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A last practical considcration: after noting the secrecy that surrounds thc dclibcrations of "judges in their chambers, and of grand jurics," Taylor concludes that "the exccutivc branch, 100, may claim that it is not required to plan and conduct all of its operations in a goldfish bowl."018 Certainly the alternative is not to conduct all its operations in a darkroom, as tended to become the rule in the Eisenhower regime. For such operations as really demand a darkroom, disclosure to Congress need not mcan disclosure to the public, for Congress itself can and should limit scrutiny to select members. Grand jury proceedings are an exception to "this nation's historic distrust of secret proceedings," deeply rooted in our history and long antedating the adoption of the Constitution.c10 If only there were a like tradition of "executive" secrecy! Then too, the grand jury is an investigating tribunal of constantly changing members, having no built-in yearning to conceal its own mistakes or misdeeds.017 Nor does the comparison of judicial deliberations with those of executive employees stand any better. All told there are some 500 or 600 federal judges as against upwards of 2,500,000 federal employees. The problems of safeguarding these two against inefficiency, corruption and waste are simply incommensurable.18
“Judicial deliberations” are better compared to conferences between the President and a Cabinet member, for which a privilege was recognized in Marbury v. Madison, 18 of Presidential communications with other high military or civil officers,620 which at least one congressional committee recognized.621 But it is far-fetched to compare the conferences of two lowly subordinates, or of a subordinate with a lower echelon chief, with consultation between a
classified information should themselves be subjected to a sccurity check, if only because strange characters do from time to time find their way into Congress. (2) The exccutive should have a chance to comment on a committee report before it is published in order to avoid bona fide mistakes. Nothing so promotes cooperation, and is better calculated to facilitate the quest for information, than to remove the matter from the front pages.
616 TAYLOR 86.
616 In re Oliver, 333 U.S. 257, 273 (1948); 1 HOLDSWORTI, HISTORY OF ENGLISH LAW 322 (3d ed. 1922).
617 Mr. Justice Douglas reminded us that commissions "tend to acquire a vested interest in that role." Hannah v. Larche, 363 U.S. 420, 499 (1960) (dissenting opinion).
618 The fact that th. executive branch cannot peer into congressional files, as is noted by TAYLOR 105, and Bishop 478, may be similarly explained. Historically, furthermore, the Grand Inquest could inquirc into exccutive conduct whercas there scems to be no precedent for a reversal of roles.
619 1 Cranch (5 U.S.) 137, 144-45 (1803). Attorney General Rogers quotes Marshall, C.J., as saying in the Burr Trial respecting Marbury v. Madison that "the principle decided there was that communications from the President to the Secretary of State could not be extorted from him." Alt'y Gen. Memo. 34.
820 Kramer & Marcuse 683, 709 821 Id. at 873.
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judge and his immcdiate aide or the President with a department head. And it needs cmphasis that not even a judge is beyond the. scope of legislative investigation, elsс the impcachment power would be shackled. The oft-cited example of Judge Louis Goodman's refusal on bchalf of himself and his fellow district judges in California to testify before a congressional committee, apparently as to their conduct of judicial proceedings,622 reflects the vicw that "such an examination of a judge would be destructive of judicial responsi-. bility."023 But this spells no immunity from investigation into judicial misconduct, 024 which if infrequent has yet bobbed up from time to time.926
The plain fact is that the executive branch was mcant to operate in a goldfish bowl. That is one of the presuppositions of democratic government, perceived almost from the outset:
No nation ever yet found any inconvenience from too close an inspcc-
The alternative to a "goldfish bowl” cannot be uncontrolled executive discretion to withhold from Congress for, as thc Eisenhower cra traches, that conduces to a mushrooming cloud of conccalment. Dress it decorously as you will, in the last analysis cxccutive discrolion to determine what Congress shall sec cmpowers thc exccutive branch to determine how far it needs to be investigated. “If men were angels" then we could safely lodge that power in the subject of investigation.
Congress is not without means of self-help. As Professor Bishop reminds us:
Congress undoubtedly has power to punish contempts without invoking
022 BARTII 80; TAYLOR 96-97.
624 “Where the secret is a judicial secret such as the proceedings of a judicial conference preparatory to writing an opinion, it may be that there is a privilege belonging to the judiciary, but that has not been decided, and might turn on whether the investigations were with a view to legislation or to impeachment.” Wyzanski 99.
