CONGRESSIONAL REVIEW OF ADMINISTRATIVE DECISION- MAKING BY COMMITTEE CLEARANCE AND RESOLUTIONS By WILLIAM EMMERETTE RHODE A THESIS Submitted to the School for Advanced Graduate Studies of Michigan State University of Agriculture and Applied Science in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Political Science 1958 .z‘ (x ABSTRAC T \ This study presents a description and analysis of a particu- lar method of congressional oversight of certain types of administra— tive decisions. Such congressional oversight provides a means of legislative review of the use of administrative discretion. It is “#1; composed of the two devices of review by resolution and committee clearance. The first is represented by those statutory requirements that subject particular administrative decisions either to legislative approval by affirmative concurrent resolutions or to possible legis- lative nullification by simple or concurrent resolutions. The second device is composed of those statutory requirements and informal agreements that subject administrative decisions to the review and clearance of specified standing congressional committees. Congressional oversight represents/an institutionalization of I" / (I (J I _ 11‘ / / the doctrine of "Legislative Control," which is one of the three cur- I rent schemes offering alternative solutions to the problem of the Proper control of administrative discretion. The description and analYSis of this practice is thus cast within the theoretical contfi‘xt Outlined by these dominant doctrines. They are the doctrine of ii HPresidential Control," the doctrine of the "Judicial Formula," and the doctrine of “Legislative Control." The first points to the Presi- dent to provide the necessary control of the discretionary powers of the American bureaucracy. The second doctrine emphasizes the necessity to structure the administrative process after the judicial model in order to limit and control the use of administrative dis- cretion. The third concludes that the legislative body is the prOper organ of control and direction of administrative discretion. The genesis of each of these doctrines is found in the ideas and thoughts of three early pioneers in the formulation of the dis- ciplines of public administration and administrative law, Frank J. Goodnow, Ernst Freund, and William F. Willoughby. The early schemes for the control of administration represented in the writ- ings of these men are presented and their relationships to the cur- rent doctrines are analyzed and emphasized. The British practice of parliamentary supervision of subor- dinate legislation is also described in order to furnish a basis of coInparison with the American method of legislative oversight. The BritiSh Practice was established to provide a means of parliamen- tary cOfl’tI‘OI over the uses of the delegated legislative powers 0f the British government. While it is similar to the American method in iii \I‘ that it points to the legislative body as the prOper source of con- trol, it diSplays several significant differences in both formal as- pects and actual operation. These differences are presented and discussed. The detailed description and analysis of the American method is composed of several elements. The description centers around an enumeration and discussion of the instances of the statutory es- tablishment of both review by resolution and committee clearance. In the case of committee clearance, however, this survey is com- plemented by a presentation of several instances of the establish- ment of this device which are based upon informal agreements be- tween particular congressional committees and executive agencies. The analysis focuses upon the actual Operation of the Ameri— can practice. In the case of review by resolution, the role and in— fluence of the regular legislative committees is emphasized. In the case of committee clearance, the reviewing practices of those committees presently engaged in the review and clearance of ad- ministrative decisions is the central concern. Such reviewing prac— tices result in the de facto delegation of the clearance function. The delegations fall into three general patterns which are presented and discussed. iv The analysis also includes a survey of the various arguments that have been presented to support or oppose the constitutionality of each device. This survey is accompanied by a systematic consider- ation of the major constitutional issues raised by both devices. Finally, a general evaluation of the two devices as responsible tools for the control of administrative discretion in a democracy is made. Both offer certain advantages to the legislative body and the executive agencies. In the case of committee clearance, however, as contrasted with review by resolution, these advantages are out- weighed by the fact that the former device does not place the final approval or disapproval of administrative decisions at a point in the governmental structure which assures that such final clearance will represent and reflect the consent of the governed. It does not repre— sent, therefore, a promising device for assuring the responsible control of administrative discretion. ACKNOWLEDG MENTS I would like to thank the following persons, who had an impor- tant part in transforming this work from a proposal into a reality. I shall be forever deeply grateful to Professor Glendon A. Schubert, Jr., Department of Political Science, Michigan State Uni- versity. Whatever merit this work may have is, to a large extent, the result of his constructive criticism, suggestions, and personal encouragement . I would also like to express my debt of gratitude to Professor Norton E. Long, past director of the Government Research Bureau, Michigan State University, for making it possible for me to spend two weeks in Washington, D.C., for the purpose of gathering invalu- able data and information. I am grateful to the many staff members of congressional committees and all those officers in executive agencies who gave so freely and willingly of their time and attention during personal inter- views conducted in Washington, DC. This work owes a great deal t0 their gracious cooperation and assistance. Finally, this work stands as a symbol of the patience, sacri- fice, and constant encouragement of my wife. To you, then, "T.C.," I dedicate this work. vi TABLE OF CONTENTS Page ABSTRACT .................................. ii ACKNOWLEDGMENTS ........................... vi CHAPTER I. INTRODUCTION ........................ 1 II. THE GENESIS OF THE DOCTRINES OF CONTROL OF ADMINISTRATIVE DISCRETION .......................... 8 Frank J. Goodnow and Presidential Control ............................ 8 Ernst Freund and the Judicial Formula ..... 26 William F. Willoughby and Legislative Control ............................ 33 III. CONTEMPORARY DOCTRINES OF THE CONTROL OF ADMINISTRATIVE DISCRETION .......................... 48 Presidential Control ................... 49 The Judicial Formula .................. 61 Legislative Control .................... 72 Conclusions ..... . .................... 85 IV. PARLIAMENTARY REVIEW OF SUB- ORDINATE LEGISLATION IN ENGLAND ....... 88 vii CHAPTER VI. VII. Introduction ......................... Subordinate Legislation ................. Judicial Control of Subordinate Legislation ......................... Parliamentary Review of Subordinate Legislation ......................... The Select Committee on Statutory Instruments ......................... Conclusions ......................... REVIEW OF ADMINISTRATIVE DECISION- MAKING BY CONGRESSIONAL RESOLUTIONS ......................... Introduction ......................... Review by Resolution .................. Review by Resolution and Legislative Committees ......................... Conclusions ......................... FORMAL COMMITTEE REVIEW ............ I Introduction ......................... Committee Review and Clearance .......... INFORMAL COMMITTEE REVIEW ........... Introduction ......................... Committee Review and Clearance .......... Conclusions ......................... 108 112 127 144 148 148 154 184 189 195 195 197 232 232 233 254 CHAPTER VIII. PROCEDURE IN COMMITTEE REVIEW ....... Introduction ......................... Reviewing Practices ................... Conclusions ......................... IX. THE CONSTITUTIONALITY OF CONGRESSIONAL REVIEW ................ Review by Resolution .................. Congressional Committee Clearance ........ Conclusions ......................... X. SUMMARY AND CONCLUSION .............. APPENDIXES ................................. I. Statutes that Have Subjected Administrative Decisions to Review by Resolution ........... II. Statutes Presently in Effect Subjecting Administrative Decisions to Review by Resolution .......................... III. Statutes that Have Contained the Requirement of Congressional Committee Review of Administrative Decisions .................. IV. Statutes Presently in Effect Containing the Requirement of Congressional Committee Review of Administrative Decisions .......... BIBLIOGRAPHY ............................... ix Page 260 260 263 277 281 282 295 317 331 352 353 355 356 359 360 CHAPTER I INTRODUCTION This is a study of a particular method for the direct congres- sional control of administrative discretion in the United States. This method is congressional review and clearance of administrative de- ciSions. Such legislative oversight is made up of two devices. The first is review by resolutions. It has taken two forms: (1) approval and disapproval of administrative decisions by concurrent resolutions of Congress, and (Z) disapproval of such decisions by a simple reso- lution of either chamber of Congress. The second device is repre- sented by the practice of lodging final clearance in standing commit- tees of Congress. Congressional clearance is an institutionalization of one of the three major doctrines of the present era that concern the control of administrative discretion. These doctrines represent three distinct SChemes. Each points in a different direction to provide such con- tr01 and is based upon interpretations and theoretical postulates that distinguish it from the other schemes. The tr: m C:t'r:. The {LIST de:.a :m of 1:2 : Maximum 2:1 371955 . “711113 the 351;! P”??? a L 33!. 3cm; The :eg‘ 275 the mega: “mm- Sac? Lemme COM 192 Weak. , This re; The three major doctrines may be labeled simply: "Presi— dential Control," the "Judicial Formula,”l and "Legislative Control.H The first declares that the President must provide the necessary control of the bureaucracy. The second doctrine concludes that the administrative process must be structured after a model of the ju- dicial process in order to provide a check upon administrative dis- cretion for the protection of private rights. The legislature is viewed as the prOper and effective source of control of administrative dis- cretion, according to the third theory. The legislature, rather than the presidency or the judiciary, plays the major role in the American practice of congressional oversight. Such a practice is thus a product of the doctrine of legislative control. The two devices of which it is composed-repre- sent basically two different ways of putting the scheme into operation. This relationship between congressional oversight and the leg- iSlative control doctrine raisesa very important issue. It concerns the query as to whether the two devices of the contemporary prac- tice actually fulfill the promises of their doctrinal progenitor. 1This second term is borrowed from Frederick F. Blachly and Miriam E. Oatman, Federal Refigglatory Action and Control (Washington: The Brookings Institution, 1940), pp. 4-5. It is a more appropriate label than "judicial control," for it emphasizes the important fact that this doctrine of control does not point only to an increase of judicial review of administrative decisions and actions. This doctrine also emphasizes the necessity to impose upon the administrative process procedures and safeguards that have been traditionally associated with purely judicial organs in order to struc- ture the process of administrative decision-making for the protection f Private rights. 1 1}. |’.|l|1|tll III .14 . s . . c . . o . o. 0 a M. hf! an.“ «8 4 O . t . 0 . . . u .n . I .n. 0 flu . .c O ...L\. . .5\ a‘\ FL '1 F m .\. . . m I o o b I .M. .o l AIR N . . a I ' ‘ g u r a .nd » . . . . w . . . .3 c 5. . . . . . . . ru L. . . . o M N . a 8 .9a r. r. . .u .C ‘a .r. .3 ,L o; p. L. .3 1.. . . .v. .L , in. .L a r .. . .a . . o . pg .7. . . . .FU «3 «x . a r a I s p . r A v . . a H i 0 p». . a h a uh.- . 4 .l h A o o .1 . . J . ~ . . w. . a . h t t ”in _ ..b1 . . . .9. ”\k. a .. v" a 'Vlu. . J .u. .u uh. .n; .. H r punk. 8 .J - L. . . ,. . . n.- .. . . . .113. w ..o VN 'i u v. A a a .J N . ".1 rd . D. u; .. up. an t .- .n. I¢ . a . . P. . 5.. 5N . . . n... m. u . .. . n. o uas Pu.» . A h r . a nu . "”3 P .I P . . ..-h _. s. M. .... .... a... .. . -. .. 7. .... . : .. . . . a .n. u u o c . cu . .b. uh. 5.5.. .u .. Ni. ‘ n .1 .- . a M q.‘ . aax a! n.t I. II The legislative control doctrine includes two major claims. The first concerns political reaponsibility. It states that legislative control and direction of administrative discretion will insure admin- istrative decisions that reflect the consent of the governed. The second claim focuses upon the constitutionalityof a system Of legis- lative control. Such a system, according to the legislative control doctrine, coincides with the constitutionally established pattern of relationships between the chief executive, the legislative body, and the administrative organization. It is the major purpose of this study to determine whether either of the two devices making up the practice Of congressional oversight fulfills these two doctrinal claims. This evaluation rests upon two categories of description and analysis. In the first place, the deveIOpment and use of each device is described. This is ac- companied by an analysis of the structure and operation Of each de— vice. In the second place, the arguments presented by supporters and Opponents of both devices regarding the question of constitution- ality will be surveyed and analyzed. This provides a setting for the major task of evaluation. The aCtual Operation of each device can be measured against the norm of political reSponsibility contained in the legislative control doctrine. The various arguments concerning the question of the constitutionality of both devices can be used as a basis for testing the second claim contained in this doctrine. It will be possible, in this way, to determine whether either form of congressional oversight fulfills the two major claims Of those who espouse the doctrine of legislative control. Chapters V to IX. which constitute the heart Of this study, are preceded by three preliminary chapters. Chapters 11 and III are con- cerned with an analysis of the doctrine of legislative control in order to present the major framework within which congressional oversight will be evaluated. The contemporary scheme is presented in Chap- ter III. Its examination is undertaken in conjunction with analyses of the two other major doctrines of the present era. By presenting the legislative control doctrine in its relationship to the other two schemes it takes on a fuller meaning and significance. All three contemporary doctrines, however, are closely related to earlier schemes for the control Of administration represented by the writings of Frank J. Goodnow, Ernst Freund, and William F. Willoughby. The present doctrines are primarily elaborations of the implications contained in these schemes that emerged early in this century during the formative period of the study of public ad— ministration and its recognition as a distinctive subject. As a re- sult of this relationship, the present theories of control become more meaningful when viewed in the context Of their historical de- velopment from the earlier thoughts on this subject. Chapter 11 ““18 deals with the genesis of the present doctrines. The material in Chapter IV rounds out the preliminary dis- cussion. It focuses upon an analysis of English experience with parliamentary review Of subordinate legislation. This furnishes two useful aids. In the first place, it presents an Opportunity for a comparison between the structures and operations of the two sys- tems Of legislative control. In the second place, it provides a basis for comparison on the important issue of political reSponsibility. Such a comparison furnishes a broader basis upon which to make a final assessment of the American practice on this important issue. The central part of the study is found in Chapters V through IX. Chapter V contains a description Of the device of review by resolutions and an examination of its Operation. This is accompa- nied by an evaluation of this device in terms of the norm of political reSponsibility. The material in Chapters VI through VIII concerns committee clearance. The first two of these chapters describe in some detail the examples of the use of this device. Chapter VIII Sets forth the actual patterns of review and clearance that have evolved and assesses their coincidence with the norm of political reSponsibility. Chapter IX contains a survey and analysis of the arguments that have been presented to support or Oppose the consti- tutionality of both forms of congressional oversight. It also includes a Presentation of the major patterns of arguments that can be used ‘ Q ~- ' '7 - I 1 \ .- “' on -g ‘ . ! I-u- .0.__. v“ V F ,. v 5‘ HI Ht‘I- .. -'-4 .. - ‘t ‘ " c. r» “5.! .—v..‘ .. ‘ ‘5'. fl‘. I..- l w ‘ my u...,“- ~._ ~ ~Lu2. _" ..‘..,_.‘ . I It. IL]- f I V.‘ I r- systematically to approach the question of the constitutionality of the American practice. Finally, a word must be said about the data used for this study. Since congressional clearance has received little attention in the literature Of political science, the greater share of the pub- lished source material was gathered from various official govern- ment documents. The annual volumes of the United States Statutes at Large from 1930 to the present were searched in order to obtain an enumeration of the instances in which review by resolutions and committee clearance have been used. The ILnited States Code was utilized to trace derivations and check on pertinent amendments. The legislative history of each piece of relevant legislation was obtained from the United States Congressional Record. The Federal Register and the Code of Federal Regllations also furnished sources of additional data. A total of thirty personal interviews with professional staff members and counsel of all the major congressional committees, and with officers of the United States Bureau of the Budget and Several executive departments of the national government, also Provided invaluable information. Such personal conferences were important for two reasons. In the first place, they furnished a check upon the accuracy and thoroughness of the search of the "‘ 'I‘. Q ‘ "r . ._ ‘ ‘ - .lg.~.~ 1 I. v n “ ' \. a ‘P 8‘... ‘~ . - ~' .0. a. c 0,; ‘ . . no. at .1. ~_.‘ h. *"o o- '4 I“ _ ‘ O F ‘ ""1- .. ~ I‘ lpn 0" ‘P"- ‘3. I ‘ . I l ‘4 “" n~u .1 .... ‘I .. . A a. u v ‘ ‘. “ ‘..' .¢~.A~ i -».-.'..~v ' ‘ ~ . | b -‘ ‘MV. \O..\_.‘ ‘. ~‘-‘ ‘~"-. .P P . ‘1' y ...-€ U- .~. .1 t in. ni- .,~ C PL-~ ‘\ .‘AE. ~‘L'IA U “ e. - ‘ .\I. ~ .. .l‘ L.» 1““ -”y‘ 2 ‘n..“. ’4 I4 I ! .- "‘...-N 5: .' v "n J L c 4. .PA . c d .n'.‘A .3: h, 5'; .. ' h... “.*— ‘ - ._‘. ‘ ‘ 8". u“. .‘ d,I-F., ~,_. -g A .~ A u h __ . \‘ ..‘ P..- I'M‘k L. - . _, ‘- . ‘ .. ‘f‘s. ~ g I‘ '3' ._.~ "" J , " c statutes. Secondly, they provided an excellent opportunity to acquire supplementary information concerning the actual Operation Of congres- sional Oversight that was unavailable in any published form. Such secondary sources as were relevant to the central prob- lem of the study also were utilized. They included published material relating to the subjects of public administration, administrative law, and the organization and Operation Of Congress. Professional jour- nals in the fields of political science and public administration were consulted. A search of the law journals provided several articles concerning the legal and constitutional aspects of congressional Over- sight. Congressional clearance Of administrative decisions by reso- lutions and legislative committees represents the organizational em- bOdiment of the contemporary doctrine Of legislative control. The Presentation and analysis of this scheme should lead, therefore, to a better understanding and more meaningful discussion of congres- Sional oversight. But the doctrine of legislative control, in turn, is best comprehended in terms of its relationship to the alternative doCtrines of presidential control and the judicial formula. "—1 fl..-._-- ‘— - ' CHAPTER II THE GENESIS OF THE DOCTRINES OF CONTROL OF ADMINISTRATIVE DISCRETION The three dominant doctrines in the United States that pres- ently Offer alternative solutions to the problem of the proper continu- ous control of administrative discretion have roots that reach into the past. They emerged in embryonic form in the writings of Goodnow, Freund, and Willoughby, early pioneers in the study of public administration. The contemporary doctrines are based pri- marily upon an emphasis and elaboration of the basic implications contained in the earlier schemes and are, in part at least, the re— sult of this heritage of the past. The present doctrinal competition becomes more meaningful, therefore, when viewed in the context of this historical relationship. Frank J. Goodnow and Presidential Control Goodnow was one of the first students of government to rec- Ognize and analyze the emerging function of administration. His thot-lghts on this subject were based upon related concepts drawn from his interpretation of the administrative process and the place 8 ofivuw v - ‘ G .F.. '4: 'v. . t .. LA. '0- "O. p; 7-. K.._ v. . F;:. va- ..‘ '3» .- .2 | I I "'r-o V‘ -1 “ O‘. . ,‘ -_“ ‘ a“ . -,.'_ '* --" 2.. . M .‘ A v' ‘I‘. . dl,“.‘.u - .:. .- 4 “"- d Weh‘ l . “-2 23.4- . ... “- . .. 'k “S.v\r. .'- . oJ._ a n. . .5 n..-_. 'M.""‘ a “H 55 .‘: >0 ’1 ‘o I ‘..‘= ‘1'". '- ‘u. - ., '. C 0“ t 4‘ fit of administration in the constitutional system of the United States. These concepts, in Goodnow's mind, formed a distinct field of study that he called administrative law. In one Of his. major works he declared: The present age . . . is devoting itself primarily to the questions which are generally referred to as "administrative." A function of government Called "administration" is being dif- ferentiated from the general Sphere of governmental activity, and the term "administrative law" is applied to the rules of law which regulate its discharge.1 Goodnow must also be credited with providing one of the first and most definitive studies of the relationship between the position of administration and the constitutional powers of the chief executive. He investigated, in a detailed manner, presidential powers and ad- ministration, and set forth a conceptual scheme concerning the con- tI‘OI of administration at the dawn of the twentieth century that em- Phasized presidential control of administration. Goodnow's entire analysis was based upon an investigation of the basic functions of a governmental system. The concepts that he fOrmulated from such an investigation provided the foundation for his theory of administration. After pointing out the many important exceptions to the simple categorization of governmental powers into \ 1‘ 1Frank J. Goodnow, The Principles of the Administrative Law 1% United States (New York: G. P. Putnam's Sons, 1905), p. 1. 11111711.} I . . . . . t . a o r L . o. .N "h. n. . w. c ‘ “an H A .n. . “c I . a» ._.. C. a r .. o . .u . .3 -\u . . _ . . N ha . u .u. . r $.. .- .. s. w. .. .P. #1.. u . 1.. . . a. . J .. .. r... .u a a .L .. . . a . s .. n“ p w u. .c. .. . 2“ LL ”L PU » . 1.. n1 -. . 5.. . é. . a . a}: .2. r.. C. . . . . L. .2 p .... .\s . .1 .4. .. x - : . 1. .4 n4 .. .1 .. . L. .C .V. I . . ..\~ rv~ . . 5.. !i .L . p 5. n-. .u. h i . \ .-. ..u.. . a. .nn "8 . . 0:. In...“ on m II. .- . o n a H... a .. s51 . a V. \ - v a O "an” o u c n w: as?“ u ._ i. l. .. c. .N .. \\.. w... .- . \h \ u” n” .. ..2 wt. «.4. st. a .n“ u" T... L. N. . .2. 4.. .\. . |l . 10 three departments, Goodnow declared that any political system could be reduced to two basic functions. The initial function was that of expressing the state will; the other concerned the execution of this public will. Goodnow labeled these two functions, respectively, "politics" and "administration.”2 These two functions, moreover, were primarily related to separate governmental organizations. The primary concern and duty of the legislature, in Goodnow's analytical scheme, was the expres- sion of the state will. The function of administration was performed 3 by "the executive organization of the state." zGoodnow's book, Politics and Administration (New York: The Macmillan Company, 1900), contains the most extensive consid- eration of this whole functional differentiation. Cf. Dwight Waldo, IE Administrative State: A Study of the Political Theory of Amer- 1331 Public Administration (New York: The Ronald Press Company, 1943), pp. 104-129, for a review of the separation-of—powers doctrine in the writings of Goodnow, William F. Willoughby, and others. 3Frank J. Goodnow, Comparative Administrative Law (New York: G. P. Putnam's Sons, 1893), I, 5. It is important to note that Goodnow recognized that it was difficult to assign each function cornpletely to a separate organization of government. Goodnow Stated quite clearly that "no political organization, based on the general theory of a differentiation of governmental functions, has eVer been established which assigns the function of expressing the Will of the state exclusively to any one of the organs for which it Inakes provision." Goodnow, Politics and Administration, p. 15. The executive authority often has a power of ordinance which allows Participation in the expression of the state will, and the legislative body. in one way or another, Often participates in the executory furlotion. .. IKI. .' j.” ’ I a M U“... -o "-n. _ ‘ i "- ... ' .v-., o ’v- u. ._ . . . 4. h...“ h - -. w t aw, ‘ .P ~.H- “O 11 The function of the execution of the state will, or, more sim- ply, administration, was not associated with the expression Of the state will. Administration, according to Goodnow, did not involve the power of decision- making in areas of subordinate policy. It was merely the implementation of the state will, and the executive branch became simply the organizational means for accomplishing the policy objectives arrived at through the function of politics. Administration was viewed primarily as the realm of quasi-judicial decisions, or the application of general classifications to particular situations, Of scientific and technical decisions that simply provided the means to predetermined goals, and of the commercial activities 01' government analogous in Operation to private business. The important consideration in this area of governmental ac- tivity was the efficient and uniform implementation of the state will. Furthermore, since it involved no decisions or actions that affected the expression Of the state will and it involved no political choices, Goodnow stated that administration should be free from political interference and partisan considerations. These combined values Of efficiency and freedom from politics could best be achieved if the f1lnction of administration were performed by a corps Of permanently tenured officers, chosen on the basis of merit, who "9‘.." t fl" “Th“. 8 .\ \J‘-‘ ' I ‘a g .5 '— . . | H \ EA!» -. n“ - A . Mu. ‘: .: . . :E 4“: ' c. .- u‘s...\,.§ .; ’a .. 0. “..t J.- v 12 . should be free from the influence of politics because of the fact that their mission is the exercise of foresight and discretion, the pursuit of truth, the gathering of information, the maintenance of a strictly impartial attitude toward the indi- viduals with whom they have dealings, and the provision of the most efficient possible administrative organization. Goodnow found a similar functional distinction when he turned to a consideration of the constitutional powers of the President. He claimed that the executive power, embodied in the presidency, was actually composed of two related functions. These two functions, defined as the political function and the administrative function, cor- responded with the dichotomy that Goodnow had found in the realm of administrative theory. Relying upon M. Aucoc, a French writer on administration, he declared that the former function related en- tirely to expressing the general policy of the state in important fields of governmental activity. The political function, in other words, 4Ibid., p. 85. The discretion Goodnow referred to was not that of sub—Ordinate policy-making. He spoke of discretion in the context of administration that “embraces fields Of semi-scien- tifiC, quasi-judicial and quasi-business or commercial activity-—work which has little if any influence on the expression of the true state will." Goodnow's scheme thus epitomized what Herbert Kaufman has called the doctrine of neutral competence in the literature of Public administration. The results of the Spoils system in admin- lstration, according to Kaufman, led to the emphasis upon the value of nonpartisan, permanently tenured government officers insulated from politics while executing government policy. The theoretical rationale for this normative goal was the dichotomy between politics and administration. See Herbert Kaufman, "Emerging Conflicts in the Doctrines of Public Administration," American Political Science w, 1.1 (December, 1956), 1057-1074. 13 involved political choices and judgments of a policy nature that ex- pressed the state will, in particular areas of the political process.5 The administrative function, on the other hand, was associated with the efficient and impartial execution of the laws. It involved no policy decisions, but rather referred simply to the implementation of political decisions. The administrative function was composed, therefore, "almost entirely of a scientific technical, commercial, or_ quasi-judicial character." 5Goodnow quotes Aucoc in this regard: "When we distinguish government from administration, we mean to put in a special cate- gory the direction of all affairs which are regarded as political-- that is to say, the relations of the chief executive authority with the great powers of the government: the summoning of electors, for the election of senators and representatives, the closing Of the ses- sion, the convocation of the chamber of deputies and of the senate, the closing of the senate, the dissolution of the chamber of deputies, the carrying on of diplomatic relations with foreign powers, the dis- Position of the military forces, the exercise of the right of pardon, the granting of titles of nobility." Goodnow, The Principles of the édinimstrative Law . . ., p. 66. ’ 6Ibid., p. 68. Goodnow once again quotes Aucoc to illustrate this funcm: "The administrative authority has a mission altogether different. It is charged with providing for the collective needs of the citizens, which the initiative of individuals or associations of individuals could not adequately satisfy. It must gather together the resources of society, both in men and money, in order that so- ciety may continue to exist and make progress. It must play the pan of the man of business of society, in its management of the vel‘ious public services, as, for example, in the matter Of public “’eI‘ks. It must take measures of supervision, and must, through the exercise of foresight, preserve the property designed for the “Se of the public; must maintain order and further the general pros- I3er'ity.“ Ibid., pp. 67-63. 5 I . 4.. R: ‘~ ’5’ Ova.“ ufl "Hp-p- ,. 57;...1‘ .. III no....... ... 5,. a. u I~;'O .’ .y. u. 0,. . hf: . ‘ .3: '7 u ‘ _ 1 "W‘H .7. . if g‘c““-‘:m ~o; 1- . _ I 1 ,r ,.'_l . t p“? a. ' u a: 1. O . “w I _.. b. «16 .W—LE 5.-. H 7‘ 1‘7... A ‘--.."“" ' “ hum“... m ‘fi ’. H ' ‘ ~ I". \1‘..‘.- 9-” “-.‘ y La“. . . ' ". Q‘H R. .i “ .l . ‘Ehfi-Fn. az. ‘~ a d.'.. V.- ‘ u I ‘- 1:. '1 ‘ -h . “'~F’\‘-‘ '\‘.:’ _’ n v 'v- If ‘t '6 c .,__ vuh O . 1'”: V'- t“. ‘I L ‘u - - Hv. . . ‘1 LI; -1, 'I. A «c‘ ., ‘ ~J~L g 14 The executive power of the President, according to Goodnow, was defined by the dominance of one or the other of these functional categories. He believed that the political function was the basic element in the conception of the executive power of the American President at the time the United States Constitution was written. He claimed that the framers of the Constitution modeled the execu- tive power given to the President after the powers of the governors of the state governments in existence at the time of the Constitutional Convention. After a study Of the Office of governor, as found in the early governments (of Massachusetts, New York, and Virginia, Good- now concluded that their powers were almost entirely Of a political nature and did not include any powers of an administrative chief or the headship of the administrative functions of government. Since the position of the state governors defined the conception of the executive power, he thus reached the conclusion that the President possessed only political powers and duties. The American conception of the executive power prevailing at the time of the adoption of the commonwealth and national constitutions, as evidenced by the examples which have been ad- duced, correSponded with that part of the executive power which has been called the political or governmental power.7 7Goodnow, Comparative Administrative Law, I, p. 59. Cf., however, Charles C. Thach, Jr., "The Creation of the Presidency, 1775-4789: A Study in Constitutional History," Johns HOpkins 15 Goodnow could find little substantiation for the opinion that the President was granted administrative powers by the Constitution. University Studies in Historical and Political Science, Series XL, No. 4 (Baltimore: The Johns Hopkins Press, 1922), pp. 118-125. Thach presents several pieces of evidence concerning the debate and prOposals in the constitutional convention that furnish substantiation for his interpretation that the envisaged presidency, contrary to Good- now, was to be the Office of the administrative chief of the national administration. Later studies of the practices during the early years of the national government also cast considerable doubt upon Good- now's interpretation. The conception Of the executive power of the President held by a majority of the members of the early Congresses and leading figures of the executive branch under the Federalist ad- ministration, many Of whom had participated in the Constitutional Convention, included the view that the President was to be the ad- ministrative chief of the national administration. This view, for example, was consistently written into law in the early statutes. The statutes almost always required that the President was to make the final decisions in matters of administration: "The laws required all major and many minor decisions to be made‘by the president himself; his agency was involved at every turn." Leonard D. White, Tim; Federalists: A Study in Administrative History (New York: The Macmillan Company, 1948), p. 18. The early practices. in the executive branch also manifested this conception of the executive power: "No department head, not even Hamilton, settled any matter of importance without consulting the President and securing his ap- Proval. All of them referred to the President numerous matters 0f detail as well as large and many small issues of administrative Policy." Ibid., p. 27. See also James Hart, The American Presi- diflcy in Mn, 1789: A Study in Constitutional History (New York: The Macmillan Company, 1948), pp. 134-143, for an account of Washington's actions as the head of the national administration dur- ing the first year Of the Operation of the national government. See further Lynton K. Caldwell, The Administrative Theories of Hamilton and Jefferson: Their Contribution to Thought on Public Administra- 293 (Chicago: University of Chicago Press, 1944), pp. 1-101, for a d‘i‘tailed analysis of the views of Alexander Hamilton, as a leading arehitect of the Federalist theory, on the presidency and public administration. 16 The constitutional powers of the chief executive in the American na- tional government did not include authority to direct and control the administrative activities Of the government. The investiture of the executive power by Article II of the Constitution, for example, gave the President ”military and political power rather than an ad- ministrative power."8 Goodnow also maintained that an analysis of the succeeding grants of Specific powers in Article II reaffirmed this general conclusion. These Specific grants, rather than Specifi- cations of an otherwise undefined executive power, provided the defi- nition of the executive power, and they were similar in nature to the powers granted to the governors of the states.9 The power of appointment was the only Specific constitutional' power granted to the President that referred to any presidential duty relating to the function Of administration. Even this power did not belong solely to the President, however, for the President shared it with the Senate in important appointments, and, in the case of infer- ior Offices it was subject to the will of Congress. After a thorough k 8 Ibid. , p. 62. 9"These are the same powers possessed by the governors of the commonwealths. They are the power of military command, the diplomatic power, the limited veto power, the power of pardon, the Power to call an extra session of Congress, to adjourn it in case Of a disagreement between the houses, and the power to send a message to the Congress." Ibid. 17 investigation of the executive power of the President expressed in the United States Constitution, therefore, Goodnow declared: It will be seen, from this enumeration of the powers given to the President, that the conception of the executive power held by the framers of the national constitution was what has been spoken of as the political power and the power of appointment. Beyond the power of appointment the President had, so far as the express provisions of the constitution were concerned, no control over the administration at all.10 Goodnow recognized, however, that later political deveIOpments had changed this early constitutional position Of the President. The President had, in fact, become an administrative chief. This presi- dential role had evolved from several important sources. In the first place, Goodnow found that legislative policy had increased the presidential administrative power. Congress had passed many stat- utes that conferred duties and powers upon the President directly in the execution of the laws. Other statutes passed by Congress granted the President authority to supervise and direct the details of administrative activities performed by subordinate agencies in the executive branch. By far the most important and influential develop- ment, in Goodnow's mind, however, was the congressional decision 01‘ 1789 that the removal power was vested in the President as part Of the executive power. This decision was announced by Congress \ 10Goodnow, The Principles of the Administrative Law . . ., P- 75, 18 during the legislative debates concerning the organic statute es- tablishing the early Department of Foreign Affairs. This im- portant conclusion was made by the legislative body that in- cluded in its membership many of the framers of the Constitution, and Goodnow viewed the decision as a constitutional interpretation of the first order. This interpretation of the constitutional powers of the chief executive established the President as the effective head of the administrative branch Of the national government. This factor in the evolution of the presidency, moreover, was far different from the earlier factors that Goodnow mentioned, for the former factors involved matters of legislative policy, while the possession of the removal power was a point of constitutional imperative. llSee ibid., pp. 75-82, for Goodnow's discussion of these Points. Cf., haw—ever, James Hart's study of the congressional de- bate concerning the establishment of the Department of Foreign Affairs. The issue of the President's removal power was argued in the debate concerning this department, and the conclusion was then applied to the bills establishing the Department of War and Department of Treasury passed in the same session. Hart's analy- Sis reveals that the passage of the bill setting up the former de- Pat'tment (and containing a recognition of the President's power to renlove the secretary of the department) was based on a majority of twehty-nine votes classified as follows: (1) Fourteen votes were cast by members who were legislative-grant prOponents--i.e., advo- cates of the theory that the Constitution vested in Congress, the body that Created all nonjudicial officers, the power to provide for the rt’meval of such officers by any method that it deemed desirable; (2) an equal number cast by members who advocated the theory that the POWer to remove such officers at pleasure was vested in the 19 This important addition to the President's constitutional powers had significant consequences. Since it stemmed from the Constituion, it outweighed any legislative declaration concerning the relations be- tween the President and administrative subordinates. Goodnow rec- ognized this point when he discussed the later congressional decision to establish a Department of the Treasury. This organic act made no mention of the President's power of supervision and control over the Secretary Of the Treasury. It also contained no grant to the President of the removal power. In Goodnow's mind, therefore, the Secretary of the Treasury was con- ceived by Congress as an agent of the legislative body. He thus stated that a basic distinction had been made by Congress between those departments that were organizational means for the execution 0f the President's political powers and those departments that were to Serve as congressional agents to implement and execute congres- sional powers.l \— preSident by deduction from the constitutional clauses of Article II “143., the constitutional-grant theory; and (3) one vote cast by a member Hart classified simply as "for the President." Hart, The wan Presidency in Action . . ., p. 208. Goodnow's contention that the "Decision of 1789" interpreted the power of removal as a h°h8titutional power Of the President is, therefore, based on rather 1hStJIbStantial grounds. As Hart concludes: "It supports the consti- tutional-grant theory, though not necessarily against the theory of Wislative control." Ibid., p. 213. 12 See ibid., pp. 77-79. 20 Goodnow declared, however, that President Jackson's removal of Duane, his Secretary of the Treasury, during the controversy concerning the removal of the funds from the second national bank had actually eliminated this distinction.13 The legislative declara- tion, represented by the congressional refusal to explicitly provide for presidential direction and removal, was effectively subordinated to the constitutional power of the President, and Jackson's action clearly pointed out that the President had evolved into an effective head of the national administration. The inferred distinction between the departments was abrogated, and Goodnow declared that "Pres- ident Jackson was able, through his power of removal, to exer- cise a power of direction as effectually over the head of the treas- ury department as over the head of any other department Of the government.‘ '1 4 3Leonard White gives a fairly detailed and very interesting account of this whole episode. See Leonard D. White, The Jack- M3 A Study in Administrative History, 1829-1861 (New York: The Macmillan Company, 1954), pp. 34-37. 4Goodnow, The Principles of the Administrative Law . . ., p. 80- Goodnow declared that the congressional repeal of the Tenure Of Office acts in 1887 reasserted the original interpretation of the I‘emoval power. These acts, in existence for twenty years, had the effect of temporarily weakening the President's power, but "the comPlete power of removal had existed so long as to determine the Position of the President in the national government. . . ." Mu p. 77. 21 The political and constitutional develOpment of the presidency, based primarily upon the addition of the removal power, thus trans- \ formed the chief executive from the organizational embodiment of purely political powers into an effective and reSponsible national administrative chief. Goodnow also recognized (and approved) that, as an important consequence of this develOpment, the removal power fashioned the President into the central director and supervisor of the hierarchically organized administrative activities Of the national government.15 Centralization and hierarchy were concomitants of the new definition of the executive power. Goodnow concluded that: The executive power in the United States, so far as the national government is concerned, embraces both the powers of which it may in theory be composed, and the chief executive authority is at the same time the political and administrative chief of the government, and has under his direction and control the actions of all the officers of the national government.16 5"The tendency toward administrative centralization should therefore be encouraged and not hindered." Goodnow, Politics and Administration, p. 130. This development served two basic goals in Goodnow's mind. Central control and direction by the President en- hanced the efficiency and uniformity of administration, and, perhaps more important, it reduced the necessity Of political interference in theadministrative process. The necessary harmony between politics and administration could be achieved, according to Goodnow, under such a system by party control of the legislature and presidency alone, and, due to administrative centralization, the President could direct and control the subordinate administrative officers. 