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LIMITATIONS ON INCREASING TERM OF OFFICE
Section 5 (a) of the Reorganization Act of 1949 provides that
"No reorganization plan shall provide for, and no reorganization under this Act shall have the effect of
"(5) increasing the term of any office beyond that provided by law for such office;
* * *""
Reorganization Plans 3 and 4 of 1952 would eliminate the present 4-year term, provided by law, for marshals and customs officials and convert them into permanent indefinite terms under civil service. This raises the question of whether a change from a 4-year term to a permanent indefinite term is an increase in the term of office within the meaning of this section.
In the case of customs officials, it may be argued that plan No. 3 establishes new offices for which no term has yet been provided by law. In the case of the marshals, however, it does not appear that any actual change has been made in the office, despite the provision in the plan for the abolition of existing offices and the establishment of a new office of United States Marshal. Accordingly, it appears that Reorganization Plan No. 4 may be interpreted as providing for an increase in the term of an office beyond that provided by law for such office. ELI E. NOBLEMAN, Professional Staff Member.
WALTER L. REYNOLDS, Staff Director.
SENATE COMMITTEE ON GOVERNMENT OPERATIONS,
May 12, 1952.
Staff Memorandum No. 82-2-29.
Reorganization Plan No. 2 of 1952 was submitted to the Congress by the President on April 10, 1952 and referred to this committee.
The plan would (1) abolish all existing offices of postmaster of the first, second, and third class; (2) establish in place of each such office an office entitled "Postmaster"; (3) vest in the Postmaster General the appointment of all postmasters of the first three classes under the classified civil service; and (4) vest in the Postmaster General all functions which have been vested by statute in all postmasters since the effective date of Reorganization Plan No. 3 of 1949.
The sole effect of this plan would be to terminate the power of the President to appoint postmasters of the first three classes, with Senate confirmation, and to transfer that power to the Postmaster General, with respect to all vacancies that (1) exist at the time of the effective date of the plan; (2) occur after the effective date of the plan; or (3) arise as a result of the establishment of new post offices.
In transmitting the plan to the Congress, the President described it as follows: "This reorganization plan provides for the gradual elimination of Presidential appointment and Senate confirmation of postmasters at post offices of the first, second, and third class and the institution of appointment by the Postmaster General under the classified civil service. This is accomplished by abolishing each present office of postmaster at post offices of the first, second, and third class at such time as it next becomes vacant, except that each such office vacant on the date determined under the provisions of section 6 (a) of the Reorganization Act of 1949 is abolished as of that date, and by establishing a new office entitled "Postmaster" to be filled by the Postmaster General. The complete transition to the new method of appointment is expected to require a period of several years." The President stated further that:
"The abolition of offices by Reorganization Plan No. 2 of 1952 will not abolish any rights, privileges, powers, duties, immunities, liabilities, obligations, or other attributes of those offices except as they relate to matters of appointment and tenure inconsistent with that reorganization plan. Under the Reorganization Act of 1949, all of these attributes of office will attach to the new offices of postmaster, either automatically or upon the occurrence of an appropriate delegation of functions, to such new offices by the Postmaster General."
It should be noted that no reference is made, either in the President's message or in the plan, to its effect upon existing residence requirements for post
masters. It does not appear, however, that the plan will not change existing requirements as to residence, since the provisions of the plan affect only the method of appointment and not the eligibility of the appointees.
BACKGROUND AND PURPOSE OF REORGANIZATION PLAN NO. 2 OF 1952
The President's message
In a message accompany Plan No. 2 of 1952, and related reorganization plans, the President stated his reasons for submitting the plan, as follows: "The primary objective 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."
Continuing, the President noted that this action had been recommended by the President's Committee on Administrative Management in 1937 and by the Commission on Organization of the Executive Branch of the Government (Hoover Commission) in 1949, and would result in the following advantages: (1) The establishment of clear lines of accountability from the top to the bottom of the executive branch; (2) the filling of the offices involved strictly on the basis of merit under the classified civil service; and (3) the elimination of a source of friction between the President and the Congress which results from the necessity for agreement on the selection of large numbers of “field officials in posts where policy is not made."
The President's Committee on Administrative Management
In 1937, the President's Committee on Administrative Management stated that "the continued appointment by the President of field officials, such as postmasters, is not only antiquated, but prejudicial to good administration." It recommended that “* all civilian positions in regular departments and establishments now filled by Presidential appointment should be filled by the head of such departments or establishments, except under secretaries and officers who report directly to the President or whose appointment by the President is required by the Constitution."
