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I of the First War Powers Act by Executive Order No. 9070 to the National Housing Agency established thereby will not revert to their former status when title I of that act ceases to be effective. This is not in derogation of the provisions of the Reorganization Act. On the contrary, one of the main purposes of that act was to give the President authority to make such transfers permanent. This is clearly shown by the legislative history of the act. The President in his message to Congress of May 24, 1945, requesting passage of a reorganization act, stated that an important purpose of the act would be to permit making permanent certain of the reorganization actions taken by Executive order under the authority of title I of the First War Powers Act. The necessity for such action was discussed at length in the message. The report of the House committee considering the bill (Rept. No. 971 of the Committee on Expenditures in the Executive Departments) also makes it clear that a chief purpose of the Reorganization Act was to make it possible for the President to give permanent status, when deemed desirable, to temporary transfers made under the First War Powers Act. The report states, after referring to the temporary nature of transfers made by Executive order under the First War Powers Act and to the “automatic reversion” under the terms of the act, that Under the terms of the bill will be possible for the President, in such cases as he deems desirable, to include in the reorganization plan provisions making the transfers permanent—subject, of course, to the provisions of the bill prohibiting any reorganization plan from continuing any agency beyond the period authorized by law for its existence or beyond the time it would have terminated if the reorganization plan had not been made, or continuing any function beyond the period authorized by law for its exercise or beyond the time it would have terminated if the reorganization had not been made, or beyond the time when the agency in which vested before the reorganization would have terminated if the reorganization had not been made. If I may sum that up, it is simply this, that the functions which are to be performed by the new National Housing Agency are permanent functions already reflected in the statutes. The agencies to be consolidated are not temporary ones. The new agency will perform those functions until the Congress either repeals the acts establishing the functions which are now performed by the constituent agencies, or until the statutes expire by their own terms, or until Congress abolishes the new agency. There is no attempt here to evade any statutory provisions, or to violate in any way the policy expressed in section 5 of the Reorganization Act. - The CHAIRMAN. In other words, you do not make any effort under this reorganization plan to continue a function of the National Housing Agency under the Lanham Act that expires 6 months after the termination of the war? As I recall that act, it said, “termination of hostilities.” Mr. WASHINGTON. That act of course would be governed by its own terms. The CHAIRMAN. When we wrote that act—I had a little part in writing it—we hoped that “termination of hostilities” meant the termination of the shooting, but we found it did not mean that. Mr. WASHINGTON. The Congress, of course, can always terminate the Lanham Act, or any other act involved here, by specific legislation. 88368–46—6
The CHAIRMAN. Of course, they have been appropriating no more money to build those defense homes. Mr. WASHINGTON. That is correct. The Congress also can exercise authority through its power to appropriate. The CHAIRMAN. There is one provision in here, on page 12, section 508, which reads as follows: Interim appointments.-Pending the initial appointment hereunder of any officer provided for in this part, the functions of such offices shall be temporarily performed by such officer of the existing National Housing Agency as may be designated by the President. Mr. WASHINGTON. I think that is a very desirable provision. I believe a somewhat similar provision was included in Executive Order 9070, which established the original National Housing Agency. It will enable the President to provide for the continuation of operations ending the time an appointment is made and confirmation is had in the Senate. The CHAIRMAN. Of course my main objection to plan 5 is not based on any question of legality, it is a question of policy, placing the lending agencies under the building agencies. Do you gentlemen concur in the statement which Mr. Washington has made? Mr. KEMP. Yes. Mr. LEwiTTEs. Oh yes; fully. \ The CHAIRMAN. Do you have any additional information to present? Mr. WASHINGTON. No sir; that is our position. The CHAIRMAN. Are there any questions? Mr. WHITTINGTON. Mr. Washington, the President's Reorganization Act named the head of the consolidating agency as provides for the operation of that agency, but under the guise of doing that, he cannot, as you state, violate section 5 of the Reorganization Act by continuing a temporary "ş. Is that true as such 3 Mr. WASHINGTON. Section 5 (a) (3), of course, provided that no reorganization