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in connection with the reclassification legislation in 1923. Then I was down in North Carolina for a while with the salary and wage commission of that State. Then I made a survey of Indian affairs at the request of the Secretary of the Interior. I participated in one or two of our State surveys.
While I was in the Census Bureau I went to night law school. I went to law school not with the idea of becoming a lawyer but because I wanted that education to supplement the other education I had in the social sciences. I think that is probably too detailed. We at the Institute for Government Research are not constitutional lawyers. We were not retained by the Congressional Committee on Reorganization to pass on the constitutionality of the past practice of the Congress in limiting the power of the Executive with respect to the expenditure of public funds. The Congress has from the earliest times assumed that it had that power. It set up in the Treasury Department a Comptroller of the Treasury whose decisions could not be reversed by anyone in the executive branch of the Government, not even by the President of the United States. In 1921 it went further and provided a Comptroller General as the head of the General Accounting Office immediately under the Congress, and provided that, although the President should appoint the Comptroller, that officer could only be removed during his 15-year term by joint resolution of Congress.
In view of the long history of limitation of the power of the Executive in this respect, and in view of the clear language contained in article I, section 7, of the Constitution, we have assumed that the constitutional grant of executive power to the President was necessarily restricted by article I, section 7, of the Constitution. It seemed to us as laymen that no administrative officer could, through executive authority, be granted a power of spending in excess of appropriations, for objects for which appropriations were not made, nor in any manner other than that prescribed by the Congress, if the Congress had by law established a procedure. As laymen we as. sumed that the Congress could, by law, establish a system of financial administration that would make article I, section 7, a working law effectively binding on all officers of the Government and not leave it as mere hortatory language.
Our own searches have failed to reveal any decision by the Supreme Court that specifically passes upon the question at issue, namely, whether the Congress acted within its authority in establishing a Comptroller of the Treasury whose decisions could not be reversed, even by the Chief Executive, or subsequently in establishing an independent Comptroller General who could not be removed by the President. We have been informally advised by constitutional lawyers that this issue has never been passed upon by the Supreme Court.
We are, of course, aware that in the Myers decision Chief Justice Taft used words which apparently suggest that in the case of officers exercising quasi-judicial authority the Congress might provide that the decisions of such officers could not be reversed by the President, and that in the Humphreys case the Congress may restrict the
power of the President to remove quasi-judicial officers. But these cases are not on the present issue, for they do not involve article I, section 7,
of the Constitution, nor the power of Congress to control the expenditure of puwlic moneys by administrative officers.
We recognize that the Comptroller General, in interpreting the meaning of appropriation acts and in interpreting and applying the great body of other laws restricting and governing the expenditure of public funds, may be said to be acting in a quasi-judicial capacity. But he is not, as a rule, judging between two private parties or between the Government and one private party, although in a few cases a private party may be involved, He is ordinarily, in a sense, deciding between certain administrative officers on the one hand and the Congress of the United States on the other for the specific purpose of giving legal effect to article 1, section 7, of the Constitution. Appropriation acts, and the great body of administrative law governing expenditure, in a relatively small number of cases, have to be interpreted and applied. The issue here is whether the executive branch is constitutionally free to interpret them for itself without congressional control, or whether the Congress has the authority to establish an independent officer or agency, not under executive control officially, to interpret the law and interpret the acts. That issue we believe has never been passed upon by the Supreme Court, and therefore the Congress is free to continue to act upon the assumption that in matters of the legality and regularity of expenditures it has authority to act, on the ground that the executive power extends only to legal expenditures made in pursuance of law. In a Government of divided powers, or, in other words, a government of checks and balances, it would seem that the Congress would have the power to check an illegal or irregular expenditure.
Representative GIFFORD. The what?
Mr. MERIAM. The irregular expenditure. By “irregular” I mean one in which the Congress has specifically provided the method by which the money should be spent and the administrative officer spends it in some other way than the one prescribed by Congress.
Representative GIFFORD. You mean by padding the expense account?
