Nowhere is this more true than when the victim is society itself. We have entered an era of social cannibalism, a time in which, if we are to believe some pundits, the devouring of organized society has become a hallowed activity.

More than the passage of years separate St. Thomas, who viewed sedition as a mortal sin, from the Berrigan brothers.

Moreover, this contagion has dangerously infected the very institutions of organized society charged with the responsibility of maintaining order. Increasingly, this Federal Government is torn by internecine struggles in which the only victor in the long run will be chaos. What infuriates and concerns me more than anything else, perhaps, is that we are told that society cannot protect itself. We are told that society must permit those actively engaged in its destruction free rein. I think this is absurd.

This Nation has the right to defend itself, to prevent its destruction. Whether the attack is external or from within, the Government can and should insure the survival and stability of its institution. Moreover, the people of this Nation are entitled to have the background and character of Government employees thoroughly investigated. I do not believe that the taxpayers of this country should have to subsidize revolutionaries under the guise of protecting the first amendment rights of freedom of speech and assembly by employing them as "civil servants."

Our society is a complex and delicate mechanism. Its evolution, its perfection, must develop organically. The trauma of radical, revolutionary activities must be minimized.

I do not quarrel with the need to preserve the democratic framework of our society. I do not mean to in any way minimize the importance of preserving full substantive and procedural due process of law. What I do mean to say is that the freedoms enumerated in the Bill of Rights are in no way synonymous with subversion. Nor were they designed by our Founding Fathers to provide full and absolute immunity to those engaged in subversion.

Indeed, the U.S. Government does have a right to protect itself and Executive Order 11605 seeks to provide reasonable criteria for doing just that.

Thank you, Mr. Chairman.

Senator ERVIN. I will place in the record at this point my bill S. 2466 and resolution, Senate Resolution 163. I also will place into the record at the conclusion of the testimony President Nixon's Executive Order 11605 of July 2, 1971; a compilation of the statutory provisions cited by the President in Executive Order 11605; the Rules of Procedure under Executive Order 11605 promulgated by the Subversive Activities Control Board on September 10, 1971: President Roosevelt's Executive Order 9300 of February 5, 1943; President Truman's Executive Order 9835 of March 21, 1947; and President Eisenhower's Executive Order 10450 of April 27, 1953.

(The bill and resolution are as follows:)

[S. 2466, 92d Cong., first sess.]

A BILL To insure the separation of Federal powers and to preserve the constitutional rights of citizens

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. It shall be unlawful for any employee of the Department of Justice or any employee of the Subversive Activities Control Board to carry out or attempt to carry out any of the additional functions, duties, or powers which Executive Order 11605, dated July 2, 1971 purports or undertakes to confer on the Board.

SEC. 2. No money appropriated by Congress shall be made available to the Department of Justice or the Board to execute or implement any of the additional functions, duties, or powers which Executive Order 11605 purports or undertakes to confer.

[S. Res. 163, 92d Cong., first sess.]

RESOLUTION Expressing the sense of the Senate with respect to the doctrine of separation of powers as it applies to Executive Order 11605, dated July 2, 1971 Whereas the first section of the first article of the Constitution states that "all legislative powers . . . shall be vested in a Congress"; and

Whereas the second article imposes on the President the obligation to "faithfully execute" the laws enacted pursuant to article I, section 1; and

Whereas under the Constitution the President has no constitutional statutory powers to alter by Executive order the content or effect of legislation enacted by Congress; and

Whereas Congress, in exercise of its authority pursuant to article I, section 1, has by statute invested in the Subversive Activities Control Board certain powers, functions, and duties as set forth in the Internal Security Act of 1950, as amended; and

Whereas these functions, powers, and duties as established by law cannot be altered, amended, expanded, or restricted except pursuant to law enacted by Congress; and

Whereas Executive Order 11605 purports to alter and expand the powers, duties, and functions conferred by statute on the Subversive Activities Control Board; and

Whereas the first amendment to the Constitution guarantees the rights of all Americans to free speech, free thought, free expression, and free association; and

Whereas the purpose of the first amendment is to make Americans politically, intellectually, and spiritually free; and

Whereas these rights include the right of every American to advocate ideas no matter how foolish, how unwise, or how abhorrent to the government, the Congress, or to other Americans; and

Whereas any governmental attempt to proscribe the advocacy of unpopular, unwise, or foolish ideas has the effect of restricting the right and ability of Amercans to exercise their first amendment freedoms; and

Whereas the functions, powers, and duties purported to be conferred on the Subversive Activities Control Board by Executive Order 11605 are inconsistent with the Bill of Rights, and especially the first amendment: Now, therefore,

be it

Resolved, That the Senate disapproves of Executive Order 11605 as an attempt to usurp the legislative powers conferred on Congress by the Constitution;

That the Senate disapproves of Executive Order 11605 as an infringement of the first amendment rights of all Americans;

That the Senate calls on the President to revoke Executive Order 11605, or to amend or revise it to bring it into conformity with article I, section 1 and the first amendment to the Constitution.