626 BORKIN, THE CORRUPT JUDGE 219-58 (1962).
620 Statement by Edward Livingston, a great early American lawyer and legislator. Quoted in Reynolds v. United States, 192 F.2d 987, 995 (3d Cir. 1951). See also notes 111-18 supra. Cf. text accompanying note 119 supra.
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him in the common jail of the District of Columbia or the guardroom
of thc Capital Policc.027 If "Congress has never in the past becn willing to push matters" to the point of directing the Scrgcant at Arms to scize the person of an cxccutive officer, “28 it is not for lack of power but rather a tributc to Congress' good sensc. Recent resistance by Alabama sollicrs to scrvicc of sccleral process on Governor Wallacc illustrates how unsccmly a spectacle would be the repulse of the Scrgcant-atArms by a cordon of fcderal soldicrs.920 That could only serve to bring both branches into disrepute, to convert a grave constitutional issue into a common brawl. Regression to the jungle of selfhelp in any form, whether by withholding vital appropriations, or abolishing recalcitrant agencies, or seizing executive recalcitrants, represents an undesirable solution to conflicting claims of constitutional power. It would substitute a mcat cleaver for temperate arbitrament. No more than the President should Congress impose its construction on the opposite branch by force majeurc. It is to avoid such self-help that we turn to the courts.
IX. JUSTICIABILITY OF THE CONFLICT BETWEEN CONGRESS AND
THE EXECUTIVE BRANCH A necessary preliminary to the question of justiciability involves the mechanics of entry into the courts for resolution of the legislativeexecutive conflict. The district courts presently have "original juris
027 Bishop 484. Sec Jurncy v. MacCracken, 294 U.S. 125 (1935); McGrain v. . Daugherty, 273 U.S. 135 (1927).
'Thc lcgislative contcmpt power has its roots deep in parliamentary history and was cmployed by the Congress from the beginning. Sec Berger 611, 620. Congressman Findley had asserted the power in the House of 1793: "It is solcly in the power of this House to punish all contemptuous or indecent treatment or its authority, ... We might have ordered him (Sccrctary of thc Trcasury Alexander Ilamilton) to the bar of this IIousc and obliged him to make proper acknowledgments." 3 ANNALS OP Cong. 963 (1793).
It will be recalled that Nicholas Paxton, Solicitor of the Treasury, was imprisoned during the course of the Walpolc inquiry. 13 CHANDLER 139. Brass Crosby, Lord Mayor of London was imprisoned later, Brass Crosby Casc, 3 Wilson 189, 95 Eng. Rep. 1005, (K.B. 1771). Explaining judicial non-interference with Parliamentary contempt commitments, Blackstone says, "if any persons may saicly be trusted with this power, they must surely be the Commons, who are chosen by the people." Id. at 205, 95 Eng. Rep. at 1014. Sce note 66 supra.
An carly Massachusctts casc sustained the power of the legislature to "imprison" an official "for contcmpt" for refusing to produce papers, saying that as "the grand inquest for the Commonwealth, (it) ... has power to inquire into the official conduct of all officers of the Commonwealth. ..." Burnbam v. Morrissey, 80 Mass. (14 Gray) 226, 230, 239 (1859).
628 Bishop 485.
620 Time Magazine, June 21, 1963, pp. 13-14. The importance of "settling grievances peacefully in the courts" was stressed in United States v. Mississippi, 85 Sup. Ct. 808, 817 (1965).
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diction of all civil actions ... commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.''030 Under this act it has been held that a Senate committee authorized by Scnate Resolution to investigate senatorial clection frauds was not "authorized to sue,"031 but that turned on thc lack of express authorization. Unless we consider that the United States is exclusively identificd with the executive branch, a suit on behalf of the legislative branch is no less in the interest of the United States. And notwithstanding the Court's reservation in passing whether suit would lie on behalf of one House alone, such suit should stand no lower than suit on behalf of a single Department, which can be "commenced by the United States."632 Apparently a department or agency of the executive branch would be authorized under the terms of the above quoted statute to file suit for a declaratory judgment whether it is entitled to withhold information required from it by a congressional committee. Suppose that a suit for a declaratory judgment on behalf of some branch of the Executive is "commenced by the United States," and suppose that Congress desires to file a cross-complaint to compel delivery of required information, can the words “commenced by the United States” be construed to permit each of the opposing parties to be “the United States?” Clarifying legislation might well obviate litigation over such questions, over the issue whether such suits present “political questions," and insure that both branches enjoy reciprocal rights.633
630 28 U.S.C. & 1345 (1949),
6.31 Rccd v. County Comm'rs, 277 U.S. 376 (1928). The holding of the casc is narrow: The Court declined to construc the Senatc authorization to the Committec "to do such other things as may be necessary in the maller of said investigation" as authorizing suit, largely because of the practice of both Scnate and Ilouse to rely on their "own power to compcl" testimony. In passing, the Court threw doubt on the power of one House acting alonc to sue, saying "even if it be assumed that the Senate alone may give that authority." Id. at 388-89.
