have here, which, if the chairman wishes, I can submit for the record. The CHAIRMAN. I would suggest it, if it was in the President's budget message. Read what the Attorney General says.

OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES

AUTHORITY OF CONGRESSIONAL COMMITTEES TO DISAPPROVE ACTION OF EXECUTIVE BRANCH

Section 601 of the act of September 28, 1951, c. 434, 65 Stat. 336, 365, provides, in effect, that no accessions, leases, transfers, or declarations of surplus, of any real property, may be made by any designated officer of the military departments, where the amount involved exceeds $25,000, unless the designated officer of the military department first comes into agreement with the Committees on Armed Services of the Senate and of the House of Representatives. In this aspect it reflects an attempted exercise of executive authority by the legislative branch of the Government not warranted by the Constitution and is, therefore, unconstitutional. See also 37 Op. 56; 41 Op. No. 32 of July 13, 1955.

The PRESIDENT.

AUGUST 8, 1957.1

DEAR MR. PRESIDENT: By letter of July 23, 1957, from the Honorable Gerald D. Morgan, the Attorney General was asked to give his advice to you on the constitutionality of certain provisions of section 601 of Public Law 155, 82d Congress, 1st sesssion (65 Stat. 365).

Section 601 reads as follows:

"Sec. 601. The Secretary of the Army, the Secretary of the Air Force, the Secretary of the Navy, or the Administrator of the Federal Civil Defense Administration, as the case may be, or his designee, shall come into agreement with the Committee on Armed Services of the Senate and of the House of Repre sentatives with respect to those real-estate actions by or for the use of the military departments or the Federal Civil Defense Administration that are de scribed in (a) through (e) below, and in the manner therein described.

"(a) Acquisitions of real property where fee title is to be acquired for an amount estimated to be in excess of $25,000. In those cases where individual acquisitions are to be made as part of a project, the agreement to be reached shall be based on general plans for the project, which shall include an estimate of the total cost of the lands to be acquired.

"(b) Leases to the United States of real property where the estimated annual rental is in excess of $25,000. In those cases where individual leases are to be made as part of a project, the agreement to be reached shall be based on general plans for the project, which shall include an estimate of the total cost of the leases to be made.

"(c) Leases of Government-owned real property where the estimated annual rental is in excess of $25,000.

"(d) Transfers of Government-owned real property with an estimated value in excess of $25,000 under the jurisdiction of the military departments or the Federal Civil Defense Administration, which are to be made to other Federal agencies, or to States, including transfers between the military departments. "(e) Reports to a disposal agency of excess Government-owned real property with an estimated value in excess of $25,000.”

The effect of these provisions is that no acquisitions, leases, transfers, or declaration of surplus of any real property by any of the military departments may be made, where the amount involved exceeds $25,000 unless the designated officer of the executive department comes into agreement with the Committees on Armed Services of the Senate and of the House of Representatives. Legislative proposals and enactments in recent years have reflected a growing trend whereby authority is sought to be vested in congressional committees to approve or disapprove actions of the executive branch. Of the several legislative devices employed, that which subjects executive department action to the prior approval or disapproval of congressional committees may well be the most inimical to responsible government. It not only permits organs of the legislative branch to take binding actions having the effect of law without opportunity for the President to participate in the legislative process, but it also permits mere handfuls of members to speak for a Congress which is given no opportunity to participate as a whole. An arrangement of this kind tends to undermine the President's position as the responsible Chief Executive.

1 Released for publication January 30, 1958.

Action by several prior Presidents on matters of this kind has been somewhat inconsistent. In 1920, President Wilson disapproved an appropriation bill which provided that the printing of magazines by executive agencies must have the prior approval of the Joint Congressional Committee on Printing on the ground that this provision would have vested executive branch functions in a congressional committee (59 Cong. Rec. 7026). Later, in 1933, a bill (H. R. 13975, 72d Cong., 2d sess.) was passed prohibiting certain income and other tax refunds in excess of $20,000 without prior approval by the Joint Committee on Internal Taxation, which could also fix the amount of each refund. President Hoover disapproved the bill on constitutional grounds (76 Cong. Rec. 2445), following the Attorney General's advice that the provision invalidly attempted to vest an executive function in a congressional committee (37 Op. 56 (1933)). During the past dozen years or so, provisions for control by congressional committees have related, in large part, to real estate transactions of the armed forces. Thus, the act of March 26, 1943 (57 Stat. 52), provided that "the Secretary of the Navy shall report to the Senate and House Naval Affairs Committees all * prospective acquisitions" of land under the authority of the act. During the House debate on the bill, a letter was read from the Secretary of the Navy wherein that official stated: "I understand further that the committee understands from the wording of the amendment that the Department will come into agreement with the Naval Affairs Committees of the House and Senate with respect to acquisitions before final commitments are made. This procedure is acceptable to me" (89 Cong. Rec. 1229 (1943)). This interpretation of the 1943 statute was formalized by subsequent legislation and made applicable to all land acquisitions and disposals by the Navy in 1944, the statute providing that "the Secretary of the Navy shall come into agreement with the Naval Affairs Committees of the Senate and of the House of Representatives with respect to the terms of such prospective acquisitions or disposals ***" (58 Stat. 190). This was interpreted in practice as giving to the committees a veto power over such transactions. For example, in 1951, Representative Vinson, chairman of the House Committee on Naval Affairs and of the successor Committee on Armed Forces, stated "We have rejected many [proposed transactions]" (97 Cong. Rec. 5437).