16Goodnow, Comparative Administrative Law, I, pp. 69-70. 22 Goodnow‘s analysis of the emerging function of administration thus led to an emphasis upon presidential control of administration.” This major conclusion was based, however, upon a rather limited view Of administration.18 One of the most important elements in Goodnow's scheme was an interpretation of the administrative proc- ess that separated political functions and administrative activities. This latter category of his theoretical dichotomy had no relation to the expression of the state will. It was the realm of administration, and the focal point of his concern was the efficient and uniform im— plementation of the state will as expressed by the political organs of the national government. When Goodnow Spoke of presidential con- trol of administration, then, he referred primarily to this concept k 17Although he recognized the area of judicial and legislative control of administration, Goodhow devoted less attention to these two problems in his major works. Judicial control was oriented toward the protection of private rights through the regular courts. Goodnow envisaged legislative control as consisting primarily of legislative investigations of special abuses through legislative com- mittees, legislative control of the finances, and the impeachment Power. For his discussion of all three types of control see Goodnow, The Principles of the Administrative Law . . ., Book VI, "Control Over the Administration," pp. 367-463. Nathan Grundstein concluded, after a study of Goodnow's theor‘y of the relation between presidential powers and administration, that "he spoke of administration within the logic of efficiency and he had in mind the efficiency of a hierarchically organized admin— istration staffed by professionally qualified Officials." Nathan D. Grundstein, ”Presidential Power, Administration and Administrative Law”: Gegge Washingtfon Law Review, XVIII (April, 1950), 295. 23 of administration, and presidential direction was related to the goals of efficiency, uniformity, and impartiality. He looked to presidential control to "obtain harmony and uniformity in administrative action, efficiency in the administrative services, and uprightness and com— petency in the administrative officers."l DeSpite this rather limited view of the function and goals Of administration, Goodnow's analysis did contain important implications for a theory of the control of the uses of discretionary authority by executive agencies. He did refuse to accept an early enunciation of the concept of the complete unity of administration and presidential direction. After quoting an Opinion by Attorney General Cushing to the effect that the President's will was to control all acts of the de- partment heads, Goodnow declared: This is of course an extreme view, and it is probably not meant by it that the President has any diSpensing power by which he may relieve an officer from obeying a positive direc- tion of law, since the law, when constitutional, is always above an executive order. . . .20 l9Goodnow, The Principles of the Administrative Law . . ., P. 373. 20Ibid., p. 81. The Opinion is quoted by Goodnow, and reads, in part, a-s-f-ollows: "I think . . . the general rule to be . . . that the head of department is subject to the direction Of the President [this was said in relation to duties imposed by statute upon a head 01' a department]. I hold that no head of department can lawfully Perform an official act against the will of the President and that Will is, by the constitution, to govern the performance of all such acts." Ipid. ,. . .,..-o-:o..." :I..-:.... .1- .1. ...,-,. ,.,_ r‘ .t...:. .UL, I, 6 ft ‘_1 OI¢4y._ A T" r'.. a "‘w “Ett‘ ““tgt U- ) .., ‘ ‘ i ”. V huh-hgv. :‘n- t . -~, .‘ L '~.-o. . mama. “““r‘ I « 'I‘hY“ '“eww Wffi'e v. _‘ ‘Hs. ‘ Q - Var: .. t '“I.” cc.” . a I h. 3‘ .os...‘!:'e r“, . \._ 1 ... ,_ ‘t HQ: n \A\ C‘-P;. Jug, “. . "“- \“ 3;, :3 I . ' , s 9‘; 24 Goodnow, therefore, did not believe that the presidential power of administrative direction included the power to absolve a subordinate from performing a ministerial duty. The outer limits of this presi- dential power were evidently defined, in Goodnow's mind, by the Z majority Opinion in Kendall v. United States. 1 The implications of the removal power within these broad limits, however, suggested a system of the control of administrative discretion that pointed toward the presidency. Since there was no judicial limitation upon the President's power Of removal at the time 22 Goodnow wrote, similar to that enunciated by the Humphrey case many years later, Goodnow's scheme contained an implicit theory of a complete presidential control of administrative discretion. A con- tinuous control of administrative decisions and actions by the Presi- dent extending to the limits of the removal power was inherent in the Goodnovian analysis. Goodnow, perhaps because he was concerned with the twin goals of efficiency and impartiality, did not draw out or dwell upon this basic. consequence of his analysis. It was never mentioned ex- plicitly, for example, in any of his discussions of the forms of 2 1Kendall v. United States, 12 Peters 524 (1838). zzHumphrey's Executor v. United States, 295 U.S. 602 (1935). - u 0’ ‘4 ‘FW'F t :-'—.J. V: ‘%0a o-‘l ' \ "'" 'FI‘"’W«- ' V ’ . - :- ~4- .a‘...u.__ . '1'!" ops. .,.,,, _ 7 I 11‘ " "' '“‘* n-.\... u..- . , w . .tt... 1' .F'F. ' Or 9 -.. .. ...~ “‘-|—- 0 ‘ '1 4 .C t.. ... G ‘ ' A” -‘ . . J-'.... .3 65‘ K: 14* 7‘ A. J. “Mm ‘ “§. ' I I;‘ 9“ h... vu :u‘ “IE f."‘ .1 v. ‘_ ». “0-“ ‘01. N1 \ .-,. _ A‘d‘~ Ch}. :04" by .- ‘ ~- 1 ' ‘: Pic... . t ‘ :‘Lwa .. - I 1,. .J ‘A‘ ' . . ‘J. 3‘» .: ‘. I ‘. .n A=.'.- ‘ ~-:;_. 6 p C ‘I - . J H ‘c' " ._, 3... :)~ . 4‘ “1.47, I. J‘E l .. n ' Hare '- “ r. '\"— r’Jar“ ‘1‘}. .' ~7- ‘K. - 1 I. .- J1. | ‘ g. 25 control Of administration. Moreover, when he discussed the control of the ordinance-making powers of subordinate executive Officers, powers that involved the formulation of subordinate policy and thus epitomized discretionary authority, Goodnow also did not bother to mention the implications of the removal power as a form of con- trol. Goodnow thus emphasized the presidency as a source of con- trol of administration, but it was the control of an efficiency engin- eer and the organizational insulation of administration from the invidious consequences of the Spoils system, not the politically re- Sponsible presidency that coordinated and controlled administrative discretion to assure accountability to the political bases of govern- ment. The basic implication of Goodnow's scheme certainly pointed to the President as a controlling mechanism for the latter type of control, but, if he recognized this consequence of his thoughts, he refused to elaborate upon it. A more complete doctrine of presi— dential powers and the unity of administration was yet to come. 23Goodnow, The Principles Of the Administrative Law . . ., PP- 327-328. It is difficult to see why Goodnow overlooked this im- Portant point, for he touched upon it directly in his discussion of Jackson's control of the statutory discretion delegated to the Secre- tat‘y of the Treasury. See 19:12., p. 80. "7.. ..,-. . V i... o UV >.-o....." r... .I‘ n u I. .u .1... V -..—.c . . -. . u ”- I: ‘th ‘“-5. t“ ' ' I. ' M u n U". . . Lad t‘...’:.* I I “.M,;~‘. ‘ a ‘g'~~1lc‘.‘e “-: .q. ,_ ‘ h ' It‘ Pa ~ “'~‘| at.“ .‘.: ‘u. 7 B_..‘ 544...“! . J . . ”8 fl “' ‘ — w“ p. - .1. a... G2,, A. I V .. I t. “f. .h‘. .P I- ‘.-. ‘J ‘ s. .‘- uo ' '-==' W. - u u uh": :tn" . .- .’ a ‘ a Ru 3)"! P...’ . 4 It. . d. ‘-..._ 26 Ernst Freund and the Judicial Formula The writings of Ernst Freund, another early student of ad- ministration, began to trace out the major outlines of still another contemporary doctrine of the control of administrative discretion. Although Freund wrote an early essay on the consequences of ad- ministrative centralization for the control of administrative discre- tion,24 most of his writings contained animplicit scheme that pointed toward a differently institutionalized form of control. Freund was primarily concerned with the consequences of ad- ministrative discretion for the personal and private rights of the citizen, and his studies were motivated by a predominant concern for the protection Of such rights. This motivation formed the basis for two contributions that Freund made to the fields of public adminis- tration and administrative law. In the first place, Freund was one Of the first to emphasize the intellectual discipline Of administrative law as separate and distinct from public administration. He thus began the separation of the concepts in these two fieldspthat Goodnow had so carefully formulated into a single and related conceptual sys- tem. Freund molded administrative law into a discipline concerned Z4See Ernst Freund, ”The Law of Administration in Amer- ica." Political Science Quarterly, IX (September, 1894). 403-426- at :1: study a! :11: m the a: ‘ rats “The ch, he: branches .i} is subject-matte “trimaran-e he ation."15 This er; h has of 1*, i011 and “31er that“ 10 the titration in c an m. “R: tm 0t Per . 5113: '~ 0‘ a: 27 with the study of judicial decisions that established the legal limita- tions upon the administrative process for the protection of private rights. "The chief concern of administrative law, . . . as of all other branches of civil law, is the protection of private rights, and its subject-matter is therefore the nature and the mode Of exercise of administrative power and the system of relief against administra— tive action."2 This emphasis upon the protection of private rights was also the basis of Freund's second contribution to the study of administra- tion and administrative law. It prompted him to devote considerable attention to the problem of how to structure the use of administrative discretion in order to limit and control it. He believed that discretion, in a governmental system based upon the ”Rule of Law," was "unstandardized power" over private 26 rights of person and property. Such discretion had little place h 5Ernst Freund, Cases on Administrative Law (St. Paul: West Publishing Company, 1911), p. ix. This definition should be Compared with the wider definition given to administrative law by Goodnow as represented in the table of contents of his book entitled ZELPr-inciples of the Administrative Law . . ., supra, n. 1. 26Such discretionary power over private rights Freund de- scribed as undesirable per se and should be avoided as far as may be, for discretion is unstandardized power and to lodge in an official such power over person or property is hardly conform- ahle to the 'Rule of Law.‘ " Ernst Freund, "Historical Survey," kGrowth of American Administrative Law, ed. Ernst Freund _e__t_ 91- (St. Louis: Thomas Law Book Company, 1923), pp. 22-23. 1.7 t 3'9 u Kw o 4'» cu- ... l' " a " I 4-” ,.. " v - v - A - ”tv'p’ ‘0 :-~~r . ‘ . u-‘ 5 ‘. nu.” "SN- 0... a y "" I "'N‘ u. .._,_ . 5-, .o... . r;’ Y“. .. .g r . - b a... " .. : a»... ‘ “I“ «E q. ’ - .._~“ u; \. . I‘m. ; ‘wn-F.‘ “‘ .1.,. “ ' u v... . .‘d‘ v .1 -. N 3‘ Fa ‘ i ‘ '5 . te‘. o P~ . ‘ "~~.‘ n“ - \. .h‘.‘: I .~ I . ' "‘..: f ‘r . g u“ 28 in a government based upon the "Rule Of Law." Freund found the only area of such permissible discretion in the chief executive's constitutional political functions.27 One of Freund's primary con- cerns, therefore, was to promote the protection of private rights through the introduction of rule and principle into areas of discre- tion. When Freund turned to the problem of administrative discre- tion, he concluded that the elimination of "unstandardized power" and the introduction of system and principle would be greatly pro- moted by the introduction of several important elements into the administrative process. These included professional attitudes and 28 habits of thought, akin to judicial ethics and training, procedural 2 7"In a government by law discretion ought to have a very limited place in administration. Its legitimate function is indicated by the organization of a chief executive power which stands for that residuum of government otherwise subject to law which cannot be reduced to rule. Where discretion appears in inferior positions, it is either the confession of inability to discover a guiding principle, or the deliberate preference of personal influence to more Objective considerations, i.e., the more or less unavowed manifestations of the shady and corrupt aSpects of government." Ernst Freund, "The Substitution of Rule for Discretion in Public Law," American Politi- C_al_Science Review, IX (November, 1915), 670. 28H . . . We have come to associate a due recognition of perma- nent principles with the administration of justice and its methods of Procedure tending to emphasize the‘impartial and Objective point of View. The judiciary has however by no means a monome in this regard. Similar results are likely to attend other official action, it pnfessisna.‘ '15! {clawed '..'. ”.1111 discret. . Freund‘s : his tENSEiy t mm§fit;.‘. 53ml the n \ t"Wt that 1 hi hth‘lEd w, him the yes. Z9 safeguards generally associated with the judicial process, and ade- quate judicial review, He continually pointed to judicial procedure and professional standards, coupled with judicial review, as the model to be followed in the proper structuring of the process of adminis- trative discretion.2 Freund's view of the importance of such factors is quite clear in his discussion of (legislative delegation of discretionary authority to administrative agencies. These important factors, according to Freund, were not inherent in the procedure of legislative bodies. *i provided that it be sufficiently detached from the strife of interest and imbued with a sense of professionalism. It shares with judicial action the respect of precedent and the reSpect of expert Opinion, habits of mind which distinguishes both from the irresponsible action of pOpular bodies." ibid., p. 675. 29Freund recognized that this was not the sufficient cause that would produce by itself the necessary panacea for the ills of administrative discretion. He also looked to the legislature to write into statutes that delegated such discretion adequate and unambiguous standards of decision-making. Legislative policy standards would Provide a guide to standardize administrative decisions and eliminate the capricious and strictly personal use Of administrative discretion. "If the legislature has no standards of its own, may it commit the Working out of standards to the administration? With regard to some matters, or as a temporary policy, that may be legitimate enough. But if the legislature asks the administration to evolve standards in matters which cannot as yet be scientifically or legally standardized, or prescribes an intrinsically erroneously [_s_i_c_] or unworkable stand- ard, no skill in devising procedural safeguards will produce just or beneficial results, and the bocb' called upon to exercise the power Will find it hard to win or retain confidence whether it be a com- mission Or whether it be a court. . . ." Freund, "Historical Sur- vey," pp. 38-39. '- :W" .a' .j' u 1 I: m-.. ..—__.-. . . -.... .qo .Q-.Q .P‘> ...:t IMMUV. ..._ l u 3"! I'qu;.& F ’4'. OD- b-.!b.. ._~., ‘ . 2". ,.u._..." ‘ ..'E bin-m «.- u I " .I'.nn‘|". ‘ t" . ~u .- .t""‘“"¢ k~. ' t. r , A . ' r u .u "t" R; -~_ \ ‘.§:u .— n ‘e. ‘-.“I ‘u h. “9 . “t.- \ 4r”, 0 ~ u...‘: ‘3”... ‘ u. - =_ 7-. a” ‘ \ v 6". i ‘9. . - -,. fi.-- . ,. ll 91 ' 6 EH» P.“ w“ ‘ J‘L‘, :"4 30 They utilized their discretionary authority without establishing guid- ing principles and rules to systematize their power in order to pro- 30 tect private rights. He thus viewed the delegation of discretion to administrative bodies as the opportunity to provide the necessary standardization through the imposition upon the administrative process of procedural checks and other safeguards. Freund declared: Administrative action has however the indisputable, though incidental advantage, that it permits the process of establishing rules to be surrounded by procedural guaranties and other in- herent checks which will tend to produce a more impartial con- sideration than the legislature is apt to give, and which should in course of time, if not immediately, substitute principle for mere discretion.31 Even the delegation Of administrative discretion without adequate statutory standards, which was a violation of one of Freund's funda- mental rules, was acceptable to Freund if the legislature recognized that discretion could be better standardized by the administrative - 32 agency through the Operation 0 "judicial procedure." Freund said, in this regard, that Even the absence or scarcity of statutory direction for the exercise of the rule-making power may be condoned if it means that the legislature believes that wiser Observances will assert 30Freund condemned legislatures, along with lay juries, as "irreSponsible elements of government." Freund, "The Substitution of Rule for Discretion . . .," p. 671. 2 “Ibid., p. 669. 3 Ibid., p. 675. {-7- ; gi- -J¢--.-tv- - t . - . .A .. r on!” I -5qoooso -b O P‘hlac..1’ .‘, I It I” h.....4-u 2.-.... ' u t..tt' D: ‘44: 'v ""‘5tvnh u‘, .. ‘ A ' v- ...'_'-. n . t ' t“ " " ” 7. I; 0.5x...“-‘ I " ‘Vp .- - ‘ v i ' p. ‘ v \- .... uu‘.‘ ‘. t c Q . u- ‘ C“ =;..« w- _ -\‘~.“ ~ .. ‘I- 31 themselves by the gradual Operation of judicial procedure and of precedent.33 In Freund's mind, therefore, the evolution of administrative discretion from "unstandardized power" into a system of rule and principle was linked very closely with the use of procedures gener- ally associated with judicial bodies.34 Coupled with this view was an emphasis upon judicial review of the use of administrative dis- cretion. The importance of such procedural checks and judicial review for the protection of private rights was clearly voiced by Freund in one of his later works: It is doubtful whether at present any machinery can be devised more effective for the protection of private interests than the combination of adequately safeguarded administrative procedure and of judicial review. 5 It is not incorrect to state that Freund ”identified administra- . 36 non with the legislature rather than with the executive," but it is 33Ibid. 34Freund declared that ”judicial administration secured at least some of the benefits of rule and system." £3.19." p. 670. Later in the same article Freund discussed the subject of special legisla- tion in the English Parliament as compared to the American legis- lmures. He declared that "Parliament being controlled by powerful traditions curbing discretion, evolved methods of procedure in pass- ing private acts which invested the enactment with the uniformity of judicial procedure." Ibid., p. 673. 35Freund, "Historical Survey," p. 35. 3'(DGrundstein, op. cit., p. 325. '— www- L2 err-"Y "‘7‘: IO Ipa-b‘vo. un-I > t a. ---n..-*". W . , u. I‘ohgi‘o‘ It I O '7 'v‘wu—apo N 'x' .. .. up .V‘¢A\oos.\o . . ' . :’ "5" GHQ"- wi .Uu»--~ . .‘ 5 o . o I .- .. ‘ ‘ .2 F .flp '- n - cvu ‘_‘. 0.. u--uv..\ ‘.: t- ' u o 'vw" :“ A- .n, . ‘ .~ -V. ' I. ‘ M"_.‘- | “V“ r , .. ‘ I '0‘...“ r. Jkt‘r“ . u 75:5 :f‘. '-o. ‘v- a... ”0“”;«15 D . I. ‘ , h J. ‘5 ""P9,.._' k Q..U. .‘3‘ . p '- 32 probably more accurate to say that he identified administration with the judiciary more than with either of the other two departments of government. His frame-of-reference was that of the judicially trained student attempting to find the proper method of controlling adminis- tration--defined in terms of administrative power over personal and prOperty rightsuin a governmental system based on the "Rule of Law." His solution pointed to the inherent checks associated with judicial procedure and judicial review. This frame-of-reference and these solutions formed the conceptual basis of Freund's scheme for the control of administration. The thoughts and ideas that Freund brought to the early study of the control of administration--an emphasis upon private rights and the beneficial results of a judicialized administrative process-- thus furnish the major contours of still another doctrine of the con- trol of administrative discretion. This early enunciation of the doc— trine of the judicial formula is a historical antecedent of one of the doctrines of the contemporary era. After the midway point in the tWentieth century, therefore, Freund's scholarship still maintains a Prominence in the patterns of thought concerning administration and its control. ' ”W earlier ithecontro'. of mm (istnct 13! Presiden', major organ at * mml‘ain Mdential pre Mom; mic 33 William F. Willougfliy and Legislative Control The basic postulates in Willoughby's thoughts on the problem of the control of administration furnish the broad outlines of still another distinct scheme. Unlike Goodnow, who emphasized the role of the President, Willoughby pointed to the legislative body as the major organ of control in the governmental system. Although both of these earlier pioneers in the field of administration agreed that the administrative branch had no authority to act from any inherent presidential prerogative,37 and owed its power and authority to con- gressional action, each thus looked to different governmental organs for the control of such administrative power after it was initially granted to the executive branch. Willoughby based his conceptual system upon a theoretical division of the important functions of a political system. He con- cluded that, contrary to Goodnow's twofold division, there were actually five basic functions or processes of government. The five divisions included: (1) the electoral function, (Z) the judicial func- tion, (3) the legislative function, (4) the administrative function, and k 37Goodnow recognized no independent ordinance power vested in the President, except perhaps in military affairs. Thus, army regulations that bind the action of citizens were viewed as based upon the President's power as commander-in-chief. See Goodnow, Big Principles of the Administrative Law . . ., pp. 87, 327. ”fl -' 7". Ls.-- ~17-.-— ' l ‘ "—0 ‘Q‘ :P 'Y It v4.‘-Ia i.‘..... ‘ u . h N“ " ’i ‘ .4 _| ...-.,.),_ a. c a. ‘I . . ' "’ ' ‘;,R It- . F WH-leh “.6 _. . ‘o-‘ ”I 1: 4:73;: c. ”’n.., D ~t .‘f'n. .r;'\\_ r. .-.-o. ,h'.‘. 0n, _ . ’ no. ‘4: ‘b ”an. s» a,..._~ ‘. I I. I ' Pin- ., . , 1‘ .. . ,- P k‘“‘~h, . h A “ ‘ Vp z... ‘HaL'c . "h. -, ’ £¢ ~C».~ .‘A: u o i . ‘ u. _‘ t‘. :'~«‘.‘.F x -.-‘ c: ‘- ~. “~.D-‘ “a D“~ ._‘ n~\~..Jh W: v . , n ’ A. , " \ . v . a“; "m u" as“ . " I ~‘ 7. .‘1 1’ 34 (5) the executive function.38 Willoughby believed that the rise of pOpular government brought about the emergence of the electoral function as a distinct process of a political system. This function included the organized activities associated with molding the sepa- rate and autonomous wills of the electorate into agreements concern- ing important questions of Public policy and the choice of agents to represent them in the government. The judicial function was simply the settlement of disputes between legally recognized parties by the compilation of pertinent facts, the interpretation of legal rules and applicable laws, and the application of such rules and laws to the Specific factual situation. The legislative function was primarily the expression of the will of the peOple through the enactment of laws. It also included many other important activities, however, such as acting as an executive council, an organ of public Opinion, a constitu— ent assembly, and a board of directors for the government corpora- tion. The definition and analysis of the administrative and executive functions assumed central importance in Willoughby‘s study of the E 38William F. Willoughby, An Introduction to the Study of the Givernment of Modern States (New York: The Century Company, 1919), pp. 227-408. 3C)These functions of government are analyzed in detail, ibid., Part VI, pp. 271-408. l. .U‘ .... p. " IVOA-o v n a'rw‘ ‘3 ,,g ,.,. "‘ '-.. 6.}. b-u- "fiuflh. l u,_ Ir C‘.‘J;I H‘- " 'U-Jh.¢u' . Q ‘ie users an: ‘ , | : M.-_'- T9,. _ v- a ‘ . u..Ju. ...‘ .u. an”, . ““h- a: an. ‘ O :3". r : 0,. it'“ H 3. ...’. h. N- , ‘ ‘C: :_:‘3." or; ‘h‘ .0. . .1 in“ ‘1 ~ “ ~ V‘.\'I ||J a. 9 '- '... I! '." : we 3. ~: ILfi'Q.“. . 9 xx. . .L I Dr 'c‘ficv '- ‘t;. a. ‘ ‘ s... ‘ -.“ q u I a 5"; ‘3 ‘PM “4 .l.\ I flu. ‘ r. ‘ ~~ “‘K 35 position and control of administration in the American national gov- ernment. Willoughby stated that these two important functions were clearly divided in a manner similar to the differentiation postulated by Goodnow. The executive function, for example, was composed of the powers and duties relating to representing the nation in its re- lations with foreign countries and in military affairs. Another im- portant aspect of this function was the general supervision of the execution of the laws. The administrative function, on the other hand, was simply the impartial implementation of political decisions. It involved no areas of policy formulation or political judgment. In most, if not all political systems, and especially in those of our own country, a clear distinction is made between executive power and administrative power. The executive power, or rather function, is that of representing the government as a whole and of seeing that all of its laws are properly complied with by its several parts. The administrative function is that of actually administering the law as declared by the legislative, and interpreted by the judicial, branch of the government. This distinction is usually made by declaring the executive function to be essentially political in character; that is, one involving the exercise of judgement in its use; and the administrative function to be one concerned with the putting into effect of poli- cies and the carrying out of orders as determined by other organs.40 Willoughby thus reached the same conclusion as Goodnow con- cerning the distinction between these two governmental functions. 40William F. Willoughby, Principles of Public Administration (Washington: The Brookings Institution, 1927), pp. 10-11. .2 awn-I. .nowq -I'v ’ -v~.- 3 . , an... .,.‘ . ‘ - .T~.:.¢lsb. .A.| ,- . , ’ V' 'l ' 7‘" G .- «w. 5“ in», . .- ‘ I ~-.. ' ' .i \ ' CV _' F ......I *v~~._ n I I! '2; lo ..A"-'.o I c 4 av- I '-.-“~o. l ' 1'“: ” “M§- ,. . ~." ‘5’" ad, I "1". : ‘0'. .- .,- a.‘_~ V‘ L‘..« h " KA~ ~J..I~ ‘9‘: ‘ ‘ a V“. E: v;_ . . ‘ “F: A, ' w .4 I I ‘ t I: I‘ t. “7-,-.. \~ U “h A... ‘.'\-.‘c— ‘v .I ‘h I. uh. ‘J h", K. U-"a a ~~ 36 The essence of the dichotomy was that between political choices and decisions involving judgment and the nonpolitical implementation of the public will as expressed by the representative organs of govern- ment. Willoughby clearly reiterated Goodnow's earlier conclusion when he declared that "the latter function, the administrative, . . . strictly Speaking involves the making of no decisions of a political character."41 This theoretical division of executive and administrative func- tions correSponded with Willoughby's view of the constitutional posi- tion of the American President. Willoughby maintained that the framers of the Constitution envisaged the President as the organiza- tional repository of the executive power only. It was a mistake, in his view, to assume that the constitutional fathers intended to raise the presidency to the status of an administrative chief. "There can be no question but that they used the term executive in its technical 41Willoughby, An Introduction to the Study of . . . Modern States, p. 385. Based on an assumption similar to Goodnow's, therefore, Willoughby reached the same conclusion that the admin- istration of the laws should be free from political considerations and loyalties. Willoughby declared that in the execution of laws "political considerations should have no weight other than that the work ordered should be done in such a manner as to put into execution the policies decided upon." _I_t_3_i-d_., p. 386. “Wattle x 31's! m {he 0 l 1" 2etiS'zative 'ill‘. 0! his I: New 'as e In 1 re'o'ponsi': the EM} 37 sense as covering only the political duties of the titular head of the nation." Although the actual activities involved in implementing the law were performed by organizational units considered to be part of the executive branch, Willoughby concluded that the responsibility for the administrative function and the control of administration was in the hands of the legislature. The legislature obviously could not possibly carry out the multifold duties relating to the implementation of the laws, but the control and supervision of such activities rested with the legislative body. Willoughby was very explicit about this point. In all of his major works on the subject of administration this basic Concept was emphasized: In point of fact real administrative authority, and primary responsibility for the conduct of the administrative affairs of the government, reside, under our political system, in the 42I__b_i_¢_i_., p. 251. Willoughby gave a rather detailed review of his interpretation of the presidential power. He stated that "the chief executive shall be the titular head of the government, and as such, represent it in all cases where it needs a spokesman; that he shall eSpecially represent the government in all of its relations with other states; that, to this end, he shall be the commander-in- chief of the armed forces of the government: that he shall be the officer to exercise the quality of mercy as evidenced in the power to grant reprieves and pardons; and, finally, that he shall have the general duty of seeing that the laws of the land are duly enforced." Ibid. , pp. 3 38- 339. 1 _. ,. :d-b .o o~-‘ l w "w -p. :1”? v . .1'.¢ u... ‘ v ' l to... , h" '.‘ I I y~ 'H “V a. '““"‘-U . ’ l I. a.” v»;- . . ‘w... *‘\ i "“ ‘V-sx... 'u‘ l ‘ I . “gave "Hm-o, “'- 4... A‘..‘ .JI.I ;-a‘. '. . . "‘ .r “‘5. . 0:...U..‘ ~ dJ‘\ I ‘u._ .“Kva”' V among. 5“:..‘ o l o... b;‘::':‘ 3:.“P' . ‘ h E .- ‘y a W“ -N .“J‘ "a, n .,v "L’m Warm» - ..g._- j A . '5. _ v, ~ ...{-"_\: ‘- . '~~‘ * -‘- ‘3-h‘ .‘ 'u, \ u. . I A‘.‘ D‘- ' u ols p-J. 38 so-called le islative, rather than in the executive, branch of government. 3 The executive function and the administrative function were thus embodied in separate governmental organs by the Constitution. The former was found in the office of the President. The adminis- trative function, along with the legislative, was possessed by the legislative body. The newly emerged administrative branch Of the national government, in Willoughby's view, was simply the organi- zational outgrowth Of the administrative powers Of Congress. As such, it was subject to the control and direction of the legislative body.44 Willoughby referred to the establishment Of the early execu- tive departments to substantiate this conclusion. He found that Congress, with authority over the administrative branch and re- sponsibility for its Operation, placed the Department Of Foreign E 43William F. Willoughby, "The Science of Public Adminis- tration," Essays in Political Science in Honor Of Westel Woodbury Elonghpy, ed. John Mabry Mathews and James Hart (Baltimore: The Johns HOpkins Press, 1937), p. 41. 4"In both our national and state governments, as the result 01‘ the principle of the separation Of powers which finds expression in our political system, only the executive function, in this strictly political and legal sense, is vested by constitutional provisions in the chief executive. The administrative function, that is, the function of direction, supervision, and control of the administrative activities of the government, resides in the legislative branch Of the govern- ment." Willoughby, Principles Of Public Administration, p. 11. In I . . ”.,“ avg or- . .4 «no... and no. a v ~‘n’p‘ u"; P'C-\ r- t “a“ I.~¢¢--..> “ ° .- , . _ FF P—¥‘-aur~ ] " “‘ o-sa..- . I “m ..,, “5*. I "f ’1'. {""' ‘ r .4 oi. as. _ . LW‘IVQ. , ..“- "I~‘ 39 Affairs and the Department Of War under the control and direction Of the President, while, at about the same time, denying such power to the President over the Treasury Department}:5 This action, ac- cording tO Willoughby, was based on congressional recognition that the two former departments were the necessary organizational means for implementing'the President's constitutional political duties in foreign relations and military affairs. There was little question in his mind, however, that this action was premised upon a theory Of legislatiVe grant. This becomes clear when Willoughby concludes his discussion Of the enactment Of these early organic statutes by —_ 45Willoughby failed to mention, however, the congressional action that occurred as a result of the famous "Gilchrist" case. Congress, in this particular instance, did Specifically grant the power of control over the Treasury Department tO the President. Justice William Johnson of the United States Supreme Court, sitting in the United States Circuit Court of South Carolina, decided in this case (glchrist et al. v. Collector Of Charleston, 10 Fed. Cas. 355, 1808) that the 1808 statute amending the earlier Embargo Act Of 1807 delegated discretion tO the port collectors to clear any vessel for sailing if, in the mind Of the collector, the vessel did not intend to Violate the embargo system. See 2 Stat. 499 (1808). Such legal discretion, according tO Johnson, prohibited a Treasury circular, that had been issued at the direction Of President Jefferson, estab- lishing general rules to control the discretion Of the collectors. This judicial denial of presidential direction was nullified shortly, however, for Congress proceeded to pass a statute amending the 1808 act. The amending statute gave the President explicit author- ity to issue general rules to guide and direct the discretion vested in the port collectors. See Section 10, 2 Stat. 506 (1809), cited and discussed in Donald G. Morgan, Justice William Johnson: The First Dissenter (Columbia: University of South Carolina Press, 1954), pp. 66-67. u up 'P" ' "vs ..¢. .7 - .. ’- «I F ' ‘-" C's ion-.0. Q '~»: }'-‘--pO '-.-.0 ..::..’.... ‘3 k " r > 7'“ ‘Ivsci'utu ..‘_ ago-v“ .. u u . .I‘ A: 9". , . a .. '- ... r.) a. ,' . v- ' P'~ _ “u.~ ‘\ ”PW . "t. "'F . "ur; . 'n ‘ .,‘v- 3“ la. y.‘” C. v o ‘6. ma. . .. ‘ -. "Vat” ’r ... ‘ . u I". a. .““\|P_T: .‘ ‘v V ‘.g 3 I. ‘ I..L‘ , - .. 3: .. I I .' l . . u" ' . '5 " r. ._ .“ I ~‘ p L?“ . ‘1‘ ~ H. : ; I u c . 11%.. “x. . :C‘ ‘\ . l J ‘ a 40 saying that “legally, therefore, the heads Of departments, and in fact all Officers Of the government, are not subject to the direction of the President except in so far as Congress has expressly granted to the President this power Of direction and control."4 Willoughby recognized that this complete power of the legis- lature was qualified by the President's power Of direction and con- trol Of the action of many administrative subordinates, resulting from his removal power. Since the establishment Of the Department Of Foreign affairs by the first Congress, "Congress has repeatedly sanctioned the view that the power constitutiOnally resides in the President to dismiss all Officers who are appointed by him alone 01‘ by and with the advice and consent Of the Senate."47 Such a POWer of removal, according tO Willoughby, allows the President to Share in the direction and control Of the administrative process.4 But this power did not give the President unlimited control Of the adulinistrative branch Of the government. It allowed the chief \ 46Willoughby, An Introduction to the Study Of . . . Modern Siatt‘eg, p. 252. 4 7Ibid., p. 255 . 8”It must be evident that the Officer possessing this power, “01 only shares in the reaponsibility for the proper conduct of the administration Of affairs but is in a position where he can direct and control the manner in which the administrative power shall be €er'Cised." Ibid., p. 257. A- _,....- u .. on; .. 5 : fi:-o..|b ‘V \u-s. I i" 1..-' .‘ ‘ ' ::S 012‘ b ;P~‘p.:. .‘n - .,, "L . “AH“...E ~ . ‘F -~ ' ”4.- c‘\\ ."V‘ v‘ \'.~~ . . ““ - n . . P ‘ PA ’ u. "‘t ‘3"! .. _ .~; c: g ..)_‘ J :C-P' “'5 v‘ D N. “r . a. _‘ , 41 executive to claim a share Of the otherwise complete authority Of Congress over administration.49 Indeed, at one point in his discus- sion, Mlloughby was content tO state that the President's power Of removal simply strengthened his role as general manager Of the administrative branch which the President assumed as an agent of Congress through legislative delegation Of the powers Of direction and supervision.5o. Whereas Goodnow had raised this presidential power to the status Of a major theoretical postulate in his scheme for the control Of administration, Willoughby relegated it to the level Of secondary concern and continued tO emphasize the complete power of the legislature Over administration. 49"[Willoughby] was, Of course, quite cognizant Of the prag- matic consequences for administration of Presidential possession of the power of removal, but he refused to concede that the removal Power thereby gave the President an unlimited control over admin- istrative officers in their performance of their duties. Presidential discretion was controlling only in so far as it did not conflict with applicable provisions Of law as declared by the legislature and inter- PPEted by the courts. The function Of the President, as chief ad- ministrator, was primarily that of a superior law enforcement Officer." Grundstein, Op. cit., pp. 297-298. 50Willoughby stated that the power of appointment and re- moval merely strengthened the President's delegated powers of dirfiction and supervision of administration. The delegated powers Were. however, "primarily exercised by him but as an agent of CPngess, which as a matter Of expediency has conferred them upon him," Willoughby, An Introduction to the Study of . . . Modern .S.t.at\e§, p. 388. 4- 'Il _ —...LL.-': Q. ' .~.._h . ... ‘ 5 O \ “ “‘W‘r "$' ‘ I G -h‘ «sun I up. q _- .. ' P F, 5.... P .‘.."" “H~~...- t t . ww- -..‘. a . \ g ‘— ...-L ..'. ‘- ‘ “r: w ~. \u‘ak‘.. J. _ h.‘ I ' *‘;-:o._,' A " h...\ tau Q n u. "M. “H. JK.‘X \ in ‘is... "‘ca -. is W‘l‘ v ' 42 The governmental system portrayed by the basic postulates of Willoughby's thoughts was one composed of congressional depart- ments of administration headed by legislative agents combined with a separate and independent President who was concerned only with certain Specified duties of a political nature. The conclusion flowing from such a view is that the heads Of the executive departments, members Of the President's cabinet, are constitutionally subject to the direction and control Of Congress. Mlloughby did not hesitate to draw such a conclusion. It is expressed well in one Of his later writings: In point of fact these departments do not have an iota Of executive authority. They are administrative departments pure and simple. With the exception, to a certain extent, of the State, War, and Navy Departments, they are not even under the direc— tion of the chief executive except in so far as Congress has seen fit so to provide. In the first organization of our governments, national and state, care was taken to make it clear that the President and the Governors should, in all cases, be given the executive power. This term "executive power" was not deemed, however, to be synonymous with, or even to include, administra- tive power. The latter power was, as has been pointed out, vested wholly in the hands Of the legislature, and is today exer- cised by that branch Of our governments through agents directed and controlled by it. \ 51Willoughby, "The Science Of Public Administration," supra, n. 43. p. 42. He quotes a Senate report (Senate Report No. 837, 46th Congress, 3d Session, February 4, 1881) to substantiate this lnteI‘pretation: "The department and their principal Officers are in no sense sharers Of this power [the executive power Of the President]. hey are the creatures Of the laws Of Congress exercising only such - --w I . . .. . "" :rw .. ‘T. amt-.m-u-U .— t . "I47. u, ‘qw— _ ""“i c“ Gun. . v - ""‘ ‘W-F‘y-O. “’ ‘ .l' 4 "“‘II Ado.yv. . . ., -. ’3‘; ’P'r .. “‘ ...~, vi. ”u... ‘ ‘ 0 ' l ‘r 9-" fl _ ‘I. . "my.” (my: ‘ . F , I “-5 "W: “v~- .. My ..,‘. - ‘ w 0. ~ .1 . . . b p'~;' -O .I u.‘ .« “’Xa. \ . K '7‘ a “§ .9 ‘ "u :0: 0, ! ‘~ ‘0‘ - H . : q 'Vu , >. I . ‘~.'. I .‘s.' ‘~¢.‘.:.~ :-~.. 43 Since the function Of administration involved the nonpolitical implementation of the law, Willoughby was also concerned with fash- ioning an administrative structure that would embody what he con- sidered important principles of organizational efficiency. One of these principles was the necessity for a general manager that Wil- loughby drew from the example Of a corporate form of organization. He thus urged the strengthening of the President‘s role Of general manager Of the administrative branch to produce efficiency in admin- istration. The legislative body, with plenary power over administra- tion, was the source Of power necessary to implement this principle, and Willoughby, therefore, recommended that Congress raise the President to the status Of a general manager. This was to be Powers and performing only such duties as those laws prescribe. . . . The Secretaries were made heads of departments; they were charged by law with certain duties, and invested by law with certain Powers to be used by them in administration confided to them by the laws, They were in no sense ministers Of the President, his hand, his arm, his irresponsible agent, in the execution Of his will. There was no relation analogous to that of master and servant, or principal and agent. The President cannot give them diapensation in the per- formance Of duty or relieve them Of the penalty Of non-performance. He cannot be impeached for their delinquency; he cannot be made to anSWer before any tribunal for their inefficiency or malversation in OffiCe; public Opinion does not hold him to stricter responsibility for their Official conduct than that of any Officer. They are the creatures 0f law and bound to do the bidding of the law." Ibid., pp. 11-12. Willoughby maintained that this view had been given constitutional 8"motion by the United States Supreme Court in Kendall v. United ititffl. 12 Peters 524 (1838). Ibid., p. 12. “ ‘n ». ’I“~r ‘er‘ :~ ~u->-.\u.‘ g 4 . "Pv- r»... , .- t‘: .. ‘j ,, .. 7.0“. by“... "- n-ro,” ‘4 or. ‘ V mo. "b~,“. H‘& “I -...,, .. - ' r . . c .“““s‘. . ...,_ .~~ r “I do ._t ' \ ~a....,,._ \ .3" “h . I ‘30:. A. . -. Pi. -.‘ I“ :1. §. ‘u .. .I- l ' v“ ' w ~B '“§., - . . -‘ "‘U-,._ u s.._‘~__.~ -~ 6. . t: c. ,.,__ "k -‘-c \u 1‘ 5... a. ~. ~“, . 44 accomplished by three types Of legislative delegation: (l) passing statutes conferring authority upon the President tO direct, supervise, and control the operations of subordinate administrative services and activities; (2) adOption Of the executive budget; and (3) reorganization of the administrative branch into an integrated hierarchy Of unifunc- tional departments with the President as the central director.52 The administrative organization of the national government would then resemble a corporation with the Congress as the board of directors and the President as a general manager. The President, as the organizational embodiment of the strictly constitutional execu- tive power, was an independent and coordinate department Of govern- ment free from congressional control, but in his role Of general manager the chief executive would occupy an entirely different po- sition. He would become simply another legislative agent. "In this caPaCity he will be strictly a subordinate Of the legislature, the agent through wich the latter exercises the powers of general administra- tion,,” Since this organizational device was designed to. implement the correct principles Of administrative efficiency, the President's control \ SZWilloughby, Principles Of Public Administration, pp. 39-40. 5 3'Ibid. , p. 49 . . ._ Mp”... Aé‘ ‘mv- . t .5 v‘~-Q~NOPI I I P - u loan-v. ~. I! o “" rm'w‘ J t a 1 p J I..~n_ .... . ‘ , ‘>.-“ ‘F ‘7 1. —, “FW. “u“ ’ Loax.‘ '. I . " '0-.... ’ -c. p ._.. r...” up I I. 9'... .n a 'i'; .- a x “O “" C1... O 'h ‘. .. i “P‘O..‘ b uvu- . t b 45 Of administration, as a general manager, was oriented toward the attainment Of this goal. In a similar fashion, the responsibility of the President to the legislature, as an agent Of that body, was de— fined in terms Of efficiency. ”The primary responsibility Of the chief executive to the legislature as general manager is that of see- ing that the administrative affairs Of the government are being honestly, efficiently, and economically run."54 In place Of Good- now‘s constitutionally ordained efficiency engineer, Willoughby sub- stituted a legislative hireling. Willoughby and Goodnow differed in their major conclusions concerning the prOper central organ for the control of administration. Willoughby pointed to the legislative body, while Goodnow emphasized the presidency. DeSpite this difference, however, both men formu- lated conceptual schemes that contained common elements. Both, for example, based their conclusions upon a theoretical distinction between the function Of policy-making that involved the expression Of the state will through political lchoices and the function related to the nonpolitical implementation Of the laws. This common view of the administrative process also led both Willoughby and Goodnow to conCentrate their analyses upon the twin values of efficiency and \ 54Ibid. , p. 43 . ~_.,_- 5 n h..- .- wm- p: ‘ tum.-. an»... an ‘-0,. _._ ‘ .,V‘ fir 1 st l..-~. r. ' ‘- ‘r .uhIoU. v‘ .‘r‘ n-.- ."- .,au _. .,”, »l_.! J-“ ‘. . ‘V "vs , .- "mu". h’v-a‘ a ‘V.‘ _ ‘u “.' h I". ~ .5. h V ‘_ F" . v < ‘,‘r‘ “a. t O. .. o .(‘. g .u...‘ a. - .. ‘y. ‘u t“ u .5 . "n. ’ a . ‘ ‘ .C ‘4 ~- .‘~ ‘« \ —, \~ , ‘ H « \‘ A w . - ‘ . ‘~.- 7 I- a In- .‘_ ~C \ F. l " f! t 5. ‘..’» 