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REORGANIZATION PLANS NOS. 2, 3, AND 4 OF 1952

WEDNESDAY, JUNE 4, 1952

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UNITED STATES SENATE,
COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The committee met at 10 a. m., pursuant to call, in room 357, Senate Office Building, Senator John L. McClellan (chairman) presiding.

Present: Senators McClellan and Dworshak.

Also present: Walter L. Reynolds, chief clerk; Ann M. Grickis, assistant chief clerk; Eli E. Nobleman, Miles Scull, Jr., and Herman C. Loeffler, professional staff members.

The CHAIRMAN. The committee will come to order.

The Chair wishes to place in the record information obtained by the staff with reference to certain legal aspects of Reorganization Plans Nos. 2, 3, and 4.

In response to a request of this committee the American Law Section of the Legislative Reference Service of the Library of Congress has submitted an opinion as to (1) whether Reorganization Plans Nos. 2, 3 and 4 of 1952 are authorized under the Reorganization Act of 1949, and (2) if they are, whether the provisions of these plans conform to the requirements of that act.

I wish to insert in the record at this point that opinion, prepared by Mr. Frank B. Horne, which fully substantiates the views of the legal professional staff member of this committee as set forth in Staff Memorandum No. 82–2–28, dated May 13, 1952, entitled “Legality of Reorganization Plans Nos. 2, 3, and 4 of 1952."

The American Law Section concluded that “* the Reorganization Act of 1949 does not authorize plans comprised exclusively of a change in the method of appointment. However, as the act merely established a special procedure for legislatively accomplishing the contemplated and desired reorganizations, plans not clearly within the authorization of the act may achieve standing nevertheless by reason of the failure of the Congress to disapprove. The only appropriate safeguard whereby Congress can insist on compliance with the act is the passage of the disapproval resolutions in the form provided by title II of that act.”

With respect to whether the provisions of the plans conform to the requirements of the Reorganization Act of 1949, the opinion cited section 5 (5) which prohibits any reorganization plan from providing for increasing any term of office beyond that provided by law for such office and concluded that “* * * it is clearly arguable from this provision alone that the changing of a definite term of an office to an indefinite term is not consonant with this provision.” This would apply to plans 3 and 4 which would change the terms of office of

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certain customs officials and of United States marshals, who serve for terms of 4 years under existing law, to permanent indefinite terms under civil service.

The opinion of the Legislative Reference Service raises a serious question relative to the powers of the Congress under the Reorganization Act of 1949. It appears that regardless of whether or not a plan submittted by the President is authorized by that act, unless a constitutional majority of either House passes a resolution of disapproval within the time prescribed, the plan will become law and it will require a statute to amend the law so as to erase the illegal action resulting from the plan. It thus appears that unless 49 Senators will vote in favor of a resolution of disapproval, the Congress is impotent and is unable to prevent an unlawful action from occurring.

From the foregoing, it appears quite clear that if the Senate permits Reorganization Plans Nos. 2 and 4 of 1952 to become law, even though they are beyond the intent and purpose of the act, it will set a dangerous precedent for the submission of further illegal reorganizations. The President will then be able to submit all kinds of broad reorganization plans, reaching out into other fields which were never intended to be the subject of reorganization plans, and the Congress will be unable to exercise its legislative prerogatives, unless a resolution of disapproval is approved by either 218 Members of the House or 49 Members of the Senate.

(The material referred to above is as follows:)

THE LIBRARY OF CONGRESS,
LEGISLATIVE REFERENCE SERVICE,

AMERICAN LAW SECTION,

Washington, D. C., May 16, 1952.
To: Senate Committee on Government Operations.
Subject: The Reorganization Act of 1949.

By telephone message of May 15, 1952, you have asked: “Does the Reorganization Act of 1949 (63 Stat. 203; U. S. C. (1946 ed., Supp. IV) 5:133z et seq.) authorize the submission of plans comprised exclusively of a change in the method of appointment?

We answer this question in the negative. However, it has not been formulated with reference to a specific plan.

The Reorganization Act of 1949 is a procedural device for the accomplishment of organizational changes other than by legislation enacted in the accustomed legislative manner. This is clear from the general import of the act and the specific context of section 2-(b). In fact, title II establishes special rules for the Senate and the House, pursuant to their constitutional powers (article I, section 5, clause 2) and subject to the power of either body to make changes, for the legislative purpose of considering and disposing of the plans submitted by the President.