The Commission on Organization of the Executive Branch of the Government (Hoover Commission)
In its report on the Post Office, the Hoover Commission recommended that the confirmation of postmasters by the Senate should be abolished.” In arriving at this recommendation, the Commission stated:
"The Post Office should be taken out of politics. Of the 470.000 persons employed, over 22,000 are in fact politically appointed. They are the strategic positions of first-, second-, and third-class postmasters and some top officials. Under Presidential orders beginning in 1932, and now under a law passed in 1938, the selection of candidates for postmasters has been limited to a list approved by the Civil Service Commission based upon merit examinations. This method has lessened the appointment of unqualified officials. However, the choice from the list usually results in appointments from the political party in power. A deleterious effect has been to create a political barrier to promotion ̧ within the service and thus deprive it of a great incentive to good work."
The Commission then stated that the primary responsibility for personnel selection and management other than the Postmaster General and the Director of Posts should rest in the service. In this connection, it stated:
"The Post Office Department is alone able to determine and find the skills required. The selection of postmasters should be, as far as possible, from the local community and in consultation with community leaders. all selections
of personnel should be subject to merit standards set by the Post Office and approved by the Civil Service Commission and subject to enforcement by that body ***"
In its report on General Management of the Executive Branch, the Hoover Commission found that:
"The line of command and supervision from the President down through his department heads to every employee, and the line of responsibility from each employee of the executive branch up to the President, has been weakened, or actually broken, in many places and in many ways.”
In this connection, the Commission pointed out that statutory powers have often "been vested in subordinate officers in such a way as to deny authority to the President or a department head," and that "on some occasions, the responsibility of an official to his superior is obscured by laws which require him, before acting, to clear his proposals with others. This breaks the line of responsibility, and encourages indecision, lack of initiative, and irresponsibility." In order to correct this situation, the Commission recommended:
"Under the President, the heads of departments must hold full responsibility for the conduct of their departments. There must be a clear line of authority reaching down through every step of the organization and no subordinate should have authority independent from that of his superior."
It should be noted that this recommendation, as it affects the Post Office, was implemented by Section 1 of Reorganization Plan No. 3 of 1949 which transferred to the Postmaster General the functions of all subordinate officers and agencies of the Post Office Department. In submitting that plan to the Congress, in 1949, the President stated, in his transmittal message:
"The plan (No. 3 of 1949) gives the Postmaster General the necessary authority to organize and control his Department by transferring to him the functions of all subordinate officers and agencies of the Post Office Department * * 19
LEGALITY OF PLAN NO. 2 OF 1952
As previously indicated, the sole effect of Reorganization Plan No. 2 of 1952 would be to transfer the appointment of all postmasters from the President, with Senate confirmation, to the Postmaster General. In a message accompanying Plan No. 2, and related plans, the President stated that "these plans have been prepared under the authority of the Reorganization Act of 1949." However, an examination of the act, and of statements made by the President, the Director of the Bureau of the Budget, former President Herbert Hoover, and the Postmaster General, relative to action authorized by the act in connection with earlier reorganizations in the Post Office, and in implementation of Hoover Commission recommendations, raises serious doubt as to whether the action here contemplated is, in fact, authorized by its provisions, or whether substantive legislation is required.
The Bureau of the Budget
Shortly after the Hoover Commission had 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 an analysis of all of the Commission's recommendations, indicating by which of the following three methods they could be effectuated: (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 it was stated that the recommendations of the Hoover Commission could be accomplished as follows: 114 by administrative action; 80 by reorganization plan under the provisions of the Reorganization Act of 1949; and 124 required substantive legislation or direct appropriations to already existing components of the Government. In connection with substantive legislation, it was stated that "Only those items are classified under 'substantive legislation' which cannot be accomplished without statutory changes."
The Bureau estimated that the nine recommendations relative to the Post Office could be effectuated as follows: Six by substantive legislation; one by appropriations legislation; and four by administrative action.
In the opinion of the Bureau, the Hoover Commission's recommendation that "the confirmation of postmasters by the Senate should be abolished," could be accompanied 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, p. 29.)
The President's messages
On June 20, 1949, the President submitted a message to the Congress transmitting seven reorganization plans, including Reorganization Plan No. 3 of 1949, relative to the Post Office (H. Doc. 221, 81st Cong., 1st sess.). In this message,
66* * * I am today transmitting to the Congress seven reorganization plans, each with a related message setting forth its purpose and effects. I shall also
transmit an additional message recommending legislation to place the management and financing of the Post Office Department on a more businesslike basis. * * *
"Reorganization Plan No. 3 of 1949 and the legislation I shall recommend both deal with improvements in the operation and management of the Post Office. The plan and legislation would strengthen the top management of the Post Office and afford that Department greater financial and operating flexibility."
In his message transmitting Reorganization Plan No. 3 of 1949, the President stated:
"I transmit herewith Reorganization Plan No. 3 of 1949, prepared in accordance with the provisions of the Reorganization Act of 1949. This plan constitutes an important first step in strengthening the organization of the Post Office Department."