46 administrative insulation from politics.55 Since the administrative function did not involve any element Of subordinate policy-making, but rather provided an almost mechanical organizational means to predetermined goals, efficiency and impartiality became the domi- nant motivational values in both schemes Of thought. Neither man, therefore, was concerned with the political control of the use Of administrative discretion. Interestingly enough, however, both formulated schemes of thought that contained implicit solutions to this problem. The implications for a doctrine of presi- dential control Of administrative discretion contained in Goodnow's study have been traced out earlier. It remains only to emphasize the underlying consequences Of Willoughby's thoughts. Although Willoughby Spoke Of presidential direction Of admin- istration, he talked in terms Of a legislative agent, and he assigned central importance tO the concept Of congressional control Of ad- ministration. The administrative agencies were constitutional organs °f Congress, and they were subject to the direction and control Of the legislative body. The ultimate conclusion of Willoughby's analysis was that the administrative agencies were organizational means to \ 55Indeed, it could hardly be denied that Willoughby, as much as Goodnow, was a captive Of the influence Of the doctrine Of neutral comPetence as described by Kaufman. See supra. 11- 4- F ~- . .. j .‘r. “ ‘ '.hs .U" \l : . F - o... . u ..:o“,. H. ”0.’ u. t", . . a".“‘ .J.. .,“ Th . a P ‘G “* Av‘ v cl; '¥-;w~;’_._ i..."“-st. '8 . n . .v a _ q "I ‘ \v ‘ ~. h\ g. .': n. "3 I“ H ,. wagigl \L.‘ .I‘ 47 allow Congess to do what it could not dO itself. Congress simply delegated the necessary power and retained the function of direction and control. The logical deduction from such premises is that Congress is the governmental organ for the continuous and Systematic control over the use of the discretionary powers of administrative agencies. Wil- loughby did not draw this conclusion, for he was concerned primarily with administrative efficiency, but once again another contemporary doctrine lay hidden and dormant in an early scheme only tO await elaboration when the problem Of the political control Of administra- tive discretion became a concern Of the first magnitude. (CV: : 3" a“ p u 7.. ..\ st J— .._. CW1 CONTEMPORARY DOCTRINES OF THE CONTROL OF ADMINISTRATIVE DISCRETION The three doctrines--presidential control, the judicial formula, and legislative control--that compete for dominance in the contem— porary era were recognized fairly early. Blachly and Oatman noted this doctrinal conflict in 1940. Although they used different labels, the essence Of the situation that they explained was the same as the central theme Of doctrinal competition presented here. At that early date they declared that "three conflicting doctrines Of public admin- istration are now struggling for domination of the federal govern- ment. . . . These doctrines may be called: (1) the doctrine of executive management; (2) the doctrine Of judicial formula; (3) the . . l PeVISionist doctrine." Wallace S. Sayre, eleven years later, while 1Frederick F. Blachly and Miriam E. Oatman, Federal Regg- LaLoflLAction and Control (Washington: The Brookings Institution, 1940). p. 3. Their third doctrine is a scheme based upon evolutionary 399 empirical views of the administrative organization: "The revi— 810Hist doctrine sees in the present administrative system a fairly satiafactory adaptation Of structure and relationships to function. At the Same time, it advocates certain improvements. . . . The admin- 18trative structure is not a haphazard assemblage Of miscellaneous 48 l.- fl 7' >~p a..«~.-. I‘ u .m..,,. u. “No-.1 9-“. '- ..‘ ~ .va“ ~."‘ \ ’o- 'v. _ ”a. _ ‘ Kin ‘\ a u N r-. ' ‘, \ . ' ‘5. I .. .‘f:-~ .“‘-.: D...“ . u- . . u. 3“ ‘7»..*_ ‘A .(L. ‘1 . ”N. . 4" ‘I -~ , F A 'Vn. \ \ , :P' o- ._ l ‘5— 49 describing the theories Of administrative accountability and responsi- bility that prevailed during the decade beginning in 1940, also dis- . . . . 2 covered a conflict among doctrines Similar to those described below. ___ ——.‘Q.——- A; r3”. Presidential Control The contemporary doctrine Of presidential control is a scheme composed of particular values and important interpretations that are woven into a fairly distinct and distinguishable conceptual system for the continuous control Of administrative discretion. These theoretical postulates are perhaps best represented in several Official reports parts. It is a system, and an organic system, in which Specialized organs perform differentiated functions. Further evolution, however, can improve the system." Ibid., p. 5. This doctrine eschews the- oretical schemes and emphasizes a simple empiricism. ”The first step toward improvement, say the revisionists, is to understand the present system and to analyze, after careful study, its strengths and Weaknesses. What is needed is not destruction Of the system, but its improvement." Ibid., p. 6. Blachly and Oatman, when discussing this doctrine, ObviOusly had in mind the 1937 report of the Byrd Committee. See United States Congress, Senate, Preliminary Report Welect Committee to Investigate the Executive Agencies of the G. °Vernment, 75th Congress, lst Session, August 16, 1937, Senate RePort NO. 1275. This study was done by the Brookings Institution for the select committee established by Senate Resolution 217 Of the SWenty-fourth Congress passed on February 24, 1936. Study of this rfport reveals that, despite the enunciations Of empiricism. the re- “Sionist doctrine contains theoretical postulates that classify it with t e Scheme Of legislative control of administration. zWallace S. Sayre, "Trends of a Decade in Administrative Values," Public Administration Review, XI (Winter. 1951), 1-10- I44_.“_ . - < ' nu 'd»-.r. ‘, LA 3‘. .h da-‘a v | _ p .. “‘I ’D) 01‘ .," ‘ v . Kt “N 4" -Vo.- '. l .o .."I . L. . ‘ 4' q!- T ”"-o 5 i ‘ l a ' ‘ ' u e... v“ Q A Q. ‘: J P'pq -' 9. ‘P5. ‘ p ‘4». AI-II-F-r __ .,Ja 50 and particular articles and books. For the purposes of this discus- sion the following sources will best serve as a basis for analysis and evaluation: (1) the 1937 "Brownlow Committee" report and a re- lated study by James Hart,3 (2) the 1949 and 1955 "Hoover Com- mission" reports,4 and (3) an early article written by James Hart that contains one Of the earliest systematic presentations of the doc- trine. 3The President's Committee on Administrative Managerment: Report Of the Committee with Studies of Administrative Management ipythe Federal Government (Washington: United States Government Printing Office, 1937). The committee, created by President Roose- velt on March 20, 1936, was composed Of three eminent students of government, Louis Brownlow, chairman, Charles E. Merriam, and Luther Gulick. James Hart contributed a detailed analysis of the rule-making power of administration for this report. See James Hart, "The Exercise Of Rule-Making Power," _i__b_i_d_., pp. 311-355. 4The Commission on Organization Of the Executive Branch we Government, "Concluding Report," ‘May, 1949, and "General Management Of the Executive Branch," 1949. This commission was organized pursuant to Public Law 162, 80th Congress, July 7, 1947. Mommission on Oyganization of the Executive Branch of the Government, "Final Report to the Congress," June, 1955. This later "Hoover Commission" was created by Public Law 108, 83d Congress, lst Session, July 10, 1953. There were also numerous detailed studies Of various aspects of the administrative organization 0f the national government by small groups associated with both of these commissions. 5James Hart, "The President and Federal Administration," in Haines and Dimock (eds.), Essays on the Law and Practice Of EoVe\rnmental Administration (Baltimore: The Johns Hopkins Press, 1935), pp. 47-93. See, also, Louis Brownlow, The President and \the Presidency (Chicago: Public Administration Service, 1949). and E. erldleton Herring, "Executive-Legislative Responsibilities, American wal Science Review, XXXVII (December, 1944), 1153-1166. “lou‘, "' ‘wwr~-.- v r _. ‘ ‘~ vmpv.‘... ‘» ' I .- nvl‘§- r.‘- .. ‘U .- ““""“ La...\,.‘ . . ‘ .. . j ‘ 5‘ ' ’0; .2: ~d.- .u in- -.b "" {4 o, ‘— '3..~ ~.. u“ ‘9‘“ L'V-u.-.w. , . ‘ P ‘fi‘ ‘. ‘Z - ~-..., ~ "Mn N.‘. .C ‘8 ., h. . n'; w. r' is... .= v. A In. ,. . 1,)“ { .,”” 4‘ y. - ‘ '-\ F. . _, .n' .‘ “, a ‘ A .‘, v- s.‘ y ‘ \ ‘~ _. . ‘ _ '\ “‘ ,. ~-F " I- n 1 , . . “ \ h 51 One Of the central elements in the contemporary doctrine is the emphasis upon the political responsibility Of administrative dis- cretion. Efficiency and impartiality, soKprevalent as motivational values in the earlier doctrines Of Goodnow and Willoughby, accom- panied the demise Of the theoretical distinction between politics and administration. The problem Of structuring the discretion of the ad- ministrative branch to assure the consent of the governed has arisen to take its place. The doctrine Of presidential control relates this underlying Objective to an emphasis upon the presidency as the central control organ. No detailed analysis Of the President's constitutional posi— tion in relation to the administration, however, similar to that Provided by Goodnow early in the history of public administration and administrative law, is included in this doctrine. Rather, in Place Of Goodnow's conclusion concerning the original division Of the President's power, this doctrine simply concludes that the President has always been considered the constitutional chief executive and administrative chief. The Brownlow Committee declared that the Presidency embodied the three functions Of political leader, symbolic head Of the nation, and chief executive and administrative chief, and concluded that "in many types Of government these duties are divided or oIlly in part combined, but in the United States they have always M‘s—a I-c uh.-- .— - z . V‘P ex 5“ ‘I‘ Hi\\. - a ‘1'" ., 'r- ., , U \ . ~ u. .. . ._ .. a I v 'vv- p. g. ,F 11. h"“-.r.‘ ,‘ _‘. ' v H.“ Ow... ' ‘\ ’“‘ -‘.I '!v ‘n “.4“; 5 '1'! . “I ‘ ”lu‘ V...” . .. v~ va.‘,‘ . U 6 . 1 a I" "' as i -. ~ I M.-__ t . .‘N F.‘. ‘K‘ \ hr .g“‘c I I . -_ 1 o N A '. (5‘- ‘Q 52 been united in one and the same person whose duty it is to perform 6 all of these tasks." This unity of political and administrative pow- I ers‘inthe presidency is assumed to have been present from the be- ginning of the national government because it is based upon original constitutional grants of power to the President. The grants of powers in Article II of the United States Constitution that vest the ”executive power" in the President .of the United States and declare that ”he shall take care that the laws be faithfully executedH7 are conceived as molding a President who is both an independent chief executive possessing important political powers and the administra- tive chief who serves as the central director and supervisor of the administrative activities of the national government. The President's Committee on Administrative Management, P- 2. This contemporary development serves as the central theme 0f Grundstein's article. "The distinction between administrative Power and executive power, a distinction which once had the stature Of a first principle, is today on the verge of obliteration, and ready and waiting to replace it is the concept of the unity of the executive POWer.” Grundstein, op. cit., p. 287. 7United States Constitution, Article II, section 2. Speaking of the administrative powers of the President, the Brownlow Com- mittee stated, after a study of the national government organization, that "we find in the American Government at the present time that the effectiveness of the Chief Executive is limited and restricted, in Spite of the clear intent of the Constitution to the contrary. . . ." wresident's Committee on Administrative Management, p. 3. [ - T... “a, 65... V”.-\ ' . -.| "n rm-r-n r , fl ‘ I I ¢'s v.u».sn . . l ‘ I ”I ; . w 7"» ,. .15 ,r w.....‘.‘ “ J..‘ . | . \G- up. , A _ ’ ‘.:. .P a " \ 'M~. ‘. h N. ‘- 1' HI» 'lr'. .g ‘ 5 . F .. . “~Ah.... u, ' ‘“"V‘"‘-'.. ‘5 I. . ‘.~‘.“"C.. “ ' _ V A _ L... a“ #“r‘r‘ ._,‘ I” IV ..' . n. I‘\ F... 1 '-..\ ;. I ‘~ , 11": -~ . . ‘.. €- . -~'v I .“ , | V‘~~ \‘L— o \- ‘ I ‘ \. ~I ‘- x V ha “ l \ n '. h0- 53 This constitutional unity of presidential powers is accompanied by an emphasis upon the unity of the presidency and the administra— tive branch. These two organizational units are viewed as a single interrelated organizational mechanism for the execution of the laws. Since the administrative process and the administrative powers of the President are inextricably related in the execution of the laws, the organizational counterparts of these functions are similarly inter- twined. A conceptual unity of constitutional powers is thus combined with an organizational unity to present a single, integrated adminis- trative organization of the national government. The doctrine of presidential control envisages an administrative structure that is symmetrically organized into a system of hierarchical patterns of authority leading up to the centralized direction of a political re- SPonsible administrative chief with complete constitutional powers . 8 01' direction and control. . 8This is the conceptual basis of many schemes for reorgan- 121118 the administrative organization of the national government. It was, for example, the premise for one of the major proposals of the °°Ver Commission. "Establish a clear line of control from the President to those department and agency heads and from them to air subordinates with correlative responsibility from these officials to the President, cutting through the barriers which have in many cases made bureaus and agencies partially independent of the Chief ecNative." The Commission on the Organization of the Executive ranch of the Government, "General Management of the Executive 3“ rfinch," p. 7. . n-,-~-a C‘s-n." .u' .5» . ‘ at on - ‘ 3f "t." ~ .t, :., a}: J. ,. “a" . -. A L_ .- W- -‘. u t”- v Q. ‘..‘ 'rn .~‘ u... c ‘. ' 9 . " M'; 5 i V‘ 54 This important conclusion, a basic element in the present doctrine of presidential control, is related to the emphasis upon the importance of the political responsibility of administrative discretion. The combination of these two factors in the present scheme led to the obvious conclusion that the control and direction of administra- tive discretion, to provide that necessary political reSponsibility, must be provided by an elected President as administrative chief. The discretionary authority placed by statutory delegation in subordi- nate administrative units must be subject to the direction and control of the President in order to insure accountability to the governed. Hart states that the final reSponsibility for "the functional discretion Of all administrative agencies . . ."9 should rest in the office of the President. The continual day-to-day control of administrative discre- tion necessary to maintain the political reSponsibility of administra- tion would thus be provided by presidential review and clearance. The independent regulatory commissions, according to the Presidential control doctrine, violate this constitutional scheme and 9James Hart, "The President and Federal Administration," p. 60. The control of functional discretion was described by Hart as "control over the exercise by his subordinates of the discretion vested in them by law for the carrying out of the purposes of their :espective services." Ibid., p. 51. In his discussion of administra- Ive rule-making, Hart came to the same conclusion: "The surest gay to safeguard the public is to place the exercise of this discre- bl.°.n directly under the control and hence under the unique responsi- 1lity of the President." James Hart, "The Exercise of Rule-Making ”Vern" p. 314. . . . r- ”, .‘u~ 0"" ,y l ‘ ' ' .a. u. .o.~_na~ ' l | | - . .,V .p.‘. , P ‘ y‘ , .c‘I-ul" ‘ .. n ' I . , . .a ... ’ ‘.rn r u. ., p . u' . L...“ '3' ‘ ‘ u -‘A I.,.. " , I" .A .,. ‘6' ‘~*':: . v A: /' I (I'll '1' 55 abrogate the proper single center of presidential responsibility and control. They represent autonomous areas of independent administra- tive discretion. The Brownlow Committee report, for example, con- demned them as a "headless 'fourth branch' of the Government, a haphazard deposit of irresponsible agencies and uncoordinated pow- ers."10 Both James Hart, in his early 1935 study, and the Brownlow Committee made explicit recommendations concerning these commis- sions. Both concluded that the executive and regulatory functions of these bodies should be placed in executive departments under the con— trol of the President. These identical conclusions emerged from a Common conceptual core that emphasized both the propriety and the necessity of presidential control of administrative discretion. 10The President's. Committee on Administrative Management, P. 40. Cf. Brownlow, The President and the Presidency, pp. 101-102. 11The Brownlow Committee recommended that such indepen- dent administrative units should be divided into an administrative seCttion and a judicial section. The former section would possess the executive and regulatory functions of the commissions and would be placed in an apprOpriate executive department. The adjudicatory ful'lcztions of these commissions would be placed in the judicial sec- tion and remain independent of the President except for "housekeep- mg" functions, such as budgeting, personnel administration, and Inateriel control. The President's Committee on Administrative .Mangement, pp. 40-41. Hart concluded that the proper organiza- tion for presidential control required that the executive and regu— lalt(Dry functions, and the application of the general regulations to corlcrete situations, "should be the functions of an expert depart- meUtal bureaucracy under the functional control of the political su- periors of the department concerned.” Hart, "The President and F‘5’deral Administration," p. 78. He would thus assign the executive and regulatory powers of the commissions to an executive department “ ‘iw.'.-. «0., , A \ T. r. 5"“1... ‘i ‘ ”In ’9. r, -' . .- OI. VV~1 ‘ A‘ . V‘ . . 3'? 1A. ir: ‘. ii“ " 0- .5. A . ‘ . ' a.» ,“__5. 'F. , _ h-~ - ‘ “'Fq ~§ .F: v ' it-.. -. . ”wag- r I" “Go. r 'h 5 V A .4 . \ w ‘H A ,y. ‘ h A. . ‘v. ~ . c . A...“ by". ‘ . -.. n. , a ‘1‘ ”V ‘.. ..\ " I ”- .’ ’ cl: I o ‘ l 56 Presidential control would not only assure the political re- Sponsibility of administration, according to the contemporary doc— trine. but it would also promote that control and direction of the use of administrative discretion that best approximates the public inter- est. The responsibility for the final choices of particular decisions and actions, in such a case, would rest with the single national pub- lic officer who is elected by a nationwide constituency. Furthermore, the President is in the best position to balance and weight the many contending political interests of society. In the first place, he ob- tains a more balanced view of the conflicting forces from his national office. Secondly, he“ is less likely to capitulate to one dominant po— litical power bloc in society. and the adjudicatory functions to an administrative court that he later recommended. The first Hoover Commission did not enter this ra— theI‘ politically charged field. The discussions of the problem of the f‘ndependent regulatory commissions were confines! primarily to the lute1"na1 organization of these bodies. and the major recommendation that emerged from the earlier investigation was that the chairman of each commission should be given the authority, subject to presi- df’ntial direction, of an administrative manager. See The Commis- Mme Organization of the Executive Branch of the Government, Regulatory Commissions" (March. 1949), pp. 5-6. The second Ho.OVer Commission, however, did touch upon the question of the aldJl41<1icatory functions of the independent regulatory commissions. stue commission approved a recommendation of one of its task force "Tdy groups to establish an "Administrative Court," composed of a a ,I‘ade Section" and a "Tax Section,“ which would take over the Coiudicatory functions of those independent regulatory commissions of t9 emed with these two fields. See Commission on Organization Ceq he Executive Branch of the Government, £931 Services and Pro- N (Washington: Government Printing Office, March, 1955). See 0 footnote 39, pp. 71—72, infra. 57 The President's position in the political process is thus coupled with his position in the administrative process to provide that beneficial and necessary control of administrative discretion in the name of the consent of the governed while, at the same time, promoting a coordinated national leadership. The prOposal for presidential control is based on the thesis that "this is the best available means of securing a balanced combination of wholesome leadership in national purposes, intelligent experimentation, coordi- nated planning based upon a concert of interests, and public respon- sibility.‘ '12 It can now be seen that the contemporary doctrine of presi- dential control of administration is composed of several basic ele- ments. First and foremost, it is oriented toward the goal of the cOntrol of administration in order to promote the political reSponsi- bility and accountability of the exercise of administrative discretion. It also contains a particular interpretation of the constitutional powers or the President and the relation of the President to administration Which. when coupled with the. view of the President in the political prom-”’38, leads to a scheme of presidential control of \ 1 0 2Hart, "The President and Federal Administration," p. 60. 58 administration.13 It furnishes a solution that points to the structur- ing of the administrative process to establish complete and continu— ous control and direction by the chief executive. The doctrine of presidential control, in its ultimate conclusion, leads to the unity of administration and presidential powers. The administrative organization becomes merely the organizational means by which the President carries out his constitutional duty of execut- ing the laws. These units are appendages of the presidency, and, in this manner, the administration and the presidency are actually one and the same. The discretionary authority delegated to administra- tive units is conceptualized as presidential discretion; administrative . 1 . deelsions and actions become those of the President. This 13Blachly and Oatman use the term "executive management," but they reach a similar conclusion: "The essential feature of the doctrine of executive management is the assertion. that all adminis- tratiVe activities of the federal government (except those of a quasi- judiCial nature) should be under the control of the Chief Executive. According to this theory, the structure and the relationships of administrative authorities should be established with a view to facilitating such control." Blachly and Oatman, op. cit., p. 3. 4This conclusion has important consequences for judicial rFVieW of administrative action. The acceptance of this doctrinal Vlew Would either force a reinterpretation of several judicial rules Si: practically eliminate any judicial review of administrative discre- (minor subordinate administrative agencies. If administrative dis- atte 10n is actually presidential discretion, then the courts Will not r 111 mm to review the exercise of such authority according to the e Of judicial noninterference announced in the early case of 59 fundamental conclusion, which emerges from a careful consideration of the doctrine of presidential control, is well reflected in the pro— posed General Executive Management Act of 1949. Section 101 of Title 1, Part 1, of the proposed bill epitomizes this basic implica- tion of the doctrine of presidential control. That particular section enunciates the principles that should govern the execution of the executive power of the national government. It read, in part: (b) The President is the head of the executive branch of the Government and is responsible for the faithful execution of the whole of the executive power of the United States, including the faithful execution of the laws enacted by Congress, as pro- vided in article II of the Constitution. (0) The executive agencies of the Government exist in order to enable the responsibility of the President, as set forth in ar- ticle II of the Constitution, to be discharged efficiently. Such executive agencies are classifiable . . . as principal executive agencies and subordinate executive agencies. All such executive agencies, and the heads thereof, are merely representatives of and acting for the President; and whenever any function is vested by law in any such agency or in the head thereof, such function is so vested merely for convenience. Such function should be treated as a function actually vested in the President and being exercised by the executive agency concerned, or the -\ Mississippi v. Johnson, 4 Wall. 475 (1867). Furthermore, if deci- 5.10113 of subordinate executive—agencies are to be subject to the f1“a1 approval of the President as the constitutional administrative Chief. the judicial doctrine of administrative finality and judicial {mainterference with presidential discretion would effectively prevent Judicial review also. See United States v. George S. Bush and Co., 3‘53» 310 U.S., 371 (1940); Chicago and Southern Air Lines v. Water- Meamsm} Corp., 333 U.S. 103 (1948). See also Trans World \Alrlines, Inc. v. Civil Aeronautics Board et al., 184 F. 2d 66 (U'S~C.A., 2d Circuit, 1950). 60 head thereof, pursuant to authority so to do derived from dele- gations by the President. In connection with the exercise of any such function, the executive agency and the head thereof is (unless the function be quasi-judicial in nature) at all times subject, in respect of all matters relating to its exercise (in- cluding the time, manner, and extent of its exercise), to the direction and control of the President.15 158. 942, 81st Congress, 1st Session, February 14, 1949. Title 1, Part 1, is reproduced in full by Grundstein, 0p. cit., pp. 285-286. The same principles apply to the subordinate executive agencies and the heads thereof, except that they are also made sub- ject to the control of "the head of the principal executive agency in Which such subordinate executive agency exists or of which it is an Organizational unit." Ibid., p. 286. It is interesting to note that Congress refused to e525? this enunciation of the doctrine of presi- dential control, while, only one year later, it passed the Presidential Sllbdelegation Act of 1950. The earlier bill would have greatly al- tered the position of administration in relation to the presidency and the legislative body and weakened the channels of congressional di- rection of administration. The latter statute, on the other hand, coTl’tained no innovations and gave no added powers of administrative direction to the President. It was, in fact, merely a redundancy. It granted statutory authorization to the President to delegate his statu- tor-y powers and duties to "presidential" officers in the executive branch. See Public Law 673 (81st Cong., 2d Sess.). It is discussed and analyzed in Glendon A. Schubert, Jr., "The Presidential Sub- delegation Act of 1950," Journal of Politics, XIII (November, 1951), 647’674. Such presidential subdelegation of statutory functions had already been sanctioned by the judiciary as a constitutional practice, and the statute was completely unnecessary as an authorization to the President. See Glendon A. Schubert, Jr., "Judicial Review of the Subdelegation of Presidential Powers," Journal of Politics. XII (November, 1950), 668-693. The inherent consequence of this statute was to substitute a statutory grant for a constitutional authorization, and, in this manner, to weaken the basis of presidential subdelegation. 61 The Judicial Formula The primary concern of the contemporary doctrine of the ju- dicial formula remains the same as its historical predecessor. It reiterates Freund's earlier emphasis upon the problem of adminis- trative discretion and the protection of private rights. The present conceptual scheme for the control of administrative discretion, there- fore, is established around the problem of protecting private rights and not that of insuring political responsibility. In a manner again reminiscent of Freund's early writings, the solution to this impor- tant problem is conceived as the imposition of procedures tradi- tionally associated with judicial organs upon the administrative proc— eSS. coupled with an expanded judicial review of administrative de- CiSions and actions . Those who propound the doctrine of the judicial formula take the position that the thing most to be feared in federal ad- ministration is "administrative absolutism" or the impairment of personal and property rights by the "great Leviathan" of the administrative machinery. In order to deprive the administra- tion of its alleged power to injure, they would give it very little discretion; would compel it to act in so far as possible accord- ing to the judicial formula of notice and hearing followed by a decision; and would subject to judicial review practically every act which could even remotely affect rights.l \ l6 Blachly and Oatman, OE. cit., p. 4. 62 This present conceptual scheme for the control of administra- tion had its beginning in 1933. It was in this year that the Ameri- can Bar Association established its Special Committee on Adminis- trative Law to study the problems inherent in the administrative process and formulate specific recommendations on this subject. The frame-of- reference of the special committee was outlined dur- ing its first year of operation. An early report of the special com- mittee declared that its activities would be oriented toward intro- ducing a greater measure of "due process" into the practice and procedure of administrative agencies and more uniformity in the method and sc0pe of judicial review of administrative decisions. This initial outline of general objectives was stimulated by what was considered to be an alarming trend toward administrative discretion represented in the legislation of that period. The special committee found three particularly dangerous tendencies: (l) a tendency to con- centrate legislative and judicial functions in officials or agencies re- sponsible to the President and not independent bureaus or commis- . 1 Slons. 9 (Z) delegation of both broad quasi-legislative powers and \_ 1 7American Bar Association Journal, XIX (1933), 615. 8Ibid. Cf. Reports of the American Bar Association, LVIII 1 9American Bar Association Journal, XIX (1933), 416. 63 0 quasi-judicial powers to administrative authorities, and (3) the ab- sence of any effective judicial review of administrative decisions. The original solution offered by the special committee to the problem of controlling and limiting administrative discretion centered around a proposed administrative court composed of a trial division and an appellate division. This administrative court was to absorb the quasi—judicial functions of administrative authorities and provide an organization channel for review by the United States Supreme Court.22 This proposal was dropped in 1937, however, after it had been the subject of considerable Opposition and condemnation from 2 members of the American Bar Association itself. The, special 20Ibid., pp. 418-423. 21Ibid., p. 424. 22American Bar Association Journal, XXI (1935), 133. Judge Joseph B. David, a member of the A.B.A., voiced his disapproval of the Special Committee on Administrative Law and their proposal for an administrative court at the fifty—seventh annual meeting of the asso(Biation. He answered his own question concerning what the fpecial committee proposed: "To turn over the legislative and Judicial functions of these various boards to the courts. One would apprehend that there is some halo around the courts, and that the tPheOple in America today have more confidence in the courts than ey have in these bureaus. I doubt it." Reports of the American \Bar Association, LIX (1934), 148. ear 23The story of the termination of this proposal is an inter- molng one. The opposing forces within the A.B.A. were composed 81:13, of members of other committees of the association that were 64 committee then turned its efforts to drafting a bill that finally cul- 24 minated in the Administrative Procedure Act of 1946. concerned with problems of the independent administrative tribunals which would be abolished by the new administrative court, and mem- bers who specialized in practice before these bodies. See Reports of the American Bar Association, LXI (1936), 234, 757. The Oppo- sition maintained that such a proposal would "scrap everything that has been done to create an orderly settlement of controversies be- tween the citizen and the government." Ibid., p. 224. 2460 Stat. 237 (1946). The history of these activities of the A.B.A. can be traced in the following Reports of the American Bar Association, LXII (1937), LXIII (1938), LXIX (1944), LXX (1945). The 1946 act was a compromise between the national administration and the American Bar Association. Kenneth Culp Davis, Administrative 3:33 (St. Paul: West Publishing Company, 1951), p. 9. It did not contain the minimum requirements that the A.B.A. thought necessary to control administrative discretion. The minimum elements neces- Sary to structure the administrative process for adequate protection 0f private rights are apparent in an early proposed bill drafted by the American Bar Association for introduction in Congress. It irloluded a mandatory requirement that all rules and regulations, both interpretative and substantive, should be issued only after adequate notice and a hearing. The United States Court of Claims was to be granted jurisdiction to declare such rules valid or invalid uDon the application of anyone claiming that such a rule would ad- versely affect him (before application of the rule to the person) by a trial de novo based upon an analysis of the facts from the admin- iStrative hearing. The proposal also included an intradepartmental board to hear and determine appeals from lower administrative regulations and orders by any aggrieved person. The decision of the board would be determined only after a hearing and would be based upon facts and conclusions from a written record. The board's decision would also be subject to full and complete judicial review by the United States Circuit Courts of Appeals or the. United States Court of Claims. Reports of the American Bar Association, LXII (1937), 790-794. A draft of the proposed bill can be found in 1951" pp. 846-8500 Iren- ‘L'IJT. a ‘ . ‘ 4D “ 'r» H“ . ‘*\.U, o no. . NF“ . v 1 :- .1...‘~ Qu‘ "\rrun" a ‘.V~t L“. . 1 ‘ . ~ .V_. A, ‘ In CK...Q. p . I l -.A'- . ~ ‘ ' ‘h w ~0M.~,‘ ‘~ .. Q .. »,_ ~.-.H . 5. ‘ P . u\ ‘H' _ ‘9. l ’ he, 7*- - ~.' I~Qe .,_ \ ‘ a. . ~‘ .«‘ I ‘. LP “’- ...“‘_ n 65 The history of the organizational efforts of the American Bar Association reveals that its activities and various proposals were based upon a distinct conceptual foundation. This was the doctrine of the judicial formula. The protection of private rights against the activities and consequences associated with administrative discretion, according to this doctrine, demanded a structuring of the administra- tive process that would assimilate this process into a judicial mold of judicial procedure and broad judicial review. This doctrinal con- clusion is manifested in the Administrative Procedures Act in one of the statutory requirements that represented a major victory for the American Bar Association's efforts. This was the imposition of the procedures of a trial and judicial procedure--basic elements of this judicial formula doctrine-—upon all administrative rule-making required "by statute to be made on the record after Opportunity for 25 , , an agency hearing. . . ." Freund's v01ce seems once again to ZSSection 4b of the Administrative Procedures Act of 1946, 60 Stat. 237. In a rather vitriolic attack upon the A.B.A. of 1946, Blachly and Oatman saw a sinister purpose behind the enactment Of this doctrine of the judicial formula and declared that it was based "upon the desire of lawyers to have the maximum Op- portunity to participate in the process of administration, to block édmihistrative action, and to subject the administrative process to Judicial methods and judicial controls at every point." Frederick F. Blachly and Miriam E. Oatman, "Sabotage of the Administrative Proeess," Public Administration Review, VI (Summer, 1946), 226. not. .d-y - Ipt'u“ Ol- . ll 9“ Q‘H‘N . u 'l \. t . mm..- .‘ I...“ n-.,.. r ‘— u-l - v 5"” a... ‘7' . h\ - . ww..~“d “F‘ '1 Us... .1 l6. K. 66 speak out, and his solution to the problem of "unstandardized power" becomes the clarion call of the American Bar Association. No clearer “and more emphatic statement of the doctrine of the judicial formula, however, has perhaps been made in the contem- porary era than the study of legal services and procedures in the national government prepared by a task force of the recent Hoover 2 Commission. This official study reflects very clearly the concep- tual elements that compose the present doctrine'of the judicial 26This Task Force on Legal Services and Procedures was es- tablished by the Hoover Commission created in 1953. See supra, note 4. The report was entitled Task Force Report on Legal Services and Procedures (March, 1955). The task force was composed of fourteen members who were all lawyers or judges. It included such Prominent men as James M. Landis, Carl McFarland, Harold R. Medina, and E. Blythe Stason. The entire group was united in outlook and conception by a common legal background of training and expe- I‘ience; see Commission on Organization of the Executive Branch of Movement, Legal Services and Procedures (March, 1955), Ap- Pendix A, pp. 113-114. The study of legal procedures and the ad- ministrative process was conducted primarily by two smaller groups °f the task force chaired by Carl McFarland and E. Blythe Stason. ISEPOrce Report on ngal Services and Procedures, p. 5. The Study thus maintains a close personal affinity with the earlier minority report of the Attorney General‘s Committee on Adminis- tratiVe Procedure written by McFarland, Stason. and Arthur T. varlderbilt. The recommendations of this minority report included a complete separation of functions of administrative agencies by aweighing all adjudicatory functions of such agencies to independent organs and a broadened judicial review of administrative decisions. See the Final Rgport of the Committee on Administrative Procedure Appc)ilflted by the Attorney General, Administrative Procedure in Gov- \ emulent Agencies, Senate Document No. 8. 77th Congress, 13" Ses- sion, 1941, pp. 203-247. W‘ '- . .- 1 r tumour. 1.. | v I o: u . It,-l~~ ; .' F V'r».o.‘\-.I. d”... | t. It; '1‘ . a 1 ."‘~. 'I) 67 formula. The task force report is based upon an emphasis on the beneficial and necessary relationship between the protection of pri- vate rights and adequate and uniform procedural standards to guide administrative discretion. This forms the basis for the important frame-of-reference within which the administrative process is ana- lyzed. This conceptual framework is defined explicitly by the task force in a statement of the major policy considerations that "guided 27 the task force in this phase of its work. . . ." Sound administrative procedures are indiSpensable to ad- ministrative justice. The more closely that administrative procedures can be made to conform to judicial procedures, the greater the probability that justice will be attained in the administrative process. Formalization Of administrative procedures along judicial lines is consistent with efficiency and simplification of the administra- tive process. The Administrative process is improved and rendered more fair and efficient by uniform standards and forms of procedure.28 The doctrine is also vividly manifested in many of the spe- cific recommendations of the task force. Such proposals point to the imPOSition of judicial procedures on the administrative process and N 2 7Task Force Report on Legal Services and Procedures, p. 138. 8 a St Ibid. This statement is difficult to reconcile with the earlier foatemel‘lt of the task force that "problems encountered by the task I roe have arisen from factual analysis and not from preconceptions.“ ii” p. 3 1. 0-”) , :9 .1'~—\~ . h.-.~a'\hu.d .- 5 I v 'f: “ ’P; w- Ja. Jc .1; one 'm- y Ivnu I \ a no. . :w -.' ’i‘ on... H“ d. '. s ‘r ~~l< L-. ' x ‘u‘lfi "PK“ ‘vd “.1“ o ... n ‘y‘ .‘x‘ffd- ft. 68 an increased and expanded judicial review of administrative decisions. One of the major proposals Of the study was that the separation-of- functions requirement of Section 5(c) of the Administrative Proce- dures Act of 1946 concerning adjudicatory activities of administrative agencies should be applied to administrative rule—making that is based upon a hearing}9 The clear import of this recommendation is the assimilation of the process of administrative discretion into the procedural context of a public trial with cross-examination and 30 judicial techniques for the accumulation of facts. The task force 29Task Force Report on Legal Services and Procedures, p. 164. "To assert that formal rule making is, unlike adjudication, not an adversary proceeding is to have regard only to the form of the Proceeding and to ignore realities. In many respects, where rules are promulgated on the basis of a record made at a formal hearing involving sharply contested issues of fact, the agency is, in effect, Prosecuting the proceeding against private parties to be affected in the future by the rules." I_b_1_d_. This is indeed an interesting doc- trine. The task force would apply the procedures traditionally as- sociated with the protection of private rights to a procedure that thOlVes no infringements of private rights, but might, at some time T“ the future, affect some private rights by application of the admin— 18trative regulations. "M 30This proposal was criticized strongly by Louis Jaffe. t' °St rule-making involves the weighing Of a complex of considera- blons. many of them of the kind we call political; the judgements to e made are judgements of more or less, of feasibility, of prognosis. ngffinarily such decisions are the product of the staff--the technical anscers embodying special knowledge and continuity of experience-- Of t the political Officers who must rely on the technical experience he staff, but temper and direct it. This cannot be and should not e conceived as the decision of a judge." Louis L. Jaffe. "Basic 69 supplemented this proposal by the recommendation that such separa- tion-Of-functions should also be applied to the final agency decision 31 itself. Thus, the agency members charged with the final decision concerning important policy decisions should not be allowed to con- 2 sult with agency subordinates who "worked on the case below. . . ."3 They would simply be furnished with review staffs composed of law- yers and technically trained personnel to review the evidence and conclusions brought out in the original hearing.33 Such recommenda- tions reveal an obvious attempt to restructure the process of admin- istrative discretion into a judicialized procedure of hearing and re— view similar to a judicial organ attempting to arbitrate a diSpute 34 involving private rights . k Issues: An Analysis," in "Hoover Commission and Task Force Re- ports on Legal Services and Procedure: Symposium," New York Wis Law Review, xxx (1955), 1283. " ' """“‘ 31 P- 176, Task Force Report on Legal Services and Procedures, 2 3 Ibid., p. 179. 33Ibid., pp. 179—180. 34Jaffe's criticism of one particular proposal applies equally Well to the conclusion arrived at from a perusal of the discussed reCplllmendations. They are indeed "part and parcel of the intent f ch runs through these reports to minimize the policy-making unction of the agency, to rob it of the mechanisms needed for its Strength, and to turn the agency into a judicialized board of appeal." Jaffe. op. cit., p. 1282. vflwn _. _ " 'v' r.- V» - ct...” . V '- \A 44 ‘ cl: (tr- bb" d F'F..- ;, ~ ‘ ”to...” ‘k; N... ~o... u u.- va., H. “‘u-on 8". .~ «1 .m, I pr , a “-ho- or.. \o‘. \ a‘. ‘.n. ‘o .. .- 70 The task force also concluded that "there is a pressing need for widening the area of judicial control of the administrative proc- 35 . . . . . . ess." One of the major areas that neces51tated increased judlc1al control, according to the task force, involved administrative decisions affecting privileges and benefits granted to the citizen. Although such decisions did not relate to private rights, the task force de- clared that judicial control was necessary on the theory that the courts must control the administrative process for Congress because Congress could not provide adequate control itself. Judicial review should not be denied a citizen whose claim for a benefit which the law grants to him is disallowed by an agency. The function of the courts in these matters is not to protect a right which the claimant already has under the law. It is, rather, to assure that the processes of Government are fair and impartial and that the congressional purpose in author- izing the executive branch to grant the benefit is faithftu exe- cuted. Congress cannot supervise the detailed administration of Such laws. That is why discretionary authority is conferred by Congress upon the agency in the first place. Congress can be assured that its Objectives are fully complied with only if Claimants are given a day in court to test the exercise of ad- ministrative action pursuant to such conferred authority. Three additional areas in which a wider judicial review should Oper- ate Were cited by the report. In the first place, the task force rec- ommended that the judicial concept Of "abuse of discretion" be \ . 3 p 2 5Task Force Report on 143581 Services and Procedures. - O6. 36 Ibid., p. 208. . 0. Q ‘I‘;."; PR J .-:.-.A.~.u ya I Ft? 9"". I ‘9,_. 6 up) n." I“; . ‘. ‘9‘“ in» .&.l .‘u‘- ‘ -o. I " w‘ ~t‘~"cA.IE ‘L"“". Q: I: our... 