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SEC. 3. Transfer of functions. There are transferred to the Attorney General the functions, if any, that have been vested by statute in United States marshals or in the other marshals referred to in section 1 hereof or in any of them since the effective date of Reorganization Plan No. 2 of 1950 (15 F. R. 3173).
SEC. 4. Effective dates.-(a) With respect to offices having a specified statutory term of office the provisions of section 1 of this reorganization plan shall become effective as follows: (1) In the case of each office in which there is no incumbent on the date determined under section 6 (a) of the Reorganization Act of 1949, or in which the incumbent is then holding over after the expiration of his term of office, the effective date shall be such date as the Attorney General shall specify, but in no event later than January 1, 1953; and (2) in the case of each office in which an incumbent is, on the date determined under the said section 6 (a), serving under an appointment for a specified term of office which has not expired, the effective date shall be the date on which the term of office expires, or any earlier date on which the office becomes vacant.
(b) In the case of any office not having a specified statutory term of office, the effective date of the provisions of section 1 of this reorganization plan shall be such date as the Attorney General shall specify, but in no event later than January 1, 1953
(c) The provisions of section 2 of this reorganization plan shall with respect to each judicial district or other jurisdiction become effective concurrently with the taking effect of the provisions of section 1 hereof with respect to the same district or jurisdiction.
(d) The provisions of section 3 of this reorganization plan shall become effective on the date determined under section 6 (a) of the Reorganization Act of 1949.
SENATE COMMITTEE ON GOVERNMENT OPERATIONS,
May 13, 1952. Staff Memorandum No. 82–2–28. Subject: Legality of Reorganization Plans Nos. 2, 3, and 4 of 1952.
On April 10, 1952, the President transmitted to the Congress Reorganization Plans Nos. 2, 3, and 4 of 1952, providing for reorganizations in the Post Office Department, the Department of the Treasury, and the Department of Justice. In submitting these plans, the President stated that “These plans have been prepared under the authority of the Reorganization Act of 1949."
It will be the purpose of this memorandum to develop information relative to the legality of these plans, which may assist the committee in determining (1) whether the changes sought to be effected by means of these plans are reorganizations which are authorized by the Reorganization Act of 1949; and (2), if they are, whether the provisions of these plans conform to the requirements of that act.
PURPOSES AND PROVISIONS OF TUE PLANS
In transmitting Reorganization Plans Nos. 2, 3, and 4 of 1952 to the Congress, the President stated :
“The primary objective of these three reorganization plans is to make the executive branch of the Federal Government more efficient by permitting the Congress and the people to hold it more clearly accountable for the faithful execution of the laws. This objective is accomplished, in practical effect, by transferring from the President to the heads of the respective departments the function of appointment of numerous field officers who have heretofore been appointed by the President by and with the advice and consent of the Senate.
"Reorganization Plan No. 2 vests in the Postmaster General the appointment of postmasters at first-, second-, and third-class post offices; under Reorganization Plan No. 3, appointment of officials in the Bureau of Customs will be made by the Secretary of the Treasury; and under the terms of Reorganization Plan No. 4 the Attorney General is authorized to appoint United States marshals” (H. Doc. 424, 82d Cong., 2d sess., p. 1).
Detailed analyses of the three plans are contained in Staff Memorandums Nos. 82–2–29 (Post Office Department), 82-2–30 (Department of the Treasury), and 82–2–31 (Department of Justice).
Plan No. 2 provides for the abolition of existing offices of postmaster at post offices of the first three classes, now appointed by the President, subject to Senate confirmation, and the establishment of a new office entitled “Postmaster,” to be filled by appointment by the Postmaster General under civil service, as vacancies Occur.
Plan No. 3 provides for the abolition of the offices of collector of customs, comptroller of customs, surveyor of customs, and appraiser of merchandise, all of whom are now appointed by the President, subject to Senate confirmation, for a 4-year term (except the appraiser at New York, who serves for an indefinite term), and the assignment of their functions to whatever number of civil-service positions the Secretary of the Treasury may specify and which may be established by annual appropriation, including not more than 20 new supergrade offices (in addition to 5 already in existence), under the classified civil service. Provisions are also made for the abolition of certain statutory functions.