plan shall provide for, and no reorganization under this act shall have the effect of, continuing any agency beyond the period authorized by law for its existence or beyond the time when it would have terminated if the reorganization had not been made. In other words, there is a double check. The plan shall not provide for, and in any event, the reorganization plan cannot have the effect of, continuing any agency beyond the period authorized by law. . Mr. WHITTINGTON. Under this Reorganization Act, this act established by Executive order could not be continued as such' Mr. WASHINGTON. If you will recall, the National Housing Agency established by Executive Order 9070 was a consolidation of the functions of several existing agencies—a framework which the President could adopt under the First War Powers Act. Mr. WHITTINGTON. It is a question of continuing that after the agency expires? Mr. WASHINGTON. However, that desirable framework could be continued under the Reorganization Act of 1945. The continuation of Some of the temporary wartime reorganizations is one of the main purposes of the 1945 act. The President surely could have established an agency to be called “the United States Housing Agency,” and no one would question the legality of that, under the Reorganization Act, to perform exactly the functions of the National Housing Agency under Executive Order 9070. Mr. WHITTINGTON. Could that be brought forward as such under the Reorganization Act? Mr. WASHINGTON. Surely. Mr. WHITTINGTON. In other words, notwithstanding the expiration of that temporary institution, that temporary agency under the War Powers Act, and notwithstanding the inhibitions of section 5, you maintain that it could have been brought forward? Mr. WASHINGTON. Let me explain the purpose. Mr. WHITTINGTON. Did I understand you to say that or not, then you may make any explanation you want. You are a good lawyer; you are an assistant to the Attorney General. Mr. WASHINGTON. Some of these questions must be answered at fairly good length. First of all, it is clear that the President has broad power to establish, within his Executive Office, new agencies for the preformance of Presidential functions. Congress has recognized that for many years. Mr. WHITTINGTON. I have asked you a simple question; whether or not under the guise of doing that he can continue this agency as such, established by Executive order. Mr. WASHINGTON. He does not do that in this case. Mr. WHITTINGTON. Well, can he? I say, could he do it? I think that is a simple question. Mr. WASHINGTON. If the gentleman please, I would like permission to answer that in this fashion: The purpose of section 5 (a) (3) is to prevent the evasion of any act of Congress which imposes a time limit upon the duration of an agency or the duration of a function. Mr. WHITTINGTON. I am familiar with the purpose of it, please; I am thoroughly familiar with it, and you have repeated it three times. Mr. WASHINGTON. Let me add that the Reorganization Act of 1945 had, as one of its purposes, the purpose of permitting the perpetuation of reorganizations made under the First War Powers Act of 1941. Mr. WHITTINGTON. I do not agree with you at all. On the contrary, when that bill was sent down here, section 13 was in the bill, title I of the First War Powers Act of 1941 is hereby repealed, and that provision was left out of the bill we passed so as to provide expression that we did not touch the agencies established temporarily under the First War Powers Act and the Executive orders of the President. Now I agree that if the President desires and the consolidation, to bring forward independently and not as such, the fine points of any of these agencies, why he could do it. However, I do not agree he could bring forward these agencies under the guise of reorganization. I asked you a simple question whether or not you agree with that statement. Mr. WASHINGTON. The President has in effect formed a new agency under part V of the reorganization plan. He is not continuing the old National Housing Agency. He is setting up, as I firmly believe he may under the act, a new agency which, for purposes of convenience, bears the same title as the old agency. But it is a new agency. It is a fresh start in this field. Mr. WHITTINGTON. I think that is about as strong a statement as you can make, but I think it is rather unfortunate that in the guise of \ establishing the new agency the same language was used of an agency that could not be continued and perpetuated. . Mr. RICH. Mr. Whittington, is not the National Housing Agency being made permanent, now, under this bill? Mr. WHITTINGTON. That's what I am trying to find out. Mr. Washington, let me ask you this: What power, what authority, possessed the National Housing Agency, under Executive order issued under the War Powers Act, is eliminated from the agency set up under part V8 Secondly, name the powers and their authority. Mr. WASHINGTON. It is my understanding that the powers are substantially the same. There might be exceptions. Perhaps Mr. Kemp knows of some. Mr. WHITTINGTON. I think it is rather essential to have an answer to that question, under the guise here of setting up an independent agency. If such be true, you