'J “I— as. M r... t N: Hn“' “\‘h. M a "\“Iq “ ‘ o \ '- .~ . ‘- In 5; ‘ ‘o. Fr. "M.‘l'c ’ . M .. ’ -. I-‘F r. n V.“ ‘r- . ‘~ ,3.» 1 ., 1 :M-.- ._ _ . J- I'. . I_ .. "‘ ‘1 '- - v ..{ ‘. w ».‘u , II. “ ‘ e v t _ o 'o ‘. \ .I . . .- ‘h 71 interpreted to include "a clearly unwarranted exercise of discre- tion."37 Such an expanded concept would allow the judiciary to better supervise an agency's exercise of delegated statutory discre- tion. The task force also proposed that judicial review should be extended by a legislative declaration that findings of facts by ad- ministrative agencies would be subject to court review on the whole record to determine whether reliable and substantial evidence could be found from a distillation of all the conflicting evidence presented at the hearing.38 Finally, the report recommended that all mixed questions of law and‘fact should be submitted to the judiciary for determination and that the courts should not take a restrictive view 3 0f their reviewing function over such questions. 9 37Ibid., p. 217. The latter term referred to an unwise use Of diacret-i-O—r: for the task force was concerned that "if the matter does not involve a choice between rival claimants, there is little POSSibility of setting aside discretionary administrative action, no 'matter how unwise under the facts its decision may be." Ibid. 38 Ibid., p. 218. 39Ibid., pp. 216-217. See the bill proposed by the task force, entitled "TO—Improve Legal Procedures in the Executive Branch of the Government through the Enactment of an Administrative Code, find for Other Purposes." Ibid., pp. 359-396. In addition to includ- mg the recommendations dim—ugsed above, the bill included the pro- posal to establish an "Administrative Court." Such a court would 1:: c0Inposed of two sections, a "Trade Section" and a "Tax Sec- th These sections would take over the various adjudicatory ac- tlvittea of administrative agencies in these fields in order to provide , --, Pi? J-lwhv )tvt-ww'nw . 7' ’ F‘ It. .M-V-q I O . b-wppo- - . \ P' "' «en... an. ‘I‘ . '9” ee-o _ ‘ we; “ I~..A..|. 6 w.-.. .v ,fl v. J‘g" . .. |~ .._ - Am "r u p I n . Jay.“ I ’ ‘ \o‘.. J T‘ .._ 6....h'. J: . z - . .._.~ 1 . ‘u . u a. x .u a | ‘1- 72 These major proposals clearly elaborate, in some detail, the contemporary doctrine of the judicial formula. Like Freund's earlier thoughts on the subject of the control of administrative discretion, this doctrine is based upon a predominant concern with the protec- tion of private rights. It also follows Freund's footsteps in pointing to the procedures associated with the traditional judicial organs and to judicial review to structure and control the process of adminis- ,‘trative discretion in order to provide such protection. A presenta- tion of the third major doctrine completes the picture of the current patterns of thought concerning the control of administrative discretion. Legislative Control The third and final dominant doctrine of control of the present era--the doctrine of legislative control of administrative discretion-- “x an independent tribunal for the settlement of disputes involving pri— vate rights. A majority of the members also recommended an "Im- migration Section" and a "Labor Section," but these additional sections were not included in the prOposed bill. See _1__b_i___d., pp. 435- 442- This prOposed court was conceived as an intermediate and necessary step in returning adjudicatory activities to the courts in ordeI. to preserve the "integrity of the separation of powers." Ibid., p. 250- It was the expectation of the task force that "in the future, Ether clearly defined areas of administrative adjudication would be 1a:uleferred to the Court and that, after case law had been accumu- theed and experience gained, some matters of adjudication handled by Administrative Court might be transferred to the courts of gen- eral jurisdiction." Ibid., pp. 249-250. din”.— .- .J. -‘ "hw. I u t; n -. >.. p - NV...) : v v . . a. r. 1 U '7' .3“ ..~~ a" -0- I In 73 is premised upon a predominant concern with the political responsi- bility of administrative activities. In this regard, then, it is similar to the doctrine of presidential control and distinguishable from that of the judicial formula. This important emphasis also differentiates the contemporary doctrine from its historical predecessor. Wil- loughby's primary orientation was toward a scheme that would pro- duce an efficient and economical administration. Such a view was compatible with his theoretical dichotomy between politics and ad- ministrationr The denial of this early concept, however, has given rise to the problem of the continuous control of administrative dis- cretion in order to maintain political accountability of administration to the governed. The present doctrine is an attempt to provide a solution to this important problem. The solution offered by the current doctrine, however, main- tains a close affinity to Willoughby's earlier thoughts. It represents primarily an emphasis and elaboration of the implications for a Schen’le of control of administrative discretion found in the earlier design. There is no single published source that contains a complete and detailed representation of this doctrine. Its major outlines have to be gathered from various writings and studies. Charles S. Hyne- m an. stimulated by the emphasis upon presidential control of 74 administration represented by the report Of the Brownlow Committee, however, has produced a work that contains many of the important . . 40 . elements of this doctrine. The so-called "Byrd Committee" re- . . . . 41 port is also based upon premises of leglslatlve control. There are also various recent writings, among the more important of . 42 . which are those by Bernard Schwartz, that pomt toward the con- tinuous congressional control of administrative discretion. The writings that develop the present doctrine of legislative control contain little detailed analysis Of the constitutional position of administration in the American national government. A systematic E 40Charles S. Hyneman, Bureaucracy in a Democracy (New York: Harper and Brothers Publishers, 1950). See also Charles S. Hyneman, "Bureaucracy and the Democratic System," Louisiana £31” Review, VI (1945), 309-349, for a shorter summary of his mfitjor ideas expressed in the former work. 41Preliminary Report of the Select Committee to Investigate moutive Aggncies of the Government, supra, n. 1. “Bernard Schwartz, "Legislative Control of Administrative Rules and Regulations: The American Experience," New York Uni- Xi’isitLLaw Review, xxx (May, 1955), 1031—1045. Bernard Schwartz, ,Legislative Oversight: Control of Administrative Agencies," Amer- Efliar Association Journal, XLIH (January, 1957), 19-23. 4 (N 3393 Ernest S- Griffith. Congress, Its Contemporary Role anew York: New York University Press, 1951); Charles E. Gilbert d Max M~ Kampelman, "Legislative Control of the Bureaucracy," A Wthe American Academy Of Political and Social Sciences, (March, 1954), 76-88; Herman Finer, "Administrative Reaponsi- b' ' . (81111my 1n Democratic Government." Public Administration Review, I mmer. 1941), 335-351. I a _p- um ‘- wu- L 75 study of this problem is thus not presented, but the criticisms of the doctrine of presidential control and the implications of various statements reveal fundamental interpretations that do point in the direction of Willoughby's conclusions on the place of administration and its control in the American constitutional system. The Byrd Committee report contained little constitutional theory, but, after mentioning the theory of executive centralization and a hierarchically organized administrative branch, it declares that "the theoretical case for executive centralization is an attractive one, but, prac- tically, it is by no means certain that every part of the administra- tive organization need be brought under immediate executive super- vision."4.4 This problem of constitutional theory and interpretation did not command a major share of Hyneman's thoughts either. It is clear, however, that he did not accept the idea that the Constitu- tion intended to place all administrative activities under the control of the President, and, in this manner, to insulate them from any Congressional supervision and direction. He was content to dismiss this position by simply stating that "there is very little indeed to BuPport the point of constitutional theory. The framers of the Con— Stitution certainly did not make it explicit that Congress was to \ 44Preliminary Report of the Select Committee to Investigate wecuflve Agggcies of the Government, p. 18. ; 9 ‘r': ' A u... j "- q‘pOF' . *1» '~ Iv‘x-oi'o be u. . _ \2 mm"; P” ‘J at. ... g ‘ ‘ o I‘.';’q03 a,“ 1‘ “low uu'u g. . "I v.: AA.F"‘ '4. .g 1“," . ‘~~'.., \-.._ “_ {‘3 I ‘guo..." .- ~'-... . ‘34.”- p. .. ~‘P‘p..‘ I ML; :5!‘ I - “_“ I n.“» .“ 7. to '..) l . a. “. v a .15 .- «g-.. .— 1 1 \. \a ‘1 t. n‘.‘.. ‘4 h- “ . \ ‘1 . .g b7 “~L nx. ‘ a ‘.‘ n ‘ ‘q A d. ' ~§ Ar ‘~ '\ ‘9 . 1 \ ‘. o ~I. | I 7‘ \ \ \ 75 study of this problem is thus not presented, but the criticisms of the doctrine Of presidential control and the implications of various statements reveal fundamental interpretations that do point in the direction Of Willoughby's conclusions on the place of administration and its control in the American constitutional system. The Byrd Committee report contained little constitutional theory, but, after mentioning the theory of executive centralization and a hierarchically organized administrative branch, it declares that "the theoretical case for executive centralization is an attractive one, but, prac- tically, it is by no means certain that every part of the administra- tive organization need be brought under immediate executive super- vision."44 This problem of constitutional theory and interpretation did not command a major share of Hyneman's thoughts either. It is clear, however, that he did not accept the idea that the Constitu- tion intended to place all administrative activities under the control of the President, and, in this manner, to insulate them from any Congressional supervision and direction. He was content to dismiss this position by simply stating that "there is very little indeed to suPport the point of constitutional theory. The framers of the Con- Stitution certainly did not make it explicit that Congress was to \ 44Preliminary Report of the Select Committee to Investigate £15"\Executive Aggncies of the Government, p. 18. 76 refrain from addressing instructions to the heads of administrative 45 establishments . ' ' Hyneman's critique of the theory of presidential dominance also reveals that he actually accepted the concept of the. legislative grant of presidential review and direction of administrative decisions and actions. As Willoughby before him, then, Hyneman viewed presi- dential supervision and direction, not as a point of constitutional imperative, but rather as a matter of legislative policy. This be- comes quite clear when Hyneman declares: The statement of the Constitution that "the executive power shall be vested in a President" and that the President "shall take care that the laws be faithfully executed" does not give him authority to issue a patent or fix the standards of quality and condition of grain or determine a dam's location. The authority to do any of these things lies in the official that is authorized by statute to do it. The President cannot issue the order for the duly authorized Official or modify or revoke it unless a provision of law (expressly or by fair implication) says he may do 80.4 The power of administrative direction rests with the legisla- ture. not the presidency. According to this view, therefore, Congress is free to determine whether or not the President shall direct and 5Hyneman, Bureaucracy in a Democracy, p. 168. Pr . 6_I__b_i£1_., p. 318. Hyneman does recognize, however, that the foreéldent has a share. in administrative direction in the fields of creel-g“ affairs and military matters through his constitutional pow- 1n these fields. See 193$ 77 supervise the exercise of delegated powers by the subordinate execu- tive agencies. The ultimate conclusion of this theoretical postulate is that the agencies are organizational means for carrying out the powers of Congress, and, as such, may not only be made independent of presidential control, but may be directed to look to the legislature for direction and supervision. Schwartz states this conclusion in a very unambiguous manner: The administration, in the exercise of its delegated powers, acts solely as the agent of the legislature. But if this is true, the latter must clearly possess the authority to exercise continu- ous control over administrative activities. For it is a funda- mental law Of agency that a principal retains continuing control over his agent.47 This constitutional position of the administrative organization, in relation to Congress, is compatible with Hyneman‘s interpretation 0f the unrealistic basis of presidential control and his view of the necessary political control of administration. His entire analysis is based upon the problem of determining the proper means for assur- ing “that the administrative branch of the federal government will conduct itself in accordance with the wishes of the American people \ 47Testimony of Bernard Schwartz, "Proposed Establishment of Cc>Inmittee on Administrative Procedure," Hearings Before a Special Subcommittee of the House Committee on Rules, 84th Con- gress’ 2d Session, May 22, 23, 24, 1956, p. 60. This statement was guide in regard to administrative rule-making powers, but its logic 1319-8 equally well to any discretionary power delegated to admin- ative agencies by Congress. 78 as a whole."48 The President, although recognized as a political organ for the representation of the people's will, can not possibly personally furnish the necessary continuous political control of the bureaucracy. The theory of presidential control of administration, then, instead of providing political direction and control, creates a vacuum in which narrow partisan pressures attempt to control ad- ministrative decisions and actions. Hyneman believes that "to give the President a monOpoly on the issuance of instructions to the ad- ministrative branch . . . is to free administrative officials to follow their own will (respond to other pressures) where they are today re- quired to bow to the will of Congressmen."49 The impossibility of furnishing the necessary political control of administration through the President, therefore, leads Hyneman to look to the legislative bOdy for such control. It is the only other alternative to provide Political direction, and he sees ”great advantages to be gained \ 8Hyneman, Bureaucracy in a Democracy, p. 42. 491bid., p. 171. The Byrd Committee, in regard to the inde- pendent regulatory commissions, saw an equally unfortunate conse- quence of presidential control of the subordinate legislative powers 2: theso bodies. But the channels of partisan influence, in such a chief: Were viewed as leading through the presidency, not around the flow: executive. The influence Of powerful special interests would bur tlIrough the President to the department head and thence to the andetau Chief who had taken over the activities of quasi legislation, Prelihe. policy decision would thus be made in the "wrong direction." WW Report of the Select Committee . . ., p. 799. 79 from the continuation Of day-to-day direction and control by Con- gress." In addition to this view that political direction and control of administration by Congress is the only realistic alternative, the doctrine of legislative control also views Congress as the embodi- ment of two other important values associated with the control of administration. In the first place, since administrative discretion raises the problem of maintaining the consent of the governed for decisions and actions ensuing from such authority, control of ad- ministrative activities must be associated with an organ of govern- ment accountable to the people. Secondly, the controlling organ must also be independent of the executive and the administrative branch so that supervision and direction can occur in a situation free from influences and loyalties that would contaminate effective Corrtrol. These important considerations reaffirm the emphasis upon the legislature as the point of control of administration in the doc- trirle of legislative control. Congress is pictured as "the one great \ deg 50Hyneman, Bureaucracy in a Democragy, p. 170. Hyneman 1ered that "the withdrawal Of continuing direction and control by I.éhtgless, it seems to me, will have the almost certain result of a ducing the amount of political direction and control to which the ministrative branch is subjected, rather than of substituting a or‘e systematic and thorough political direction and control on the Dar-t of the President." Ibid. ¥ 80 organ of government that is both responsible to the electorate and independent of the executive."5 The combined elements of the present doctrine thus lead to the conclusion that the legislative body must furnish the continual, day-to-day control of administrative discretion necessary in a demo- cratic political system. Hyneman recognizes, however, that congres- sional control is not always formalized into a systematic procedure at the present time. It is Often represented only by intermittent excursions into the arena of administration by individual congress- men or congressional committees. Such activities do not detract from the conclusions concerning the necessity for legislative control, however, but merely emphasize the need to systematize such control. Hyneman maintains that "the safer way for America . . . is to re- duce the meddling and regularize the excursions and forays of Con- gress into the administrative area; not to bar Congress from such actiVity on a theory of presidential supremacy over administration."52 Congress itself, according to Hyneman, is the only body that can I‘educe such unwarranted interference. The legislative body \ t‘ SlSchwartz, "Legislative Oversight: Control of Administra- lve Agencies," p. 20. z o 336 Hyneman, ”Bureaucracy and the Democratic System," p, 81 must discipline its individual members to prevent situations in which particular members attempt to control and direct certain ad- ministrative officials in their official duties. Furthermore, if con- gressional committees are going to continue to maintain a close and influential scrutiny over particular administrative decisions and ac- tivities, "it may be desirable to clarify the authority of the com- 53 mittee by resolution or statute. . . ." In addition to these negative and preventive measures, how- ever, the proponents of the doctrine of legislative control also pro- pose several devices for establishing a formalized, day-to— day con- gressional direction of administration. One Of the devices that is Proposed represents a consensus among all the students who have investigated the problem of control through a conceptual framework made up of the theoretical postulates of the doctrine of legislative control. They all agree that effective congressional supervision of administrative discretion can be established by the adoption of the legislative veto or annulment procedure. This device is exemplified by the method of congressional approval or disapproval Of executive reorganization plans in the national government and the English method of am'111lment or approval of subordinate legislation. It is viewed as \ 53Hyneman, Bureaucracy in a Democra_cy, p. 172. 82 a method that will achieve the necessary continuous and systematic . . . . . 54 legislative control of administration. Other proposals have also been announced. Griffith states that one of the desirable procedures for facilitating congressional direction of administration would be the practice of questioning ad- ministrators on the floor of Congress or in congressional commit- 55 . . . . tees. Hyneman also makes additional suggestions for controlling the wide range of'discretion given to administrative authorities. One recommendation is to make statutory language more precise when , 56 . . delegating such authority. The use of jOint or concurrent resolu- tions to provide congressional interpretation of a statute that an 54This device is recommended by: Gilbert and Kampelman, op. cit., p. 84; Griffith, Op. cit., p. 23; Schwartz, "Legislative Con- tr01 of Administrative Rules and Regulations: The American Ex- Perience," p. 1040; Hyneman, Bureaucracy in a Democracy, p. 173. PrOfessor Harvey Walker, in his testimony before the Senate Com- mittee on Expenditures in the Executive Departments during the first session of the Eighty-second Congress, also recommended such a 1egiSIative veto as a method for controlling administrative rules and regulations issued by executive agencies. See U.S. Congress, Senate, committee on Expenditures in the Executive Departments, "Organi- zation and Operation of Congress," 82d Cong., lst Sess., June, 1951, 913- 41 9— 420. 5 5Griffith, loc . cit. 6 Hyneman, Bureaucracy in a Democracy, p. 172. "~'l 9w“, 5...”. 1.. . ___—-_ HUI... r' ' D .1 "tr «.0 u. , | C up. .¢. us on» “r o“ ,' _ . V, a... -v rd‘ ‘Iu, 1 v '7‘ .‘*-.»u. a,“ , \ 9.... he... ‘*.— a..’ .J 3.- \ .,.“.-. We-.. . J4» . “2;. . ..- ,4. 83 administrative official is charged with enforcing and implementing is another proposal Offered by Hyneman}.7 The doctrine of legislative control offers still another solu- tion to the important problem of the control of administrative dis- cretion. It concludes that the political control of administrative discretion necessary to structure an administration that is reSpon- sible to the electorate must be provided by the legislative body. This conclusion is reached through a combination of several theoretical postulates that identify this doctrine as a distinct conceptual scheme. The contemporary doctrine of legislative control is distinguish- able from the other dominant doctrines of the present era. It differs from the judicial formula plan not only in major conclusions, but also in the primary motivation underlying the doctrine. The emphasis of the doctrine of legislative control is oriented toward the political I‘1-‘:8ponsibility of administration in order to maintain the consent Of \ 57Ibid. Although the fundamental elements of Hyneman's 8oheme pO-i-ti—t toward congressional control of the bureaucracy, he does recognize that the President plays an important part in the Political direction of administration. He thus advocates the estab- lishment Of an Official body which he calls a "General Council." This body would be composed of the President, members of his Party in Congress who hold important and influential positions, the heads of the important administrative establishments, and others 011t81de of the governmental organization who could bring advice and Public support to such a group. This device, according to Hyneman, could then coordinate the formulation and execution of the govern- ment program. 1212., pp. 557-576. nu o'u' up - u 1 w .. {rm-u. .. I C . I 0!! em -v J v ‘Fr. .— ‘pv-e u.._ .4 . t .; ~ , "v; .,”4 """-Ld., Mi‘,“ rd ' -' Har_ o‘. 'I .,,_~ KL“. 84 the governed. The conclusions emerging from this doctrine look to the legislature for the necessary control of administration. The doc- trine Of the judicial formula emphasizes the importance of private rights and the freedom of the individual from the "unstandardized power" of the administrative process. The conclusions of this doc- trine point toward the judiciary and judicial review for the institu- tionalization of that necessary continuous and systematic control of administrative discretion. The doctrine of legislative control, although based on a simi- lar concern for the political reSponsibility of administration, also denies the conclusion in the scheme of presidential control that the President is the proper and necessary source of continuous control of administrative discretion. The former doctrine contains a hypothe- sis concerning the constitutional position of administration different from that contained in the doctrine of presidential control. Further- more, it includes an interpretation of the administrative process that denies the possibility of an effective personal control of administration by the President. It is also built upon the unstated assumption that the public will and public interest is more likely to emerge out of the Conflict and consensus of many local representatives and that Congress represents, therefore, the most effective channel for politi- cal Control. These differences in basic postulates produce a solution 85 for the problem of the control of administrative discretion that em- phasizes congressional direction and control. Conclusions The student of public administration and administrative law who desires to investigate the problem of the control of administra- tive discretion is the heir apparent of three ready-made alternative solutions. Each of the solutions is represented by one of the major doctrines of control of the present era. These schemes, in turn, reiterate conclusions and elaborate implications inherent in the ideas and thoughts about the control of administration that emerged at the very beginning of a conscious concern with public administration. They have not gone far beyond their historical predecessors in an attempt to resolve the important contemporary problem of the con- tinual, day-to-day control of administrative discretion. As a result, the discussion of the control of administration from Goodnow to the present has been dominated by theSe doctrines. The predominant concern with these schemes has obscured the mor e fruitful focus of inquiry that would provide a common approach to the study of administrative discretion and its control. Little at- tention has been directed to the formulation of general concepts that could be used to investigate the realities of the administrative 86 process. Practically no attempt has been made to combine such concepts into a systematic theory for the analysis and understanding of the exercise of administrative discretion. An examination of the three contemporary doctrines, however, serves an immediate purpose. It furnishes an analysis of the legis- lative control doctrine within the context of its relationship to the two other schemes of the present era. Such a comparative analysis brings to light the two major claims underlying a program of legis- lative control of administrative discretion. The first claim concerns the promotion of politically respon- sible administrative decision-making. Legislative direction and con- tr01 of administrative discretion assures that administrative decisions 58J. Leiper Freeman has formulated a theoretical scheme to describe and analyze what he calls the "Political Subsystem" in which important policy decisions are made. This subsystem is composed of the fairly regularized patterns Of interactions between administrative agencies, congressional committees, and special-interest groups. It is a distinct part (of the larger political system outlined by the pres- idency, Congress, and the political parties. This type of approach could be utilized to focus especially upon the process of administra- tiVe discretion and its control. See his short work entitled The P0- w Process: Executive Bureau-Legleative Committee Relations (New York: Doubleday and Company, Inc., 1955). Elias Huzar has £1130 offered some tentative generalizations concerning the relationship hetween the expansion and contraction of legislative control of admin- IStI‘e‘ltive discretion and Specified conditions found in the political p roeess. See his article entitled "Legislative Control over Adminis- thation: Congress and the W.P.A.," American Political Science Re- %. XXXVI (February, 1942), 51-67. 87 will reflect and represent the consent of the governed. The second claim centers around the question of constitutionality. The legisla- tive control doctrine asserts that a program of legislative control represents an accurate implementation of the constitutionally or- dained position of the legislative body as the organ of direction and control of administration. These two claims provide a basis for the evaluation of each device of congressional oversight. The actual operation of each de- vice can be assessed in terms of its fulfillment of the claim of POlitical responsibility. The arguments that have been presented to Support or Oppose the constitutionality of each can be examined. An evaluation of each device can then be made in regard to their ful- fillment of the claim of constitutionality found in the legislative C ont rol doctrine . Before turning to the analysis and evaluation of congressional oVersight, it will be instructive to look at the British practice of Parliamentary review of subordinate legislation. Such a practice has be<30me an important element in the system of control of administra- tive decision-making in that country. Its presentation offers an 0ppOI‘tunity to view congressional oversight in a comparative context, and, in this manner, promotes a fuller understanding of the American pracztice. CHAPTER IV PARLIAMENTARY REVIEW OF SUBORDINATE LEGISLATION IN ENGLAND Int roduction The English system of parliamentary review of subordinate legislation is a method that has been adopted in Great Britain for the control of the delegated rule-making powers of the executive. Its use and pOpularity in England grew as Parliament found it increas- ingly necessary to delegate broad legislative powers to the govern- ment departments. It was a device that was little known to England of the nineteenth century. As England entered the twentieth century, however, Parliament began to use this form of control of administra- tion much more frequently, and today parliamentary review has be- come the central element in the system of the control of delegated legislation in England. Before turning to a detailed analysis of this method of control, howeVer, it is necessary to emphasize two features in the English governInental system that differentiate it from that of the United S tates. Parliamentary review in England and the new experiment of 88 89 legislative control in America operate in different constitutional sys— tems and governmental structures, and these important differences must be kept in mind in any comparison of the two procedures. The control of administrative discretion by the legislative body in England takes place within a political system that is based upon two impor- tant basic principles. These two principles are parliamentary su- premacy and the position of administration as a result of the par- liamentary cabinet form of government. The principle of parliamentary supremacy means, in general, that the Parliament of England is the supreme legislative body in the political system. The statutes passed by this body form part of the fundamental law of England and cannot be abrogated by any body other than Parliament itself. This principle clearly differentiates the con- Stitutional systems of England and the United States. The United States Congress is limited to the powers and authority expressed in or by the United States Constitution, and the use of such powers is Subj ect to review and nullification by the national judiciary. Although the English theory of parliamentary supremacy is based upon the conception of a Parliament composed of three parties “the English monarch, the House of Lords. and the House of Com- monsuthe actual locus of political power in the system of parlia- thehtary government has for some time been the House of Commons 90 The lower house, the representative organ of the electorate in Eng— land, is, therefore, the important force in Parliament. The function of the English monarch in the legislative process is today merely formal. The House of Lords in England has no important power of legislative veto at the present time. The peers of the upper house can obstruct and delay, but they cannot prevent important policies from becoming enacted into law. "The essential function of the House of Lords is to debate matters of policy which do not require legislation and to make or accept technical amendments in Bills." The reality of the pattern of political authority in England, as 0p- posed to the theory of parliamentary government, makes the two terms "the House of Commons" and ”Parliament" practically sy- nOnyrnous in any discussion of parliamentary supremacy. The popular view that "Parliament" and "House of Com- mons" are interchangeable terms is based on political realities. The Queen has withdrawn from Parliament for all except formal Phrposes; the House of Lords performs useful services but they are neither spectacular nor fundamentally important; the real Work of Parliament is done in the House of Commons. Its re- e1ininence rests on its authority as the representative House. \ Loud lSir Ivor Jennings, The Law and the Constitution (4th ed.; °t1: University of London Press, Ltd., 1954), pp. 172-173. 2 Sir Ivor Jennings, The Queen's Government (Melbourne: Peh 1'1 Books, 1954), p. 76. 91 The position of administration in the central government of England is best understood in relation to the English cabinet. This governmental body has become one of the central elements in the system of political authority in Great Britain. The English cabinet evolved from the earlier Privy Council and is actually unknown to English law. It originally functioned to assist and advise the mon- arch of England in some of his important governmental duties. This original organization has now evolved, however, into the modern English cabinet. It has taken over the important functions of the earlier monarchs and is now the effective executive authority in the English governmental system. 3A discussion of the cabinet and supplementary studies of the relationships existing between the cabinet and Parliament and the cabinet and the civil service can. be found in several good articles publiShed in Parliament: A Survey, ed. Lord Gilbert Campion. See Rt. Hon. L. S. Amery, "The Nature of British Parliament Govern- ment." pp. 37-72; Sir Arthur Salter, "Cabinet and Parliament," pp. 105-121; H. E. Dale, "Parliament in Relation to the Civil Service," PP- 121-141. 4This development of the cabinet into the actual executive authoI‘ity in English government is the culmination of the histori- tchal development stemming from the parliamentary victory over the ceeory of kingship represented by the Stuart kings of the seventeenth destul‘y. The interesting combination of events that produced this c an elopment is analyzed in Sir John A. R. Marriott, E lish Politi- Witutions: An Introductory Stay (4th ed.; Oxford: The Clar- e Crick)n Press, 1938). pp. 69-100; and N. H. Gibbs (ed.), Keith's British Stevens and Sons, Ltd., 1952), pp. \1 8‘bhlet System (2d ed.; London: ~21 . 111111». 5 a. . 7.... .nw 4." (fl. It‘ll-It: I lilillf ul I: I . 92 The administration of the activities of the central government of England is primarily carried out by government departments di- rected by ministers who collectively form the British cabinet. The authority for such activities is based upon powers delegated by Par— liament to the departments or the ministers and the remaining pre- rogative powers of the Crown. Although these prerogative powers are legally vested in the Crown, the appropriate minister of the cabinet now actually exercises the powers. The statutory and pre- rogative powers that are the basis for the administration of govern- mental functions are exercised, therefore, by ministers of the gov- ernment who are subject to the general direction of the cabinet. The cabinet, in turn, is politically responsible to the House of Com- mons for the exercise of these powers and the administration of the governmental programs and activities. Both the reSponsibility and the authority for administration in the central government of England thus centers in the cabinet. The cabinet, composed of members of Parliament who are considered the party leaders of the majority political party of the House of Commons, is I‘GSponsible to the House. for the exercise of these powers. This lustitutional arrangement provides a clear channel for the control of \ 5Jennings, The Law and the Constitution, pp. 178-182. 93 administration. The conflicting claims to the control and direction of administration in the United States, made possible by the sepa- rately elected and independent executive and legislative branches, is eliminated in England by the system of the parliamentary cabinet form of government. These two important principles of the English governmental system form the context for the operation of parliamentary review of delegated legislation. This procedure for the control of administra- tive discretion, when viewed in the light of these principles, does not involve the problems that are associated with the American practice 0f legislative control. In the first place, parliamentary review in England raises no important constitutional issue. The principle of Parliamentary supremacy allows the establishment of this type of Procedure for the control of administration. The procedure estab- lished by Parliament becomes a part of the governmental process, and it is not subject to abrogation because it is contrary to any furldamental arrangement dictated by a written constitution. The Se(Bond principle, the cabinet form of government, eliminates the conflicting claims to the control of administration that have been raj~Sed to the level of doctrinal conflicts in America. The absence of Separately elected and equal and coordinate executive and legis— lative departments possessing overlapping powers in relation to 94 administration excludes such a conflict. The cabinet system in England provides a governmental system in which the control of administration is ultimately in the hands of Parliament. Parlia- mentary review of subordinate legislation, based upon such factors, does not raise the same issues as legislative oversight of adminis- trative discretion in the United States. Subordinate Legislation Parliamentary review in England is related to the control of administrative discretion that generally is defined as the delegated authority to formulate general rules and regulations in particular areas of governmental activity. It is the power of rule- making that is delegated by Parliament to the executive. Such administrative diScretion takes the form of subordinate or delegated legislation, WhiCh forms an important part of the 1ex scripta in England. Sub- ordinate legislation may be exercised through a wide variety of of- fimial documents. "They may be called rules, regulations, orders, schelites, by-laws, licenses,‘directions, warrants, instruments of approval, minutes."6 Furthermore, there is no accepted distinction t"EtVVEen these various labels. It is almost impossible to generalize \ La 6.1. A. G. Griffith and H. Street, Principles of Administrative \‘1 (London: Sir Isaac Pitman and Sons, Ltd., 1952), p. 32. 95 about the particular function of each of these various forms of dele- gated legislation . The terms "regulations" and ”rules" are used mainly for instruments of a fairly high degree of importance, ”rules" be- ing used for matters of procedure and where apprOpriate else- where. The term "order" is very much a maid of all work, and the contents of orders are often indistinguishable in their nature from the contents of regulations. "Scheme" is gener- ally used for establishing some authority and defining its powers and duties or for laying down the framework within which de- tailed administration will proceed. The term "by-laws” is usually confined to instruments which are local in character, while ”warrants" are used for financial matters such as au- thorities for pay, pensions, charges, etc. It is difficult to dis- tinguish the nature of "directions" from that of regulations or orders, but very often "directions" are used for instruments, authorised by orders, which work out in specific detail the pro- visions of the orders.7 The Statutory Instruments Act of 1946 attempted to bring some 8YIBtematization into this rather bewildering nomenclature. This stat- ute directed that all subordinate legislation should take the form of "Statutory instruments." This is a generic term now used to de- SCI”ibe the vast bulk of delegated legislation in England.8 The defi- nition of this term, however, is a rather complicated procedure. It \ 7"Subordinate Legislation," Public Administration, XXX (Autumn, 1952), 237. It should be noted herfihat, although the pre- rogative powers of the Crown form part of the source of the legis— iaStlve powers of the administration, the exercise of this power, latgally by ”Order in Council,” is not considered subordinate legis- on. This is not a delegated power, but is rather an original Dowel, of legislation. 8Griffith and Street, op. cit., p. 34. 96 varies with the date of the passage of statutes delegating legislative powers to the government departments and administrative agencies. In general, the 1946 act Specified that all subordinate legislation based upon authority contained in acts passed after 1947 that had to be exercised through orders in council or by a minister of the Crown and that authorized the formulation, confirmation, or approval of orders, rules, regulations, or other delegated legislation, would in the future be called statutory instruments. A different formula applies for statutes passed before 1948. The new term ’applies, in such cases, to any document that is used to exercise the power to make statutory rules within the meaning 0 l of the Rules Publication Act of 1893. Furthermore, in order to be included in this category, the instrument has to be of a "legis- lative" nature. Section 4 of the Rules Publication Act defined stat- ‘JtOPy rules as rules, regulations, or by-laws either made under any act of Parliament by Her Majesty in Council, any other government department, and other specified government agencies, or that relate to any court in the United Kingdom or the procedure in such courts. -\ 91bido' pp. 44" 45. 1 OIbidon pp- 45-46. 1 1Section 4 is quoted in ibid., p. 46. 97 There is no general definition of “legislative" for the purposes of the second requirement of this category. Although it is an impor- tant part of the question concerning whether or not a piece of sub- ordinate legislation based upon a pre-1948 statute is a statutory instrument within the meaning of the Statutory Instruments Act of 13 1946, the Reference Committee, to which such questions are sub- mitted, never gives a separate and direct decision on this point. Such statutory instruments, furthermore, may be either of a local or general nature. The distinction is made on the basis of the applicability of such instruments and generally follows a simi- lar differentiation between acts of Parliament. "Instruments are Certified by the responsible authority as general when they are in the nature of public general Acts of Parliament and as local when \ 12There is also no general criterion to determine what kind or decisions or actions are "executive" in nature. Some particular funetions that have been considered executive include the following: sommunications addressed to individual persons in reSpect of par- alcular circumstances, exercise of a licensing power, remittance of rafte'lalty, function of inspection, holding inquiries, and internal di- 1one to department officials. “Subordinate Legislation," op. cit., pp: 238-239. th 13The Reference Committee was established by Section 8 of e S‘liatutory Instruments Act. Ibid., p. 239. 4 . . “Ii 1 "The Reference Committee gives no direct decismns on , tive point . . . though the question whether a document is ‘legisla- e and not executive' is one which may be material to the decision." I Q. 98 1 in the nature of local personal or private Acts. . . ." 5 The major importance of this distinction is that the local instruments are not printed in the annual volume of statutory instruments, but are merely listed at the end of the volume. Instruments that are considered to be of a general nature include those that apply to all or a major part of Great Britain or to England, Scotland, and Wales individually. Those instruments that are local in application but are part of a national system of governmental activity or regulation are also included in this category. Regulations for Hyde Park and Kew Gardens and regulations concerning notification of Specific infectious diseases in particular districts are examples of local instruments. The particular government official or agency that is to exer- CiSe such subordinate legislative powers is generally Specified in the delegating statute. Such authority is delegated generally, how- eVer. to one of three points in the governmental organization. The most common recipients of the power of delegated legislation is Her Majesty in Council, ministers of the Crown, or government de- partItnents.18 Subordinate legislation by Her Majesty in Council \ 153332., p. 240. 161213. 171212. 18Griffith and Street, M” p. 33. 