Section 2 states, as the general objective and purpose of the act, the requirement that the President shall examine and reexamine the organization of all agencies of the Government and determine what changes are necessary (1) to promote the better execution of the laws, the effective management of the executire branch, and the expeditious administration of public business; (2) to reduce expenditures and promote economy; (3) to increase efficiency of operations of the Government; (4) to coordinate and consolidate agencies and functions; (5) to reduce the number of agencies; and (6) to eliminate overlapping and duplication.

Section 3 states the requirements as to the findings to be made by the President and the declaration of such findings. With respect to the contents of the plans, section 4 states certain mandatory and certain discretionary provisions. However, these contents are subject to specific limitations contained in section 5. Of particular interest to this problem is section 5 (a) (5) which reads:

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“SEC. 5. (a) No reorganization plan shall provide for, and no reorganization under this Act shall have the effect of

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“(5) increasing the term of any office beyond that provided by law such office; or It is clearly arguable from this provision alone that the changing of a definite term of an office to an indefinite term is not consonant with this provision.

To support our answer, we turn to rules of statutory construction. There is no need for Congress to assist in the further destruction of the "plain meaning' doctrine in construing the Reorganization Act of 1949. As examples of such destruction, see U. S. v. Dickerson (1940, 310 U. S. 554, 562) and U. S. v. American Trucking Associations, Inc. (1940, 310 U. S. 534, 543). According to one writer, the plain meaning rule dominated statutory construction in the Federal courts for a long time. When carried to the extreme this tended to obliterate the judicial obligation of the legislature. He states that in the late 1930's the Supreme Court adopted a philosophy of self-restraint toward legislative regulation in the economic areas. This greater emphasis on congressional will, he says, seems to have led to the extensive use of extrinsic aids for its ascertainment. Recent criticism of this technique of statutory construction stresses its tendency to detract from the guiding function of statutes, and reflects a desire to return to the plain meaning rule. A Reevaluation of the Use of Legislative History in Federal Courts (1952, Col. L. Rev. 52: 125, 127), citing Jackson, The Meaning of Statutes: What Congress Says or What the Court Says (1948), A. B. A. J. 34; 535, 538) and other authorities. Congress has an opportunity to assist in bringing order into statutory construction and in rectifying imbalance resulting from unwarranted use of extrinsic aids. The term “legislative history" has become a catch-all for extrinsic evidence of congressional intent.

According to Sutherland (Statutes and Statutory Construction, 3d edition by Horack), where the intention of the legislature is so apparent from the face of a statute that there can be no question as to the meaning, there is no room for construction (secs. 4701–4706). It is axiomatic that statutes should be so construed as to carry out the plain legislative purpose (St. Louis & O'Fallon Railway Co. v. U. S., (1929) 279 U. S. 461, 487). Therefore, where the words of the statute are plain, a court may not add to or alter them to effect a purpose which does not appear on its face or from its legislative history. Matson Navigation Co. v. U. S. (1932, 284 U. S. 352, 356). Of particular application to the problem at hand is Colorado Interstate Gas Co. v. Federal Power Commission (1945, 324 U. S. 581, 604), which holds, among other things, that a declaration of policy may not be used to take an express provision out of a statute. Further, a statute ought not to be expounded by detached words and phrases, but the whole act must be taken together and given a fair interpretation, neither extending nor restricting it beyond the legitimate import of its language and its obvious policy and object. Gayler v. Wilder (1851, 10 How. 477, 495).

Naturally, then, the first, as well as the best, source to ascertain the meaning of any statute is the statute itself—its words, grammar, punctuation, context, title, and the like. Crawford, Statutory Construction (1940, p. 351). If this principle and those noted above are applied to the Reorganization Act of 1949, it is obvious that there is little need for recourse to the legislative background of that act and its predecessors or to other extrinsic aids, for the language is clear and unambiguous, the objectives plainly stated, the reasons clearly set forth, the requirements definitely established, and the limitations precisely drawn.