In 1951, a predecessor bill to the law here under consideration was passed by the Senate and House. It would have required the Secretaries of the Navy, Army, and Air Force and the Federal Civil Defense Administrator to "come into agreement" with the Senate and House Committees on Armed Services with respect to land purchases, leases involving annual rentals in excess of $15,000, and transfers to other governmental agencies of real estate (H. R. 3096, 82d Cong., 1st sess. (1951)). In disapproving the bill, President Truman emphasized the practical administrative difficulties rather than constitutional objections. However, he also stated (H. R. Doc. No. 133, 82d Cong., 1st sess., p. 3, 1951):

"I am concerned by what appears to me to be a gradual trend on the part of the legislative branch to participate to an even greater extent in the actual execution and administration of the laws. Under our system of government it is contemplated that the Congress will enact the laws and will leave their administration and execution to the executive branch."

Upon consideration of the veto, Representative Patman urged that if the disapproval power to be vested in the committees was a legislative function, it could be performed only by the two Houses, and that if it was an executive function, it could not be performed by a legislative committee (97 Cong. Rec. 5443). The House overrode the veto (97 Cong. Rec. 5445), but the Senate did not act upon it. However, a few months later, on September 28, 1951, President Truman approved without comment the present law.

The "come into agreement" requirement appeared thereafter in a 1952 act authorizing secret or unspecified military construction. It contained the provision that the "Secretary of the military department authorized to establish or develop such public work, or his designee, shall come into agreement with the Committees on Armed Services of the Senate and of the House of Representatives with respect to the cost of construction of such public work * * *” (66 Stat. 625).

Another 1952 statute contained, apparently for the first time, a requirement subjecting proposed administrative action to the prior approval of the chairman of a congressional committee. The Supplemental Appropriation Act, 1953, provided that a circular issued by the Director of the Budget prescribing the policy for determining rents for Government-owned living quarters furnished

to Federal employees "may be amended or changed during such [the current fiscal year by the Director of the Budget with the approval of the chairman of the Committee on Appropriations of the House of Representatives" (66 Stat. 661). This requirement was subsequently continued in force.

During the 83d Congress, you disapproved an act of Congress which would have invaded the prerogatives of the executive branch of the Federal Government. H. R. 7512, 83d Cong., 2d sess., authorized the Secretary of the Army to convey federally owned lands situated within the Camp Blanding Military Reservation, Florida, only upon the condition that, prior to the consummation of such a conveyance agreement, the Secretary of the Army or his designee "shall come into agreement with the Committees on Armed Services of the Senate and of the House of Representatives concerning the terms of such an agreement." In your veto message to the House of Representatives (100 Cong. Rec., pt. 6, p. 7135), you stated:

"The purpose of this clause is to vest in the Committees on Armed Services of the Senate and House of Representatives power to approve or disapprove any agreement which the Secretary of the Army proposes to make with the State of Florida pursuant to section 2 (4). The practical effect would be to place the power to make such agreement jointly in the Secretary of the Army and the members of the Committees on Armed Services. In so doing, the bill would violate the fundamental constitutional principal of separation of powers prescribed in articles I and II of the Constitution which place the legislative power in the Congress and the executive power in the executive branch."

The Camp Blanding legislation was then repassed without the "come into agreement" provision.

During the same Congress, the Senate Committee on Public Works reported a bill (H. R. 6342) which provided that no agreements for the acquisition of title to real property and for certain other purposes by the Administrator of General Services and the Postmaster General should be executed until the Administrator or Postmaster General had come into agreement with the Committees on Public Works of the Senate and House with respect to such agreements. During the Senate debate on the bill, a departmental memorandum of law was inserted in the Congressional Record in which the position was taken that such a provision would vest executive functions in congressional committees and thereby would violate the separation of powers principle of the Constitution (100 Cong. Rec., pt. 4, 4879, April 8, 1954). The Senate, however, overwhelmingly refused, by a vote of 60 to 8, to delete this provision (100 Cong. Rec., pt. 8, p. 10017).