The Committee impressively argued (p. 379) that “Any suit brought in the exercise of a constitutional power of the United States on behalf ... of any of its judicial, lcgislative or executive agencies, is a suit in which the United States is the rcal party in interest. . . . It may not be said that the National Government has a less interest in the execution of powers of the lcgislative branch of the Government than of the executive branch;" in other words, the “United States" is not exclusively identified with the cxccutive branch.
But there is another obstacle. Representation of the United States is confined by statute to the Attorney General and to the District Attorneys. 5 U.S.C. $$ 309, 310 (1964); 28 US.C. $ 507 (1964). Given a dispute between Congress and the executive branch it is to be anticipated that both would choose to represent tie Executive rather than Congress. A statute should therefore provide that Congress may appoint attorncys to represent it.
632 Id, at 377, 388-89.
633 Account should then be taken of statutes which confinc representation of the Uniicd States to the Attorncy General and the United States Attorncys. 5 U.S.C. $$ 309, 310 (1964); 28 U.S.C. § 507 (1964). Quaere whether express provision for Congressional appointment of its own counsel is needed.
In developing such a procedure, the benefits of first escalating the issucs for top-level evaluation merit consideration. Not all demands for information represent a considered congressional judyment. Too often they are pressed by headline-hunting members of Congress, and often thc Icadership finds itself trapped into a showdown that might have been averted by intervention at an earlier stage. Screening of executive refusals by President Kennedy caused a spectacular diminution of withholdings 634 which, in the Eisenhower era, were often downright ludicrous. To stimulate study and design of a statutory procedure for the accomplishment of such objectives, the following is suggested: (1) If an executive officer declines to furnish information, the head of the agency, upon a written request by the congressional committee chairman, shall hold a closed hearing on the refusal, at which a representative of the committee shall be entitled to be heard; (2) If the head thereafter endorses his subordinate's refusal to produce, the request shall be put before the relevant legislative branch in order to obtain approval for the institution of a suit. Similarly, the institution of suit for declaratory judgment by an executive agency might be conditioned on prior approval by the President. Such machinery should go far to reduce needless harassment of the executive branch by hot-headed legislative investigators and to assure that agency heads will seriously review ill-considered bureaucratic refusals to furnish information. It would siphon off petty disputes, leaving only important issues for submission to the courts; and before long the courts would pick out guidelines that would further diminish the area of controversy.
Whether the conflicting claims of Congress and the executive branch respecting Congress' right to obtain information are justiciable needs to be considered from three standpoints: (1) "case or controversy," (2) "standing to sue,” and (3) "political questions."
A. Case or Controversy
Suits wherein “part of the government appears before" the courts "fighting another part” are now a commonplace,636 yet judicial
634 See text accompanying notes 6 and 499 supra.
635 FTC v. Ruberoid Co., 343 U.S. 470, 482-83 (1952) (Jackson, J., dissenting). Sce Federal Maritime Bu. v. Isbrandtsen Co., 356 U.S. 481 (1958); Secretary of Agriculture v. United States, 347 U.S. 645 (1954); United States v. FPC, 345 U.S. 153 (1953); ICC v. Inland Waterways Corp. 319 U.S. 671, 683 (1943); Miguel v. McCarl, 291 U.S. 442, 450 (1934); Summerfield v. CAB, 207 F.2d 200 (D.C. Cir. 1953); Stern.
Such actions have been termed "routine" in the state courts. Note, Judicial Resolution of Administralive Disputes Belween Federal Agencies, 62 Hary, L. Rev. 1050 (1949). Sce State Bd. of Educ. v. Levit, 52 Cal. 2d 441, 343 P.2d 8 (1959) (proceeding by Board of Education to compel Director of Finance to comply with