« 이전계속 »
orders affecting intercoastal shipping lines. Those orders were questioned in the Federal courts. It was not merely an order of the United States district court, but was before the statutory three-judge district courts set up to handle injunction cases.
Mr. HOFFMAN. Mr. Chairman, will you ask him to give the citation, please!
Mr. ELLIS. The full name of the case is a little bit hard to say: Isbrandtsen-Moller Company v. The United States (14 F. Sup. 407), decided in New York in 1936. The three judges who handled that case were Circuit Judge Chase, District Judge Bondy, and District Judge Patterson.
The argument was made that that was an overdelegation of legislative authority. The Court considered that it was not, and had the following to say:
This seems in accord with correct standards as to delegation of authority to act within proper limits prescribed by Congress.
Then they cite the Panama Refining case, as well as the Schechter or "sick chicken" case, as it is commonly called.
The other case I will only mention very briefly, because it is approximately the same thing. That is Swayne & Hoyt v. The United States in the District of Columbia court. That was again a three-judge statutory court consisting of Circuit Judge Groner, Judge Wheat, and Judge Proctor. They considered the identical order brought up by the same plan, and they adopted in full Judge Chase's opinion in the first
The citation for that second case is 18 Federal Supplement 25. That was also decided in 1936.
I think it is important that we bear in mind the temper of the times. Both cases were in 1936, only a year after the Supreme Court had for the first time declared acts of Congress unconstitutional because of overdelegation.
Those courts having considered already a far stronger plan than the present bill, and having fully sustained it, I think the opinion is justified that the present bill would be fully sustained for the same reasons.
The CHAIRMAN. Are there any questions anyone would like to ask the attorney before he sits down?
Mr. HOFFMAN. Yes, Mr. Chairman. I would like to ask the citation to the Supreme Court decision where they held the overdelegation unconstitutional.
Mr. ELLIS. One case was Panama Refining v. Ryan (293 U. S. 388), and then the Schechter case.
Mr. HOFFMAN. Is that the sick chicken" case?
Mr. ELLIS. Yes; 295 U. S. 495. Those were both, of course, under the NRA Act of 1933.
Mr. HOFFMAN. I have one other question, if I may.
Recently, within a couple of weeks, in Lincoln Federal Labor Union No. 19129 A. F. of L. v. Northwestern Iron and Metal Co., decided Jan. 3, 1949, the Supreme Court of the United States has completely changed and overruled its previous doctrine, has it not, which was established by several decisions?
Mr. ELLIS. I would not be in a position to agree. I know they have overruled a great many doctrines but I do not believe this one is one of them.
Mr. HoFFMAN. No. The Supreme Court has never decided the case you are referring to now. Those are both district-judge decisions. Mr. ELLIs. Both cases did go to the Supreme Court, Mr. Hoffman. The difficulty is this: They were not decided until after another year had gone by. Then the Congress enacted the Merchant Marine Act of 1936 which validated what had been done in this regard, so that the question of constitutionality was then moot. Mr. HoFFMAN. It was never passed on by the Supreme Court? Mr. ELLIS. That is right. The Supreme Court did not pass on it. Mr. HoFFMAN. That is all. The CHAIRMAN. Mr. Holifield : Mr. HoliFIELD. No questions. The CHAIRMAN. Are there any questions of Mr. Warren? Mr. HoFFMAN. Yes. I have a few questions. I address these remarks to the committee and not to the witness, in order that no misconstruction may be placed upon what I say and no erroneous conclusion drawn as to what I mean. Permit me to say that I served with Mr. Warren in the House; that there is no Member of Congress who questions his loyalty as a congressional agent to the Congress; and I think this committee has, on various occasions—and if I am in error the former chairman of the committee is here and may correct me—we have on many occasions followed without question the gentleman's advice. Mr. Warren, I am wholeheartedly in accord with the statements that you have made here and that you have submitted in writing with three exceptions: That while wanting to do all that you recommend, and to go along with that, section 6 in title 1 is what bothers me. It is one question the attorney has just referred to. Now, unless my recollection is at fault, Mr. Warren is an attorney. I do not know whether you were a judge or not. Mr. WARREN. No. Mr. HoFFMAN. But I know you have a profound knowledge of the Constitution. I call attention to section 1, article 1, where it states: All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. Then over on section 7 of the same title The CHAIRMAN. I would like to say for the members of the committee that Mr. Hoffman is reading from the Constitution of the Lnited States and not from the bill. Mr. HoFFMAN. Yes.
Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law—
and so on—
Then section 3 of title 2 provides that the President “may recommend to the Congress.”
What I would like is your opinion as to how section 6 in this bill complies with those two constitutional provisions, or whether section 6 in this bill complies with those two constitutional provisions.
Mr. WARREN. Well, now, before I answer this I d. not want anybody to say I am giving tit for tat, but I want to say this about you: I have disagreed with you on many things, and I have agreed with you on some. I have the greatest respect in the world for your views, and you know that I do have that respect for you. However, the point that you are making is such that I see nothing whatever inconsistent with the Constitution. Of course the President under the Constitution has the right to submit to Congress anything in the world he wishes to from time to time, and if Congress does not translate that into law that ends the matter. If we would follow that, then we might as well tear up all these bills, because the sole purpose in having these reorganization bills before the Congress time after time is to delegate to the President that authority and power. If we are just going to take that construction of it and say, “Why, of course, the President can do it,” we all recognize he can do it and Congress itself can propose it. The fact is that past Presidents time after time have transmitted reorganizations to the Congress which have been completely ignored and Congress itself, through its own committees—the last one prior to the Hoover commission that tried to reorganize by getting Congress to approve it was headed by the very brilliant Mr. Carl Mapes from your own home State of Michigan, and Senator Wadsworth, then a Member of the Senate was a member of the Senate committee, and they came back and said we could never get any reorganization if we depended upon the Congress itself to initiate it. Now, Mr. Hoffman, you are basing your view on a yery strict constitutional interpretation. Mr. HoFFMAN. A sound one, is it not? Mr. WARREN. I do not think so. I have great respect for your view, but I do not think it is sound and I think that Mr. Ellis in his citation of the case, the three-judge decision, came about as near as can be to sustaining the validity of what we now propose. Mr. HoFFMAN. Well, with all due respect to what you say, does not section 6 enable the President to send down to the Congress a plan, and under that section does not his plan becomé law or may it not become law without the action of both Houses of Congress? Mr. WARREN. That is correct. Mr. HoFFMAN. All right. Mr. WARREN. I wish to say this: I said that I drew every word of the 1939 act. I want to make an amendment to that and say that I did not draw the provisions of how a plan may be overridden. On that particular provision I went to wo I considered the greatest authority in the Government on that phase, Mr. Lewis Deschler, the able Parliamentarian of the House of Representatives, and he drew the provisions of the 1939 act which are carried verbatim in this act as to how a plan may be overridden. First, I think that the delegation is sound. You do not. Under this plan Mr. HoFFMAN, Wait a moment before you quote me. I do not as to delegation of what? On the legislative power I say “Yes.” I do not agree that the power can be delegated. Mr. WARREN. The delegation to the President to make this reorganization. As I have already said, I would like to think that Congress could do it, but I have studied this question over the last 50 years of reorganization effort, and Congress has never been able to do it, never will do it if it sits here from now until doomsday, and that is what converted me.
I want to say this: That President Hoover, as he went out of office, had a great deal to do with my conviction that the President only could do it. We gave him the right to reorganize but said that either House could stop it.
Well, he referred that to his attorney general, Mr. William D. Mitchell, a very able and great lawyer, and Attorney General Mitchell advised President Hoover that that was unconstitutional and that he could not carry through any reorganization under that. So the parting recommendation that President Hoover made as he left the White House was that the President be given the sole authority-not authority coupled with the right of congressional veto by concurrent resolution, but that he be given the entire authority. And do you know what Congress gave him? You were a member and I was a member, but I did not dream it went that far. We gave President Roosevelt the right to abolish every single member of his Cabinet if he wished to, and he had that authority over a 2-year period.
Then when we came along in 1937 and again in 1939 and again in 1945 we all said, “That is just too much power to give any man, no matter how great and how noble his purpose may be,” and never has that provision been carried in a reorganization biil.