After Senate passage of the bill, the Department transmitted, on May 14, 1954, to the Chairman of the House Committee on Public Works, a more detailed memorandum setting forth the same constitutional objections. On May 25, 1954, you disapproved the Camp Blanding Military Reservation bill (H. R. 7512) on the constitutional grounds indicated above. Apparently in deference to that disapproval, the Conference Committee revised H. R. 6342 so as to eliminate the come-into-agreement provision.

During the 84th Congress, you asked for the advice of the Attorney General in reference to certain provisions of the Department of Defense Appropriation Act, 1956 (H. R. 6042, 69 Stat. 301). Section 638 of that bill prohibited the use of appropriated funds for the disposal or transfer of work performed by Department of Defense civilian personnel for 3 years or more "unless justified to the Appropriations Committees of the Senate and House of Representatives, at least ninety days in advance of such disposal or transfer," with the proviso that "no such disposal or transfer shall be made if disapproved by either committee within the ninety-day period by written notice to the Secretary of Defense."

In his letter to you of July 13, 1955, since published as an opinion of the Attorney General (41 Ops., No. 32), you were advised:

"The practical effect of these provisions is to vest the power to administer the particular program jointly in the Secretary of Defense and the members of the Appropriations Committees, with the overriding right to forbid action reserved to the two Committees. This, I believe, engrafts executive functions upon legislative members and thus overreaches the permitted sweep of legislative authority. At the same time, it serves to usurp power confided to the executive branch. The result, therefore, is violative of the fundamental constitutional principle of separation of powers prescribed in Articles I and II of the Constitution which places the legislative power in the Congress and the executive power in the executive branch.

"Another aspect of invalidity, of equal force, is presented by the proviso. Thus, while the Congress may enact legislation governing the making of Government contracts, it may not legally delegate to its committees or members the power to make contracts, either directly or by conferring upon them power to disapprove a contract which an officer of the executive branch proposes to make. Apart from the right of the Congress as a whole with respect to contractual authority, it is quite clear that committees of the Congress do not have the legal capacity to enact legislation. Nevertheless, the Appropriations Committees of the Senate and the House of Representatives have assumed to themselves that power in the present instance."

The Attorney General further advised, in connection with this bill, that since section 638 was, in his view, separable from the remainder of the act, and as it did not bear upon its substance as a whole, disapproval of the act was not deemed necessary. Instead, it was suggested that the offending section was not to be regarded as a legally binding limitation which the Congress could constitutionally impose. In your statement of July 13, 1955, to the Congress, you advised that section 638 would be "regarded as invalid by the executive branch of the Government in the administration of H. R. 6042, unless otherwise determined by a court of competent jurisdiction" (100 Con. Rec., pt. 6, 7135, bound).

Another bill of the 84th Congress containing the same legal infirmity was disapproved. H. R. 9893, a bill to authorize construction at military installations was returned to the House of Representatives on July 16, 1956 (102 Cong. Rec. 11788), without your approval because of two objectionable provisions. Section 301 of that bill provided that none of the authorized appropriations relating to the Talos missile "shall be effective until the Secretary of Defense shall have come into agreement with the Armed Services Committees of the Senate and of the House of Representatives with respect to its utilization." In rejecting this requirement, you stated (H. R. Doc. No. 450, 84th Cong., 2d sess.):

"If the committees should fail or decline to agree to the plans prepared by the Secretary of Defense, the practical effect of this provision would be to lodge in the committees the authority to nullify congressional authorization. "The provision would also compel the Secretary of Defense, an executive official, to share with two committees of the Congress the responsibility for the carrying out of the Talos missile authorization. This procedure would destroy the clear lines of responsibility which the Constitution provides."

Section 419 of the same bill contained a like "come into agreement" provision. It provided that no contract for family housing units could be entered into "unless the Department of Defense *** has come into agreement with the Armed Services Committees of the Senate and House of Representatives." As to these provisions, you stated (id. at p. 2):

"While the Congress may enact legislation governing the making of Government contracts, it may not constitutionally delegate to its Members or committees the power to make such contracts, either directly or by giving them the authority to approve or disapprove a contract which an executive officer proposes to make.