99 takes the form of orders in council. "Orders in Council are made at a formal meeting of the Privy Council. They do not differ in substance from departmental regulations, but it is sometimes appro- priate to lend the dignity of an ancient institution to the making of an important legislative instrument." Authority for subordinate legislation is more usually delegated by Parliament to a minister of the Crown or a government department. Since the passage of the Statutory Instruments Act of 1946, however, there is no real distinc- tion between these two points. Section 11(1) of this _act provides that when the power to formulate and issue delegated legislation is conferred upon a government department it will be deemed to be 19Orders in council are made at meetings of the Privy Coun- cil held at court with the monarch presiding. "These orders very Often do not originate in the Privy Council Office, but are prepared in the Government Department concerned in the subject matter, and for'Warded to the Office for formulation and submission to Her Maj- esty for approval. The procedure followed at a Council depends on the business which has to be dealth with. In the case of statutory Orders in Council, the various items are read out by the Lord PI'esident from what is known as the List of Business, and the Queen, who knows in advance what is to be submitted, then declares Her approval in the presence of the Privy Counsellors who form the quorum." "Subordinate Legislation," op. cit., pp. 236-237. In a few rather unimportant cases delegated legislation takes the form of Oli‘clers of Council." These are formulated by the Lords of the brivy Con—n-cil at a meeting not held at court and not presided over y 1ihe monarch. Such orders of council are utilized to approve regulations formulated by the Dental Board and the Statutory Com- otittee of the Pharmaceutical Society, to approve particular actions the Council of the Royal College of Veterinary Surgeons, and to goVern elections to the General Medical Council. Ibid., p. 237. 100 conferred on the minister of the government charged with the re- Sponsibility for that particular department. The broad delegation of authority for subordinate legislation to departments and agencies in the government of England began to emerge about the middle of the nineteenth century. It became an important part of the governmental process when the English govern- ment began to attempt to control the consequences of the Industrial Revolution. The use of such powers of subordinate rule-making, however, was not unknown to England before that time. Allen traced the beginning of the delegation of the legislative powers of Parlia- ment back to the reign of Henry VIII in the sixteenth century. The Statute of Proclamations was passed in 1529. It authorized the King in Council to issue proclamations that were to have the same effect as acts of Parliament. There were, however, several restrictions that accompanied this grant. The proclamations were not to infringe upon property rights, abrogate the common law, or issue \ 20Griffith and Street, op. cit., p. 45. The question as to t:hether or not any particular government agency is a department r this purpose and, if so, what minister is in charge of the de- ::trt1hent is submitted to the Treasury for an answer. .1313: "In e1f‘rmining whether any body or person is a Government Depart- IPent. the Treasury is guided by the practice under the Rules Pub— alcation Act, 1893; and any body or person which was regarded as QSGOVernment Department for the purposes of that Act is regarded sllch for the present purpose." "Subordinate Legislation," 9p. Q &~. p. 239. lOl instructions contrary to the statute law of the period.21 This early example of delegation of legislative powers was repealed in 1547, shortly after the death of Henry VIII, and the last two Tudor mon- archs and the first two Stuart kings preferred to rely on their pre- rogative powers rather than delegation of powers by Parliament.22 Delegated legislation was limited primarily to two types of situations during the next two hundred years. One category was composed of the grant of legislative powers to local governments by parliamentary delegation. The second use of subordinate legislation was associated with emergencies which demanded swift government action and, therefore, could not be adequately met by the slow and deliberate processes of Parliament.23 An example of this early delegation of legislation powers for the latter situation is the 21Carleton Kemp Allen, Law and Orders: An Inquiry into the Hfi‘g‘g and Scope of Delegated Legislation and Executive Powers in 712% (London: Stevens and Sons, Ltd., 1945), pp. 20-21. Another 1mPortant enactment of Parliament during the reign of Henry VIII Was the Statute of Sewers. Allen states that this was the earliest examIltle of the delegation of broad powers to a statutory body to make laws, ordinances, and decrees. Such subordinate legislation Was t0 have the same authority as statutes once it was submitted to the Chancery and received the approval of the King. 1213., p. 21. ZZ"Subordinate Legislation," Op. cit., p. 229. 23Allen, loc. cit. 102. delegated authority to issue quarantine regulations for a sudden out- 24 break of smallpox or plague. The eighteenth century was a period of reaction against the powers of the Crown. Parliament had just emerged victorious from the struggle with the Stuarts and their theory of prerogative powers in the preceding century, and the delegation of parliamentary powers was viewed with jealousy and distrust. This led to a fairly sharp reduction in the use of delegated legislation. Parliament attempted to administer government policy itself by detailed and specific 2. statutory language. 5 This practice of detailed legislative direction carried over into the early years of the nineteenth century. Sir Cecil Carr, one of the foremost students of English administrative law. describes the consequences of this practice very well: If we go back a century to the years 1819 and 1820, we find plenty of talk of "regulations" in Acts of Parliament, but they are regulations actually contained in the Acts not regula- tions to be made by some other authority. Thus in the factory and workshOp legislation of a century ago the ages of employees in cotton mills are Specified; the hours of work are fixed; there is a definite time for brealdast and a definite time for dinner. There is no margin for elasticity; nothing is left to be arranged by departmental order; we were not yet so elaborately adminis- tar'(ed. The Acts of the period are full of almost grotesque \ Z 4 Ibid. 25 Ibid., pp. 22' Z30 103 detail for want.of the gréactice of entrusting minor matters to subordinate legislation. Such detailed parliamentary control of the execution of the laws, however, could not long continue. It soon became apparent that the control of the ravages and consequences of the Industrial Revolution demanded technical legislation and swift and continuous government action. Parliament was not equipped to provide this type of governmental action, but the earlier limited use of delegated legislation served as a repository of tradition and experience that could be drawn upon in providing the necessary governmental con- trol. As Allen declared, ”there was a continuous tradition of the delegation of powers, though it develOped unevenly in different ages; and it is to the nineteenth century that its great and rapid extension belongs."27 The increased use of subordinate legislation in the nineteenth century commenced with the enactment of the Poor Law Amendment Act of 1834. This statute established a body of Poor Law Commissioners and gave them fairly broad powers of rule- making for the purpose of protecting the poor and impoverished citizens of England. The act provided that, in order to execute the powers of the statute, the commissioners \ C 26Cecil Thomas Carr, Delegated Legislation (Cambridge: arnbridge University Press, 1921), p. 49, Z 7Allen, op. cit., p. 23. 104 . shall and are hereby authorised and required, from Time to Time as they Shall see Occasion, to make and issue all such Rules, Orders and Regulations for the Management of the Poor, for the Government of Workhouses and the Education of the Children therein . . . and for carrying this Act into execu- tion in all other respects as they think proper. Since this early delegation of legislative powers, English gov- ernment has been conspicuous for its. reliance upon broad and fairly unlimited delegated discretionary authority in the governmental proc- ess. An act of 1909, the Housing, Town Planning Act, for example, delegated authority to the local government board to confirm schemes of local governments for the compulsory purchase of land and the construction of buildings for local housing developments. The final approval of such activities was left completely to the discretion of 2 the board. 9 Another interesting example is the Factories and Workshops (Cotton Cloth Factories) Act of 1929, which was based upon a very technical report concerning the use of artificial humidity in COtton-cloth manufacturing establishments. Parliament, either unWilling or unable to convert the recommendations of the report into statutory language, simply relied upon delegated legislation, and “awe into the act that the Secretary of State was authorized to \ ‘ 28Quoted by Griffith and Street, op. cit., p. 37. Co 29Bernard Schwartz, Law and the Executive in Britain: A wave Study (New York: New York University Press, 1949), 105 "make regulations for the purpose of giving effect to the recommenda- 3O tions contained in the Report." The Furnished House (Rent Con- trol) Act of 1946 furnishes a more recent example of this broad delegation of legislative powers. Section 8(d) of the act states that regulations may be made "generally for carrying into effect the 31 provisions of this Act." This use of broad delegations of legis- lative powers to the executive in England reached a high-water mark during the last world war. The British Parliament passed an act in May, 1940, popularly known as the "Everything and Everybody Act," that delegated practically unrestricted discretion to the execu- tive in order to expedite the war effort. The act read: The powers conferred on his Majesty by the Emergency Powers (Defence) Act, 1939 . . . shall . . . include power by Order in Council to make such Defence Regulations making Provision for requiring persons to place themselves, their ser- vices and their property at the disposal of His Majesty as ap- Pears to him to be necessary or expedient for securing the PUblic safety, the defence of the Realm, the maintenance of PUblic order or the efficient prosecution of any war in which His Majesty may be engaged, or for maintainingzsupplies or SeI'vices essential to the life of the community. \ 3 0Quoted in ibid., p. 49. 31Quoted in Griffith and Street, 0p. cit., p. 90. mi , 32Quoted in Sir Cecil Thomas Carr, Concerning English Ad- \1 9m3t1‘ative Law (New York: Columbia University Press, 1941), pp. -20: This was the Emergency Powers (Defence) Act, 1940. 3 and 4 Greg. VI, c. 20. 106 Another manifestation of the expanded Scope of delegated legislation in the modern era in England is the so-called "Henry the VIII clause." This particular type of subordinate legislation was "named after that monarch in disrespectful commemoration of 33 his tendency to absolutism." It refers to provisions found in sev- eral early statutes of the late nineteenth and early twentieth cen- turies that authorize the executive, by subordinate legislation, to amend the provisions of the enabling act or other relevant statutes in order to bring the parent act into effect. The Donoughmore 34 Committee found nine examples of this use of delegated legisla- . 35 tlon dating from the Local Government Act of 1888. Section 67 0f the Rating and Valuation Act of 1925 furnishes an example of the use of this device. This particular section empowered the Minister of Health, by orders, to remove any difficulties to bringing the act ' 3 "“50 operation. \ 33 . Allen, op. c1t., p. 100. 4 3 See infra, n. .77.. 3E’Allen, loc. cit. 36 , . is Schwartz, op. c1t., pp. 57-58. Carr behaves that such leg- ,lative grants are not, however, a prelude to tyranny or executive Q1iatorship. "Anyone who will look to see what sort of orders aVe been made under this power will find them surprisingly in- ocuous. The device is partly a draftsman's insurance policy, in 107 These examples point out the expanded score of subordinate legislation in the history of the develOpment of the executive rule- making power in England. The importance of delegated legislation is also reflected in the increased use of this device. This is vividly pointed out in a summary of the increasing number of pieces of subordinate legislation published by the Stationery Office through the years: The yearly average between 1894 and 1913 was 1238, the actual number varying from 950 (in 1895) to 1899 (in 1904); this latter figure was large because of the effect of the Educa- tion Act, 1902. The yearly average for the 1914-1918 period was 1461. The yearly average for the period 1919-1929 was 1677; for the first three years of this period the total exceeded 2000 but in the last three years averaged 1248 only. In 1937 the figure was 1231; in 1938 it was 1661; in 1939 it rose to 1946. In the six years 1940-45, the average was 2049. In 1948, 1949, and 1950 the figures were 2858, 2467, and 2144, respectively. 3 7 \ case he has overlooked something, and is partly due to the immense b.0915? of local Acts in England creating Special difficulties in par- tlcIllar areas." Sir Cecil Thomas Carr, Concerning English Admin- ixstrative Law, p. 44. 37Griffith and Street, op. cit., p. 38. This total evidently in- cluded both local and general statutory instruments published annually .by the Stationery Office, for Carr quotes a different total for approx- 1“lately the same period. Carr's statistics are based upon only the taTter type of regulations. It is interesting to note, however, that Phls class of subordinate legislation has also shown a steady, but Gather fluctuating, increase through the years: "Taking the general 1388 alone, one finds that from 1894 to 1913 the average annual total 1 8 about 210. During the First World War the figure soared. In 918 it was over 1,200. When that war ended, there was a fairly ‘ 108 Judicial Control of Subordinate Legislation The role of the judiciary in England has not been particularly important in the control of subordinate legislation. The limited role of the courts in relation to this problem results from several fac- tors. In the first place, many statutes delegating the power of sub- ordinate legislation to the executive have expressly precluded judicial review of the delegated legislation enacted under them. This is usually accomplished in one of two ways. Parliament often writes into the parent statute that a particular decision by the recipient 0f the delegated power is "conclusive evidence" that the subordinate 1agislation was properly exercised. Thus, in the Housing Act of 1925 the Minister of Health was authorized to confirm schemes involving the compulsory purchase of land for slum clearance, and such con- firInation was "conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made \ s‘lVift recovery from emergency to normal conditions. From 1922 to 1931 the average remained fairly steady around 400--twice as large as in pre-war years, but a smart drop from the high record of 1918. FI‘Om 1932 it climbed again and straddled 600. In 1938, the year of Llllich, it rose (for the first time since 1920) over 800. The seven Years of the Second World War produced further increase. The total Just tOpped 1,900 in 1942, sank again by nearly a half to just over '000 in 1944, went up steadily to over 1,500 in 1948, dropped be- }?W 1,400 in 1949 and fell again to 1,211 in 1950." Sir Cecil Carr, Delegated Legislation,‘I Parliament, A Survgy, ed. Lord Gilbert ampion (London: George Allen and Unwin, Ltd., 1952). p. 241. 109 and is within the powers of this Act."38 Parliament has also util- ized another device to preclude judicial review of delegated legisla- tion. This device involves a declaration in the delegating statute that subordinate legislation made under the authority of the parent act is to have the same effect as if written into the act itself. Since parliamentary acts are themselves immune from judicial re- view, the delegated legislation enacted under their authority is, therefore, also exempt from such review. This particular technique was used, for example, in the Patent, Designs, and Trade Marks Act of 1888. It authorized the Board of Trade to make such regulations as were, in the Opinion of the board, necessary to give effect to the 38Quoted in Schwartz, Op. cit., p. 63. Whether or not this actually precludes judicial review remains a moot point in the eyes of the English judiciary. Justice Darling, in Ex parte Ringer 25 T.L.R. 718 (1909), declared that such a statutory phrase did pre- clude review regarding the question of vires. 13151., p. 189. The decision in two other cases, however (see Corporation of Waterford v. Murphy, 2 LR. 165 [1920], and Attorney-General v. Hanwell Ur—ban District Council, 2 Ch. 377 [1900]), arrived at the Opposite conclu- sion. This finding was based on an interesting bit of logic. It was decided that the phrase did not eliminate judicial review entirely, for the orders made under the statute had to be within the general pur- pose of the statute authorizing such powers. In other words, the orders were unreviewable if they were not ultra vires. but the de- termination Of this basic jurisdictional question was not beyond the reach of the judiciary. I_b_i_d_., pp. 192-193. When Parliament closed the front door the judiciary came in the rear entrance. This con- flict of judicial decisions has not been passed upon by the House of Lords, so "any conclusions regarding its scope and effect must, there- fore, be highly tentative and intended more as a guide to the courts than as a precise statement of the existing law." 1213.. p. 194. 110 statute, and such regulations were declared to "be of the same ef- . . . . 39 fect as 1f they were contained 1n this Act." Judicial review of subordinate legislation is limited, however, even in the absence of such statutory preclusion. There are only two principal types of judicial review. They are known as review 39Quoted in _i__b_i_d., p. 177. The House of Lords has dealt with this question, but it has only been in the form of dic____t___a. In an early case, Institute of Patent Agents v. Lockwood, A. C. 347 (1894), Lord Herschell announced the dictum that the phrase precluded all judicial review since the regulations were part of the statute itself. Ibid., pp. 177-178. The English judiciary, in two other cases involv—ih-g— this question, _R___ex v. Electricigy Commissioners, l K. B. 171 (1924), and R__e__x v. Minister of Health; ex parte _1_3_______avis, l K. B. 619 (1929), decided that regulations enacted under statutes containing the phrase were subject to judicial review on the question of ultra vires. These latter two cases were distinguished, however, by the fact that the courts reviewed the delegated legislation before it received final confirmation by the apprOpriate minister. The sublegislation was not legally complete at that point and, therefore, was not part of the parent statute. _I__b_i_£i_., pp. 177-185. In a more recent and fa- mous case, Minister of Health v. Reg; ex parte Yaffe, A.C. 494 (1931), the court issued a dictum contrary to that in the Lockwood case. The National Federation of Property Owners decided to bring a test case to court to determine whether the "as if enacted in this Act" phrase prevented judicial review if the regulations had been validated by ministerial confirmation. This group waited until a local slum-clearance project had been approved by the Minister of Health according tO the terms Of the Housing Act of 1925. It then brought a case to court. The House of Lords issued a decision without ruling upon the diSputed phrase directly. The Opinions in this case, however, do contain dicta that assume that the court could review subordinate legislation to determine whether or not the particular action was within the limits of the parent statute; i.e., whether the action was intra vires. 1912., pp. 185-189. This series of cases concludes, therefore, with no authoritative decision on this interest- ing point. 111 for procedural ultra vires and substantive ultra vires. In regard to the first type of review, the English courts can review subordinate legislation to determine whether it has been made according to the required statutory procedure. "If . . . a statute requires certain forms to be observed, or certain preliminaries to be completed, before delegated powers are exercised, failure to comply with these requirements constitutes a failure for vires." In such a case, the court may declare the subordinate legislation invalid. The English judiciary can also review delegated legislation to determine if it is within the powers delegated by the parent statute. The extent of the application of this form of 11:23 depends upon two factors. "It depends on the generality or otherwise of the empower- ing Provisions and it depends on the attitude which the courts adOpt." A consicleration of these two factors points out the limited role of the EngliSh courts under the category of substantive ultra vires. In the firs" Place, a great many of the statutes delegating powers of legis- lation to the executive are phrased in such broad terms that it is praCtically impossible for the judiciary to declare that the \ ‘10 Griffith and Street, op. cit., p. 104. 41 Allen, op. cit., p. 133. ‘12 Griffith and Street, op. cit., p. 110. 112. 4 administrative decisions are not within the statutory grants. 3 In the second place, the English courts have adOpted the attitude that they can not invalidate any subordinate legislation by any test of . , 44 "unreasonableness" or "natural justice." Broad statutory lan- guage and the attitude of the courts, therefore, have limited judicial control of delegated legislation under this form of judicial review. Parliamentary Review of Subordinate Legislation The absence of an effective judicial review and control of delegated legislation by the English courts, however, has not meant that the executive in England has had a completely free hand in 4 3See supra, p. 105. 44In a recent case, Bernez v. A.-G., L.J.R. 983 (1947), an English court refused to declare that an order made under a defense regulation was invalid because it was "repugnant to natural justice and to the common law of England." Quoted in Griffith and Street, N” p. 112. This concept of "natural justice" has formed an unportant part of judicial review of administrative rule-making in the United States. Cf. Local Government Board v. Arlidge, A.C. 120 (.1915) with Morgan v. United States, 298 U.S. 468 (1936). The Eng- hsh courts have also denied that they have power to invalidate cen- tra1 government regulations by the use of any test of "reasonable- neSS." See Sggrks v. Edward Ash Ltd., KB. 223 (1943), and Taylor v. Brighton Borough Council, K.B. 736 (1947), discussed in Griffith and Street, op. cit., pp. 113-114. In the case of by-laws or ordi- nances of local government corporations, on the other hand, the QOQI'ts have interpreted their function much more broadly and have 8“bilected such local government regulations to the test of “reason- ableneSS.” 913., p. 111. 113 exercising the powers of rule-making delegated by Parliament. Par- liament has replaced the traditional judicial review with a procedure of parliamentary oversight of subordinate legislation in order to control the exercise of such delegated legislative powers. Since the early years of this century it has become a common practice in England for Parliament to include in the parent statute delegat- ing broad powers of rule-making a requirement that subordinate legislation made under the parent statute must be submitted to both houses of Parliament for a certain period. Such a requirement is also accompanied by the stipulation that the legislative instruments must be either approved by both houses or may be disapproved by either chamber during the laying period.45 There is, however, no uniform procedure for this parliamentary review. It takes a rather . 46 Wlde variety of forms. 5Disapproval by both chambers through concurrent negative r esOlutions is not common in the British practice. The requirement of approval by a single chamber only is also rarely used. This lat- ter requirement is limited primarily to cases involving the approval of Certain financial orders of the Treasury by the House of Commons. See. for example, section 19(2) of the Import Duties Act of 1932 and 8"action 2(4) of the Emergency Powers (Defence) Act of 1939. "Sub- ordinate Legislation," op. cit., pp. 250-251. 46The best sources for a description of the major forms of parliamentary review of subordinate legislation are Griffith and ‘S‘treet, 0p. cit., pp. 84-99. A briefer description can be found in S\lbordinate Legislation," op. cit., pp. 249-251. 114 One method that has been utilized is commonly referred to as the "procedure by negative prayer."4.7 This type of review, the most common in England, requires that all subordinate legislation made under the parent statute must be submitted to Parliament as soon as the delegated legislation is made. The period during which such regulations remain before Parliament varied before the passage of the Statutory Instruments Act of 1946. Section 5(2) of that act, however, established a uniform period of forty days of parliamentary session for this type of legislative review.48 Any subordinate legis- lation submitted under this procedure is subject to annulment by 4 resolution of either chamber during this laying period. 9 Such a 47Griffith and Street, 0p. cit., pp. 85-87. 48 Ibid., p. 85. 491bid. Under this procedure, or any of the following forms of parlian-i—e-n-tary review, it is seldom possible to amend the statu- tory instrument. Parliament usually has only the power to accept 01‘ reject it in toto. The Nurses Registration Act of 1920, the Electricity (Supply) Act of 1919, and the Gas Regulation Act of 1920 are exceptions to this general rule. 9.12” p. 86. Six American States have established a similar procedure for the control of ad- mi“istrative rules and regulations. Administrative rules may be annuled by resolution of either house in Virginia. In five other Sta‘tes--Connecticut, Michigan, Nebraska, Kansas, Wisconsin-- ach'Ilinistrative rules or regulations may be rejected by concurrent I"3'301ution of the legislature. Bernard Schwartz, "Legislative Con- t1‘01 of Administrative Rules and Regulations: I, The American Ex- perience," New York University Law Review, XXX (May, 1955). 1038. See also infra, n. 92. 115 resolution takes the form of an "Address to Her Majesty" requesting that the regulation be rescinded. The revocation is accomplished by an order in council and does not affect the validity of any action taken under the regulation.50 Such revocation also does not prevent the enactment of a new regulation covering the same subject in an almost identical manner. A second method involves the requirement that statutory instruments must be submitted to Parliament and are subject to affirmative resolutions of both houses of Parliament. This method of legislative oversight includes two related categories. In the first category the subordinate legislation has no effect until ap- Proved by resolutions of both chambers. This is the more common 01' the two procedures included in this method. The second procedure includes the requirement that the legislation shall have no effect after a stated period of time unless an affirmative resolution is passed by the House of Commons and the House of Lords before the period has exlfJired.51 It is difficult to distinguish between the uses of these lnethods of review by affirmative resolution and the former type of °Versight by negative prayer. "Theoretically, this affirmative \ 50Griffith and Street, op. cit., p. 85. 51Ibid., p. 87. 116 procedure is used for more important subordinate legislation but it is impossible to find, or perhaps, to make, any clear distinction."5 Another method of parliamentary review requires that subordi- nate legislation must be laid before Parliament in draft form. The drafts of statutory instruments must then be validated by affirmative resolutions of both houses of Parliament. The major difference be- tween this method and the first two is that the regulations submitted under this category have no legal existence until approved by a reso- lution of each house of Parliament.53 A less common type of review involves the annulment of regu- lations laid before Parliament in draft form by either house of Par- liament within a certain period. The laying period for such proce- dure was standardized at forty days by the Statutory Instruments Act 5albid. This lack of any general and distinguishing criterion for the use—Bf the negative and affirmative procedures was the sub- Je°t 0f a question in the House of Commons in November, 1947. Th_e Prime Minister was asked if the government contemplated re- qmring that statutes delegating authority to modify statutes or im- pose taxation should include review by affirmative procedure. He an’SWeI‘ed that ”the Government considered in each case in the light 0f the precedents whether the affirmative or the negative procedure wotfld be the more appropriate; but the matter was one for determi— Zatmn by Parliament, and it would be unwise to attempt to formulate :3; pr ecise rules which would fetter the discretion of Parliament n of the Government." "Subordinate Legislation," op. cit., p. 251. 5 3Griffith and Street, op. cit., pp. 87-88. 117 of 1946 for all statutes requiring this type of review passed before 1948.54 Furthermore, Section 6(1) of the same act established a general rule for all statutes passed after 1947 that require the draft to be submitted to Parliament but do not specifically require af- firmative resolutions of both houses. In such cases, the laying pe- riod is standardized at forty days and all draft regulations are subject to annulment by a negative prayer of either chamber of Parliament.55 A few statutes require simply that subordinate legislation made under them must be submitted to Parliament. They do not grant power to Parliament either to annul the regulations or to ap- Prove them by affirmative resolutions};6 It is simply a way by Which Parliament can be informed about regulations made under the delegated authority at the time the subordinate legislation is actually Infade. The Statutory Instruments Act of 1946 made an important Change in this particular procedure. Section 4(1) of the act requires that all such instruments to be laid before Parliament under this \ A V 4 5 Ibid., p. 88. 55Ibid. 5 61bid., pp. 84- 85. 118 . . . 7 procedure shall not become effective until actually so laid.5 This requirement was written into law in order to prevent cases in which the administrative agency issuing the regulations never laid them 58 before Parliament. A proviso in Section 4(1) states that an 57Ibid., p. 88. Under such a statutory procedure situations arose in which regulations that were desired to be made could not be submitted to Parliament because Parliament was not in session. The subordinate legislation had to be postponed, therefore, until the next session of Parliament. The House of Commons attempted to correct this situation by a standing order, but the House of Lords refused to accept the standing order on the basis that it attempted to change the operative statutes by modifying the statutory mean- ing 0f "laid before Parliament." In order to solve this problem, Parliament passed the Laying of Documents before Parliament (Interpretation) Act of 1948. The act declares that both houses of Parliament are authorized to determine what ”laid before Parlia- ment" means by a standing or sessional order. _IP_i_d_., pp. 89-90. Each house subsequently formulated a standing order. These stand— ing Orders provide, in general, that a statutory instrument is deemed to be laid before Parliament if it is submitted to particular offices during the existence, and not only the session, of Parliament. See Standing Order No. CV of the House of Lords and Standing Order NO- 110 of the House of Commons in “Subordinate Legislation," pp. Sit." Appendix, p. 257. . 58This was not merely a theoretical possibility, for just such an 1“Ci‘i'E—‘tlt occurred during World War II. It was discovered in 1944 that. the Home Office had failed to lay a whole series of National Fire Semce Regulations before Parliament as required by the Fire Ser— Vices (Emergency Provisions) Act of 1941. Twenty-three sets of :ggulations that had been issued between August 25, 1941, and June ' 19‘14, were involved. Allen, op. cit., p. 107. These regulations had not been submitted to Parliament even though the parent statute h: required that they were to be laid "as soon as may be" and Hon Inade them subject to a negative resolution of either house. The l 1863 of Commons finally passed an "Act of Indemnity" on August cg)“ 944, freeing the Home Secretary from any responsibility for the sequences of this oversight. _I__b_id_., p. 108. 119 administrative regulation can become Operative under certain excep- tional circumstances before it is laid before Parliament, but notifi- cation must be sent immediately to the Lord Chancellor and the Speaker of the House of Commons explaining the circumstances and reasons.5 Parliamentary oversight of delegated legislation has become a prominent part of the English system of control of administration in the twentieth century. It has become a common technique for parliamentary control of the powers of legislation that are delegated to the executive. The use of this device was not unknown to the nineteenth century, but it was the exception rather than the rule. Sir Cecil Carr traced the use of the procedure of annulment by negative prayer back to 1838. In that year a statute was passed authorizing certain judges to make PI‘Ocedural rules for their courts. The act directed that the rules had to be submitted to Parliament and had no effect for six months. Any of the rules laid before Parliament could be vetoed by royal pr oClamation or by a resolution of either house of Parliament during the laying period.60 The Lunacy Regulation (Ireland) Act of 1871 \ 59Griffith and Street, 0p. cit., p. 89. 6OSir Cecil Thomas Carr, "Legislative Control of Administra- tive Rules and Regulations: II, Parliamentary Supervision in Brit- “1“." New York Universitj Law Review, xxx (May. 1955). 1045-1046- 120 also reserved authority to either house to annul any regulations made under the statute.61 Carr also found the first example Of the re- quirement of an affirmative resolution for the approval of subordinate legislation in the Military Manoeuvres Act of 1897.6‘2 The most common type of parliamentary review in England is the procedure for annulment of subordinate legislation by negative prayer. The government departments have generally Opposed the affirmative procedure, because "it makes the future Of Rules and Orders more precarious than it would be ordinarily."63 The gov- ernment is required to find time to introduce resolutions to approve all subordinate legislation subject to the affirmative procedure. Such a procedure, according to its Opponents, also necessitates the intro- duction Of resolutions that are then subject tO debate and possible . 64 . . I‘eJection, whereas the statutory instruments subject to negative Prayers are often approved by default-i.e., by the absence of a x . 61Allen, Op. cit., p. 26. The negative resolution procedure, In connection with a thirty-six-day laying period, was also included in a statute passed in 1850 (unspecified). "Subordinate Legislation,H ° - cit., pp. 235-236. 62Carr, "Legislative Control . . .," p. 1047. 63Allen, op. cit., p. 66. 1 64m the light of the actual practice concerning affirmative res- .Outions in the House of Commons, this would seem to be a fairly inconsequential problem in that chamber. Cf. infra, pp, 124-125, 121 motion or debate--and, therefore, present less chances of rejection. Furthermore, an incautious use of the latter type of review would obviously defeat the purpose of the parliamentary delegation of legis- lative power. Such power is generally delegated because Parliament itself has neither the time nor the necessary information to formulate the regulations. To require approval of each regulation, therefore, would force Parliament to spend more time on such detailed and technical rules than it originally thought desirable or possible.65 The procedure in connection with parliamentary oversight is Quite similar in both houses. In the House of Lords, notice of all regulations, draft regulations, and official papers concerning’these instruments is printed in the Minutes of Proceedings. A separate list is published every two weeks which lists the statutes under Whitih each statutory instrument and draft regulation was submitted, the date each was submitted, and the length of the laying period. The actual drafts and instruments themselves are available for perusal in the Printed Paper Office.66 When such drafts, regulations, and of- fiCial Papers are submitted in the House of Commons, notice ap- p ears daily in the Votes and Proceedings. A separate list is \ 65"Subordinate Legislation," op. cit., p. 251. 6Schwartz, Law and the Executive in Britain . . ., p. 110. #— 122 published each week containing a listing Of each instrument that can be annulled, the parent statute, the date of submission Of each regu- lation and draft, and the laying period. The actual regulations, drafts, and papers are placed in the library of the house.67 DeSpite the apparent popularity and increased use of parlia- mentary review of delegated legislation in Britain, experience with this device has revealed several basic problems and deficiencies. The particular problems and deficiencies, and their consequences for an effective control of delegated legislation, vary with the par- ticular method of parliamentary review--i.e., the negative prayer and affirmative resolution procedures-rand the house of Parliament involved. ' One Of the problems associated with effective parliamentary control of subordinate legislation, for example, is the necessity to find available time to introduce and debate a negative prayer to annul a statutory instrument. This problem is less important in the House of Lords than in the lower house. Because of the slower pace Of legislative activity in the upper house, the time for the introduction Of a negative resolution and debate on such a resolution is more readily available. Any member can find available time to introduce \ 67Ibido! pp- 110-111. 123 a motion of annulment, and ''any peer can move the resolution to annul and, if necessary, divide the House.“ Although it is technically possible for any member of the House of Commons to introduce a motion to annul a statutory in- strument, it is very difficult for the individual member to Obtain the necessary time. The Opportunity for such a motion is almost never available during the regular business of the House of Com- mons. Control Of delegated legislation by the negative procedure in the lower house is reduced, therefore, to two rather unfavorable alternatives. In the first place, a member can raise the question 01' annulment on the motion for adjournment. The time available for such a question is limited, however, to the period between 11:00 P.M. and 1 1:30 P.M. The Speaker of the House generally adjourns the chamber at the end of this period, and no division on the question is allowed.69 The second possibility is to introduce the prayer after 11:00 P.M. as "exempted business." Standing Order No. 1(6) of the House of Commons declares that proceedings undertaken in pursufince of an act of Parliament are "exempted business." Since the procedure for annulment is written into the parent statute, a \ 68 , Ibid., p. 111. 6 . 9Ibid., p. 1 12. 124 motion to reject the statutory instrument may be introduced as "ex- empted business" at 11:00 P.M., after the regular business Of the house. This procedure allows a full debate. The Speaker cannot interrupt or terminate the proceedings. It also provides for a di— vision on the question. The lateness of the hour, however, drastic- ally restricts the effectiveness of this procedure. There is little interest among the members of the lower house to remain after a regular session, at such a late hour, to introduce and debate a mo- tion to annul subordinate legislation unless an important political 7 question or major statutory instrument is involved. These are the Only practical alternatives available to an individual member of the house. As Allen declares: Otherwise he can hope to wring from the Government an allocation of time during the ordinary business of the House, and that is a rare privilege, the mom so in this case because no Minister is likely to grant time for attacking one of his own powers or ordinances . The procedure by affirmative resolution in the House Of Com- mons. although technically affording an Opportunity for more effective cont1‘01 of delegated legislation, is equally affected by this problem of QVailable time. The government, rather than introducing such \ 701bid., pp. 111-112. These two alternatives are also dis- c“aged in Allen, op. cit., pp. 91-92. 71Allen, op. cit., p. 92. 125 motions during the regular proceedings of the house and providing an opportunity for extended debate, generally introduces the neces- sary motions of approval as "exempted business" at 11:00 P.M., after the regular daily session. At this time the government can introduce the affirmative resolutions and bring them to a vote, even though they may be opposed. The lateness of the hour usually dis— sipates any effective Opposition. This technique allows the govern- ment to circumvent any detailed control by the lower house. The resolutions "are, in fact, almost invariably agreed to at that time, the necessary resolutions being rushed through en masse, with little actual consideration by the House.”72 There is more Opportunity in the upper house of the British Parliament to review delegated legislation by debating an affirma- tive resolution, but the House of Lords has relied primarily upon a SPefiial committee in that chamber for the review of subordinate legislation requiring an affirmative resolution. This committee, known as the Special Orders Committee of the House of Lords, was established in 1925 to review all statutory instruments and drafts Of sub . OI“ill'late legislation laid before Parliament that required approval \ 72 ' Schwartz, Law and the mecutive in Britain . .p, p. 114. 126 7 by affirmative resolution. It is a sessional committee that "ex- amines such regulations and orders and reports, in effect, whether the provisions raise important questions of policy or principle, how far they are founded on precedent, and whether there should be any further inquiry before the resolution [of approval] is moved." Cabinet control of the House of Commons introduces still an- other problem in the control of delegated legislation by the lower house. Majority control of the House of Commons by the govern- ment's party can reduce parliamentary review to a mere semblance of an effective device for the control of subordinate legislation. Even if a member of the opposition party Obtains the Opportunity to intro- duce a motion concerning one of the statutory instruments, the motion is almost doomed to defeat. If a division is taken, the gov- er'nlnent leaders can exert pressure upon the members of the gov- emInent's party to vote to validate the instrument. Such party con- tr01 assures the defeat of any negative prayer and the passage 0f ‘ 75 affirm at ive resolutions . \ 73"Subordinate Legislation.” 02- Citu P- 253- 7 . . . 4Schwartz, Law and the Executive in Britain . . ., p. 115. tary 75"And with the intensification of party politics, parliamen- a Subcontrol has also, in effect, disappeared; when, With the aid of ment Stantial majority, the Government side has secured the enact- 0f the parent statute, the Opposition side has little hope of 127 A basic difficulty involved in parliamentary review that ap- plies to both houses equally is the sheer number and technicalities Of statutory instruments laid before Parliament. Sir Cecil Carr has estimated that about 70 per cent of all general statutory instruments are subject either to annulment by negative prayer or to approval by affirmative resolution. Furthermore, these enormous numbers Of instruments are usually based upon technical considerations that are beyond the capabilities of even the most informed member of Par- liament. A permanent Official always speaks about the matter com- ing before Parliament as though that were in fact a real safe- guard, but when the average Member of Parliament is expected to have expert knowledge on all subjects from the Charing Cross Bridge to diseases in potatoes, all in the same day, is it not a fact that all this so-called criticism is in fact a farce[?]76 The Select Committee on Statutory Instruments The problems Of parliamentary review of delegated legislation in the House Of Commons were compounded by reliance upon the \ ifscess in moving a motion for the annulment of the resultant Stat— n g Instrument." Carr, "Delegated Legislation," p. 248, supra, sém ' Debate on these motions to annul or affirm a statutory in- consment' however, has been recognized as having some beneficial equences. They do publicize the practices and policies of the government and allow the opposition to "make a record" for the next a Ppeal to the electorate. See Griffith and Street. 02- Citu P- 86- p 1 1 76Quoted by Schwartz, Law and the Executive in Britain . . ., . 3‘ 128 initiative Of individual members to carry out such review. The prac- tical difficulties facing the individual member led to the scarcity or inconsistency Of continuous parliamentary review in the lower house. , 77 . . The Donoughmore Committee recogmzed this fundamental problem of parliamentary review and recommended, in its report published in 1932, that a committee similar to the Special Orders Committee of the House of Lords be established in the House of Commons to scrutinize, not only statutory instruments that required affirmative 5‘ 77The Official title of this committee was the "Committee on MiniSters' Powers." It was established by Lord Sankey, the Lord Chancellor, in 1929, because Of growing public criticism by students and Officials about the widespread delegation of judicial and legis- lative powers to the executive. It became widely known as the Donollghmore Committee, after its first chairman, the Earl Of Douollghmore. "Subordinate Legislation," Op. cit., p. 232. In ad- dition to the chairman, the committee included sixteen members. There were (1) six members of the House of Commons, (2) five lawyers, (3) three experienced civil servants, and (4) two scholars, Professors Holdsworth and Laski. Carr, ConcerninLErglish Ad- Wive Law, p. 26. The committee was directed "to consider Wers exerCised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decision, ::d to report what safeguards are desirable or necessary to secure e constitutional principles of the sovereignty of Parliament and the Slip r e1tiacy of the Law." Quoted in "Subordinate Legislation," _l_9_<_:_. Ea; The committee gathered a great deal of written and oral evi- 193:e concerning this problem, and published its report in April, ‘ Ibid. "Its reports, together with the memorandum and min- its of evidence, form constitutional documents of the highest value." en» Op. cit., p. 42. 