Plan No. 4 provides for the abolition of existing offices of United States marshals, now appointed by the President, subject to Senate confirmation, for a 4-year term, and the establishment of new offices, entitled “United States Marshals,” to be filled by appointment by the Attorney General under civil service, as vacancies occur. No actual reorganizations proposed in plans 2 and 4
An examination of the provisions of plans 2 and 4 reveals that they are almost identical and that they would have the sole effect of changing the present method of appointing postmasters and marshals, and the further effect of changing the term of marshals. It does not appear that the abolition of existing offices and the establishment of new offices, provided for by these plans, would have any actual effect upon the existing structure and organization of either the Post Office Department or the Department of Justice. This raises the question of whether the Reorganization Act of 1949 authorizes changes in the method of appointment of Presidential appointees, in the absence of any actual reorganization, or whether substantive legislation is required to accomplish this purpose. Further emphasis has been given to this question by statements and expressions of the President, the Director of the Bureau of the Budget, the Postmaster General and former President Herbert Hoover, in connection with earlier reorganizations which would have changed the method of appointment of Presidential appointees. Since plan No. 3 involves some actual reorganizations, transfers, and abolitions, in addition to changes in method of appointment, this consideration may not apply to that plan. Changes in term of office
Plans 3 and 4 would change the terms of office of customs officials and marshals, respectively, from the present 4-year term, provided by law, to indefinite tenure under civil service. This raises the further question of whether this proposed action constitutes a violation of the limitations imposed by section 5 (a) (5) of the Reorganization Act of 1949 which prohibits an increase, by reorganization plan, in the term of any office beyond that provided by law for such office. This phase will be treated further under the heading “Limitations on increasing the term of office."
THE REORGANIZATION ACT OF 1949
The Reorganization Act of 1949 authorizes the President to submit reorganization plans to the Congress in order to accomplish certain stated purposes. Section 2 of the act sets forth these purposes; section 3 lists the types of reorganizations which are authorized; section 4 specifies certain provisions which a reorganization plan may or must contain; and section 5 contains limitations with respect to the reorganizations which may be accomplished.
Section 2 provides that the President may submit reorganization plans to accomplish the following broad purposes: (1) promotion of better execution of the laws, more efficient management of the executive branch of the Government, its agencies and functions, and the expeditious administration of public business; (2) reduction of expenditures and promotion of economy to the fullest extent consistent with the efficient operation of the Government; (3) increasing the efficiency of the operations of the Government to the fullest extent practicable; (4) grouping, coordinating and consolidating agencies and functions, as nearly as possible, according to major purposes; (5) reduction in the number of agencies by consolidating those having similar functions under a single head, and abolition of agencies and functions which may not be necessary for the efficient conduct of the Government; and (6) elimination of overlapping and duplication of effort.
Section 3 of the Reorganization Act of 1949 authorizes the President to submit only those reorganization plans which would
1. Transfer all or any part of any agency or of all or any part of its functions to the jurisdiction and control of any other agency; or
2. Abolish all or any part of the functions of any agency;
3. Consolidate or coordinate the whole or any part of any agency, or all or any of its functions, with all or any part of any other agency, or its functions; or
4. Consolidate or coordinate any part of any agency or of its functions with any other part of the same agency or any of its functions; or
5. Authorize any officer to delegate any of his functions; or
6. Abolish all or any part of any agency which agency or part does not have, or upon the taking effect of any reorganization plan, will not have
any functions. The provisions of section 2 require the President to examine, from time to time, the organization of all agencies of Government in order to determine what changes are necessary to accomplish one or more of the purposes set forth therein. They serve as standards to guide the President in determining what reorganizations he will set forth in the plans he submits to the Congress, and which are authorized in section 3. (Report of the Committee on Expenditures in the Executive Departments, Reorganization Act of 1919, H. Rept. No. 23, 81st Cong., 1st sess., p. 8.)
The operative provisions of the act are contained in section 3, and an examination of the provisions of this section, in the light of the history of this, and prior reorganization acts, reveals that the reorganizations contemplated are those which would involve (1) transfers of functions and/or agencies within the executive branch of the Government; (2) transfers or consolidations of functions and/or cffices, bureaus, divisions, and other subdivisions of the same agency; and (3) abolition of functions and/or agencies. In prior instances of reorganization, the abolitions, transfers and consolidations proposed were actually effected, and resulted in a change in the structure, organization and functions of agencies and individuals.