Mr. ERVIN. Will counsel call the first witness?

Mr. EDMISTEN. Mr. Chairman, the first witness is the Assistant Attorney General, Office of Legal Counsel, William H. Rehnquist; and he will identify the gentleman with him.

STATEMENT OF HON. WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY JACK M. GOLDKLANG, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. REHNQUIST. Thank you, Mr. Edmisten, Mr. Chairman and Senator Gurney. I have brought with me my own consultant today. Mr.

Jack Goldklang, who is a lawyer with the Office of Legal Counsel and who has been of invaluable assistance to me in preparing my statement. He is sitting on my right.

Senator ERVIN. I wish to welcome both of you gentlemen to the subcommittee and express the appreciation of the subcommittee for your willingness to come and give us the benefit of your views and those of the Department, if you speak for the Department, Mr. Rehnquist. You are always willing to be of any assistance to us in our studies of these difficult questions of the separation of powers, and I appreciate it very much.

Mr. REHNQUIST. Mr. Chairman, I think your subcommittee performs a valuable function, and I am always happy to be called as a witness. On this particular occasion, I am happy to have the opportunity to discuss Executive Order 11605 signed by the President on July 2, 1971, on which you and Senator Gurney have already commented. That order delegated to the Subversive Activities Control Board the function of holding hearings to determine whether certain totalitarian, Fascist, Communist, and similar organizations should be listed as coming within the categories defined in the order.

The invitation to appear here stated that Executive Order 11605 "has come under attack as an act of 'legislating' by the Executive and, consequently, as an usurpation of the exclusive constitutional functions of the legislative branch." The letter noted that the subcommittee is now considering two measures introduced by you, Mr. Chairman. The first, S. 2466, would make it unlawful for any employee of the Department of Justice or the SACB to carry out Executive Order 11605 and would deny the use of any appropriation for this purpose. The second, Senate Resolution 163, expresses the sense of the Senate that the Executive order violates the Constitution.

As Assistant Attorney General in charge of the Office of Legal Counsel, it is my job to pass on the legality of proposed Executive orders before they are presented to the President for signature. I did so in this case and it is my opinion that the order was a valid exercise of powers that Congress has specifically conferred upon the President. The order cannot therefore be considered in any sense as a usurpation of the powers of Congress. We therefore oppose both S. 2466 and Senate Resolution 163.

Congress has given the President by statute responsibility for making regulations for the employment of individuals by the Civil Service, and of ascertaining the character and ability of Federal job applicants. The authority is found in 5 U.S.C. 3301. Congress has also by statute given the President power to delegate functions vested in him by law to "any department or agency in the executive branch." This authority is found in 3 U.S.C. 301, 302.

President Truman, some years ago, delegated to the Attorney General the authority to prepare a list of organizations for the use of Federal employing agencies. That is the earlier Executive Order 9835, promulgated in 1947. This delegation was modified and reaffirmed by President Eisenhower in 1953 in Executive Order 10450, paragraph 12, to which you, Mr. Chairman, and Senator Gurney, both referred in your remarks.

The U.S. Court of Appeals for the District of Columbia Circuit on two occasions upheld the authority of the President to make such a

delegation, first in 1949 and again in 1955. The first of these cases was Joint Anti-Fascist Refugee Committee v. Clark, 177 F. 2d 79, 84, which was reversed on other grounds, 341 U.S. 123 (1951). The second case is National Lawyers Guild v. Brownell, 225 F. 2d 552, certiorari being denied by the Supreme Court of the United States subsequently, 351 U.S. 927 (1956).

What President Nixon has functionally accomplished by the Executive order is simply to transfer from the Attorney General, where it previously resided, to the Subversive Activities Control Board the function of listing organizations for the information of Federal employing agencies. As noted, this is part of a function which, in the absence of delegation by him, Congress has by law confided to the President.