129 resolutions, but all delegated legislation laid before Parliament sub- ject either to affirmative or negative resolutions.78 There was a great deal of Opposition to such a proposed committee on the part Of representatives Of various government de- partments appearing before the Committee on Ministers' Powers. It was claimed that such committee review would be impractical and ineffectual.79 NO committee such as that prOposed was thus established at that time or for many years later. The impossibility of a careful review Of the mass Of war regulations enacted by the government departments during the second world war, however, CI'YStallized the pressure for the establishment of such a committee in the House of Commons. Finally, in 1944, the government set up a CoInmittee in the lower house to scrutinize the regulations that had to be submitted to Parliament and were subject either to an alffiI‘lrnative resolution or to a negative prayer. This sessional comIl'ltlttee was originally called the Select Committee on Statutory Rules and Orders. Since the passage of the Statutory Instruments Act of 1946, however, it has been known as the Select Committee on Statutory Instruments.80 \ S ”Schwartz, Law and the Executive in Britain . . ., p. 115. ee also Griffith and Street, Op. cit., p. 92. ‘ 79Schwartz, loc. cit. 80111101., pp. 115-116. 130 The select committee presently consists of eleven members. The number of members representing each party on the committee is based upon party strength in the House Of Commons.81 This committee has the able assistance of Sir Cecil Carr, the counsel to Mr. Speaker. Sir Cecil Carr was editor of the annual volumes Of the Statutory Rules and Orders from 1923 to 194382 and has been for some time one of the foremost experts on delegated legis- lation in England. Mr. Molson, the author of the motion that led to the estab- lishment Of the Scrutiny Committee,” declared that its duty should be to call the attention of the House of Commons to subordinate legislation that, although "perfectly legal and lucid,” was "bureau- cratic. vexatious, embarrassing and harassing to the subject."8‘1 The Committee then, according to Molson, was not intended to be a SubStitute for judicial review provided by the courts. Its function \ 81Carr, "Legislative Control . . .," p. 1054, supra, 11. 60. 8 e 2S. A. de Smith, "Delegated Legislation in England," West— wtical Quarterly, XI (December, 1949), 521. to 83This is the popular title for the Select Committee on Statu- ry Instruments. 84Quoted by A. H. Hanson, "The Select COmmittee on Statu- IIistruments, 1944-1949." Public Administration, XXVII (Winter, 278. to 1949 131 was viewed as a screening device to assist the individual members Of the lower house in reviewing delegated legislation submitted to Parliament. The function of the committee has been described by the 1946 chairman as follows: If members oprarliament were all perfect and able to do an inestimable amount of work, they would read all the statutory instruments through themselves and, if they desired, they could put down a prayer against any particular one but to save them doing that, this Committee is set up. Our function is to go through them and report to the House for their action if we think there is anything unexpected or any unjustifiable delay or something that calls for elucidation. The committee has no power either to annul or to approve Statutory instruments, but is directed to scrutinize the delegated legislation to determine whether or not the statutory instruments represent an exercise of the powers delegated by Parliament that was intended by the legislative body. The select committee, however, is not allowed to inquire into the merits or policy of any particular . 8 SuboI‘dinate legislation. 6 It is hOped that in this manner partisan \ 85Quoted in Griffith and Street, Op. cit., p. 93. 86This differentiation Of the function Of parliamentary over- Sight into review of policy and review of the exercise of delegated powers is well stated by Griffith and Street. The review of statu- tory instruments, according to the authors, can be viewed in two iWays; "First, their likely effect may be looked at, and examination a then directed to their merits to see if their provisions are de- fgrable. Secondly, they may be considered as the formal results of th: delegated power, in which case the question is whether they are tVDe of instrument which the Legislature intended or expected to emerge.” Ibid., p. 92. 132 considerations will not enter into the committee's review and that the scrutiny Of the statutory instruments will be based upon impar- tial and objective considerations. At the present time, therefore, the committee is directed to call the attention of the house to delegated legislation only on the following grounds: (1) that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Ex- chequer or any Government Department or to any local or public authority in consideration of any licence or consent, or of any service to be rendered, or prescribes the amount of any such charge or payments: (ii) that it is made in pursuance Of an enactment contain- ing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a Specified period: (iii) that it appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made: (iv) that it purports to have retrOSpective effect where the parent Statute confers no express authority so to provide: (v) that there appears to have been unjustifiable delay in the publication or in the laying of it before Parliament: (vi) that there appears to have been unjustifiable delay in sending a notification to Mr. Speaker under the proviso to sub- section (I) Of section four of the Statutory Instruments Act, 1946, Where an Instrument has come into Operation before it has been laid before Parliament: (vii) that for any Special reason, its form or purport calls for elucidation. \ . 87Quoted by Schwartz, Law and the Executive in Brit- k, pp. 116-117. The limitation against looking into the gents of a regulation and the direction .to review for any tizfisual or unexpected use of the delegated powers is some- es difficult to reconcile. Griffith and Street discuss this problem on the basis of Carr's distinction. Carr declared: "The 133 The committee meets every Tuesday during the parliamentary session. This allows the members of the committee to study the important instruments over the weekend. Along with copies of the instruments which they are to scrutinize there will have been circulated a memorandum pre- pared by the Speaker's Counsel who is directed to assist them. This takes the form of a list Of the instruments, arranged ac— cording to their subjects, with his comments on any points that may have occurred to him. The chairman goes through the list, pausing over any points raised by the memorandum or by members. As the Committee's reports merely state in a few general words the ground for bringing an instrument to notice, the members‘ decision is quickly made. The number of instru- ments to be dealt with at each meeting naturally varies; it may be as low as 25 or, when the House has reassembled after the Long Vacation, as high as 150 or 200. The meeting may last an hour or be over in ten minutes. ¥ line taken from the beginning has been: if you have a price-fixing order for potatoes . . . and the price goes up 2d. or down 2d., that is Policy and merits, but, if you found it went up suddenly by 108., that was something you might regard as an unusual or unexpected “Se of the power." Quoted by Griffith and Street, op. cit., p. 93. A'~'3<30rding to the writers, this distinction does not solve the dilemma: I'The decision to increase the price by 10s. clearly indicates a charlge Of policy whereas the variation of a few pence may, for ex- emple, be seasonal only. It seems simpler to disregard the ques- tlon of 'policy and merits' and to say that the Committee draws the attention Of the House to the exercise of discretion which seems to pass beyond the limits within which Parliament intended the power to. be exercised." Ibid., pp. 93-94. This standard is strikingly 8111)ilar to the substantive due process concept that was used so feffeetively by the American courts at the turn Of the century to lnvalidate legislative efforts at regulation of the economic process. 13. standards are based upon a reduction to a fundamentally simi- r test; i.e., the "reasonable-man" concept. in 88Carr, loc. cit. See also Schwartz, Law and the Executive \Bl‘itain . . ., p. 117. 134 The committee must allow the government department that has is- sued a particular regulation or draft that is to be called to the at- tention of the house by the committee to present any explanation that the department feels appropriate and necessary. Such explana- tion may be either in writing or orally, as the committee directs. The committee, after hearing the oral explanations or studying the explanatory memorandum, then decides whether to still call the at- tention Of the house to the statutory instrument. If the committee's original decision remains unchanged, the explanations are submitted to the House Of Commons along with the instrument and the commit- tee report.90 Since the committee does not deal with the merits or policy Of particular statutory instruments, this review is conducted in an atmosphere of harmony and consensus. Partisanship and conflict are almost entirely absent. This is reflected in the fact that the chair- man has never had to take a formal vote on any committee \ t 89The document establishing the select committee declared hat "before reporting that the special attention Of the House should be drawn to any Rule, Order, or Draft the Committee do afford to ::y Government Department concerned therewith an Opportunity Of thir 1118hing orally or in writing such explanations as the Department nk fit." Quoted in "Delegated Legislation,” Public Administration, XXII (Summer, 1944), 120. 9oSchwartz, loc. cit. 135 l . (decision.9 Furthermore, the chairman does not serve as the com- mittee Spokesman during debates concerning motions to approve or disapprove instruments submitted to the house by the committee, and the committee members seldom participate in such debates. They prefer to maintain a separation from such conflicts so that the integrity and reSpect of the committee will be maintained. The work of the committee has been increasing over the years since its establishment. This results from the growing number Of statutory instruments submitted to Parliament. A total of 947 in- struments were examined by the committee in the 1945-1946 session \_ 91Carr, loc. cit. 92K. C. Wheare, "Controlling Delegated Legislation: A Brit- ish Experiment," The Journal Of Politics, x1 (November, 1949), 766. comlecticut and Michigan, two American states, also have each pro- Vided for the establishment Of a legislative committee to assist the legislature in its oversight of administrative rules and regulations. fEhWartz, "Legislative Control of Administrative Rules . . .,” p. 383 supra, n. 49. The Connecticut legislature, however, has 2:: .established such a committee. Personal interview with Mr. “(32:11.8 J. Tapogna, clerk, Office of Secretary of State, state of Con- hantle‘ut, June 13, 1957. The Michigan legislature, on the other Ruld. has set up the Joint Legislative Committee on Administrative Cones for such a purpose. It has become the actual source Of the Br,tf‘01 Of such administrative rules, and it has not Operated as the Ob;tlsh Scrutiny Committee, in an atmosphere of nonpartisanship and ec3tivity. See Glendon A. Schubert, Jr., Helenan Sonnenburg, and Seeof‘ge Kantrowitz, The Michigpp Athletic Awards Rule, ICP Case 19:6:8: No. 29 (University, Alabama: University of Alabama Press, 136 of Parliament.93 The succeeding session, that of 1946-1947, included a total of 795 instruments that were reviewed by the committee. The committee scrutinized 1,189 pieces of delegated legislation in the next session, and the number increased to 1,300 in the 1948-1949 parliamentary session.9 The summary totals for the period from the committee's first meeting in 1944 to the end of the 1950 parliamentary session show that the select committee examined approximately 5,200 statutory instruments.95 The total number of instruments called to the at- tention of the house during this period was only sixty-seven. 93Hanson, op. cit., p. 279; supra, n. 84. 94Griffith and Street, Op. cit., p. 98. 95Ibid., p. 94. Beet reports that, during a period extending from JulyT—f-945, to November, 1953, covering nine parliamentary sessions, the select committee examined 7,246 statutory instru- ments. Ernest H. Beet, “Parliament and Delegated Legislation, 1945-53," Public Administration, XXXIII (Autumn, 1955), 325. 96Griffith and Street, op. cit., p. 96. This total of sixty- seven regulations to which the committee called the attention of the House of Commons is broken down into three major categories of the committee's terms of reference. The select committee pointed to (1) nineteen instruments that appeared to make an unusual or unexpected use of the delegated powers, (2) fourteen instruments that called for elucidation, and (3) thirty-three regulations that appeared to involve an unjustifiable delay in publication or laying before Parliament. 1932. The select committee, during this same period, did not "discover" any regulation that imposed a charge on the public revenues or that was made pursuant to a par— ent statute that explicitly excluded the regulations made under the 137 The committee also issues special reports in addition to the reports that accompany the instruments submitted to the house. Such a report is generally issued about once in each session and deals with the technical aSpects of delegated legislation.97 In these re- ports the committee "deals with matters affecting statutory instru- ments as a whole and provides comments, criticisms and suggestions, both in detail and in general, upon the exercise of delegated pow- ers."98 These committee reports are not without an important effect. A Special report issued by the committee in 1944, for ex- ample, emphasized the inefficient and unsystematic (technicalities in Parliamentary review of subordinate legislation. The report stressed the confusing number Of different labels used to describe subordinate 1egiSIation. It also pointed out the needless inconsistencies in the \ k V act from challenge in the courts. _I_b_i_d. If this last conclusion is based, as the former findings are, upon instruments "reported" by the Scrutiny Committee, it may be misleading. Carr, at least, im- plies that regulations containing such provisions may still be enacted by the government, examined by the committee, and not reported to the House of Commons. He states that instruments imposing a Charge. having retroactive effect, or escaping judicial review "are seldom reported, because, when they are discovered, it is usually found that the parent statute has expressly authorised them. It is girdly worthwhile to tell the House that a Minister has done some- C “E Which Parliament Said he might do." Carr, "Legislative °mr01 . . .," p. 1050. 97Carr, "Delegated Legislation," p. 25; supra, n. 37. 98Wheare, op. cit., p. 756. 138 laying period for parliamentary review found in the different statutes. This committee report gave impetus to the search for a solution to these problems, and it was recognized that the report "assisted considerably in securing the passage of the Statutory Instruments Act, 1946."99 Later reports of the select committee have focused attention upon other basic problems associated with parliamentary oversight, such as the necessity to consolidate overamended regu- lations and the desirability of short descriptive titles in regulations. The reports have also encouraged the increased use of explanatory notes to accompany technical regulations that are submitted to P . . . . . oo aI‘llanient and may become binding upon the Citizens. The usefulness of the select committee in the House of Com- mous has been a subject of debate since its inception. One of the serious shortcomings of the committee, according to some students, 18 its inadequacy as a screening device for the individual members of the lower house. It has not functioned to sift out of the mass of StatutOI'y instruments those that are of most interest to the individual men“bers. This results from the fact, mentioned previously. that the co . . Innulttee is not allowed to review the merits of subordinate \ 99Ibid., p. 757. 100Griffith and Street, op. cit., pp. 96-97. 139 legislation. Parliamentary members who are interested in maintain- ing control over delegated legislation, however, are primarily con- cerned with this aspect of particular statutory instruments. Now the "merit" Of a statutory instrument is the aspect of it which interest [§_i_c_] Parliament more than any other- The oc- casions are comparatively rare when instruments are subjected to motions of annulment solely on grounds of their constitutional impropriety; for, after all, it is quite unusual for a Department to use delegated powers in a way that violates accepted consti- tutional understandings .1 01 There are few statistical data to test such a conclusion. One StUdyl 02 of this problem, however, did include a limited statistical analysis. The study was based only on the 1947—1948 parliamentary session and focused on the House Of Commons. During this session there were thirty debates on motions and prayers to annul particular Statutory instruments. It was found that only six debates were con- cerned with questions about the instruments or the parent statutes that fell within the cOmmittee's terms of reference. The number of c)I)I>osition votes involved in each of fourteen motions to annul mStI‘tltnents that ended in a division were then correlated with the \ 01 . Hanson, op. c1t., p. 281. lati 102ChristOpher J. Hughes, "Prayers to Annul Delegated Leg-is- on‘ ‘House Of Commons, 1947-1948," Public Administration, XXVII (Sum 1her, 1949), 111-114. 1 ”Ibid., p. 113. 140 basic issue of the debate accompanying each motion. This correla- tion revealed that the major interest (in terms of number of Opposi- tion votes) centered around price controls and rationing-~i.e., the merits of the statutory instruments--rather than any issue falling 104 within the committee's purview. This hiatus between the committee's jurisdiction and the mem- bers' major interest regarding statutory instruments greatly reduces the effectiveness of the Select Committee on Statutory Instruments. Since the issue Of delegated legislation that is of most interest to members is beyond the scope Of the committee's jurisdiction, it has not functioned as a particularly effective screening device to relieve the individual member Of the burden of being aware of, and acquainted With. the enormous number of instruments submitted to Parliament. Sine e the control of delegated legislation by the House of Commons depends upon the introduction of motions by individual members, the Select committee has not, therefore, promoted a more effective System of parliamentary control by reducing the almost insuperable bur den of the individual members. As it is, there has been very little saving of time, no Ibeans of assisting the conscientious M. P. who faces the for— Inidable task of assessing the merits of each of the more \ 1 O4Ibid. 141 important instruments as it appears, and no reinforcement Of parliamentary control, except in respect Of that very narrow territory which lies between vires on the one hand and policy on the other.10 Another student who has studied the functioning of the select committee, however, views the results of the presently circumscribed scrutiny by the committee optimistically.1 The committee, accord- ing to Stacey, has produced beneficial results without entering into the partisan area of the policy and merits of statutory instruments. Under the category of “unusual or unexpected uses of the powers conferred,“ the committee has been able to emphasize the more dangerous abuses of the delegated powers of legislation. Stacey Pointed out that the committee was able to report to the House of Commons, under this category, the regulation by which the Ministry Of Food raised the price of raw cocoa in 1947 from Sls to 119s a hundredweight. The committee, under this category, also called the attention of the house to an order in council of November 16, 1945, that amended Regulation 42 CA Of the Defense Regulations of 1939 and gave broad powers of arrest without warrant to any constable "Who SuSpected a person of having been at a gaming party some days or weeks before."107 In this latter instance, a prayer was \ l 0 5Hanson, loc. cit. 1 Stru 06See F. A. Stacey, "The Select Committee on Statutory In- mentlib-A Reply to Mr. Hanson," Public Administration, XXVIII (Win tet‘. 1950), 333-336. 1 07Ibid., p. 334. 142 moved to annul the instrument. The government capitulated in the face of the publicity given such a broad and almost unlimited use of the delegated power and accepted the prayer.1 Most students who have studied this committee have agreed, apart from the controversy surrounding the committee's terms of reference, that the mere existence of the select committee has pro- duced some noticeable improvement in the use of subordinate legis— lation. The fact that there is a committee in the lower house to carefully scrutinize each statutoryinstrument submitted to Parlia- ment has produced caution and restraint on the part of the govern- ment. As one student puts it, The very fact that the Departments know that their legis- lative instruments are being subjected to close independent scru- tiny by a Parliamentary Committee which may at any time call for justificatory evidence has made them more careful about the form of these instruments and more punctilious in their com- Pliance with constitutional proprieties.109 The debate concerning the select committee can be best summarized by turning to the general evaluation of its role by Sir \ 108Ibid. Cf. A. H. Hanson, "The Select Committee on Stat- utory InstrFfi—ients: A Further Note," Public Administration, XXIX iglttumn, 1951), 281-283, in which Hanson reasserts his positions do ”the Scrutiny Committee is relatively ineffective as a ”watch- pa: body and that the question Of merits should be included as of the committee's frame-of-reference. 1944‘ 9Hanson, "The Select Committee on Statutory Instruments, that “1949," p. 279. Griffith and Street conclude, on this pOint, very the value and importance of this work are undeniable. The eXistence of the Committee must prevent more shortcomings th p ' paggthe Committee detects. . . ." Griffith and Street, O . c1t., 143 Cecil Carr, probably the one person closest to the actual operation of this committee. Carr's conclusions are based upon a close per- sonal association with the Select Committee on Statutory Instruments since its inception. His experience leads to a rather pessimistic conclusion concerning the role of the committee in the English sys- tem of parliamentary review of delegated legislation: This latter body [the select committee] studies some- thing like a thousand instruments in the year, but too much must not be expected Of its patient labours. Its routine re- ports convey little; they may state the opinion that an instru- ment requires elucidation or appears to make some unusual or unexpected use of the power conferred by the parent stat- ute, but they do not Specify the grounds for their opinion. The Committee's virtue is that it acts with independence and without partisanship; it can do so because it is debarred from reporting on matters of policy or merits; it is entirely uninfluenced by the Executive, and it has established the inter- esting convention that its chairman must be a member of the Opposition. But its work is imperfectly geared in with the machinery of parliamentary control. Members Of the House usually table their motions for annulment long before the com- mittee has reported on, or perhaps even seen, the challenged instrument; and the reasons for their challenge will probably be reasons which the committee was debarred from considering. Neither House has set up the potentially more valuable com- mittee to examine Bills which contain prOposals Of delegation and thus to give Parliament the chance to lock the stable doors before the horses are stolen.11 \ lien “0‘33": "Delegated Leaislation." pp. 250-251. The estab- Ihent of a committee to scrutinize bills delegating legislative powers to the executive was one Of the major proposals Of the .onoughmore Committee. Schwartz, Law and the Executive in Brit— k, pp. 128-129. 144 Conclusions Parliamentary review and congressional oversight can be com- pared on two points. The first point involves certain major Simi- larities and differences. The second concerns the question of the Promotion of politically responsible administrative decisions. The basic similarity between the two practices centers around the use of concurrent and simple resolutions. Parliamentary review and congressional oversight both include the use of affirmative con- current resolutions and Simple negative resolutions. There are many differences. In the first place, parliamentary review has become the central means Of controlling subordinate legislation in England. Congressional oversight can not claim a Similar standing in this country. It is a more recent innovation and has not tended to replace the more familiar methods of con- trol, In the second place, England has made a conscious effort to iIhprove its system. The Select Committee on Statutory Instru- ments and the Statutory Instruments Act of 1946 represent such efforts. NO similar attempt has been made in this country to sy“nerhatize the various requirements and reduce the wide variety 0f pr‘OCedural differences found in the American practice. Lastly, neither chamber of Congress has seen fit to establish a scrutiny Cornrnit‘tee similar to those found in each house Of the British P . , . arhament. Each chamber has preferred to rely upon standing 145 legislative committees for initial review, in the case of review by resolution, and for final control, in the case Of committee clearance. The concern in England for improvement in the program Of parliamentary review does not mean that all the problems have been solved. The major problem of the British practice has resisted so— lution. This is the apparent lack of effectiveness of parliamentary review. The effectiveness of the British practice as a device for the control of delegated legislation, when measured by the instances in which statutory instruments have actually been rejected by Par- liament, has not fulfilled expectations. The available evidence reveals that few statutory instruments have been rejected by Parliament during the history Of parliamentary reView. Sir William Graham Harrison found that only about four rmega-tive resolutions to nullify delegated legislation had been passed during a twenty—five-year period preceding 1931.111 Allen, writing in 1944, was unable to find any significant number of instances in Which delegated legislation had been rejected by the defeat of affirma- tive resolutions.112 The available evidence concerning a more recent period reveals a similar lack of parliamentary control. There were no instances of the passage Of a negative prayer or the defeat Of an affirn'la.tive resolution in connection with statutory instruments during \ 111Cited by Allen, Op. cit., p. 95. 1 12Ibid. 146 a period of about five years extending from the end of World War II to the last month in 1949.113 The relative ineffectiveness is a function of several related factors. They include the procedure in the House of Commons, the Party system, the technicality and amount of statutory instruments, and the limited terms of reference of the Select Committee. The basic cause, however, is the development of the cabinet into the organ 01' Central direction and control of legislative activities. The cabinet, With its control of a disciplined majority party in the lower house, is able to prevent or defeat any major attempts to nullify subordinate legislation. This has resulted in a situation in which the cabinet actually has the final control over the exercise of delegated legislative powers. Although it has defeated the primary aim of parliamentary control, 113's. A. de Smith. ”Delegated Legislation in England"' Les“ Molitical Quarterly, II (December, 1949), 520. Beet found, how- eVet‘. that during the period from 1945 to 1953 five prayers were sueCessfully moved to reject statutory instruments. Three Of these resolutions were moved against the wishes of the government, but "they were accidental or 'snap' defeats with no real expectation that Government poliCy would be modified as a result, and the S.I.'s con- cerned were replaced by identical ones, though Of course there were proteSts from the Opposition." Beet, Op. cit., p. 328; supra, n. 95. Since this period overlaps with the period upon which De Smith bases hm analysis and the specific dates of the prayers cited by Beet are “Tn given, it is impossible to determine whether Beet Offers contra— dlCtory evidence or deals with resolutions passed after 1949. In either case, however, the conclusion that emerges from the two :tudies is that very few statutory instruments have been rejected y Pa~1-"liament in recent years. 147 this development is perhaps the best assurance that subordinate legis- lation will reflect the majoritarian political consensus of British so- ciety. The cabinet owes its existence and dominant position to a majority party in the House of Commons, which in turn is based upon an agreement among a majority of the electorate. The cabinet, in approving or promulgating subordinate legislation, will be necessarily cognizant of this basis of support. It will hesitate to issue or allow deleEated legislation that reflects policies or views that might lead to any large-scale disaffection among large segments of this elec- torate majority. It is likely, then, that the subordinate legislation finally approved by the cabinet will tend to reflect a majoritarian pOIitical consensus that makes up the consent of the governed in a democratic society. The British practice has thus actually developed into a system of Cabinet control 0f delegated legislation. This system operates in such a way as to provide a pattern of control that, promotes politi- cally reSponsible administrative decision-making. Review by resolution, one of the forms of congressional over- sight. furnishes a system of control that meets equally well this basic norm. Committee clearance does not. This becomes clear in the Subsequent chapters dealing with the American practice. CHAPTER V REVIEW OF ADMINISTRATIVE DECISION- MAKING BY CONGRESSIONAL RESOLUTIONS Int roduction The British practice of legislative oversight of administration has not been unknown to the American scene. Congress, in the last quarter of a century, has included requirements in several statutes that the exercise of discretionary authority delegated by Congress must be approved by the legislature by concurrent resolutions of congress or may be disapproved by such concurrent resolutions or Simple resolutions of either house.l Approval by concurrent reso- lution and disapproval by a simple resolution of either house is Similar to the English method of oversight by affirmative resolution and negative prayer, respectively. The disapproval of administra- tive dECisions by concurrent resolutions is, however, an American innovation in legislative oversight. \ ute Such legislative review was first established in a 1932 stat- infx: See U-S-. Statutes at Large, XLVII, Part 1, 382. Also see \a‘, p. 154. 148 149 The review of administrative decision-making by such con- current and simple resolutions has enabled Congress to delegate rather broad discretionary powers to executive departments or ad- ministrative agencies, while, at the same time, reserving to itself the Opportunity to maintain a check upon the use of such discretion in the administration of particular governmental programs. It thus rePresents a fairly new device in the American national governmental SyStem for the control of administrative discretion. The American ZIt is not the first time, of course, that Congress has at- ten“pted to take an active role in the administration of statutes that it has enacted. Congressional participation in the past, however, Was generally accomplished by requiring that the membership of an orgauization established to administer a particular statute was to be cOmposed in part of members of Congress. Such congressional membership often constituted a majority of the directing organ. One of the oldest examples of this type of participation is the Board of .Regents of the century-old Smithsonian Institution. The board, which 13 directed to conduct the business of the governmental organization, is Composed of the Vice- President of the United States, the Chief JustiCe of the United States Supreme Court, three members of the UnitEd States Senate, three members of the House of Representatives, and Six other persons who can not be members of Congress. The Smithsonian Institution and the Board of Regents were established by an act of August 10, 1846. See United States Code, XX, Section 42. _°ther perhaps less famous example was the Public Buildings Com- 11113310,] established by the Legislative, Executive, and Judicial Ap- gr?priation Act of 1920. U.S., Statutes at Large, XL, Part 1, 1213. up 13 Commission, composed of a majority of congressmen, was made Sens: tWo senators appointed by the President of the United States Speake' two members of the House of Representatives chosen by the and 1: er, the Superintendent of the Capitol Buildings and Grounds, Lap he Supervising Architect of the Treasury. U.S., Statutes at $0 Part 1, 1270. The functions of this commission were trans- ed- to the National Park Service of the Department of Interior, 150 experience with this method of legislative oversight of administration has been the subject of only a few general studies. The present chapter will be devoted, therefore, to a review and analysis of the American practice of legislative review by resolutions. Before beginning a detailed consideration of the American prac- tice. however, it is necessary to examine an important point raised by such congressional oversight of administration. It involves the ap— proval and disapproval of administrative decisions by concurrent reso- lutions that are not submitted to the President for his apporval or veto. Article I, section 7, of the United States Constitution states: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, Shall be repassed by Two-thirds of the Senate and House of Representatives, according to the Rules and Limitations pre- scribed in the Case of a Bill. and the Public Buildings Commission was abolished by Executive Order No. 6166, June 10, 1933. See United States Code, V, 132. 3 1 , The two most recent and complete studies of this type of eg”slative control are: Robert W. Ginnane, "The Control of Fed- ;Zal Administration by Congressional Resolutions and Committeesm FRLaW Review, LXVI (February, 1953), 569-611; and Cornelius otter and J. Malcolm Smith, "Administrative Accountability to C 1X0 "(gDr e88: The Concurrent Resolution," Western Political vguarterly, eeember, 1956), 955-967. See also "Laying on the Table--A Dev' Lawice for Legislative Control over Delegated Powers," Harvard A much shorter and W, LXV (February, 1952), 637-648. to Cowhat dated article is Howard White, "Executive Responsibility . t1gr‘ess via Concurrent Resolutions," American Political Science Rem ‘Q- XXXVI (October, 1942), 895-900. 151 DeSpite this seemingly unambiguous constitutional requirement, Con- gress has for many years used concurrent resolutions for several matters without submitting them to the chief executive for his sig- nature or veto. Such concurrent resolutions have been used since an early date to: (I) propose constitutional amendments, (2) deal with congressional printing matters, (3) create joint committees, and (4) express the opinion of Congress on various subjects. The prOposal of constitutional amendments is considered to be an exercise of the constituent power of the legislative body. The President's veto DOWer does not extend to such cases. Concurrent resolutions that are not submitted to the President, therefore, are the normal means 0f exercising this power. The succeeding cases enumerated above involve matters that are considered to be nonlegislative in nature; they are viewed as subjects of legislative mechanics and procedural matters that do not involve questions of public policy and, therEfore, do not require presidential participation.4 This differen- tiation between legislative mechanics and legislation or policy formu- lation and the related convention that only concurrent resolutions in- VOIVing the latter category must be submitted to the President has been Sanctioned by long practice. It was defended in a Senate report 0f the 1ate nineteenth century. Whether or not the President must be allowed to exercise his veto power over concurrent resolutions, 2% to this report, depends 4 See Ginnane, op. cit., p. 573. 152 . upon the fact whether they contain matter which is properly to be regarded as legislative in its character and ef- fect. If they do, they must be presented for his approval; other- wise, they need not be. In other words, we hold that the clause in the :Constitution which declares that every order, resolution, or vote must be presented to the President, to "which the con- currence of the Senate and House of Representatives may be necessary," refers to the necessity occasioned by the require- ment of the other provisions of the Constitution whereby every exercise of "legislative powers" involves the concurrence of the two Houses; and every resolution not so requiring such concur- rent action, to wit, not involving the exercise of legislative pow- ers, need not be presented to the President. In brief, the nature or substance of the resolution, and not its form, control [gig] the question of its disposition.5 The use of concurrent resolutions for congressional review of Specific administrative decisions taken pursuant to law obviously can not be sanctioned as an exercise of the constituent power of the leg- islative body. The question as to whether such use of concurrent resolutions involves matters of legislative mechanics or enters the r$811111 of legislation and policy is certainly a moot point. Repeated use Of this type of resolution in the American practice of congres- “One-1 oversight, however, has seemingly sanctioned the view that it Is not submitted to the President in such cases. \ 5U.S., Congress, Senate, Committee on the Judiciary, Senate Re- Port 1 335, 54th Cong,, 2d Sess., 1897. Quoted in Ginnane, op. Cit. P- 574- 193 8 6Cf., however, President Franklin D. Roosevelt's statement in exec tflat "such a resolution [concurrent resolution] cannot repeal Mil1 “tive action taken in pursuance of a law." Quoted in John D. . zatiftt and Lindsay Rogers, "The Legislative Veto and the Reorgani- 181 n Act of 1939," Public Administration Review, I (Winter, 1941), alsc; a~t1d Ginnane, op. cit., p. 578. The concurrent resolution has leg- bGen used by Congress in other related areas of executive- lslative relationships without submitting it to the President for 153 Congress has thus been able to use both simple and concur- rent resolutions to control the exercise of powers that it has dele- gated to the executive branch, while at the same time circumventing presidential participation in such control and direction of administra- tion through the use of the veto power. The President's veto power in such cases is limited to acceptance or rejection of the statute containing such a requirement of legislative review. Statutes con- taining the requirement of congressional review of administra- tive decisions, once approved by the President, shift the focus 01' administrative direction and supervision from the presidency t0 the legislative body. Such a device for the reorientation of x his Signature. The reservation of authority to Congress to termi— nate or repeal statutes by concurrent resolution has been included in eleven emergency statutes enacted since 1941. Cotter and Smith, w“ p. 959. See their list in 113333., p. 965.. Cf. Ginnane, op. cit., pp. 587-590. This use of the concurrent resolution in the Lend- Lease Act of 1941 was also condemned by President Roosevelt as iasnl “econstitutional circumvention of the President's role in the leg- actatlve process. Roosevelt signed the bill that became the 1941 Opinibut he took the rather unprecedented step of writing a legal comet?“ to his Attorney General concerning his views about the un— Pre .1tUtionality of such a requirement. See Robert H. Jackson, "A 135331dential Legal Opinion," Harvard Law Review, LXVI (June,. 1953), eXec‘ 1.361. The concurrent resolution has also been used to initiate re utlve action. Ginnane, op. cit., pp. 590-592. Congress has also Vallcted that members of the board of directors of the Tennessee ey Authority could be removed by concurrent resolution of Con- r g eSe- Ibid., p. 592. 154 the control and direction of administration has been included in many statutes enacted in the past several years. Review by Resolution One of the major areas of governmental activity in which con- current and simple resolutions have been used most extensively to establish congressional control of administration is that of presiden- tial reorganization of the executive branch. The Economy Act of 193.27 furnishes the earliest example8 of such congressional control. Title IV of this statute delegated discretion to the President to re- group and consolidate the agencies in the executive branch and to trarISfer functions among them in order to promote economy and efficiency in administration by reducing overlapping and duplication. The Proposed reorganizations were to be embodied in executive orders that had to be submitted to Congress. Such executive orders had to lay before Congress for sixty days of legislative session, and during this period the whole or any part of each order could either \ 7U.S., Statutes at Large, XLVII, Part 1, 382. Pres- 8Such reorganization powers had first been delegated to the Lar lclent by the Overman Act passed in 1918. U.S., Statutes at $' XL, Part 1, 556. The only limitation on the President's mafiority, in this case, was that it had to be "exercised only in ere relating to the conduct of the present war." Ibid. 155 be approved by an affirmative concurrent resolution or disapproved by a simple resolution of either house.9 In the former case the executive order, or the part approved, went into effect immediately and the remainder of the laying period was waived. If such an or- der, or part of the order, was disapproved by either house by a Simple resolution, however, the reorganization prOposal, or the part disapproved, was nullified and could not be put into effect. If Congress took no action on such an executive order it became ef- fective at the end of the sixty- day period.10 This 1932 act granted permanent authority to the President to reorganize the executive branch. Title IV of the Economy Act approved March 3, 1933,11 however, limited this authority to two years after the enactment of the 1933 statute. It also eliminated the requirement of congressional review by simple and concurrent 9Title IV stemmed from an amendment first introduced by Rep. McDuffie during the consideration of the bill by the House. It p.roViCREd only for nullification by either house. See U.S., Congres- W, 72d Cong., lst Sess., 1932, LXXV, Part 8. 9065-9066. 0"These provisions were enacted without any discussion in either House of the constitutional problem." Ginnane, op. cit., p. 576' President Hoover submitted eleven executive orders to Congress under this act and the House of Representatives, controlled by the Democrats, rejected each one. Millett and Rogers, op. cit., p. 178. 1 1U.S., Statutes at Largg, XLVII, Part 1, 1489. 156 resolutions and provided simply that Congress could waive the laying period "by law" if it so desired. The pertinent language stated: Whenever the President makes an Executive Order under the provisions of this title, such Executive Order shall be sub- mitted to the Congress while in session and shall not become effective until after the expiration of sixty calendar days after such transmission, unless Congress shall by law provide for an earlier effective date of such Executive order or orders. A little over two weeks later, Congress again changed the procedure. In the Economy Act of March 20, 1933,13 Congress eliminated the requirements that executive orders concerning reorganization had to relnaim before Congress for sixty days of continuous legislative ses- sion. It was under this amended procedure that President Roosevelt accomplished someof his most important reorganizations. He sub- mitted the proposals to Congress on June 10. 