In contrast, although Reorganization Plans 2 and 4 of 1952 provide for the abolition of existing offices of postmasters of the first three classes, and of marshals, and the establishment of new offices of postmaster and United States marshal, it does not appear that any reorganiaztion, transfer or abolition of either functions or agencies will actually occur. Futhermore, the abolition of agencies, provided for in subsection (6) of section 3, is authorized only in the case of agencies whose functions have been abolished or transferred, leaving them with no functions to perform after the effective date of a reorganization plan. It is, therefore, difficult to find, in the types of reorganizations provided for in section 3 of the act, any authority for action which does nothing but change the method of appointment of Presidential appointees.
In this connection, the American Law Section of the Legislative Reference Service of the Library of Congress was requested by the committee to make an examination of all of the reorganization plans submitted by the President since the Reoraginzation Act of 1932, in order to determine whether any of these had proposed only the action contemplated by plans 2 and 4 of 1952. In a letter dated April 24, 1952, addressed to this committee, Mr. Hugh P. Price wrote:
“We hare examined all reorganization plans submitted under the acts of 1932, 1933, 1939, 1945, and 1919 without finding any instance in which the entire plan comprised merely a change in the method of appointment of personnel from appointment by the President with Senate confirmation to appointment by the head of a department or agency."
Apparently recognizing that there was considerable doubt as to whether the action proposed was, in fact, authorized by the provisions of the Reorganization Act of 1919, the draftsmen of these plans provided for the abolishment of existing offices and the establishment of what is characterized as “new ofices," but which, to all intents and purposes, is actually the establishment of the same office. This raises the question of whether or not the proposal for a change in the method of appointment of postmasters was merely couched in the language of a reorganization in order to bring it under the provisions of the Reorganization Act of 1949.
VIEWS OF THE ADMINISTRATION WITH RESPECT TO CHANGES IN THE METHOD OF
The Bureau of the Budget
Shortly after the Hoover Commission filed its concluding report with the Congress, the chairman of this committee requested the Director of the Bureau of the Budget to prepare and submit to the committee an analysis of all of the Commission's recommendations, indicating by which of the following methods they could be carried out: (1) administrative action; (2) reorganization plan; or (3) substantive legislation.
In March 1949, the Director of the Bureau of the Budget submitted an analysis which was later amended and resubmitted in September 1949, in which he set forth the information requested. In connection with substantive legislation, it was stated that “Only those items are classified under 'substantive legislation' which cannot be accomplished without statutory changes."
In the opinion of the Bureau, the Hoover Commission's recommendations that "the confirmation of postmasters by the Senate should be abolished,” and that “all officials below the rank of Assistant Secretary (in the Treasury Department) should preferably be appointed from the career service without Senate confirmation," could be accomplished only by substantive legislation. (Digest of Recommendations of the Commission on Organization of the Executive Branch of the Government Classified by Possible Method of Effectuation, prepared by the Division of Administrative Management, Bureau of the Budget, September 30, 1949, pp. 25 and 29).
Since the Hoover Commission made no recommendation with respect to the Department of Justice, as such, the Bureau of the Budget made no comment relative to that agency. However, since the changes in the method of appointment of marshals involve the same considerations as those relative to changes in the method of appointing postmasters, the views of the Bureau would appear to apply equally to both. Views of the President, the Postmaster General, and Hon. Herbert Hoover, Former
President of the United States In connection with earlier reorganizations in the Post Office Department, and legislation designed to implement certain of the Hoover Commission's recommendations relative to the Post Office, the President, the Postmaster General, and Mr. Herbert Hoover all indicated that the transfer of the appointment of postmasters from the President, subject to Senate confirmation, to the Postmaster General under civil service, would require substantive legislation. These views are set forth in detail in Staff Memorandum No. 82–2–29, dated May 12, 1952, Reorganization Plan No. 2 of 1952, pages 3–8. Only extracts will be presented here. The President's message transmitting Reorganization Plan No. 3 of 1949
In the President's message, transmitting Reorganization Plan No. 3 of 1949, relative to reorganizations in the Post Office Department, he stated :
“This plan carriers into effect those of the recommendations of the Commission on Organization of the Executive Branch of the Government respecting the Post Office Department which can be accomplished under the provisions of the Reorgunization Act. I am also transmitting to the Congress recommendations for legislation which will implement other recommendations of the Commission
*" (H. Doc. No. 224, 81st Cong., 1st sess., p. 1; 95 Congressional Record 7968, 7969). [Emphasis supplied.]