Previous exercises by other Presidents of this power to delegate portions of their authority to agencies have gone unchallenged, and we mention here several instances of it.

The Federal Power Commission is authorized by the President in an Executive order, Executive Order 10485, September 3, 1953, to hold hearings and issue permits for the construction and operation of gas and electric transmission facilities at the borders of the United States. This is an authority originally conferred upon the President by law, and the President, under his delegation power, chose to delegate it to the Federal Power Commission.

The FCC has had delegated to it the statutory power of the President to issue and revoke licenses to operate submarine cables in this country (Executive Order 10530, May 10, 1954). Again, Congress gave the power to the President in the first instance and the President chose to delegate it to the Federal Communications Commission under the general delegation statute.

The Board of Governors of the Federal Reserve System was authorized by Executive Order 8843 of August 9, 1941, to establish consumer credit controls. The Board was directed to license merchants selling goods on credit and to revoke the license where violations occurred. Now, this was not an authority which Congress directly conferred upon the Board of Governors of the Federal Reserve System. It was an authority which rested in the President, and the President chose to delegate it to the Federal Reserve System.

As was the case in the examples just mentioned, the additional task which the President has delegated to the Subversive Activities Control Board is completely compatible with the basic assignment given it by Congress, and the delegation was, in our opinion, not only in accordance with law but entirely justified from the point of view of public admin-istration.

In the present case, the basic disagreement on the policy question of continuing the SACB or expanding its role has apparently led critics of the President's policy decision to attack it on legal grounds. I believe that the attack is unjustified and that there is a complete and adequate legal basis for Executive Order 11605.

That concludes my prepared statement. I am sure there will be questions, and I will do my best to answer them, Mr. Chairman.

Senator ERVIN. President Truman's order in this field was revoked by both President Eisenhower's Executive order and President Nixon's, was it not?

Mr. REHNQUIST. My recollection is that President Eisenhower's Executive Order 10450 was designed to supersede President Truman's Executive Order 9835, and, therefore, Executive Order 9835 was revoked. And I believe that President Nixon's order also notes that Executive Order 9835 was revoked.

Senator ERVIN. That is correct, because section 12 of President Eisenhower's order of April 27, 1953, states, expressly: "Executive Order No. 9835 of March 21, 1947, as amended, is hereby revoked." And that same statement is repeated in the second section of President Nixon's order, that is, "Executive Order No. 9835 of March 21, 1947, as amended, is hereby revoked."

Now, is it not true that President Eisenhower's Executive Order No. 10450 applied only to people enjoying or seeking employment in the Federal establishment?

Mr. REHNQUIST. Well, insofar as it directed that review of their associations be conducted. Certainly, it was addressed only to people seeking employment in the Federal establishment, but the composition of the Attorney General's list, as it was called, is not necessarily something that is a precursor to the review of the particular individual's membership in an organization.

Senator ERVIN. What organizations' activities is the Attorney General empowered, or alleged to be empowered, to scrutinize?

Mr. REHNQUIST. Well, under the provisions of 11605, which is President Nixon's Executive order, it would be organizations which are totalitarian, Fascist, Communist, subversive, as more fully defined in a later section of the order, plus organizations which have adopted a policy of unlawfully advocating the commission of acts, of force or violence, to deny others their rights under the Constitution or laws of the United States, or which seek to overthrow the Government of the United States or a State or subdivision thereof by any unlawful means.

Senator ERVIN. Is not President Nixon's order far broader than President Eisenhower's?

Mr. REHNQUIST. I think not, Mr. Chairman. I am inclined to agree with Senator Gurney that it is actually narrower. It could be said to expand one category, but only in the sense that it specifically enumerates the different acts of force or violence to deny others their rights under the Constitution or laws of the United States or any State. I do not believe that this detail was contained in President Eisenhower's Executive order. The definitional sections found on pages 3, 4, and 5 of the order tend to be tighter than those found in President Eisenhower's order.

Senator ERVIN. Do you not agree that President Eisenhower's order was specifically directed toward persons already enjoying or actually seeking Federal employment?

Mr. REHNQUIST. Well, I think you have to take the situation as it existed at that time. Executive Order 10450 did not exist by itself. It existed along with the provision which was preserved from Executive Order 9835 for the Attorney General to compile a list of organizations and I cannot accurately paraphrase the language in one sentence, but who advocated the overthrow of the Government by force or violence.

Senator ERVIN. Where does the Attorney General get that authority?