Years of adjudication of constitutional provisions have established a rule of interpretation which holds that no number of statutes or infractions of the Constitution, however numerous, can be permitted to import a power which does not exist or to furnish a construction which is not warranted. Long acquiescence of Congress and the Executive by which the rights of parties have been determined and adjudged for many years, does not make constitutional that which is unconstitutional. Fairbank v. U. S. (1901, 181 U. S. 283, 307), Field v. Clark (1892, 143 U. S 649, 691), and U. S. v. Boyer (1898, 85 F. 425). This basic proposition, we believe, is applicable to the Reorganization Act of 1999. No previous acquiescence by the Congress in an unwarranted plan precludes a later rejection by the Congress on the ground that the proposal does not meet the requirement of the law. Under the procedures established in title II, as an exercise of the constitutional rule making powers of the Senate and the House, it is possible, of course, to give standing to plans not meeting the plain requirements of the act. This is because once disapproval of a plan has failed, it thereafter is difficult to attack the reorganization in a court, for the decisions clearly indicate that courts will be reluctant to look behind the law to search for procedural deficiencies in the establishment of the particular plan as law. See U. 8. v. Ballin (1892, 144 U. S. 1, 4), Field v. Clark, supra (pp. 669-670, 673).

An instance of an attack in court on a reorganization plan is Isbrandtsen-Moller Co., Inc. v. U. 8. (1936, 14 F. S. 407; 1937, 300 U. S. 139). That case involved the exercise of authority granted to the president by title IV of the Legislative Appropriation Act of June 30, 1932, as amended (47 Stat. 413, 1517). By Executive Order 6166, dated June 10, 1933, the President abolished the old Shipping Board and vested its functions in the Departmnt of Commerce. The question of whether or not the Secretary of Commerce could issue certain orders which gave ries to the suit became moot by reason of the passage of the Merchant Marine Act of 1936. However, the Supreme Court took note of the fact that the new act transferred to the United States Maritime Commission all of the functions of the old board “now vested in the Department of Commerce.

Further, Congress appears to have recognized the transfer and ratified the action of the President by the Appropriation Acts of April 7, 1934, March 22, 1935, and May 15, 1936 which made appropriations for carrying out the provisions of the Shipping Act. (See 300 U. S. 139, 147, 148. See also Swayne & Hoyt, Ltd. v. U. S. (1936) 18 F. S. 25; (1937) 300 U. S. 297.) These cases suggest that even though authority is exceeded, subsequent action on the part of Congress possibly may cure the defect. Thus, though a plan submitted by the President under the present Reorganization Act does not meet the standards and requirements set forth therein, it is possible for Congress to give standing to the plan by failure to disapprove. In the Isbrandtsen case you will note that Congress recognized and gave standing to the transfer.

Perhaps reference should be made to section 4 (2) which reads:

"SEC 4. Any reorganization plan transmitted by the President under section 3

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(2) may include provisions for the appointment and compensation of the head and one or more other officers of any agency (including an agency resulting from a consolidation or other type of reorganization) if the President finds, and in his message transmitting the plan declares, that by reason of a reorganization made by the plan such provisions are necessary. The head so provided for may be an individual or may be a commission or board with two or more members. In the case of any such appointment the term of office shall not be fixed at more than 4 years, the compensation shall not be at a rate in excess of that found by the President to prevail in respect of comparable officers in the executive branch, and, if the appointment is not under the classified civil service, it shall be by the President, by and with the advice and consent of the Senate, except that, in the case of any officer of the municipal government of the District of Columbia, it may be by the Board of Commissioners or other body or officer of such gov

ernment designated in the plan; In case it is argued that the above reference to the classified civil service authorizes a plan comprised exclusively of a change in the method of appointment, the answer should be that any change in status is conditioned on reasons found in the reorganization plan. Accordingly, if there is no plan for a transfer, consolidation, authorization, or abolition as required in section 3, there is no basis to support the mere change in status. See also section 8 defining the term “reorganization.” Further, any attempt to detach and give special meaning to the reference to the civil service would violate the rule stated in Gayler v. Wilder, supra, that a statute should not be expounded by detached words and phrases.

CONCLUSION On the basis of the foregoing, we have reached the conclusion indicated earlier that the Reorganization Act of 1949 does not authorize plans comprised exclusively of a change in the method of appointment. However, as the act merely established a special procedure for legislatively accomplishing the contemplated and desired reorganizations, plans not clearly within the authorization of the act may achieve standing nevertheless by reason of the failure of the Congress to disapprove. The only appropriate safeguard whereby Congress can insist on compliance with the act is the passage of the disapproval resolutions in the form provided by title II of that act.

FRANK B. HORNE.

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