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Mr: FINAN. You are asking basically a legal question Mr. Fascell, that I think perhaps might be more appropriately handled by a representative of the Department of Justice, but to illustrate the problem with which you confront me, it is my understanding that under basic law one of the authorities that the head of an executive department has under, I believe it is title V of the United States Code, is the authority to delegate. Now, it may be and again I am not trying to interpret the law-but I say that there is a good possibility that if a function were transferred to the head of an executive department by a reorganization plan and the plan was silent with respect to his authority to delegate, then I would assume that the department head has general authority to delegate his functions under basic law and it would also apply to that one and therefore it wouldn't be necessary to have it in the plan,
Mr. FASCELL. Provided the plan delegated the authority to him to start with.
Mr. FINAN. Yes.
Mr. FASCELL. And then it diverts back to the general authority under statute.
Mr. FINAN. That is right.
Mr. FASCELL. I am trying to get at those cases where you don't have delegation of authority to a department head, but to an officer, any officer. Now, do you follow me?
Mr. FINAN. In terms of what?
Mr. FASCELL. Let's take a hypothetical case. You have a consolidation of functions in a department. You have functions A and functions B and you are going to transfer functions B to whoever the officer is who is heading functions A. Question: Do you have to specifically, as part of the plan, outline all of the functions of B which you are then going to give to A?
Mr. FINAN. If you were constructing that kind of a plan I think the answer would be yes, but I feel I am on very thin ice here because we are generalizing.
Mr. FASCELL. I would be inclined to agree with you, but I think it is one of the things we ought to try to clarify because I know the question was raised rather indirectly last year on a reorganization plan, on the question as to how far the Executive has to go in specifying the transfer of functions within a plan.
Mr. FINAN. Again, it is my understanding and I stress I am telling you my understanding as a layman is based on the advice I have gotten from our lawyers, that it would not be necessary, for example, to spell out in a reorganization plan all of the citations to the United States Code.
You could merely say that all the functions now vested by law in official X are hereby transferred to official Y and you would get them all, whatever they might be.
Mr. McCORMACK. Any further questions by any member?
Mr. POLAND. I was just going to ask Mr. Brundage, after reading his very comprehensive statement in which he outlined some 15 plans that have been submitted in the last 4 years, if you had held those down to the 2 years since you last asked for an extension of this authority, there have only been 4 and 1 this year.
* Now, the fact that in that period of time since you last came up here and made practically the same representations as to need, desire, and necessity for the plan, do you attach any significance to the fact that this authority has been less used than it has at any time in the last 10 years?
Mr. BRUNDAGE. Well, I think that the problems we are dealing with now are a little more knotty, perhaps, than the other ones.
I am disappointed that we haven't come up with some that I am personally very much interested in, but they are very complex.
Mr. POLAND. The reason I asked that question, 2 years ago on practically the same representation, it was very necessary and we get 4 plans and the fifth one is practically an amendment of plan 2 of 1954, as I understand it, and now with those same representations do you hold out a prospect for more plans in the future, with greater necessity than there seemed to be 2 years ago?
Mr. BRUNDAGE. I don't think it would be more plans, but I think more important plans perhaps than have been submitted in the past 2 years. World conditions and conditions here are in flux, and we want to come up with something that will be constructive.
Mr. POLAND. That is the only question I had. Thank you.
Mr. McCORMACK. The present law expires on June 1, as you know. That doesn't of itself—the mere fact that we don't extend it before June 1 in itself, is of no great significance, assuming it is extended within a reasonable period, unless there was some immediate necessity for it.
. Is there any prospect of any plans within the immediate future being sent up to Congress?
Mr. BRUNDAGE. I don't think we will have anything ready until fall; will we?
Mr. Finan. I would say slight delay beyond June 1 is not going to be any handicap as far as we know.
Mr. McCORMACK. Well, if any situation arises--in other words, a reasonable period for the consideration of this bill would not in any way be disturbing.
Mr. BRUNDAGE. No; I don't think so. Mr. McCORMACK. Might I suggest that if any immediate situation arises, that you keep us advised because we will act on it as quickly as possible in subcommittee. What the subcommittee will do I don't know, but I know what my views are.
Mr. BRUNDAGE. I will be glad to.
Mr. McCORMACK. So there will be complete cooperation. We appreciate the situation that confronts the executive branch and on the other hand I want the record to show that the fact that the present law is not extended before June 1 is nothing that is disturbing to the executive branch.
Mr. BRUNDAGE. That is right.
If not, we thank you very much, Mr. Brundage, and also your associates for coming up and testifying before us.
Are there any other persons present who want to testify for or against H. R. 6711?
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. BROOKS. Mr. Chairman, I appreciate very much the opportunity to appear before this subcommittee today. I would like to
"express myself briefly on some matters that I consider of vital importance at this time.
I have long been of the opinion that the reorganization authority which the Congress has given the executive branch of Government is not wholly sound. This is based upon my convictions in several areas.
First, and I guess foremost, is the fact that it is a reversal of the processes of government set up by our Constitution. I want to make it clear that I am wholly in favor of any method or plan which will increase efficiency and economy in our Government.
Further, I guess I was born with a natural antagonism toward "red tape" -anything that eliminates unnecessary and inefficient Government work I instinctively favor. However, there is a point beyond which my natural desire for economy and dislike for "red tape" will not allow me to go-this point being where I feel the Constitution of the United States prohibits action.
