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.- 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.
Mr. WHITTINGTON. I am not asking about the First War Powers Act.
Mr. WASHINGTON. Under the Second War Powers Act, for example, 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 of them 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. WHITTINGTON. 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
that under sections 4 and 5 of the First War Powers Act any functions of old agencies which had been placed therein by the President would revert to those agencies.
Mr. WHITTINGTON. However, the Agency itself will not expire. In other words, the President under the War Powers Act can continue to do at peace what he could do in war; is that right? Mr. WASHINGTON. No.
Mr. WHITTINGTON. And the agencies established for war will continue for peace?
Mr. WASHINGTON. Let me explain.
Mr. WASHINGTON. Any authority transferred to the present National Housing Agency by virtue of the First War Powers Act will at the termination of the First War Powers Act revert to the old agencies which formerly held those functions. However, there may be new functions placed in that National Housing Agency by the President by virtue of the Second War Powers Act, by virtue of the Defense Housing Act, and numerous other acts which give the President authority personally to perform functions or to delegate the performance of those functions to any agency of the Government.
Mr. WHITTINGTON. Assuming those acts expire, what authority do we have to do what you say there?
Mr. WASHINGTON. As those acts expire (for example, the Second War Powers Act), the President's authority thereunder ceases, and the authority of all his subordinates in that field must cease. But the agency itself, the name and the framework, does not disappear until it is abolished or terminated. Also, Congress can refuse to appropriate for it. It may be just a shell, without officers or employees, but it is there.
Mr. WHITTINGTON. For all intents and purposes, when it has served its war purpose, it will expire, I guess as all of them have done. I know that once established, bureaucracy continues until Congress lays the ax to the root of the tree, but for all practical purposes, war agencies expire with the war.
Let me ask you with respect to section 506, this question: The functions there of the Secretary of Agriculture are to be performed by what agency? The functions of the Secretary of Agriculture, I am referring to.
Mr. WASHINGTON. Under section 505—
Mr. WASHINGTON. The two sections, of course, must be read together. Under 505c, it is provided that certain functions shall be administered by the Federal Public Housing Authority, and in paragraph 3 of that subsection, it is provided that those functions shall include the functions of the War and Navy Departments with respect to defense or war housing, except that located on military or naval reservations, posts, or bases, under the act of September 9, 1940. That of course fits in with the provisions of section 506.
Mr. WHITTINGTON. How can the functions of the Secretary of Agriculture be continued unless those functions are transferred? If you answer that question, then, what provision is made for the transfer of the functions of the Secretary of Agriculture, and where?
Mr. WASHINGTON. The first sentence of 506 states, “the Administrator shall have the following functions”
Mr. WHITTINGTON. Well, even so, please, is there any language that you see there, making the transfer
Mr. WASHINGTON. That must be deemed language of transfer.
Mr. WHITTINGTON. Unless you transfer the functions that have been transferred upon the Secretary of Agriculture, would they not continue to him? Where is the language of transfer? Where did you transfer those to the Administrator? That is the reason I have called that language jumbled.
Mr. WASHINGTON. The word “transfer," there, is implied. Very frequently, Executive orders and reorganization plans employ that language. A common form is that “on and after date of this order, the following functions shall be performed” by the office of such and such. That has the force of a directive.
Mr. WHITTINGTON. In other words, that is your way of saying "transfer”?
The CHAIRMAN. Could not the Secretary of Agriculture also continue to perform those functions under that language? What is there to prohibit him from doing it?
Mr. WASHINGTON. Section 506 goes on to say that these functions "shall be performed by him (the Administrator) or, subject to his authority' under the provisions of this plan.
The CHAIRMAN. However, they have never been taken away from the Secretary of Agriculture.
Mr. WASHINGTON. If he came to the Attorney General, I think the Attorney General would no doubt have to tell him that he had been relieved of those duties, and that they had been transferred from him to the Administrator. The first sentence of section 501 provides that certain agencies and functions shall be “consolidated." That is one of the terms used in section 3 of the act,
Mr. WHITTINGTON. The act has the word “transfer” in the Reorganization Act, time after time.
Mr. WASHINGTON. Undoubtedly it contemplates transfers, as well as consolidations.
Mr. WHITTINGTON. It uses the term “transfer," does it not, Mr. Washington ?
Mr. Judd. It uses it in a half dozen places, for example, section 5 (a) (1).
Mr. WASHINGTON. It uses a number of terms—“consolidations, coordinations,” and so forth.
Mr. WHITTINGTON. I have not asked you about anything except the word “transfer." It does use the word "transfer," there, as in the first subparagraph of section 5, does it not? The phraseology is “abolishing or transferring."
Mr. WASHINGTON. Frankly, I do not see how that provision of the act renders it obligatory upon the part of the President to use any particular form of language in his plan. If he is advised that certain language is appropriate under the circumstances-for example, "consolidation" or "coordination”—I can see no requirement in the act that he must use the magic word “transfer.”