But that is what Mr. Hoover recommended and that is what the Congress practically unanimously passed.
But now we have a provision that both Houses of Congress may stop this if they care to. I want to say to the new members of this committee that in calling up a plan under this procedure, to express your disapproval of the plan, the finest cloture rule ever adopted in the history of the country is contained right here in this bill. It is positively foolproof. It is absolutely unbeatable, and if you as an individual member wish to vote to express your disapproval of any plan that the President might send down, you are assured of that vote without any semblance of filibuster whatever.
As I say, those provisions were prepared back in 1937 or 1939 by Mr. Lewis Deschler.
The CHAIRMAN. Are there any other questions?
Your convictions are influenced to a rather large extent, are they not, by your belief that the Congress never will reorganize these departments if left to itself?
Mr. WARREN. I must be fair in saying that is why I was converted to this and I have read of attempts to do it back from the time of Grover Cleveland and on down to date. Mr. Taft tried to do it and failed.
Mr. HOFFMAN. And the reason Congress has not been able to do it is because of what I might term from your statement "lobbyists” from the Department who have always been able to influence us to leave this department or that department out.
Mr. WARREN. That is one of the main things.
Mr. HOFFMAN. Going back a little, cannot these reorganization plans be put through Congress if the President would send down his recommendation, and you would write into this bill, instead of section 6, an amendment that the Congress then must act within 60 days after the report of a committee? That would not leave it up to the Congress just to ignore it, or to disapprove, but they must express their approval of it instead of a veto.
Mr. WARREN. Of course, that is nothing more than existing law. Mr. HoFFMAN. Surely. That is the constitutional procedure with an added obligation on the part of the Congress to act within a limited time. Mr. WARREN. The President can, of course, send any recommendation he wishes to here, or the Congress may do it on its own initiative. Mr. HoFFMAN. But it is a little something more than existing law, because the amendment which I suggest would require the Congress to act within 60 days, instead of letting the Congress permit the thing to go through by default. Do you get my point? Mr. WARREN. Yes; I get your point, but I do not think it would do the job. Mr. HoFFMAN. It might not do the job, but it would at least comply with the provisions of the Constitution which I have cited, which say that the legislative power is vested in the Congress and that nothing can become a law until it passes both Houses. You concede, do you not, that if this bill goes through it is not necessary for either House or for one House to consider the bill at all and still it will become a law Ż Mr. WARREN. That is correct, and as I recall during the last Congress the House disapproved several reorganization plans, but the Senate would not go along with them. Therefore, they became law. Mr. HoFFMAN. Then the question resolves itself into this: As to whether the need for a reorganization so as to produce efficiency and economy is so great that we should abandon what some of us think is the constitutional method of legislation. Mr. WARREN. Of course, I have heard you make those arguments back when we served together in the House. As I say, I respect your view on it, but I do not agree with you. I am absolutely convinced, and I think the Congress has been convinced, that this is the only possible way to do it. Mr. HoFFMAN. May I interrupt you there, Mr. Warren? Mr. WARREN. Yes, sir. Mr. HoFFMAN. This is the only possible way, in your opinion, where we can get effective action? Mr. WARREN. That is right. Mr. HoFFMAN. Therefore, there being a great necessity that this reorganization take place, that leads to your conviction it can be done this way. Mr. WARREN. Yes. Now, on April 8, 1938, the House, after one of the bitterest fights they have probably ever had in the last 30 or 40 years, and after 3 weeks of debate, recommitted the then reorganization bill by a vote of 204 to 196. Every single Republican in the House, and a majority of the Democrats, voted to recommit the bill, and it was recommitted for one reason only. As my friend Mr. Carter Manasco and those in the House can tell you, that was because it sought to tamper with the General Accounting Office, which is the agent of the Congress. That is what defeated the bill. On March 8, 1939, the House passed a reorganization bill by a vote of 246 to 153. That was supported by such members in the present House as Mr. Eaton, of New Jersey, Mr. Hope, of Kansas, Mr. Wadsworth, of New York, Mr. Welch, of California, Mr. Wolverton, of New Jersey, Mr. Hull, of Minnesota, former Congressman Knutson, of