1933. only six days \ 1ZU.S., Statutes at Large_, XLVII, Part 1, 1519. Under this procedure, according to Millitt and Rogers, Congress could veto proposed reorganization only by a joint resolution. Such a resolution Womd be sent to the President for approval or disapproval. Millett and RCJgers, loc. cit. Ginnane states that this change was prompted :11 fieWs expressed by Attorney General William D. Mitchell in a or deten opinion. Mitchell declared that the nullification of executive to thrs by a resolution of either house raised "a grave question as for e Validity of the entire provision in the Act of June 30, 1932,. of thhocutive reorganization of governmental functions." 37 Opinions thorneys General of the United States, 64. See Ginnane, pp. r” - 577. 1 . 3U.S., Statutes at Large_, XLVIII, Part 1, 8. See Title III, p. 16. 157 before the legislature adjourned, and they became effective at the end of sixty days.14 After the grant to the President contained in the 1933 acts expired, Congress did not again establish a plan for the reorganiza- tion of the executive branch until 1939.15 In that year the Reorgani- zation Act of 193916 was passed. This statute granted authority to the President until January 21, 1941. It once again established a method of congressional review of reorganization proposals, but it contained several important changes in the procedure for such review. In the first place, reorganization prOposals were to be embodied in Plans and not in executive orders.17 The second innovation was the requirement that such plans, which had to lay before Congress for SiXty days, could be nullified only by a concurrent resolution passed 14[Millett and Rogers, loc. cit. 15Bills embodying delegation of reorganization powers to the President introduced in 1937 and 1938 failed of passage. The 1937 hi” Provided for congressional veto by joint resolution. Nullification by Concurrent resolution was substituted in the 1938 bill. See _i__l_)_i_t_i_., p. 179, and Ginnane, op. cit., pp. 578—579. b 16U,S., Statutes at Lam, LHI, Part 2, 561. Legislative de— ate regarding the bill that became the 1939 act is summarized by Ginnane, op. cit., pp. 579-581. Subm- 7"The designation of the form in which the President was to Sug 1‘5 reorganization details to Congress was changed principally to but geSt that the President was to act not in an executive capacity a legislative instrument." Millett and Rogers, loc. cit. 158 by Congress during the laying period. This requirement of rejection by concurrent resolution marked a change from the earlier reorgani- zation acts and also represented the first instance of the use of concurrent resolutions to reject reorganization proposals. The 1939 act also declared that reorganization plans could be rejected only as a whole. Congress could no. longer disapprove objectionable parts of a plan, but had the choice only of approving or rejecting the entire prOposal. Finally, the l939’act included written rules of pro- cedure concerning resolutions introduced in regard to any reorgani- zation plan to prevent obstructionist parliamentary tactics that would Prevent a final vote on any resolution. 18But it was not the first instance of the use of concurrent resolutions to disapprove the exercise of delegated powers by the executive branch. See U.S., Statutes at Large, LXVII, Part 1, 564. See also infra, p. 177. 19See U.S., Statutes at La£g_e_, LIII, Part 2, 564. If a com- mittee, to which a resolution to disapprove a reorganization plan had been referred, did not report the resolution out within ten days, a motion to discharge the committee could be made. Such a motion Was highly privileged. Debate on the motion was limited to one hour, no amendments were possible, and no motions to reconsider the vote On the discharge motion were permitted. A motion to consider the Resolution once it was reported by the committee or brought before to et chamber by discharge action was not debatable. No amendments vot he motion could be moved, nor was a motion to reconsider the to f 0n the motion possible. Debate on the resolution was limited Come“ hours, and no amendments were possible. The resolution on td not be recommitted, and motions to reconsider the final vote he resolution were prohibited. Such written rules of procedure 159 Congress renewed the authority for presidential reorganization of the executive branch in the Reorganization Act of 1945.20 Once again, however, Congress refused to enact a permanent statute dele- gating reorganization powers, but rather limited such authority to April 1, 1948. The provision for congressional review remained the same as the 1939 act. Congress reserved to itself the power to reject reorganization proposals by concurrent resolution during a sixty-day laying period. Congress enacted the Reorganization Act of 194921 in the year following the expiration of the 1945 act. The method for congres- sional review was changed in this statute to allow either house to disapprove a reorganization plan by a simple resolution. The stat- ute declared that a prOposed plan would become effective if it were not disapproved by a simple resolution of either house during a periOd of sixty days of continuous congressional session after it \ Wer e embodied in all subsequent statutes delegating reorganization authoI‘ity to the President. The only instance of the inclusion of Such I‘ules in a statute outside the field of executive reorganization, heWeVer, was a 1953 statute providing for legislative review of the dlspeeal of rubber-producing facilities owned by the national govern- ?)get- See U.S., Statutes at Large. LXVH: 408- See also _______infra, p. 20U.S., Statutes at Large, LIX, Part 1, 613. 21U.S., Statutes at Large, LXIII, Part 1, 203. 160 had been submitted to the legislature. The substitution of the one- house veto, a deviCe for facilitating the disapproval of presidential plans and thus strengthening congressional control, was a necessary compromise between the administration and Congress. The House of Representatives had included "special package" treatment for seven agencies in the reorganization bill that it passed. Although the agencies were not completely exempt from reorganization, the bill required that any reorganization prOposal concerning any of the seven agencies would have to be included in a separate plan. In this way, the proposed reorganization of any of the seven agencies could not be accomplished by including it in a plan composed of a group of reorganization proposals that had general support among members of Congress. The administration opposed such exemptions. The Senate agreed to eliminate this provision, but it demanded the estab- lishment of the procedure for disapproval by either house of Con- gress. This one—house veto requirement was thus inserted in the Senate bill and became a part of the 1949 act.‘22 The disapproval of reorganization plans by a simple resolu- tion of either house combined with the sixty- day laying period form what has apparently become the standard method of congressional 22See Ferrel Heady, "The Reorganization Act of 1949," Pub- lic Administration Review, IX (Summer, 1949), 165-175. 161 control in this area of governmental activity. This method has been re- enacted through successive renewals of presidential reorganiza- tion authority since the 1949 act.23 At the present time, therefore, a device similar to the British practice of annulment by negative prayer is the basic method for controlling administrative reorgani- zation in the American national government. A study of the statistics concerning congressional oversight 0f presidential reorganization prOposals reveals three important POints. In the first place, in comparison to the British practice of review by negative prayer, the American experience with congres- sional supervision by both simple and. concurrent resolutions of disapproval shows that it is much less difficult to find an Oppor- tunity to challenge the exercise of delegated powers by the intro- dHCtion of resolutions. The statistics also point to the conclusion, hoWever, that the introduction of such resolutions do not necessarily lead to the actual nullification of reorganization proposals. In fact, in the majority of cases, American experience reveals that it is exceptional for a resolution of disapproval to be carried successfully. The 1ihird point is that the degree of congressional control, when measured by the actual number of reorganization plans rejected by \ 23.U.S., Statutes at Large, LXVII, 4; U.S., Statutes at Large, . 14. LXIX 162 Congress, has not increased significantly since the change in the method of review embodied in the 1949 act. Under the 1939 and 1945 reorganization acts, which required concurrent resolutions of disapproval, a total of twelve reorganiza- tion plans were submitted to Congress.“ Although fourteen reso- lutions of disapproval were introduced in one or the other chamber, only three concurrent resolutions were successfully enacted to re- ject three of the twelve plans (25 per cent).‘25 Since the passage of the 1949 reorganization act and the re- establishment of the one-house veto, a total of fifty-five plans have been sent to the legislature. Only eighteen plans went unchallenged by either house. Thirty-seven 0f 1il’lese plans were the subject of fifty-one negative resolutions intI‘Oduced in either the Senate or the House, or, in some cases, in 2 bOth legislative chambers. 6 Only thirteen of these plans (23.6 per Z4Heady, 0p. cit., p. 173. But see Ginnane, op. cit., p. 581. zsCotter and Smith, op. cit., p. 965. he 26Nine of these plans were challenged by the introduction of gative resolutions in each house, while one, Reorganization Plan 8;: 1 of 1950, was the subject of twin resolutions introduced in the Cheate' Three resolutions of disapproval, at least one from each Inber, were introduced to reject each of two other. challenged 163 cent) were finally rejected by adverse action of one or the other chamber.27 Another important area of governmental activity in which congressional control of administrative discretion by resolution has become a prominent feature is that of the deportation of aliens. It first appeared in the Alien Registration Act of 1940.28 This statute amended the Immigration Act of 1917 by adding a new subsection (c) to Section 1929 of the earlier act. The amendment delegated broad discretion to the Attorney General to suspend deportation of certain classes of aliens if he found that "such deportation would result in serious economic detriment to a citizen or legally resident alien \ 27These findings are based upon statistics gathered from vari- ous Sources. A complete list of the reorganization plans submitted to Congress since the passage of the 1949 act can be found in U.S., congress, Senate, Activities of the Senate Committee on Government erations, 85th Cong., lst Sess., 1957, Senate Report No. 1, Appen- dix A. pp. 101-102. The plans that became effective are listed in the back of the bound annual volumes of the U.S., Statutes at Large_. The resolutions that were introduced in either chamber to disapprove any of the submitted plans can be found in the annual Congressional L113 (Commerce Clearing House, Inc., Washington, D.C.). The final d““Sl-’<>Sition of such resolutions can be traced in the preceding source or in the history of bills and resolutions available in the index of the WStates Co_ngressional Record. 1 28U.S., Statutes at Largp, LIV, Part 1, 670. The events lead- lit/E 11P to the enactment of this statute can be found in Harvey C. “afield, "The Legislative Veto and the Deportation of Aliens," kAdministration Review, I (Spring, 1941), 281-287. 29U.S., Statutes at Largp, XXXIX, Part 1, 874. 164 who is the spouse, parent, or minor child of such deportable alien."3 Such decisions of the Attorney General, however, were subject to re— view and possible nullification by Congress. If the suspension was in effect for over six months, the Attorney General was directed to submit all Of the facts and pertinent provisions of law concerning each case to Congress ten days after the beginning of its next regu- lar session. The suspension was to become effective only if Con- gress failed to pass a concurrent resolution during the session de- claring that it did not favor the suSpension. The large number of suspension cases submitted to Congress by the Attorney General, and the necessity on the part of both houses to take positive action and come into agreement in order to veto any particular decision, however, led to the impracticality of this pro- cedure as a method of congressional control. From the establish- ment of the act to June 30, 1947, the Attorney General had submitted 20'444 proposed suspensions. In none of these cases had Congress Passed a single concurrent resolution of disapproval. Congress changed the review procedure in 1948 by the en- aCtment of H.R. 3566 in order to provide a better Opportunity to \ 30U.S., Statutes at Largg, LIV, Part 1, 672. 31Ginnane, Op. cit., p. 583. 165 disapprove such suspension cases.32 The House version of this bill provided for a simple negative resolution Of either chamber for the nullification of any particular suspension.33 This eliminated the necessity of obtaining the assent of both houses in order to veto the decision of the Attorney General. The Senate, however, substi— tuted the procedure of approval by concurrent resolution in order to promote a closer congressional scrutiny of the suspension cases.34 The procedure under the earlier statute, according to the Senate Committee on the Judiciary, led to the approval Of the suSpension cases without any careful review of them because they could be ap- proved by default; i.e., by neglecting to introduce and pass a con- current resolution. The committee report maintained that the pro- cedure of approval by concurrent resolution would require that both chambers review the cases more carefully since positive approval by each house had to be given to each suspension.35 The proposed Senate procedure was accepted by the House and was written into 32U.S., Statutes at Large, LXII, Part 1, 1206. 33'See U.S., Congress, Senate, Committee on the Judiciary, 80th Cong., 2d Sess., 1948, Senate Report NO. 1204 to accompany H.R. 3566, p. 2. 34Ibid., p. 1. 351b1dot pp. 3" 4o 166 the 1948 statute. The statute required that any suspension made by the Attorney General that had been in effect for six months had to be reported to Congress. The time of reporting was changed so that he was required to submit such cases on the first and fifteenth days of each month that Congress was in session. The decisions of the Attorney General became effective, under the changed procedure, only if Congress passed a concurrent resolution specifically approv- ing such decisions during the session in which the case was intro- duced or before the end of the succeeding session. When Congress passed the Immigration and Nationality Act in 1952 revising the laws relating to immigration and nationalization, it again changed the method of congressional scrutiny of suspension cases. This statute, which is presently in effect, includes two pro- CEdures for reviewing such cases, which are, in turn, related to two general classifications of aliens whose deportation can be suspended by the Attorney General. Although there are many technical and complex criteria that differentiate these two categories, one of the major differences is the inclusion of aliens in one category who are deportable because Of criminal acts concerning immorality, narcotics, or carrying concealed weapons, or because Of the advocacy Of A 36U.S., Statutes at Large, LXVI, 163. 8 United States Code, Chapter 12. *— 167 subversive doctrines or affiliation with subversive organizations. The suspension of the deportation of aliens in this category by the Attorney General can not become effective until approved by Con- gress by the passage of a concurrent resolution stating that it favors such suspension. Such suspensions can also be nullified by a sim- The time for reporting ple negative resolution of either house. such cases and the laying period during which such proposed sus- pensions must remain before Congress remain the same as that found in the 1948 act. The other procedure included in the present act relates to a separate category of deportable aliens. This cate- gory is composed, in general, of those aliens who do not fall into the former category and who are deportable under any law of the United States. It requires an identical reporting system and laying Period, The decisions of the Attorney General concerning the sus— PenSion of deportation of aliens in this category become effective unless during the laying period either house of Congress passes a Simple resolution disapproving such an exercise of the delegated ' 3 d‘Lscr‘etionary authority. 9 \ 37See Section 244(c), U.S., Statutes at Large, LXVI, 216. 3’sIbid 39See Section 244(b), U.S., Statutes at Large, LXVI, 216. 168 Congress also included in this statute a requirement for con- gressional review of another category of decisions by the Attorney General. Section 246(a)40 of the 1952 act declares that the At— torney General is authorized, any time within five years after the suspension of a particular deportation and the adjustment of the alien's status, to revoke the suspension of deportation and the ad- justment of status if he finds to his satisfaction that the alien was not eligible for such a grant. The alien then loses his acquired status if, after the Attorney General has submitted his decision to Congress under a reporting procedure and laying period identical to that established earlier in the act for suspension of deportation cases, Congress passes "a concurrent resolution withdrawing suspension of deportation. . . ."41 The 1952 statute, which now governs the suspension of deportation, thus offers an example of congressional °Versight that combines both the one-house veto, or, as it is called in England, the procedure by negative prayer, and the concurrent r esOl'ution of approval, similar to the British practice of affirmative r9301 lltions . \ 4 . 0U.S., Statutes at Large, LXVI, 217. 41 Ibid. , p. 218. 169 Congress has also included the requirement of congressional oversight of delegated discretion by resolutions in two other statutes relating to the field of immigration and naturalization. The Attor- ney General is authorized, according to the DiSplaced Persons Act 42 of 1948, to adjust the status of any displaced person residing in the United States to that of a permanent resident if the displaced person meets certain statutory requirements set out in section four of the act. The decision of the Attorney General must be submitted to Congress and can not become effective unless Congress passes a concurrent resolution approving such a decision during the session in which a case is reported or before the end of the next session. If no such resolution is passed during this laying period the Attorney General ”shall thereupon deport such alien in the manner provided by law."43 4 . contains the procedure for 4 The Refugee Relief Act of 1953 I‘thleW by affirmative concurrent resolutions and also by simple . 4 . . negatlve resolutions. 5 The statute applies to aliens who have \ U . 4ZU.S., Statutes at Large, LXII, Part 1, 1009. 50 (Appendix) Was Code 1953. 43U.S., Statutes at Largg, LXII, Part 1, 1011. 44U.S., Statutes at Large, LXVII, 400. 45See Section 6, U.S., Statutes at Large, LXVII, 403. 170 lawfully entered the United States prior to July 1, 1953, as non- immigrants and who can not return to their places of birth, nation- ality, or last residence because of fear of persecution on account of their race, religion, or political opinion. Such persons may apply to the Attorney General for an adjustment of their status to that of an alien lawfully admitted to this country for permanent residence. The Attorney General is given discretionary authority to grant such an adjustment if he finds that the nonimmigrant meets certain statutory requirements. His decision can become effective, however, only if, during a laying period identical to that established by the Displaced Persons Act of 1948, Congress passes an affirmative concurrent resolution and neither house passes a simple resolution of disap- proval. Although Congress has devised an elaborate procedure for the control of these different decisions of the Attorney General under these various statutes, his decisions are almost always accepted by Congress and seldom raise any controversy.46 The statistics con- cerning congressional oversight of such decisions during the 6Interviews with Mr. William R. Foley, general counsel, Committee on the Judiciary (January 7, 1957), and Mr. Fred M. Mesmer, staff member, Subcommittee on Immigration and Natural- ization, Senate Committee on the Judiciary (January 11, 1957). 171 Eighty-fourth Congress tend to substantiate this point.47 The At- torney General submitted 2,029 cases of suspension of deportation to the Eighty-fourth Congress under the provisions of the Immigra- tion and Nationality Act of 1952. In addition to this large number, 537 cases were pending at the beginning of this Congress. Congress approved well over half of this total of 2,566 cases en masse by enacting five concurrent resolutions approving 1,550 cases. 9 Only thirty-mine cases of this large number of decisions submitted to Congress were not approved. The Attorney General withdrew twelve cases, and there were 965 pending at the end of the Eighty-fourth Congress. There was a similar tendency on the part of Con- gress to approve the decisions of the Attorney General that were submitted under Section four of the Displaced Persons Act of 1948. During the Eighty-fourth Congress the legislative body was requested to pass upon a total of 881 cases, 474 being cases that were pending at the beginning of the Eighty-fourth Congress and 407 cases that were introduced during the two sessions of this Congress. Five concurrent resolutions that were successfully enacted approved a group of 766 decisions of the Attorney General. Only fifty-four 47The following statistics are from U.S., Co_ngressional Record, 84th Cong., 2d Sess., 1956, C11, No. 134, Appendix, A6448- A6454. 172. cases were not approved by Congress. The Attorney General with- drew only three, and ten were held for further information. Forty- eight cases were still pending at the close of the Eighty-fourth Congress. The statistics concerning congressional oversight of decisions based upon the Refugee Relief Act of 1953 reveal a slightly higher percentage of disapprovals in comparison to approvals. Under the provisions of this statute the Attorney General submitted a total Of 4,767 cases to the Eighty-fourth Congress, which, when combined With the 41 pending at the beginning of the Congress, gives a total Of 4,808 cases that Congress was required to review. Over half of the decisions, 2,740, were approved by five concurrent resolutions. Approval was withheld, however, in 330 cases. Thirty-one cases were held for further information, and 24 were withdrawn by the Attorney General. A total of 1,683 were still pending at the end of the Eighty-fourth Congress. Executive reorganization and immigration and naturalization are the two major areas of continuing governmental activity in which eongressional control of administrative discretion by resolutions has been used most extensively. When Congress decided to dispose of the tV‘Ienty-seven government-owned rubber‘PPOducmg plants, how- ever. it once again established this type 0f congressional oversight in order to control the administration of the disposal program. 173 Congress passed a statute setting up such a program and establish- 48 ing the Rubber Producing Facilities Disposal Commission in 1953. This act delegated discretionary authority to the commission, com- posed of three members appointed by the President, to negotiate contracts for the sale of the government-owned rubber-producing facilities to private enterprise. Thirty days after the termination of a stated negotiating period (or not later than January 31, 1955), the commission was directed to submit a report to Congress listing the Proposed sales and the relevant data concerning each sale Each Proposed sale was subject to possible nullification by a negative resolution of either house of Congress during a required sixty—day laying period. Section 9(b) stated: Upon the expiration of sixty days of continuous session of the Congress following the date upon which the report is sub- mitted to it the Commission shall proceed to carry out the Contracts and proposals, as outlined in its report, to the extent that such contracts and prOposals are not disapproved by either House of Congress by a resolution within the sixty- day period. 49 One of the major reasons for including this procedure in the Statute is revealed in the House debate concerning the bill Repre- Sentaqu Celler was concerned that the facilities would be sold to t he larger private plants unless adequate safeguards were included \ 48 U.S., Statutes at Large, LXVII, 408. 4 9U.S., Statutes at Large, LXVII, 412. 174 in the proposed statute. Representative Durham, a member of the House Armed Services Committee that considered the bill, answered Celler by saying ”that is exactly why we put these provisions in the bill. It comes back here and the Congress has to approve within 30 days any contract made by any person who purchases one of these plants."50 One of the important reasons for the inclusion of congressional oversight, therefore, was the establishment of a pro- cedure whereby Congress could carefully supervise the use of the delegated discretion to prevent an increase in the control of the production of rubber by the larger producers and to promote the growth of the small independent producers. Congress extended the authority of the Rubber Producing Facilities Diaposal Commission twice in 1955 and once in 1956 in order to allow the commission to negotiate contracts for the sale of three of the government-owned plants. In March, 1955, Congress soU.S., Comessional Record, 83d Cong., lst Sess., 1953, XCIX, Part 6, 7314. The House version of the bill had contained a laying period of only thirty days. See U.S., Congress, House, Committee on Armed Services, 83d Cong., lst Sess., 1953, House Report No. 593 to accompany H.R. 5728, p. 74. This report de- clared: "While it is not intended that this section will create a forum for rejected bidders to air their complaints, nevertheless it will give the representatives of the American people an Opportunity to pass upon and, if necessary, reject the prOposed transfer of a great Government industry to the hands of private industry." 1312' 175 passed S. 691,51 which extended the commission's authority so that Plancor Number 877, located at Baytown, Texas, could be sold. The prOposed contract had to be submitted to Congress no later than ten days after a specified negotiation period. The contract, in this case, had to lay before Congress for only thirty days of continuous ses— sion, and it was to become effective only if neither house passed a resolution disapproving the proposal during this period. Public Law 336,52 passed the same year, again extended the authority of the commission in order to dispose of Plancor Number 980 at Institute, West Virginia. It contained the same procedure for con- gressional review, including the shortened laying period. The next year Congress once again extended the commission's authority in order to diapose of Plancor Number 1207, a Louisville, Kentucky, plant, and the procedure of congressional oversight of the delegated discretion was identical to the earlier 1955 acts. 51Public Law 19 (1955). SZPublic Law 336 (1955). 53Public Law 443 (1956). The commission ceased to exist on September 23, 1956. Its duties, powers, and functions were transferred to the Federal Facilities Corporation by Executive Order 10678 of September 24, 1956, which was authorized by Sec- tion 6(d) of Public Law 433 (1956). The transferred powers and duties .of the corporation were made subject to "direction and con- trol by the Secretary of the Treasury." Federal Register, XXI, No. 176 The commission submitted prOposals to Congress to sell each 54 . of the twenty- seven plants. Three House resolutions and four Senate resolutions were introduced to disapprove of one or more of the prOposed contracts. Six of these resolutions were unsuccessful in the chamber of origin, and in only one instance was a negative . . 55 , resolution passed to nullify a prOposed sale. As in the case of congressional oversight of executive reorganization, the American experience with legislative control of the rubber plant diaposal 185 (1956), p. 7199. The Federal Facilities Corporation was created by the Secretary of the Treasury pursuant to Executive Order No. 10539 (June 22, 1954) and Section 10 of the Rubber Act of 1948 on July 2, 1954. Department of the Treasury, Office of the Secretary, Federal Register, XIX, No. 128 (1954), p. 4041. £54By April 30, 1956, twenty-six of the twenty-seven govern- ment plants had been sold. Message from the President of the United States, "Report Concerning the Nation's Rubber Requirements and Resources," House Document 391, 84th Cong., 2d Sess., April 30, 1956, p. 1. A proposal to dispose of Plancor No. 1207, located at Louisville, Kentucky, which was authorized by Public Law 433 (1956), was later submitted to Congress. 55Co_ngg£essional Index, 84th Cong., Commerce Clearing House, Inc., Washington, D.C. House Res. 524 of the 84th Cong., 2d Sess., was successfully carried to reject the proposed sale of Plancor No. 1207, Louisville. I_l)_i_d_. H.R. 2528 was introduced at the beginning of the first session of the Eighty-fifth Congress to authorize the Federal Facilities Corporation to renegotiate for the sale of Plan- cor No. 1207. The prOposed bill again reserved to either house the authority to disapprove the sale by simple resolution within a thirty- day laying period. See U.S., Congress, House, Committee on Armed Services, 85th Cong., lst,Sess., 1957, House Report No. 4, p. 7. It passed the House on February 5, 1957, but had not been reported out by the Senate Committee on Banking and Currency as of April, 1957. 177 program reveals that the introduction of negative resolutions by no means insures the nullification of an exercise of discretionary au- thority. Congress has also provided for legislative review of adminis— trative decision-making by resolutions in two other Special instances. Both involve the use of concurrent resolutions. Public Law 24056 was enacted in 1932, just one day after the practice of legislative review of executive reorganization by concurrent and simple reso- lutions was first established in the Economy Act of 1932. It dele- gated discretionary authority to the Secretary of the Interior to adjust or eliminate the debts owed by Indians or Indian tribes to the national government. The Secretary was simply directed to exercise this discretion ”in such a way as shall be equitable and just in consideration of all the circumstances under which such Charges were made."57 Any decision made by the Secretary pur- Suant to this authority, however, had to be submitted to Congress and could not become effective for sixty legislative days. Moreover, Congress reserved to itself the power either to approve or to dis- apPI'OVe each decision by concurrent resolution within this period. \ St 56U.S., Statutes at Large, XLVII, Part 1, 564. 25 United W 386a. 5 7Ibid. 178 Thus, Congress could reject any such decision by passing a negative concurrent resolution. On the other hand, the decision of the Sec- retary could be approved by Congress either by an affirmative con- current resolution or by failure to take any action within the laying ' period.58 This particular procedure resulted from a compromise that emerged out of the conference committee established to settle the differences between the House and Senate bills concerning this sub- ject. The House version of H.R. 10884 delegated complete discre- tion to the Secretary of the Interior to adjust or eliminate the debts of the Indians or Indian tribes. The only requirement contained in the House bill was that the Secretary had to submit an annual report Setting forth the action taken under the delegated authority during the preceding year.59 When this bill came before the Senate for debate, however, Senator King threatened to object to consideration 58The actual proviso read: "That any proceedings hereunder Shall not be effective until approved by Congress unless Congress Shall 1“We failed to act favorably or unfavorably thereon by concur- rent resolution within sixty legislative days after the filing of said rem": in which case they shall become effective at the termination °f the said sixty legislative days." U.S., Statutes at 1,533, XLVII, Part 1' 565. 5 9See U.S., Congress, Committee of Conference, 72d Cong., l pstZSees., 1932. House Report No. 1725 to accompany H.R. 10884, 179 of the bill unless an amendment that he prOposed were accepted. The King amendment required that any decision by the Secretary concerning the elimination or adjustment of such debts would not be effective until "approved by Congress."60 Senator King declared that, in the face of information that was available to the Senate Committee on Indian Affairs, he was ”unwilling that this unre- stricted and unlimited authority shall be granted to the Bureau of Indian Affairs to extinguish liabilities of individuals, no matter how fair they may be, of millions of dollars unless reports are made to Congress and approved by Congress." The Senate accepted this amendment, and the different positions of the two chambers on this point were reconciled in the conference committee by the substitu- tion of the procedure that became the congressional review require- ment now contained in the statute. 6 Section six of an act passed in 1946 3 also established legis- lative review of particular administrative decisions by concurrent \ 6 0U.S., Congressional Record, 72d Cong., lst Sess., 1932, LXXV. Part 13, 13829. - 6 1 Ibid. 6 2See supra, n. 59, p. 178. 6 Co 3'U.S., Statutes at Large, LX, Part 1, 897. 34 United States ~32 546f—k. 180 resolution. This requirement was written into S. 1547, which was passed by both houses. Section one of the statute authorized the Secretary of the Navy to transfer, by gift or otherwise, obsolete or condemned United States Navy ships or captured vessels to any state or local governments, American territories or possessions, or to certain nongovernmental groups. Section two similarly authorized the Secretary to transfer other articles of war and historic interest. The Secretary of the Navy was given complete discretion to effect such transfers "upon such terms and conditions as he may in his discretion prescribe. . . ."64 Accompanying such a grant of dis- cretion, however, was the requirement that all decisions made by the Secretary on the basis of this authority had to be submitted to Congress and were subject to nullification by a concurrent resolu- tion of disapproval within a certain period of time. The laying period varied according to the particular section of the statute under which the Secretary acted. In the case of a transfer based upon the first section of the act, any proposed transfer would take effect only if Congress did not enact a negative concurrent resolution within a period of sixty days of continuous session after the decision had 64 , U.S., Statutes at Largg, LX, Part 1, 897. For an instance of apparent abuse of administrative discretion under an earlier stat- ute which made no provision for congressional review, see Levinson v. United States, 258 U.S. 198 (1922), 181 been submitted to Congress. Any transfer undertaken in pursuance of the authority delegated by section two was subject to the same method of nullification, but the laying period was shortened to thirty days. The most recent use of concurrent resolutions to control ad» ministrative decisions is found in the Federal-Aid Highway Act of 1956.65 Section 108 of this statute concerns the completion of the "National System of Interstate and Defense Highways." It authorizes annual lump-sums for federal aid to state highway construction for a period extending from fiscal year 1957 to fiscal year 1969.66 Au— thority is delegated to the Secretary of Commerce to apportion the funds among the several states for the construction of the state's portion of the national highway system. For the first three years, however, the Secretary is required to apportion the funds according 6SPublic Law 627 (1956). 6Such a long-term authorization of funds was unusual. Up to this time it had been the practice of Congress to authorize high- way appropriations for only a two-year period. Witnesses from the road- construction industry, however, according to the House report accompanying the reported House bill, persuaded the House Com- mittee on Public Works to authorize funds for the twelve-year period so that there would be no interference with the construction of highways and thus "inefficient and expensive build-ups and let- downs" in the road construction industry. U.S., Congress, House, 84th Cong., 2d Sess., 1956, Committee on Public Works, House Re- port No. 2022 to accompany H.R. 10660, p. 8. 182 to a definite formula. One-half of each state's grant for these three years is to be in proportion to "the ratio which the popula- tion of each State bears to the total population of all the States. ."67 The other half of the funds is to be determined by an apportionment based upon the formula used for the federal-aid primary system.68 The Specific prOportion of the annual funds for each fiscal year from 1960 to 1969 granted to each state is to be determined by "the ratio which the estimated cost of completing the Interstate System in each state . . . bears to the sum of the esti— mated cost of completing the Interstate System in all the states.”69 The actual estimate of the annual cost of construction in each state is left to periodic determination of the Secretary of Commerce in c00peration with the state highway department in each state. The statute simply directs that the determination of such costs must be baSed upon a consideration of the previous grants made under this act in the preceding years and such other standards and rules that the Secretary may adopt and apply uniformly to all the states.70 6 7Sec. 108(c) of Public Law 627 (1956). . 68Ibid. See U.S., Congress, Committee of Conference, 84th Cong., 2d Sess., 1956, House Report No. 2436 to accompany H.R. 10660, p. 29. 69Sec. 108(d) of Public Law 627 (1956). 70Ibid. 183 In order to control the use of this delegated discretion, Con- gress once again relied upon legislative review by concurrent reso- lution. Section 108(d) of the statute requires the Secretary of Com- merce to submit to Congress, within ten days after January 2, 1958, a detailed estimate of the projected costs of construction in each state for the fiscal years 1960, 1961, and 1962. If this schedule is approved by Congress by concurrent resolution,71 the Secretary shall utilize the approved estimates to apportion the annual lump sums to each state for each of the Specified years. The estimates worked out by the Secretary and the state highway departments covering the fiscal years 1963 to 1966, inclusively, must be submitted to Congress no later than ten days after January 2, 1962, and are subjected to the same requirement of congressional approval by concurrent reso- lution. Beginning in 1966, and continuing through 1968, the Secre- tary is required to submit annual estimates of costs no later than the second of January of each year, and the proposed estimates be- come effective only if they are approved by concurrent resolution. 71There is no statutory specification of a period during which such a resolution must be passed. 184 Review by Resolution and Legislative Committees Congress has not established a committee in each house that is charged with the single responsibility of reviewing the exercise of delegated powers similar to the scrutiny committees found in British practice. The administrative decisions that are submitted to Congress are referred to the standing legislative committee that has jurisdiction over the governmental activity involved for review and recommendation. The members of Congress are generally able to perform such review individually. They thus rely to a great extent upon the study and recommendations of the reviewing committees. The relatively large numbers of decisions submitted to Congress, the complexity and technicality of most of these decisions, and the demands upon the time of individual members are all factors which limit the pos- sibility of individual consideration and lead to reliance upon com- mittee scrutiny and recommendation. It is likely that such a situation promotes the influence of the reviewing committees in the final legislative disposition of adminis- 72 trative decisions. It is difficult to test this, because there is no 72 . It may be that in many cases the full committees merely serve to ratify the recommendation of an established subcommittee 185 single accurate measure of this influence. Some general indication can be obtained, however, by looking at the available figures concern- ing the results of simple negative resolutions that have been the sub- ject of recommendations by the reviewing committees. Committee influence can be defined as the concurrence between the final deci- sion Of the chamber and the committee recommendation concerning such resolutions. By using this measure a distinguishable pattern Of committee influence is found in the Operation Of review by resolution. Such a pattern can be seen in the case of congressional review Of executive reorganization and the, government Operations committees by looking at the results of resolutions of disapproval that have been introduced or the committee staff. In such cases the source Of major influence can be traced to these levels Of the committee hierarchy. The data that were Obtained for this analysis of congressional review by reso- lution do not furnish proof for this point. There are also no pub- lished works available that present any concrete documentation Of the power and influence of subcommittees and committee staff in the process Of committee decision-making. There are some related pieces of evidence, however, that do lend some support to this sup- position. The evidence relating to the part played by the subcom- mittees Of the judiciary committees in the review Of suspension Of deportation cases (see infra), forgexample, illustrates the influential role Of subcommittees in one particular case of congressional re- view by resolution. Furthermore, the predominant influence Of both subcommittees and the committee staff in many of the instances of committee review and control discussed in the succeeding chapters Offers further closely related evidence. See specifically Chapter VIII, infra. 186 to reject particular reorganization plans since 1949. From 1949 un- til the end Of the Eighty-fourth Congress a total Of thirty resolutions Of disapproval, on which the reviewing committee expressed a rec- ommendation, were brought to a final vote in the chamber Of origin. The final decision Of the chamber differed from the committee rec- ommendation on only six resolutions. The disposition Of twenty-four Of them coincided with the initial committee recommendation.74 A similar pattern is found in connection with resolutions in— troduced to disapprove proposed disposals of government—owned rubber-producing facilities. Seven resolutions were introduced dur- ing the Eighty-fourth Congress to disapprove either one or several Of the proposed sales Of the government plants. These resolutions were referred to the Armed Services Committee in the House and the Committee on Banking and Currency in the Senate. In each case, the reviewing committee made specific recommendations concerning the resolutions. The House committee reported two resolutions of 73This includes one resolution, H. Res. 236 (1953) tO disap- prove Reorganization Plan NO. 2 Of 1953, that had to be discharged from the committee. Such action reflects Opposition to the negative resolution on the part of the committee, and it was thus included in the above category of resolutions that were the subject Of committee rec om rne ndati ons . 4 . . 7 This information was Obtained from the sources Cited in supra, n. 27, and committee reports accompanying the resolutions that were reported to Congress by the reviewing committees. 187 disapproval adversely and approved another such resolution. The Senate committee recommended adverse action for five resolutions. In each of these cases the final vote Of the chamber of origin con- curred with the committee recommendation. The experience with congressional supervision Of the proposed suSpensions of deportations submitted under the terms of the 1952 statute reveal a somewhat similar picture. In this case, however, it is not the committees on the judiciary, but rather subcommittees Of such committees, that wield major influence. Each committee has an established subcommittee perform the initial study and analy- sis Of proposed decisions. The full committees almost invariably adOpt the recommendations Of their subcommittees concerning these prOposals. Those recommendations for approval are embodied in affirmative concurrent resolutions by the committees and submitted to Congress. Few attempts are made to reject such resolutions. They are generally ratified by Congress with little or no debate. 