bring forward bodily, all of the power and all of the authority conferred upon the temporary agency that the Congress declined to give the President the power to perpetuate. Mr. WASHINGTON. Mr. Congressman, I would not agree that this was the type of action which was contemplated by section 5 (a) (3). Section 5 (a) (3), it seems to me, contemplates the situation, for example, where a governmental corporation has a charter which expires at the end of the year. Obviously, the President should not be allowed to keep that governmental corporation alive, beyond the time that the Congress has set, by making it into an administration or agency, rather than a governmental corporation. When Congress has established its framework and set a definite time for its life, an agency in the executive branch should go to the Congress and request that the time be extended, if extension is desired. But that is not this case. Mr. WHITTINGTON. I will repeat my question: What powers, what functions that were conferred upon the National Housing Agency under the Executive orders issued under the War Powers Act, were not brought forward and made permanent, and made permanent under part Vo ho WASHINGTON. I do not know of any. I would be glad to check that. Mr. WHITTINGTON. Therefore, actually, this agency that would expire under the War Powers Act, is made a permanent agency, in fact and in truth, using the same name and giving the same powers. If that is not a fact, you may make any explanation you want. Mr. WASHINGTON. Under the First War Powers Act, what terminates is the form of the reorganization, the wartime grouping of functions. In other words, under sections 4 and 5 of the First War Powers Act, the functions will revert, at the time indicated in the act, to the agencies which formerly performed those functions. Mr. WHITTINGTON. I am rather aware of that, please, sir. Mr. WASHINGTON. That does not mean that the temporary agency itself terminates automatically upon the termination of the First War Powers Act. Mr. WHITTINGTON. When will it terminate? Mr. WASHINGTON. In any event, as soon as Congress stops appropriating for it under the provisions of the so-called Russell amendment.
Mr. WHITTINGTON. What amendment was that? Mr. WASHINGTON. The provision in section 213 of the Independent Offices Appropriation Act for 1945 relative to agencies for which Congress had not made appropriations. Mr. WHITTINGTON. Let me see, Mr. Washington, if I understand your question. You now say that in your view the agencies established by the President by Executive order under the War Powers Act will continue, notwithstanding the fact under the terms of that act the agencies that are consolidated, the old ones authorized by law, revert to their former status. - Mr. WASHINGTON. The functions transferred under the First War Powers Act will go back. But in addition the President has many powers and functions which he has bestowed on temporary agencies by virtue of authority vested in him by the Congress, quite apart from the First War Powers Act. A.M. WHITTINGTON. I am not asking about the First War Powers ct. Mr. WASHINGTON. Under the Second War Powers Act, for . the power of allocation is vested in the President. It is under that power that rationing, priorities, and allocation plans are set up. Under the Second War Powers Act the President can vest those powers, or any part of them, in any agency of the Government. He has put some .Pthem in the Office of Price Administration, some in the Civilian Production Administration, others in the Office of Defense Transportation, and others in the Department of the Interior. His action in doing that, in giving those powers to a temporary agency, is quite independent of his action under the First War Powers Act, in transferring old functions of old agencies to new agencies. Mr. WHITTINGTON. Would the President have the power to establish a National Housing Agency but for the War Powers Act, with the same power and same functions and same authority that it was? Mr. WASHINGTON. Let me refer to the history of the Overman Act, on which the First War Powers Act of 1941 was patterned. When the Overman Act was passed in 1918, Senator Philander Knox, a former Attorney General, contended that the Overman Act was unnecessary, that the President had full authority to reorganize the Government in time of war without any special legislation. In fact, President Wilson created the War Industries Board without citing any statutory authorization at all. That was one of the most important wartime organizations in World War I. Mr. WHITTINGTON. Then we did not need the War Powers Act, according to your views? Mr. WASHINGTON. It was desirable to have it. Now that it is in effect, its provisions must, of course, be carried out. Mr. WHITTINGTON. When will they expire? Mr. WASHINGTON. The First War Powers Act terminates—at least titles I and II terminate—at the end of the war plus 6 months, or at Such earlier time “as the Congress by concurrent resolution or the President may designate.” Mr. Warrisotos. When would this National Housing Agency expire? Mr. WASHINGTON. The agency as such would not expire automatically on the termination of title I. What would happen would be