In a subsequent message, relative to the need for reorganizations in the Post Office, the President discussed the importance of giving to the Postmaster General full authority to appoint postmasters and other postal employees, subject only to civil service, concluding his message with the statement that “Legislation sh ild be enacted which will give such authority to the Postmaster General” (H. Doc. No. 239, 81st Cong., 1st sess. ; 95 Congressional Record 8310).
The Postmaster General
The Postmaster General, shortly thereafter, transmitted to the Congress drafts of two bills which contained the implementing legislation referred to by the President in his messages. The bill, which provided for the appointment of postmasters under civil service, was introduced as S. 2213.
In testifying before a subcommittee of the Senate Committee on Post Office and Civil Service, Mr. Donaldson stated unequivocally that, in his opinion, a change in the method of appointment of postmasters was not a reorganization matter, and its purposes could only be accomplished by legislation. (An extract of his testimony is contained in Staff Memorandum No. 82–2–29, dated May 12, 1952, Reorganization Plan No. 2 of 1952, p. 5.)
Subsequently, in a letter to the chairman of this committee, the Postmaster General wrote:
“Reorganization Plan No. 3 carries into effect those recommendations of the Hoover Commission which can be adopted by resort to the provisions of the Reorganization Act. S. 2213, implementing Reorganization Plan No. 3, is designed to place the appointment of postmasters within the scope of the authority of the Postmaster General, a recommendation of the Hoover Commission." (This letter is in the files of the committee.)
Testifying again before a subcommittee of the Senate Committee on Post Office and Civil Service, the Postmaster General stated :
“There were nine recommendations submitted by the Hoover Commission in their report, I objected to only one of them, which is not paramount here and the President went along and supported the eight recommendations to which I made no objection. Some of the recommendations that could be put into effect in the reorganization plan have been placed in effect and those that require legislation have been submitted to the Congress with drafts of the legislation to accomplish this purpose. So, in this particular one I would support the bill before this committee, S. 2213” (hearings before the Committee on Post Office and Civil Service, U. S. Senate, 81st Cong., 1st and 2d sess., on bills to implement recommendations of the Commission on Organization of the Executive Branch of the Government, p. 120). [Emphasis supplied.]
On June 30, 1949, former President Herbert Hoover testified before this committee in response to an invitation of the chairman for his comments relative to the operation of the Reorganization Act of 1949 and the first seven reorganization plans which had been submitted by the President.
Addressing himself first to the act and all of the plans, he stated :
"The difficulty with this subject is that the President's authority under the Reorganization Act of 1949 is very limited. In most of the seven cases the full accomplishment of reorganization as recommended by the Commission requires also extensive and specific special legislative action, one that goes beyond the President's authority under this act. Either most of the seven plans must be regarded as simply preliminary steps, or must be absorbed, now or later, in full legislation if we are to effect the efficiencies and economies sought by the Commission” (hearings before the Committee on Expenditures in the Executive Departments, U. S. Senate, 81st Cong., 1st sess., on message of the President on initial program of reorganization of the executive branch of the Government, and Reorganization Plans Nos. 1, 2, 3, 4, 5, 6, and 7, of 1949, June 30, 1949, p. 19). [Emphasis supplied.]
Addressing himself to Reorganization Plan No. 3 of 1949 (reorganizations in the Post Office Department), Mr. Hoover stated :
“The President's Plan No. 3 relates to the Post Office. Again it is a preliminary step, going as far as the President's authority under the Reorganization Act of 1949 permits
(hearings, etc., op. cit., p. 21). Senator Long subsequently raised the question of whether a reorganization nlan has the effect of law and whether it would supersede existing legislation. Mr. Hoover replied that he assumed that legislation on the whole of one of these questions might supersede one of these plans. He further stated that:
“I have been advised by all of our legal friends, that it would be utterly impossible, for instance, to reorganize the Post Office or the armed services or to provide a new accounting or budgeting system and a new personnel system in the Government without special legislation by the Congress. The President's authority, I am advised, does not extend that far” (hearings, etc., op. cit., p. 26).
The views set forth above appear to indicate clearly that the transfer of the appointment of postmasters from the President to the Postmaster General under civil service requires the enactment of substantive legislation. It follows that if a change in the method of appointment of postmasters cannot be accomplished by a reorganization plan, a change in the method of appointment of marshals would not be a proper subject for a reorganization plan, since the same considerations are involved. Whether or not these considerations should apply, as well, to the appointment of customs officials also appears to merit the consideration of the committee.