75These figures were Obtained from the source cited in supra, 76Personal interviews, see supra, n. 46. State experience with legislative review of administrative rules and regulations re- veals that the legislative committees have become the major source of influence in such a review process. This has been the result, for example, in the state Of Connecticut. In this state all rules and regu- lations are required to be periodically submitted to the legislature 188 It must be remembered that there have been instances in which the full chamber has overruled the reviewing committee's initial decision concerning an administrative proposal. Such in- stances are significant. They serve to underline the fact that re- view by resolution does leave Open a channel Of appeal to the full chamber. They also reveal that such a channel has been utilized from time to time to veto the recommendations of the committees. This recognition of the availability Of a channel Of appeal and its occasional successful use serves to point out a significant and are subjected to possible nullification by concurrent resolution Of the legislative body. Bernard Schwartz, "Legislative Control of Ad- ministrative Rules and Regulations: 1, The American Experience," New York University Law Review, XXX (May, 1955), 1038. Although provision has been made for the establishment of a legislative com- mittee to assist the legislature in this oversight function, the Con- necticut legislature has chosen to rely upon the regular legislative committees. The practice has been for the appropriate committee in each chamber to review the administrative rules falling within its jurisdiction. If they approve the regulations, notification tO this ef- fect is sent to the Connecticut Secretary Of State. The legislative chamber is notified only if a committee favors disapproval of any regulation. This takes the form Of a recommended decision of dis- approval. The legislative chamber almost invariably follows such committee recommendation and simply incorporates it in an Official proposed, concurrent resolution of disapproval. Personal interview with Mr. Louis J. Tapogna, Clerk, Office of Secretary Of State, State of Connecticut, June 13, 1957. A similar pattern Of committee in- fluence also has develOped in the case Of the Michigan Joint Legis- lative Committee on Administrative Rules. See Glendon A. Schubert, Jr., Helenan Sonnenburg, and George Kantrowitz, The Michigan Ath- letic Awards Rule, ICP Case Series: Number 29 (University, Ala- bama: University Of Alabama Press, 1956). 189 distinction between this American device and both the British prac- tice, which already has been discussed, and the second American device of committee clearance to be presented in succeeding chap- ters. It has already been shown that in the British practice the cabinet, for all practical purposes, has achieved complete control over the legislative diSpositions Of statutory instruments submitted tO Parliament. The development of review by resolution has not led to an analogous position for the reviewing committees. Although they do exert a good deal of influence over the Operation Of the American device, they can be, and have been, overruled. The development of the American device, in other words, has still left the legislative body with a mechanism for asserting its final power and authority in any particular case. This point also becomes significant when review by resolution is compared with committee clearance. This latter device places the final approval and disapproval Of administra- tive decisions in particular legislative committees. In such cases neither chamber has an Opportunity to overrule the decisions of the committees. Conclusions Review by resolution has a history that dates back twenty- five years to 1932. During this period a total of eighteen statutes 190 have been passed containing the requirement of congressional over- sight by resolutions. It is presently included in seven Operative statutes.7 Such figures do not reflect a movement to establish this de- vice as the central element in a program of legislative control of administrative discretion. In the first place, such a device has been used only Sparingly. Eighteen statutes is a small amount of the un- ‘ doubtedly large number of statutes passed during this period that involved the delegation of discretionary authority to the national bureaucracy. In the second place, Congress has shown no prOpen- sity tO use this device in a great many Of the widely diSpersed fields Of governmental activities involving administrative decisions. The large majority Of these statutes have concerned only three major fields. Six statutes out of the total Of eighteen have involved the ini- tial establishment and subsequent renewals Of presidential authority to reorganize the executive branch Of the national government. An- other group Of five has centered around the activities Of the United States Attorney General in the field Of immigration and naturalization. 7 7See Appendix I for a listing Of all the statutes that have included the requirement of review by resolution. Appendix II lists the statutes containing this requirement that are presently in effect. 191 Four other statutes concerned the government's program for the dis- posal Of government-owned rubber-producing facilities. Only three out Of the eighteen statutes imposed review by resolution in other areas of governmental activity. They were, mOreover, unrelated areas. They included the adjustment of Indian debts, the sale of naval ships and articles of war, and the appor- tionment Of federal aid funds to states for highway construction. Congressional oversight by resolutions has thus not attained a status similar to that Of parliamentary review in England. Nor, in- deed, has Congress attempted to establish such a broad and widespread system Of legislative control Of bureaucratic discretion. Congressional use Of this device has seemed, rather, to be based upon expediency. American experience suggests that this device has been used by Con- gress in those particular instancesin which it found itself either un- able or unwilling to carry out a detailed governmental program and yet particularly reluctant to divest itself of close and direct control over the specific administration of the program. Review by resolu- tion has Offered a useful and convenient way out of this dilemma. In the case of executive reorganization, for example, Congress found itself ill-equipped to carry Out detailed plans Of reorganization and generally unable to agree upon any particular reorganization pat- tern. By using this device Congress was able tO delegate discretion- ary powers to the President and still provide an Opportunity to main- tain a close control over the use of such powers. The same pattern 192 is discernible in the case Of the suspensions of deportations and the adjustments Of the status Of aliens by the Attorney General Of the United States, and in the rubber facilities disposal program. The latest instance of the use Of this device, in the Federal-Aid Highway Act of 1956, is a vivid example of this pattern. In that case Con- gress found itself faced with a need to establish cost estimates for each state's contribution to the construction Of the federal highway system over a continuous period in which the basis Of the estimates would be constantly changing. In order- to relieve itself Of this rather complicated task and still maintain control over the authorization basis for federal apprOpriations, Congress turned to the device Of delegating fairly broad discretionary powers to the Secretary of Commerce with an accompanying requirement Of'review by resolution. One final point must be discussed before leaving this analysis Of review by resolution. This concerns the question whether the Op- eration Of the device fulfills the claim Of the promotion Of politically reSponsible administrative decisions contained in the doctrine of leg— islative control. Such an evaluation must be based upon a recognition Of the important point that review by resolution places. the final power Of decision-making, regarding the approval or disapproval of adminis- trative prOposals. in the full chambers Of Congress. This is seen most clearly, Of course, in those cases in which the full chamber has overturned initial recommendations of its reviewing committee. 193 It is not ‘vitiated, however, by the other instances which have pointed to an apparent pattern Of influence by the reviewing committees. It is equally-Operative, but less apparent, in the majority Of cases in which final action of a chamber has concurred with the initial com- mittee recommendation. In order fully to understand this last point, it is necessary to take a careful look at such situations Of concurrence, which ac- tually include two possibilities. In the first place, the concurrence may result from a pro forma acceptance of initial committee action. This generally occurs when administrative prOposals are routine and noncontroversial. It is likely that many prOposals subject to review by resolution fall into this category. A similar concurrence, how- ever, may also result from an entirely different situation. Such a concurrence may often involve a final decision by the full chamber that emerges from a situation of concern and controversy about a particular prOposal. The concurring decision by the full chamber in such a case represents not a pro forma acceptance of the com- mittee recommendation, but rather a final judgment that emerges out of the conflict and compromise among the members. In both instances the disposition Of administrative prOposals rests with the legislative chambers. In the former case the admin- iStrative prOposals are disposed of by‘prO forma ratifications Of committee recommendations. The final decisions of the chambers thus represent a consenSus of acceptance of the recommendations. 194 The administrative proposals are also disposed Of by the full cham- bers in the latter case. In such instances, however, the final ac- tion does not rest upon a basis Of routine acceptance and ratifica- tion of committee action. Rather, it represents an agreement emerging from the conflict and compromise Of the decision-making process of the full chambers. The final disposition of administra- tive prOposals in both situations represents a consensus of the full chambers of Congress. The Operation of review by resolution involves three patterns Of decision-making by the full chambers. In the first the decisions Of the chambers overrule the initial recommendations of the review- ing committees. In the second and third patterns the final action of the full chambers follows the committees' recommendations. In each pattern, however, the decisions represent a final legislative judgment. This final consensus, according to the legislative control doc- trine, is the best representation Of the consent Of the governed. Re- view by resolution thus Operates in such a manner as to insure that administrative decisions will be based upon such consent. It fulfills one of the basic claims of its doctrinal progenitor. The next question is whether committee review and clearance similarly satisfies this test Of evaluation. First, however, this sec- ond device must be described and its actual Operation presented. CHAPTER VI FORMAL COMMITTEE REVIEW Introduction The use of the regular standing congressional committees to review and approve the exercise Of discretionary powers Of the bureaucracy in the American national government is another method that has been used to provide a channel of continuous legislative control Of administrative decision— making. It is an indigenous de- vice that, unlike congressional oversight by resolutions, has no counterpart in the English practice Of parliamentary supervision Of delegated legislation. It appeared on the American scene a little over a decade later than the former American method Of approval by resolutions and thus represents a more recent innovation in the system Of legislative control of administration in this country. Such committee clearance of administrative decisions in the American practice rests upon either a formal or an informal basis. In the former case the requirement of committee review and ap- proval is included in a statute passed by Congress and approved by 195 196 the President. Informal committee control, on the other hand, does not rest upon any such explicit statutory basis. In some cases it results from an informal agreement between a particular executive agency and a congressional committee Of one house or related con- gressional committees in both chambers. In other instances such committee review and approval develops from a statutory require- ment that merely requires "prior reporting" Of prOposed adminis- trative decisions to‘particular congressional committees before ac- tion is taken. Committee clearance of the decisions of executive agencies, whether formal or informal, has received practically no attention in the published literature of political science and public adminis- tration.1 The next three chapters, therefore, will be devoted to a detailed exposition Of this method Of legislative control Of adminis- trative decision-making. This chapter will concentrate on the in- stances of such committee review that rest upon a formal statutory 1The only published work dealing with this topic is Robert W. Ginnane, "The Control Of Federal Administration by Congressional Resolutions and Committees," Harvard Law Review, LXVI (Febru- ary, 1953), 569-611. Part Of one chapter of an unpublished Ph.D. dissertation also discusses this device. See Kenneth Theodore Kofmehl, ”Congressional Staffing, with Emphasis on the Profes- sional Staff" (Ph.D. dissertation from Columbia University [micro- film date, 1956], University Microfilms, Ann Arbor, Michigan, Publication No. 17,063), pp. 206-223. 197 requirement. The succeeding chapter will present the occasions on which informal committee control has been established. This will be followed by a third chapter concerning the procedures associated with both types and the resulting locus Of the actual function of re- view and clearance produced by such procedures. Committee Review and Clearance Congressional committee review and approval of administra- tive decisions was first established in a 1944 naval public works statute.Z passed near the end Of World War II. This statute author- ized the Secretary of the Navy to establish and develop naval shore facilities by acquiring and disposing Of land and constructing neces- sary public works. The acquisition and disposal of land for such facilities, however, could be effective only after review and approval zU.S., Statutes at Largg, LVIII, Part 1, 189. Technically, such committee review was used earlier in a joint resolution passed in 1935 that required the Joint Committee on the Library to approve any site selected by the Fine Arts Commission for the erection Of a statue Of Grover Cleveland in Washington, D.C., by any associa- tion organized for that purpose. See U.S., Statutes at Large, XLIX, Part 1, 424. The model Of the statue and the pedestal also had to be approved by the commission and the joint committee. I_b_i_d_. A joint resolution Of 1937 established the same procedure for the erec- tion Of a statue of Albert Gallatin within the grounds surrounding the Treasury Building in Washington, D.C. See U.S., Statutes at La_rg_e_, L, Part 1, 260. These are, however, rather inconsequential instances. The recent trend toward using this device in important areas Of gov- ernmental activity actually began with the 1944 statute. 198 by the naval affairs committees Of Congress. A general proviso included in this statute declared, in reference to real estate activi- ties Of the Navy Department, That prior to the acquisition or disposal, by lease or otherwise, of any land acquired for naval use under the author- ity of this, or any other Act, 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.3 This requirement was written into the statute at this time, according tO Representative Vinson, in order to provide a system of authorization that would meet the strategical requirements of the Navy Department that was then engaged in full-scale war and, at the same time, to provide a method for maintaining congressional control over the real estate activities Of that department. The ac- quisition and disposal of land was closely related to requirements for naval shore facilities that shifted and changed rapidly to meet military necessities. Control of land transactions by the usual method Of itemized and detailed authorizations and appropriations covering a fairly long future period prevented such necessary 3U.S., Statutes at Lapgg, LVIII, Part 1, 190. This represents the first Of several such requirements, both formal and informal, concerning the real estate and construction activities Of the military establishment. The majority Of instances of congressional committee review have related to the armed services departments, and, in most such cases, involved the above activities. 199 flexibility. Committee review was thus intended as a requirement that would provide both the needed flexibility and the desired con- gressional control by delegating broad discretion4 to the Navy Department with the stipulation that the particular uses Of this dis- cretion had to be approved in each instance by the naval affairs committees Of Congress. As Vinson explained, "we have done two things in this bill: We have given flexibility and we have tried to retain control over the acquisition and diSpOSition of property." This statutory requirement, as it related to land acquisition, actually only wrote into law an informal arrangement that had ex- isted for over a year regarding the acquisition Of property by the 6 Department Of the Navy. Secretary Of the Navy Frank Knox and 4The Secretary Of the Navy was authorized to acquire the necessary land for various classes of projects Of naval shore facili— ties. There was no Specification in terms of location or particular facility. See U.S., Statutes at Large, LVIII, Part 1, 189. 5U.S., Copgressional Record, 78th Cong., 2d Sess., 1944, KC, Part 3, 3218. Vinson outlined the purpose Of requiring committee approval: "First, because it lets Congress know what is going on; and, second, in the interest Of economy it allows Congress to have a hand in the acquisition or sale Of property." ling. 6Kofmehl states: "This merely wrote into the law a clear- ance procedure which the Navy Department had been Observing vol- untarily for over a year--according to John J. Courtney, original draftsman Of Public Law 289, 78th Congress, who at the time was on loan from the Justice Department to the Navy Department for the express purpose Of handling the latter's real-estate transactions (interview with Mr. Courtney on July 1, 1952)." Kofmehl, Op. cit., p. 218, n. 28. 2.00 the House Committee on Naval Affairs entered into an agreement in 1942 that established a clearance procedure in which all acqui— sitions Of land by the Navy Department would not become effective until approved by the naval affairs committees Of Congress.7 This agreement continued for two years and was finally formalized as an important part Of the 1944 statutory requirement. Particular real estate transactions of the armed services were further subjected to committee clearance by a statute approved in 1 1949.8 This statute authorized the Secretary of the Air Force, or either secretary of the other two military departments that might be designated by the Secretary Of Defense, to acquire necessary lands or the rights to the use Of the land for the establishment Of a proving ground for guided missiles and other weapons. Before any particular decision under this authority could become effective, 7Representative Vinson, during debate on a bill in 1951, said: "Back in 1942 and 1943 an agreement was entered into by the Old Committee on Naval Affairs with the administration and with the then Secretary Of the Navy Knox, whereby all acquisitions Of real estate of every character and allleases would be submitted to the Naval Affairs Committees of the Senate and Of the House of Repre- sentatives." U.S., Congressional Record, 82d Cong., lst Sess., 1951, XCVII, Part 4, 5435. ' 8U.S., Statutes at Laggg, LXIII, Part 1, 66. The Senate Com- mittee on Armed Services, during committee consideration Of H.R. 1741, inserted the requirement in the bill. See U.S., Congress, Senate, Slst Cong., lst Sess., 1949, Senate Report 216 tO accompany H.R. 1 741 . 201 however, the Secretary of the Air Force had to Obtain the approval Of the committees on armed services. Section two stated that: Prior to the acquisition under the authority of this section Of any lands or rights or other interests pertaining thereto, the Secretary of the Air Force shall come into agreement with the Armed Services Committees of the Senate and the House Of Representatives with reSpect to the acquisition Of such lands, rights, or other interests.9 This reservation of the power Of approval to such congres- sional committees, interestingly enough, established a Situation in which the armed services committees could take part in activities in the field Of international affairs and foreign relations that are generally assumed to be the sole function of the President and the Senate. The review requirement, according to the conference report accompanying the bill that became the 1949 statute, applied to all international agreements and treaties involving the acquisition Of rights to the use of lands in foreign nations to be used for missile testing grounds and ranges. The report declared: The Senate amendment is applicable not only tO the acqui- sition of lands or rights or other interests pertaining thereto located within the United States but also to the acquisition Of any lands or rights or other interests pertaining thereto through any type Of agreement or treaty with any foreign nation. 9U.S., Statutes at Large, loc. cit. 10Conference Committee Report to accompany H.R. 1741, U.S., Coiigressional Record, 8lst Cong., lst Sess., 1949, XCV, Part 202 Public Law 155,11 a construction authorization statute for the three military departments, was enacted in 1951 and provides the next example of committee oversight Of administrative decision- making. Section 601 of Title VI12 of this statute established a gen- eral procedure by which most activities of the military departments and the Federal Civil Defense Administration relating to the acqui- sition and disposal Of real estate--i.e., land and other real property --are now reviewed by the armed services committees. This sec- tion, which is still in effect, requires prior committee approval of all real estate transactions of the Departments Of the Army, Navy, and Air Force and the Federal Civil Defense Administration that involve an estimated value in excess of $25,000. The secretaries Of the military departments and the Administrator Of the Federal Civil Defense Administration, according to the statutory requirement, 4, 5610. The Secretary Of the Air Force has taken the position that executive agreements to acquire the use Of lands for this pur- pose in foreign nations can not be subjected to congressional com- mittee approval. He has continued to honor the requirement, how- ever, in order to prevent the controversy between the Air Force Department and the armed services committees that would result from the refusal to follow the statutory requirement. Interview with Mr. John A. Johnson, general counsel, Department Of the Air Force, January 8, 1957. llU.S., Statutes at Large, LXV, 336. 123932” P- 365. 10 United States Code 2662, recodified August 10, 1956. 203 are directed to "come into agreement with the Committee on Armed Services Of the Senate and Of the House Of Representatives with re- 13 spect to those real estate actions. ." The following real es- tate transactions involving the minimum statutory value were included in the requirement Of committee approval: (1) acquisition of real property by sale or lease, (2) leasing Of government—owned real property, (3) transfer Of property between the military departments or such departments and other federal agencies or a military de- partment and a state, and (4) reports to a diSposal agency of excess government-owned real property. 13Ibid. An earlier proviso Of this statute also established such a coin-mittee approval requirement. It was included in a fifty- million-dollar authorization for Army depot facilities in the conti- nental United States. The statute declared: "That prior to the ac‘IlIiSition Of lands and the construction Of facilities under this au- thority the Secretary Of the Army shall come into agreement with the Armed Services Committee of the Senate and the House of Rep- reserltatives with respect to the acquisition Of such lands and the construction of such facilities." Ibid., p. 342. There is no evidence available as to why this pamicularT-fitivity was singled out as a sub- ject of committee review. This particular proviso, as compared with Section 601 Of Title VI of the same statute, does not include a mini- mum Value limitation. Evidently, if both statutory requirements were operative, the Department Of the Army was subject to a more com- plete Committee review when involved in the acquisition Of land under thls latter category. In addition, this proviso also required commit- tee. approval for the construction of depot facilities in the continental umted States by the Department Of the Army. 204 Section 601 was inserted in the statute authorizing military construction as a general proviso after an earlier bill14 containing a similar requirement of committee approval Of real estate activities of the same executive agencies had been vetoed by President Truman earlier in the session. President Truman vetoed this bill because of what he conceived to be the resulting inefficiencies and disadvan- tages of the committee approval procedure. He declared that the procedure would impose unnecessary additional burdens upon the executive branch in the administration Of the real estate program. Such a requirement, according to the President's veto message, would require a report Of almost all real estate actions Of the speci- fied executive agencies and would result in a serious delay in the execution Of such transactions. It would also necessitate an uneco- nomical centralization of the approval Of such transactions that had 15 previously been consummated in the field. l4See H.R. 3096, U.S., Congressional Record, 82d Cong., 1st Sess., 1951, XCVII, Part 3, 4190. >150nly one short paragraph of the veto message touched upon the constitutionality Of the approval procedure. President Truman declared: "Finally, I am concerned by what appears to me to be a gradual trend on the part Of the legislative branch to participate to an i 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. The delays discussed above, 205 The President vetoed the bill on May 15, 1951. The House Of Representatives entered upon a full-scale debate of the bill and the presidential veto immediately and repassed the bill over the presi- dential veto just two days later.16 The Senate failed to act on the vetoed bill. When H.R. 4914 (which later became Public Law 155) was before the House Committee on Armed Services later in the session, however, the committee took advantage Of the situation to insert the requirement Of committee approval included in the vetoed bill into the construction bill as a general proviso. After further minor amendments by the Senate Committee on Armed Services and consideration by the conference committee established to eliminate the differences in the two versions Of the bill, the committee approval 18 requirement, as found in Section 601, was included in the bill. which would inhere in the enactment of H.R. 3096, testify to the wis- dom Of that constitutional policy." U.S., Congressional Record, 82d Cong., lst Sess., 1951, XCVII, Part 4, p. 5375. 16Ibid., pp. 5444-5445. This is one Of the few times that any extended debate concerning the constitutional implications Of such committee approval has taken place in either chamber. The issues and arguments on this subject will be presented later. See infra, Chapter IX. l7U.S., Congress, House, Committee on Armed Services, 82d Cong., lst Sess., 1951, House Report 767 tO accompany H.R. 4914, p. 20. ‘ 18See U.S., Congress, Conference Committee, House Report 974 tO accompany H.R. 4914, Coqggessional Record, 82d Cong., lst Sess., 1951, XCVII, Part 9, 11531. 206 The conference report, containing the bill worked out by the conference committee, was not issued until September 14, 1951. It was accepted by both chambers the same day with little debate.1 President Truman, because Of the passage Of the bill late in the session and the need to have some sort of authorization statute for continued military construction during the Korean emergency, had no choice but to approve the bill. The approval Of the bill by the Pres- ident established the statutory basis for committee review Of real estate transactions Of the military departments and the Federal De- fense Administration that is still Operative at the present time. The military construction bill that was passed one year later also contained a similar requirement Of committee review of real estate transactions relating to classified military installations and facilitieszo In addition to the acquisition and disposal Of real prop- erty, however, this statute also specifically required the costs Of construction of such facilities to be approved by the armed services committees Of Congress. The secretaries of the military depart- ments were authorized to use a general lump-sum grant Of funds to establish and develop such classified projects under the direction of 19Ibid., pp. 11531, 11362. 20U.S., Statutes at Large, LXVI, 606. 207 the Secretary of Defense.“ In order to control the exercise Of this discretionary authority, Congress included a proviso that the secre- tary Of the military department, in the case Of each public work, had to "come into agreement with the Committee on Armed Services of the Senate and Of the House Of Representatives with reSpect to the cost Of construction of such public work, including those real estate 2 actions pertaining thereto." 2 1See Sections 102, 202, and 302 of the statute. U.S., Stat- utes at Large, LXVI, 609, 613, and 622, respectively. Z'ZSection 407, 19351., p. 625. The statistics concerning re- view by the Armed Services Committee under the three latest stat- utes are not available. Because of other pressing matters, the House Armed Services Committee was unable to make such statistics available. The Senate Committee on Armed Services does not com— pile such statistics, since tO do SO "would require a much larger staff than is presently allowed under Senate rules.” Letter from Mr. Harry L. Wingate, Jr., chief clerk, Senate Committee on Armed Services, February 14, 1957. The House Armed Services Commit- tee, however, has issued a report Of its activities for each Congress beginning with the Eighty-third Congress. The report covering the Eighty-third Congress contains no statistics concerning committee review Of real estate or military construction. The report for the Eighty-fourth Congress gives only general statistics that are not specified in terms Of the statute under which the proposed action was authorized. During the Eighty-fourth Congress the House com- mittee reviewed 356 proposals, 195 during the first session and 161 in the second session. Only three prOposed transactions were dis- approved by the House committee in the first session and four in the second session, for a total of seven disapprovals out Of 356 prOposed transactions. See "Report Of the Activities Of the House Committee on Armed Services," for the Eighty-fourth Congress, August, 1956, pp. 2-3. 208 The first of two instances in which the Department of Defense has been required to Obtain approval Of the appropriations commit— tees before taking particular proposed action occurred in 1953. The Supplemental Appropriation Act for fiscal year 1954;3 contains such a proviso in Chapter VIII. Section 805 of that chapter delegated dis- cretion to the Defense Department to use funds apprOpriated for specified subjects in 1953 or prior years for public works Of any Of the military departments authorized by any law enacted during the first session Of the Eighty-third Congress. Before any action could be taken under this general authorization, however, the depart- ment was required to Obtain the approval Of the committees on ap- prOpriations. The proviso read: That no funds shall be obligated under the authority con- tained in this section on any project authorized in the lst Ses- sion Of the 83d Congress until the Department Of Defense has come into agreement with the Committees on Appropriations Of the House Of Representatives and the Senate. This particular provision was included in the bill because the appropriations committees did not have time to carry out a detailed review of the requests Of the military departments. These requests for additional funds were submitted late in the first session of the 2 3U.S., Statutes at Large, LXVII, 418. 24 9 Ibid., p. 429. 209 Eighty-third Congress. Rather than apprOpriate additional funds, Congress authorized instead a general transfer of funds already available among the various programs of the military departments. The requirement of prior committee approval served as a convenient device to control this rather broad discretionary authority that was necessary if no new appropriations were to be granted. The second instance of review by the appropriations commit- tees of the exercise of discretionary authority by the Defense De- partment occurred in the Department of Defense Appropriation Act for fiscal year 1956. This statute, Public Law 157, was approved in the first session of the Eighty-fourth Congress. It contained Section 638 which prohibited the use of the appropriated funds for the discontinuance and diSposal of any government-owned manufacturing or commercial facilities Operated by the military departments in or- der to provide material and services for the support of the military establishment--such as the Ropewalk at the naval shipyard in Boston, paint manufacturing plants Operated by the Navy, and recruiting publicity printing plants--unless the approval of the appropriations committees was obtained in each instance. The House Committee on Appropriations inserted this proviso in the appropriations bill at about the same time that a general movement was underway in the executive branch to eliminate all 210 unnecessary government competition with private business. The executive branch initiated a policy that proposed such elimination early in 1955 when the Bureau of the Budget issued Budget Bulletin NO. 55—4 on January 15, 1955. This bulletin declared that ”the Federal government will not start or carry on any commercial activity to provide a service or product for its own use if such product or service can be procured from private enterprise through ordinary business channels."25 A little less than a month later the Defense Department also~issued a directive stating that a review would be undertaken to determine what industrial and commercial activities operated by the military services. could be eliminated without jeOpardizing military strength and national security. The House Committee on ApprOpriations became concerned about the contemplated elimination of the commercial and industrial facilities Operated by the Defense Department. Although the com- mittee did not disagree with the basic policy, it believed that in some instances such diSposal would "result in a loss of trained personnel and know-how within the departments with the dispersal 25Bureau of the Budget Bulletin No. 55-4, January 15, 1955, 6 2 See Department of Defense Directive No. 4100.15, February 8, 1955, as reissued April 27, 1955. 211 of tools and facilities and result in an actually greater cost to the Government over a period of years."27 The House Committee on Appropriations thus inserted an amendment in the Department of Defense appropriation bill which established a system of control over such diSposals by requiring that each proposed disposal of any commercial and industrial facility by the Defense Department had to be reviewed and approved by the appropriations committees of Con- gress. After slight amendment by the Senate Committee on Appro- I. priations and rewording in the conference committee, the amendment was included in the bill as Section 638. This proviso read: No part of the funds appropriated in this Act may be used for the disposal or transfer by contract or otherwise of work that has been for a period of three years or more performed by civilian personnel of the Department of Defense unless justi- fied to the Appropriations Committees of the Senate and House of Representatives, at least ninety days in advance of such dis- posal or transfer, that its discontinuance is economically sound and the work is capable of performance by a contractor without danger to the national security: Provided, 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. President Eisenhower was opposed to this particular provision, but he signed the bill because the funds provided by it were urgently Z7U.S., Congress, House, 84th Congress, lst Sess., 1955, House Report 493 to accompany H.R. 6042, p. 14. 28Section 638 of Public Law 155. 212 needed for the continued Operation of the military departments. His signature was accompanied by a message announcing his opposition to Section 638. The President declared that the requirement of com- mittee approval was an unconstitutional invasion of the functions of the executive branch. It allowed Congress to participate in the ad- ministration of a statute, according to the President's message, in a way contrary to the constitutional rule of the separation-of—powers. President Eisenhower also served notice on Congress that the require- ment of committee clearance of the disposal of commercial and indus- trial facilities by the Department of Defense would be "regarded as invalid by the executive branch of the Government in the administra- tion of H. R. 6042 unless otherwise determined by a court of compe- tent jurisdiction.”Z DeSpite this presidential challenge and the announced policy of the executive branch, however, the Department of Defense sub- mitted fourteen prOposed disposals to the committees on appropria- tions for review on August 8, 1955. The Senate Committee on Ap- prOpriations reviewed these disposals immediately and temporarily 29U.S., Congressional Record, 84th Cong., lst Sess., July 13, 1955, CI, No. 118, 8997. Attorney General Brownell wrote an opin- ion which concluded that the disapproval of such decisions by a com- mittee of Congress was unconstitutional. Advance (slip) Opinions, Opinions of the Attorneys General of the United States, July 13, 1955. The Opinion will be discussed below. See infra, Chapter IX. 213 disapproved only one of them. The House committee requested that the Defense Department postpone any diSposal until the committee could meet and review the proposals in detail. The Defense Depart- ment notified the House committee on November 3, 1955, that it would postpone the disposal of the fourteen facilities for ninety days.30 This postponement allowed the House committee to begin the review of the proposals during the second session of the Eighty- fourth Congress. The statistics concerning the Operation of this proviso in the Eightyofourth Congress reveal that the committees on apprOpriatiOns exercised their power to nullify particular prOposals of the Defense Department in only a few cases. A total of 112 proposed disposals were submitted to the committees by the Department of Defense. The Senate committee rejected only two such proposals.31 A slightly higher number were rejected by the appropriations committee of the 30See Kofmehl, op. cit., supra, n. 1, pp. 222-223, n. 37. The Defense Department may have been prompted to accept this request because of a decision by the Comptroller General. On August 20, 1955, Representative Porter Hardy announced that he had received a written notification from the Comptroller General that any expendi— tures made by the Defense Department under Public Law 155 in vio- lation of Section 638 would be disallowed by the General Accounting Office. Ibid. 31Letter from Mr. Everard H. Smith, chief clerk, Senate Committee on ApprOpriations, February 9, 1957. 214 lower chamber. The House committee disagreed with the Defense Department in seven cases and thus rejected a total of seven pro- 32 posed diSposals. The requirement of committee review was not renewed in the 1957 Defense Department Appropriation Act. The House Com- mittee on Appropriations included it in the defense appropriation bill for 1957 as Section 633, but it was eliminated by action of the House when the bill was being considered by the House of Repre- , 33 . . . . sentatives. This successful OppOSlthIl to the prov1so was led by the prOponents of a reduction in government competition with private business in manufacturing and commercial enterprises who viewed committee review as an unnecessary delay in the disposal of com- petitive government facilities Operated by the Department of Defense. Congress has also found this device of committee review and approval useful in providing a means of controlling the proposed 32 The House committee did not reSpond to a written request for the relevant statistics concerning this matter. The total disap- provals of the House committee can be obtained, however, by sub- tracting the disapprovals of the Senate committee from the total rejections. There were a total of nine disapprovals. See "Activi- ties of the Senate Committee on Government Operations," for the Eighty-fourth Congress, Report of the Senate Committee on Govern- ment Operations, 1957, p. 63. 33Statement by Representative Vinson in U.S., Congressional Record, 84th Cong., 2d Sess., 1955, CH, No. 125, 12606. 215 action of executive agencies other than the military departments. In 1954, for example, Congress relied upon such a requirement to con- trol the broad discretion delegated to the Administrator of General Services and the Postmaster General in the "Public Buildings Pur- chase Contract Act of 1954."34 This statute established a new sys- tem for the acquisition of additional space needed for the activities of the national government. It amended the Public Buildings Act of 1949 by adding a new authorization that allowed both the Administra- tor of General Services and the Postmaster General to enter into lease-purchase contracts for the construction of the necessary build- ings.35 Such contracts could be entered into with any person, part- nership, corporation, or other private or public entity. The con- tracting party would then build the required building and lease it to the national government. The annual payments for the lease would be applied against a determined total purchase price and at the end of a stated period the national government would acquire owner- ship of the building. 34U.S., Statutes at Large, LXVIII, Part 1, 518. 39‘U.S.C. 901, Supplement HI, and 40 U.S.C. 356, Supplement 111. 35Contracts to meet the general space requirements of the national government were under the jurisdiction of the former offi- cer. The Postmaster General was granted authority to enter into such contracts only for meeting the requirements for additional Space relating to postal activities. 216 The delegated discretion of both executive officers was limited by only two general statutory standards. They were authorized to enter into lease-purchase contracts if they found that the needed space could not be met by existing government buildings in the area and that the best interests of the United States would be served by such contracts.36 Such discretionary authority was limited, however, by the requirement that each exercise of the authority had to be ap- proved by resolutions of the committees on public works of Con- gress. Section 411(e), for example, concerned the Administrator of General Services, and declared: No appropriations shall be made for purchase contract projects which have not been approved by resolutions adopted by the Committees on Public Works of the Senate and House of Representatives, within three years after the date of enactment of this Act.37 ’ This marks the first time that the requirement of committee approval was enforced by the congressional power of appropriation. The statutory language establishing this relationship emerged from the consideration by the conference committee of the bill that became 36U.S., Statutes at La_rg_e, LXVIII, Part 1, 519 and 521. Each contract had to be approved by the Director of the Bureau of the Budget by a written statement that "the execution of such agreement is necessary and is in conformity with the policy of the President.“ Ibid., p. 51 9. 37 The discretion delegated to the Postmaster General is lim- ited by a similar proviso. See ibid., p. 522. 217 the 1954 statute. It was substituted for an amendment to the bill that had been inserted by the Senate Committee on Public Works. The Senate committee amendment required that the Administrator of General Services had to ”come into agreement" with the com- mittees on public works in regard to each proposed contract that . 38 . . involved more than $20,000 per year. This requirement, accord- ing to the conference report, was Opposed by the executive branch as an unconstitutional prohibition upon the delegated discretion con- tained in the bill and it was drOpped for the amendment of the con- ference committee, which was satisfactory to both the executive branch and Congress. The conference report states: Certain questions concerning the constitutionality of these ‘ amendments were raised by the executive'departments. Although the Senate conferees were not convinced of the validity of those questions, they have agreed to alternative language which it is understood will remove the constitutional objections of the ex- ecutive departments and which still retains the same de ree Of legislative reSponsibility as in the Senate amendments.3 38U.S., Congress, Senate, Committee on Public Works, 83d Cong., 2d Sess., 1954, Senate Report 1084 to accompany H.R. 6342, pp. 3-4. 39U.S., Congress, Conference Committee, 83d Cong., 2d Sess., 1954, House Report 1923 to accompany H.R. 6342, pp. 5-6. Presi- dent Truman had "pocket vetoed" a somewhat similar bill in 1952 because of a committee approval requirements similar to the Senate committee amendment. He had withheld his approval of H.R. 6839. introduced in the second session of the Eighty-second Congress, and entitled the "Post—Office Department Lease—Purchase Act of 1952," |.\ 1:!\