Continuing, he stated:
"This plan carries 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 Reorganization Act. I am also transmitting to the Congress recommendations for legislation which will implement other recommendations of the Commission and place the operations of the Post Office Department on a more businesslike basis" (H. Doc. No. 224, 81st Cong., 1st sess., p. 1; 95 Congressional Record 7968, 7969). [Emphasis supplied.]
On June 24, 1949, the President submitted another message to the Congress which dealt exclusively with the necessity for major reorganizations in the Post Office Department. After reviewing these problems and the recommendations of the Hoover Commission designed to correct them, he said:
"It is an axiom of sound administration that authority should be commensurate with responsibility. No authority of management is more important than that of selecting the personnel who are to operate the business. If the Postmaster General is to be held responsible for the efficient conduct of the postal service, he should be given full authority to appoint postmasters and other postal employees subject only to the provisions of the Civil Service and Classification Acts. Legislation should be enacted which will give such authority to the Postmaster General (H. Doc. No. 239, 81st Cong., 1st sess.; 95 Congressional Record 8340). [Emphasis supplied.]
"In order to strengthen further the management of the Post Office Department, I have transmitted a reorganization plan to the Congress. This plan gives to the Postmaster General essential authority to organize and control his Department by transferring to him the functions of all subordinate officers and agencies of the Department.
"I believe that Reorganization Plan No. 3 of 1949, submitted earlier this week, together with legislation along the lines herein recommended, will enable the Government better to make substantial improvements in the existing organization and operations of the Post Office Department."
The Postmaster General
On June 24, 1949, the Postmaster General transmitted to the President of the Senate drafts of the implementing legislation to which the President had referred in his messages to the Congress. One draft, designed to place the Post Office Department under the Corporation Control Act of 1945, was introduced as S. 2212; the other, having to do with the appointment of postmasters, was introduced as S. 2213. In submitting the latter bill, the Postmaster General stated:
"This proposed legislation is designed to vest the Postmaster General with authority to appoint postmasters at post offices of all classes, and is in accord with the recommendation of the President in his message to the Congress. It is also in accord with the recommendations of the Commission on Organization of the executive branch of the Government."
On June 30, 1949, the Postmaster General testified before a subcommittee of the Senate Committee on Post Office and Civil Service, relative to these and related bills, designed to carry out the recommendations of the Hoover Commission. In the course of his testimony, the Postmaster General stated unequivocally that, in his opinion, S. 2213 (relating to the appointment of postmasters) was not a reorganization matter, and its purposes could only be accomplished by legislation. The following colloquy occurred (hearings before the Committee on Post Office and Civil Service, United States 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. 28):
"Senator LONG. I would like to ask just a question if I might. Would it be possible, and I wondered if you have been advised on this, to accomplish the purposes of S. 2212 and S. 2213 by merely a reorganization plan of the President. Of course, that included Reorganization Plan No. 3. Do you know of any legal impediment to the President sending down such a reorganization plan as this and simply letting it go into effect?
"Mr. DONALDSON. I think that S. 2212 and S. 2213 can only be accomplished by legislation. [Emphasis supplied.]
"Senator LONG. It is not actually a reorganization at all but it is actually changing a way of doing business where the Federal Government
"Senator THYE. Why had not the President's message embodied what is in the two legislative measures here?
"Mr. DONALDSON. It did embody it, Senator Thye, and recommended it, but left up to the Post Office Department in cooperation with the Bureau of the Budget to draft the suggested legislation to carry his recommendations into effect.
"Senator THYE. In other words, they are in accordance, these two bills, with his message and this is the legislation that was contemplated within his message. "Mr. DONALDSON. That is right.
"Senator FREAR. But including Reorganization Plan No. 3 that supplements it. "Mr. DONALDSON. That is right, and that requires no legislation" (hearings before the Committee on Post Office and Civil Service, op. cit. p. 33).
The Postmaster General reiterated this position in a letter to the chairman of this committee, dated August 3, 1949, responding to the chairman's request for comments relative to the recommendations of the Hoover Commission which affected the Post Office Department. Mr. Donaldson wrote:
"On June 30, 1949, the President transmitted his Reorganization Plan No. 3 to the Congress. This plan constitutes an important first step in the strengthening of the organization of the Post Office Department. It has been implemented by my action in submitting to the Congress a bill relating to the appointment of postmasters, introduced in the Senate as S. 2213.
"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 on March 14, 1950, 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 this morning, 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, etc., op. cit. p. 120). [Emphsis supplied.]
Hon. Herbert Hoover, Chairman of the Hoover Commission
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:
"I wish to say at once that the seven plans are all steps on the road to better organization of the administrative branch. They are, insofar as they go, substantially all in accord with the recommendations of the Commission on Organization of the Executive Branch of the Government..
"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