As you gentlemen all know the Constitution vests all legislative powers in the Congress, and provides that all bills passed by the Congress, before they become law, shall be presented to the President. He may then approve or disapprove. In the latter case, of course, the Congress may act again. With a two-thirds vote of Congress a bill, as you all know, becomes law over the Presidential veto. I review this familiar territory for the purpose of contrasting sharply the constitutional provisions with the Reorganization Act procedures.
Under the Reorganization Act the reverse of the above procedure takes place. The Executive originates the legislation and transmits it to the Congress. Congress then has 60 days to specifically disapprove the entire plan or the provisions automatically take effect.
I believe it is interesting to note the difference in votes required of the Congress in the two different situations. Under the constitutional provisions, a Presidential veto is overridden by two-thirds of the Members present constituting a quorum (majority) and a quorum is presumed to be present, under our rules of procedure, unless questioned.
On the other hand, much more is required of Congress in order to reject a reorganization plan. The law provides that rejections require a majority expression by the authorized membership of either House of Congress.
For example, to override a Presidential veto would require twothirds of a majority, or a minimum of 33 percent of the Members of either House. Approximately 435 Members of the House; 218 constitute a majority or quorum. Two-thirds of a quorum would be 146 votes required to override a Presidential veto. Under the reorganization authority at least a majority membership of either House, or 51 percent, is required to reject a reorganization plan. Approximately 435 Members of the House; 218 a majority of the "authorized membership"; 218 votes required to reject a reorganization plan. Thus 72 more votes are required to reject a reorganization plan than are required to override a Presidential veto.
As men experienced in the everyday facts of legislative procedure, we all realize the extreme difficulty of meeting such cumbersome requirements in a legislative matter, usually of great complexity and detail. This provision is truly an effective, and I say, improper shackle upon congressional action in the case of reorganization plans. This improper impediment to wise action by the legislative, as well as another important deficiency in the Reorganization Act, was aptly illustrated in the case of Reorganization Plan No. 6 of 1953, Seldom has as much interest been generated on any legislative matter, for if congressional action was legally required, it is my opinion it was a legislative matter.
This committee found, after inquiring into the matter, objectionable material in the plan. Here, the next unfavorable aspect of the Reorganization Act became apparent. Though it was the opinion of this committee that two portions were bad, the Congress was required to accept the entire plan, or nothing at all-thus being hamstrung by the procedures I have already mentioned. In an attempt to emulate the orderly process followed in the usual course of legislation, a bill was introduced which would have had the effect of making into law under the constitutional legislative process all provisions included in Reorganization Plan No. 6, except the objectionable matters. Before anything could be done the 60-day limitation of the act had expired and the entire plan, objectionable features and all, had taken effect. Matters deemed unwise after consideration by this committee had been carried into law on the steamroller of the Reorganization Act provisions.
This point of vulnerability in what might be termed the constitutional armor protecting our philosophy of government and way of life is, to say the least, undesirable. It is dangerous. No other word describes the situation. It is a method by which the procedures of government, set forth explicitly in the Constitution, are avoided, altered, or rendered less effective.
The seeds of dictatorship are dangerous and unwanted in this country. No matter how small and though dormant, such seeds can germinate and grow, and world history is replete with examples of this occurring. Now one might reply, “It couldn't happen here.” However, history gives many examples of instances where it has happened in a similar way.
It may be that it could well happen, and the situation in which it could occur is not necessarily remote or bizarre.
For example, let us take a condition where the membership of Congress was relatively even in its membership distribution. Superimpose on this condition a major, or for that matter, a relatively minor domestic or foreign crisis-a common situation in recent times. In this situation project a determined, aggressive, and forceful Executive and, I submit, you can easily see where the Congress could be abrogated and its functions vitiated, resulting in unprecedented power gravitating to the executive branch.
This is the reason why the constitutional safeguards I have mentioned must be protected and kept intact. This is the reason they were written in the Constitution. This is the danger to which I respectfully invite your attention.
In conclusion, I am of the opinion that our Constitution requires that the Reorganization Act not be renewed. And this is particularly true now. Any reason which might have existed at the time the reorganization authority was originally enacted has long since passed. There is no reason why we need bypass the usual legislative process today, and every reason why we should not.
In the event, however, this legislation should receive favorable action of this committee or on passage into law, I strongly urge certain changes in its present provisions.
First, Congress should reserve for itself the power to amend and/or reject any reorganization plan by the more realistic vehicle of a majority of those present and voting.
In addition, the law should, for obvious reasons, require that any reorganization plan transmitted must include a detailed analysis of the immediate and long-range economy to be realized through the changes effected.
A half a loaf is better than none. I am convinced that to have this so-called reorganization authority extant is an improper derogation of the constitutional powers of the Congress. If it is to be the law, however, I feel I would be derelict in my sworn duties, if I did not make an effort to include the reasonable provisions I have stated above so that the constitutional picture of legislative procedure would not be as distorted as the bill before you would make it.
I thank you very much for this opportunity to express myself on this subject and for your kind attention and consideration.
Mr. McCORMACK. Thank you, Mr. Brooks.
Is there anything further to come before the subcommittee? If not, the subcommittee is adjourned.
(Whereupon, at 11:30 a. m., the subcommittee adjourned to the call of the chairman.)