governmental housekeeping matters. I think people who, like me, have spent a good deal of their life in the executive branch have always been very skeptical of those. But they have been around a long time and they seem to work; they are a little hard to reconcile with a perhaps unduly mechanical view of constitutional

matters.

Senator CASE. How about reciprocal trade agreements with a provision for a veto by either House?

Mr. GRISWOLD. By either House? Well, that is a little harder than the reorganization because those are more analogous to a treaty, which is more analogous to a statute. This is a great gray zone in which nobody knows the answers. I can only say, for better or worse, I don't have the faith in concurrent resolutions that you seem to have, Senator.

Senator CHURCH. It seems to me, if either House can veto, both Houses ought to be able to terminate a national emergency if that is written into the law.

Senator CASE. Could the President, alone, terminate a national emergency?

Mr. GRISWOLD. He could if it was one which he had declared, either on his own authority or pursuant to authority granted by Congress. However, if the national emergency was one which had been declared by Congress, by law, then I doubt that the President could terminate it unless he had been authorized in the law to do so.

Senator CASE. But you state that Congress, even though authorized by law to do it, could not do it.

CONCURRENT RESOLUTIONS DO NOT MAKE GOOD LAWS

Mr. GRISWOLD. I still stand on my ground. Concurrent resolutions are fine for saying that the Congress will adjourn on January 18 at 12 noon or that the Congress will meet in joint session to hear an address by the President of the United States. But as far as making law is concerned, I don't have any feeling that a concurrent resolution has any more standing than any other statement by a group of fine citizens. Senator MATHIAS. That is one of the nicest things that has been said about us in a long time.

Senator CASE. You did say any other group?
Mr. GRISWOLD. Yes.

Senator CASE. Thank you very much.

I think we have to accept this with a self-confessed and, in fact, almost bragged-about bias the Solicitor General brings to us. We appreciate it.

Mr. GRISWOLD. Finally, my fourth point is that whenever an emergency is declared, the statute should require immediate report of this fact to Congress as well as publication in the Federal Register—and it should also be required that any exercise of delegated authority under the emergency declaration should be immediately reported to Congress, as well as published in the Federal Register. This would enable Congress to take such action as it thought appropriate. If it felt that the actions of the President under the delegations were not warranted, Congress could repeal the authority, or modify it. Or if it chose, Congress could repeal or modify the provisions for declaration of an

emergency.

It may well be that Congress should establish a joint committee for the oversight of delegated authority. The Congress has long exercised oversight of the Internal Revenue Service through the Joint Committee on Internal Revenue Taxation. This committee has an excellent staff which not only keeps Congress informed but makes frequent and substantial contributions to the development of the Internal Revenue law, and to the Treasury, all under the general oversight of the committee's congressional members. It seems likely that a similar committee, with a small but competent staff, could be of great use to Congress and the country, and the executive branch as well, by keeping close track of the exercises of delegated power, including the declaration of emergencies, and reporting to Congress so that these matters could always be under active consideration and would not go by default, as they often seem to do now.

In short, as I see it, the answer to the problem will not be found in repealing all delegations of authority, or in repealing provisions for declarations of emergency. The problem is not essentially a constitutional problem, or even one of separation of powers, for there is nothing in the Constitution which prevents the Congress and the President from working together.

The problem, I believe, is the much more practical one of devising means by which Congress can monitor the exercise of delegated powers, particularly in emergencies, and of controlling such actions as Congress may find unnecessary or undesirable, or may otherwise disapprove. For, as I have indicated, Congress is always in control of the delegations it makes. It can repeal or modify them at any time it chooses to do so. In the past though, Congress has repeatedly made broad delegations, and has then, in effect, cast them to the wind. Very rarely does Congress examine in detail actions which are taken pursuant to the delegations it has made; and, even more rarely, Congress has exercised its authority to modify or qualify or repeal the delegations it has made.

In my view, it is entirely appropriate for Congress to make fairly widespread delegations of authority, particularly in the modern world which has become so complex, and where speedy action is sometimes important or essential. The difficulties have arisen, I believe, because

Congress has not taken steps to watch with care the delegations which it has made, and to keep control of them. It is this objective of care and control, which, it seems to me, is the most fruitful source of inquiry for this committee. Clearer and stronger provisions for publication of Executive actions in the Federal Register may well be an appropriate part of the process of developing that control.

Thank you very much.

Senator MATHIAS. Thank you very much, Dean Griswold. We interrupted you so often that in order to insure that we have all your statement, I would suggest that we include the statement as written in addition to the oral testimony.

[The statement referred to follows:]

PREPARED STATEMENT OF ERWIN N. GRISWOLD

The work of the committee has shown that there are a large number of Federal statutes which confer special powers on the Chief Executive during times of national emergency. Ordinarily, these powers are exercised by Executive order or by proclamation. In any event, the Executive order or the proclamation is required to be published in the Federal Register.

Apparently, though, there are a substantial number of Executive actions which are not published in the Federal Register, and thus are not readily available to the public. It is my understanding that the Special Committee wishes me to focus particularly on this question of publication of Executive action.