"Two years ago I returned, without my approval, a bill (H. R. 7512, 83d Cong.) containing similar provisions. At that time I stated that such provisions violate the fundamental constitutional principle of separation of powers prescribed in articles I and II of the Constitution which place the legislative power in the Congress and the executive power in the executive branch.

"Once again, I must object to such a serious departure from the separation of powers as provided by the Constitution. Any such departure from constitutional procedures must be avoided.

"I am persuaded that the true purpose of the Congress in the enactment of both of these provisions was to exercise a close and full legislative oversight of important programs of the Department of Defense. This purpose can be properly attained by requiring timely reports from the Executive. Such reports would provide the Congress with the basis for further legislative action it may find to be necessary."

These objectionable provisions were subsequently eliminated (see 102 Cong. Rec. 11924, July 17, 1956).

A year ago, on August 6, 1956, you issued a statement voicing objection to certain provisions of a bill calling for committee approval or disapproval in terms somewhat different from the "come into agreement" provision, but of like purpose and effect. H. R. 5881 (70 Stat. 1044) authorizes the Secretary of

the Interior to contract with States, irrigation districts, and others within the 17 western reclamation States to assist in the construction of small reclamation projects. In approving the bill, you stated:

"I have approved this bill only because the Congress is not in session to receive and act upon a veto message and because I have been assured that the committees which handled the bill in the Congress will take action to correct its deficiencies early in the next session. Specifically, a provision found in Section 4 (c) is seriously faulty. The section provides that:

***** no such contract shall be executed by the Secretary prior to sixty calendar days * * * from the date on which the project proposal has been submitted to both branches of the Congress for consideration by the appropriate committees thereof, and then only if neither such committee, by committee resolution and notification in writing to the Secretary, disapproves the project proposal within such period: Provided, That if both such committees, in the same manner and prior to the expiration of such period, approve the project proposal, then the Secretary may proceed to execute the contract: Provided further, That in the event either committee disapproves the project proposal, the Secretary shall not proceed further unless the Congress has approved the same.'

"This language would thus require, before a project negotiated under the Act is allowed finality, a further act by the legislature. The action required can be viewed as either a legislative act or an executive act. However construed, constitutional defects are inherent. Viewed as requiring a further legislative act, the section is open to the objection that it involves an unlawful delegation by the Congress to its committees of a legislative function which the Constitution contemplates the Congress itself, as an entity, should exercise.

"If the further act is considered as not legislative in nature, then there is involved what appears to be an unconstitutional infringement of the separation of powers prescribed in Articles I and II of the Constitution. I do not believe that the Congress can validly delegate to one of its committees the power to prevent executive actions taken pursuant to law. To do so in this case would be to divide the responsibility for administering the program between the Secretary of the Interior and the designated committees. Such a procedure would be a clear violation of the separation of powers within the Government and would destroy the lines of responsibility which the Constitution provides.

"Furthermore, the negotiation and execution of a contract is a purely executive function. Although the Congress may prescribe the standards and conditions under which executive officials may enter into contracts, it may not lodge in its committees or members the power to make such contracts either directly or by giving them the power to approve or disapprove a contract which an executive officer proposes to make.

"I believe it to be my duty to uphold the Constitutional principle that only the Congress can make the laws and only the executive branch can administer them. I am certain that there is little disagreement with this proposition and I have been assured that the purpose of the Congress in approving Section 4 (c) was to facilitate legislative oversight of a new program. Fortunately that objective can be attained through well tested procedures fully compatible with our system of Government; for example, the Congress may require the Secretary of the Interior to submit such reports as it may find of value in carrying on its legislative functions" (U. S. Code Congressional and Administrative News, v. 3, pp. 4836–37, 84 Cong., 2d sess., 1956).

The statement concluded with the observation that the Secretary of the Interior will prepare to take action as soon as appropriations are made to implement the bill and "Section 4 (c) has been removed or revised."

With reference to Public Law 155, it is noted that the Commission on Organization of the Executive Branch of the Government (the so-called Hoover Commission) urged the repeal of section 601 in Recommendation No. 10 of its Report on Real Property Management (Report Nos. 11-19 and Index, v. 2, pp. 35–36, 1955). The Commission also observed: "The Commission *** questions the appropriateness of congressional committee participation in the executive function of operation on the ground that it is an invasion of the executive by the legislative branch" (H. Doc. No. 177, p. 36, 84th Cong.).

By letter of April 27, 1956, this Department responded to the request of Senator McClellan, Chairman, Committee on Government Operations, for our views on S. 2479 "To repeal section 601 of Public Law 155, Eighty-second Congress." In favoring enactment of the bill, the Department's letter pointed out that the provision sought to be repealed was similar to that contained in H. R. 7512.