Mr. MERIAM. I have more in mind, a situation in which an act of Congress calls for competitive bids, but the administrative officer fixes the specifications up in such a way that only one fellow has got a look-in.
Representative GIFFORD. Has the Comptroller General power to check the expenses of administrative officers?
Mr. MERIAM. That is where the largest amount of conflict between the Comptroller General and administrative officers comes in, in connection with contracts, purchases, and construction.
Representative GIFFORD. Limit that to the expense of traveling. If the Comptroller General thought the expense was too large would he have the power to cut it down?
Mr. MERIAM. The Comptroller General could examine the traveling account.
Representative GIFFORD. Then there are no instructions of ConMr. MERIAM. No, sir. The administrative instructions
Representative GIFFORD (interrupting). Never mind the administrative part of it. What about the illegality? How can a padded expense account come under an illegal act, against an act of Congress ?
gress about it?
Mr. MERIAM. Of course, in many cases you have both specific law and administrative regulations made in pursuance of that law, and in the regulations made in pursuance of law governing travel the Government employee travels under instructions.
Representative GIFFORD. Are you trying to say to me that the Comptroller General could challenge the administrative instructions to a traveling agent of the Government ?
Mr. MERIAM. No, sir; but if the employee has violated his travel instructions, if he has gone to a great many places which were not covered by his instructions, the Comptroller General will challenge that failure to go by the shortest route. Now, if he has made a lot of side trips which were not authorized, theoretically the administrative officer should catch that when the authorization is first presented and should disallow it on the ground that he want to a whole lot of other places where he was not instructed to go.
Representative GIFFORD. In that case the administrative officer could tell the Comptroller to mind his own business, if he wanted to, could he not?
Representative TABER. There are two functions there that the Comptroller passes on: First, the question as to whether or not the traveling was for a purpose authorized by the appropriations, and then the question as to whether it was within the scope of the particular officer's instructions,
Mr. MERIAM. That is correct.
Representative GIFFORD. I doubt that, because I am interested in a particular case.
Mr. MERIAM. What the Comptroller General does, in the first instance, he suspends, he does not disallow, but he suspends the expenses from the disbursing officer's account. Thereupon the disbursing officer takes it up with the administrative officer and if the Comptroller General finds that the reports which are made by the administrative officer clear up that discrepancy, he so decides.
Representative GIFFORD. That is all right. He has the power of temporary suspension.
Mr. MERIAM. He has the power of temporary suspension.
Representative GIFFORD. I have a letter that has been in the Comptroller General's Office for some time. I can well see his hesitation in replying to it. It involves high administrative officers, as to their authority. There is no real illegality about it. I am extremely interested in awaiting the Comptroller General's opinion. I do not doubt very much that he would find that he perhaps has gone beyond the authority given him by the Congress, and he will hesitate to give me the information.
Mr. MERIAM. I would like to call your attention in that connection to one point that we think is very important. The notion is rather prevalent that there is no appeal from a decision of the present Comptroller General. Now, that is correct insofar as a direct administrative appeal is concerned, but there are various methods of appeal that are available. The disbursing officer may make the conditional payment so that a man actually has his money, he is being reimbursed. Now, that comes up to the Comptroller General on the disbursing officer's account. The Comptroller may suspend it, and, on further investigation, he may actually disallow it. Now, the disbursing officer has actually paid the money. That is our Federal system, it is a conditional payment in advance by the disbursing officers.
Representative GIFFORD. But you can see nothing in your report except to bond him, can you?
Mr. MERIAM. Yes, sir. We see a great deal more than the mere bonding of the disbursing officers.
Representative GIFFORD. Is that in your report? I see where you recommend bonding.
Mr. MERIAM. Yes; bonding him. The disbursing officer is bonded. We also recommend bonding administrative officers.
Senator BARKLEY. Do you know of any case where bonded administrative officers have been required to repay any money to the Treasury?
Mr. MERIAM. I do not know in the present practice. We do not bond the administrative officer, we bond the disbursing officer.
Senator BARKLEY. Yes.