Mr. CHURCH. It is called a magic word ?
Mr. WHITTINGTON. Mr. Washington, under section 508 it provides that Pending the initial appointment hereunder of any officer provided for in this part, the functions of such officer shall be temporarily performed by such officer of the existing National Housing Agency as may be designated by the President. Now under section 507, that agency is abolished. How can an officer temporarily even discharge functions when his office has been abolished ?
Mr. WASHINGTON. I would not agree that the President under this wording would attempt to name any persons who are not actually officers of the Government. This contemplates he will pick out someone who is a Government officer, and that that person shall continue to perform the functions listed here until a permanent officer has been nominated by the President and confirmed by the Senate.
Mr. WHITTINGON. Now, Mr. Washington, you say nothing about "an officer of the Government." The functions shall be temporarily performed by such officers, and what I ask you is how can such an officer perform such functions when this office is abolished by section 507?
Mr. WASHINGTON. Congressman, you will recall my argument that the National Housing Agency as it exists today would continue on as a shell, if you will, in any event, until terminated. If you will look at section 507, you will find that the existing National Housing Agency is not expressly abolished. There is no statement to that effect in 507.
Mr. WHITTINGTON. I have not asked you about abolition. That was the first question I asked sometime ago. What I want to know now is, how can an officer who has been abolished, temporarily discharge the functions, that is all I ask.
Mr. WASHINGTON. Congressman, I would not agree with you that he had been put out of office, or that the existing National Housing Agency would be an inappropriate source for the selection of an officer to continue temporarily to perform essential duties until the Senate had confirmed a Presidential appointee.
Mr. WHITTINGTON. Could the President designate the office of Federal Housing Administrator temporarily? Could he do so, when that has been abolished under section 507?
Mr. WASHINGTON. Would you repeat your question? Should the President appoint some person temporarily?
Mr. WHITTINGTON. Under section 507, could the President name the office of Federal Housing Administrator to discharge temporarily the duties mentioned in section 508?
Mr. WASHINGTON. Do you mean, could the President name some person who is today in the office of the Federal Housing Administrator?
Mr. WHITTINGTON. No; upon the day it was abolished, the man who was the Federal Housing Administrator.
Mr. WASHINGTON. Today we have a Federal Housing Commissioner, heading the Federal Housing Administration. The office of Federal Housing Administrator, created by statute, will be abolished when this plan comes into effect. There is no doubt about that. But it is not contemplated, as I understand it, that there shall be a lapse of one minute in the actual continuity of performance of essential functions. The President can appoint a temporary officer to carry on, pending the action of the Senate on a permanent appointment.
Mr. WHITTINGTON. That would be better, when you say, “appoint such officer," and his office has been abolished, it is not as clear to me as it might be.
Aside from the legal features, with respect to this National Housing Agency here, and with respect to the constituent elements, will there be in practice any different functions of the constituent units from those that have obtained during the existence of the Executive order establishing National Housing Agency?
Mr. WASHINGTON. As a matter of law, I think the legal framework would be similar. As to the practical operation, you would have to refer to the Bureau of the Budget, I believe.
Mr. WHITTINGTON. Certainly, would this National Housing Administrator have the direction of the Federal Housing Administra- . tion depriving the Administrator of that unit of its power and dictating or controlling or being a czar?
Mr. WASHINGTON. Section 505 of the plan provides that, The functions to be administered by the constituent units under this section shall be deemed to be vested in the respective Commissioners, and in the administration thereof the Commissioners shall be subject to the authority of the Administrator.
Mr. WHITTINGTON. That would be under his authority?
Mr. WASHINGTON. So I believe, under the terms of the Executive order.
Mr. WHITTINGTON. That is what I am talking about, the terms of the Executive order. Therefore, there would be no difference; it would be a continuance?
Mr. WASHINGTON. This will be a new agency. I do not know whether the personnel would be the same or not. We must regard the proposal here as a proposal to establish a new agency. It will be a new National Housing Agency, distinct from the present one. .
Mr. WHITTINGTON. Outside of supervision and control, then, these units will have the same power and authority they have at present?
Mr. WASHINGTON. Each of the constituent units
Mr. WHITTINGTON (interposing). Except for any functions which are abolished ?
Mr. WASHINGTON. Each of the units derives its authority from statute.
Mr. WHITTINGTON. Unless some of those functions are established by statute, you will not be continued ?
Mr. WASHINGTON. The agency must cease performing a function when the statute expires which established that function. The constituent agencies must obey the law, as from time to time it is found in the statute books.
Mr. WHITTINGTON. I say, would they have the power to continue to do what they are authorized to do under this statute in this set-up. without being interfered with by the Administrator?
Mr. WASHINGTON. They would perform their duties subject to the authority of the Administrator. That is a familiar arrangement. There are many agencies which perform their functions subject to the authority of another agency or officer of the Government.
Mr. WHITTINGTON. Are there any other agencies of the Government that have not been brought forward in this reorganization that you know of?