The Federal Register Act was passed by Congress in 1935, just short of 40 years ago. As things have worked out in the interval, the Federal Register and the associated Code of Federal Regulations have been extraordinarily valuable and helpful in providing access to the enormous quantity of pronouncements by the President, government departments in the executive branch, and federal administrative agencies.

It is hard to recall now the chaos which existed in this area before 1935. Prior to that date, there was no systematic publication of the rules and regulations of Government departments. I recall when I was a young lawyer in the Justice Department in the early 1930s, I was writing a brief involving a criminal prosecution for violation of a regulation of the Food and Drug Administration-then in the Department of Agriculture. I thought it would be a good idea to find out the exact text of the regulation; but it could not be located in the library of the Department of Justice. So I went to the office of the Solicitor of Agriculture. There was no one there who had the text available, but I was referred to the office of the Assistant Secretary who had oversight of the Food and Drug Administration. There, I was taken to a file cabinet, where there was a single typed copy of the relevant regulation. On this typed copy, there were handwritten amendments, but there was nothing to indicate who had made the amendments, or when they had been made. Thus, it was impossible to tell with any certainty what was the text of the regulation which was in effect at the time of the actions involved in my case. And there was really no way that the citizen outside of Washington could know what was required of him under a statute imposing criminal penalties.

It was as a result of this, and other similar experiences, that I worked on the idea of establishing a systematic means of publishing Federal administrative actions. Early in the administration of President Franklin Roosevelt, I aroused the interest of Assistant Attorney General John Dickinson of the Department of Justice. He presented the plan to President Roosevelt, and received a firm veto. President Roosevelt said that under no circumstances would he have the United States involved in publishing a newspaper. This set us back considerably, and it was only when the "hot oil" regulation became involved before the Supreme Court that the idea got back on the track again. Shortly thereafter, with the great help of Congressman Emanuel Celler, the Federal Register Act was adopted by Congress.

Under the Federal Register Act, Federal agencies, including the President, are required to file certain designated documents with the office of the Federal

Register. As far as the present question is concerned, the Presidential documents which are covered are:

Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against federal agencies or persons in their capacity as officers, agents, or employees thereof. 44 U.S.C. § 1505 (a) (1).

Thus, with respect to the President, the requirement of publication extends to "Presidential proclamations and Executive orders," with certain exceptions which are designed to exclude matters which do not have general applicability, and also matters which relate only to the internal organization and operation of the Government.

It should be observed that the Federal Register Act provides no sanction for the failure to file a document with the office of the Federal Register, except that it provides in 44 U.S.C. § 1507 that:

A document required by section 1505 (a) of this title to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies have been filed with the Office of the Federal Register and copies made available for public inspection as provided by section 1503 of this title.

Thus, if a document (which is required to be filed) is not filed with the Federal Register, no proceeding can be brought against any person affected by it, unless that person has had actual knowledge of the regulation. This is probably a sufficient sanction, and it provides protection to individuals from being charged with offenses, or being subject to liabilities, when they have no knowledge or notice of the relevant Federal action.

As I see it, the problem which the committee should consider in this area is whether the existing provision in Section 1505(a)(1) of Title 44, making the Federal Register Act applicable to "Presidential proclamations and Executive orders" is broad enough. At the same time the Federal Register Act was passed by Congress, these were apparently the only forms of Presidential action of general applicability. In more recent years, other types of documents have been devised, such as National Security directives and memorandum, and other categories. It may well be that these are simply special forms of Executive orders, and that they are comprehended by the existing provision in the Federal Register Act. It is, however, clear that there has come to be an ambiguity on this matter, and it is surely appropriate for this committee to recommend to the Congress an amendment or enlargement of Section 1505 which would clear up this ambiguity.

It would be relatively easy to make a rather sweeping amendment of Section 1505 so that it would cover all forms of Executive action. In all likelihood, though, this sweeping approach would not be desirable. The exceptions included in the original Federal Register Act seem_to_have_continued validity, namely that there should not be published in the Federal Register matters relating to only a single individual, or a very small number of persons. For example, an Executive order providing that a certain named person need not retire at age 70 is not of general applicability and there seems no reason why it should be published. If all such actions were required to be published, the Federal Register might be even more cluttered than it is, and it might be difficult for citizens and their counsel to get important information from such a maze.

Similarly, Executive orders which relate solely to internal housekeeping should not be required to be published. For example, if the President wishes to designate someone as his Special Counsel, or to allocate some particular duty to a member of his staff, it would not seem to be either necessary or desirable to require that this be published in the Federal Register. On the other hand, if an action by the President does affect citizens generally, that is, if it has general applicability and effect, then it should be published in the Federal Register no matter how it is designated or what title is given to it, in order to make known to the general public, including the citizens affected, and other groups, such as the press, what the relevant and applicable Federal regulation situation is.

This could be brought about, as I see it, by a relatively simple amendment to Section 1505 (a) of Title 44 of the United States Code. This could be done by add