Mr. MERIAM. The Comptroller General automatically collects on the disbursing officer's bond, immediately upon a disallowance. That is automatic procedure. Then the disbursing officer is thrown back to recover from the person who received that illegal payment. If you are in the Government service he can make you pay the money back without any difficulty at all. If you are outside the Government service he may have some more trouble. But the disbursing officer, who has made payment in good faith, can come forward to Congress with a bill for relief. That gives Congress a chance to pass upon the whole transaction, and if Congress believes that the administrative officer, or the disbursing officer was correct and was unfairly treated by the Comptroller General, Congress can pass a bill for the relief of the disbursing officer.
Senator BARKLEY. I understand all that. That does not get the money back, though, that has been illegally paid out. Wherever there is an administrative officer who has a right to pass on the expenditure, and where it is in his discretion and it is a matter of judgment, it seems to me to be folly to try to think that we are ever going to get any money back, if he has acted honestly,
Mr. MERIAM. No, sir. If he has acted honestly, then he has legal authority, and you will never get the money back.
, Representative GIFFORD. They bond a a $20-a-week disbursing officer,
Mr. MERIAM. That is our system. We recommend that the authorizing officers should also be bonded, so when an administrative officer has done an illegal act you have got him on his bond, just as you have the disbursing officer.
Representative GIFFORD. Now, Mr. Meriam, you recognize also that we have been appealed to to forgive a host of disbursing officers. How can we determine whether they are honest or dishonest ?
Mr. MERIAM. You can investigate that particular situation; you can have the Comptroller General's office send their witnesses up here and explain what the transaction was, and you can have the administrative officers explain it. There are a number of those trans
Representative GIFFORD. The point I am trying to make—here is a poor little disbursing officer who can be hired and fired in a month, and yet you want him bonded.
Mr. MERIAM. He is bonded now. He is the fellow that has been carrying the load for years.
Representative GIFFORD. In your report you suggest bonding these people. What else?
Mr. MERIAM. I was speaking about the different methods of relief.
Representative GIFFORD. And the recovery through Congressthrough forgiveness.
Mr. MERIAM. The Comptroller General has disallowed it; the Comptroller General has told the administrative officer he cannot do it. Now, what can the administrative officer do? That is what I am discussing now.
Representative GIFFORD. He can come to Congress for relief.
Mr. MERIAM. He can come to Congress for relief. Now, Congress is in session a very considerable part of the time, about 6 months out of the year. I had a case in the Children's Bureau when I was there; we were conducting an investigation in which we needed interpreters, but there was absolutely nothing in any of our laws that authorized us to hire an interpreter. That was gone over carefully by our financial people, but they found that we had absolutely nothing in the law that authorized us to do it. Now, it is a very simple matter to insert a little clause in the appropriation act that cures that.
Representative GIFFORD. Why did you not in that case call him by some other name and get away with it? They always do.
Mr. MERIAM. Most of the administrative officers, as I have known them in the service, try to be straight. The typical Government administrator, bureau chief, or subordinate, is trying to run a good, straight office and be on the level. Where they find they are actually estopped, they would rather come up to Congress and explain that situation, and ordinarily they have an opportunity to do so.
Representative GIFFORD. The Comptroller General could not do anything about that. For instance, we have not one, but several, pure lobbyists called assistants; what would the Comptroller do about them?
Mr. MERIAM. The Comptroller cannot do very much. Where you wrongly name an officer and you do not show what his duties are, the Comptroller cannot do very much about it.
Representative GIFFORD. Then you do not suggest any enlargement of his powers where he could perform any of those sort of services?
Mr. MERIAM. We are giving him more power of investigation, and we are putting more power of investigation into the Budget Bureau. That is the type of investigation which was formerly made by the Bureau of Efficiency.
Representative GIFFORD. I do not want to take up all the time, but in your no. 2 you said, "Place directly under President. Ex pand functions and organization."
Senator BARKLEY. Mr. Chairman, the witness had started to read a prepared constitutional argument.
Mr. MERIAM. I have finished that, sir.
prepared the argument.
Mr. MERIAM. Yes, sir.