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chairman and present ranking member of that committee, that I know of nothing, if exceptions are to be embraced in this bill, that will be a more sound exception or exemption than the Corps of Engineers... I might say that it will facilitate its passage, rather than by including them among the exemptions in this bill. Mr. Rich, I will be very glad to answer your question. Mr. RICH. If you feel like you do toward the Army engineers, and I can see no exception to be taken to your statement in reference to them, believing that they should have continuous work to do in peacetime, if they are going to be prepared for the duties that are going to be assigned to them in wartime, then why are they so concerned about the disruption of their work by any Chief Executive? I ask that for information for the reason that I am receiving so many telegrams now to exempt the Army engineers. If you and the Congress believe that the Army engineers—and I think the same thing—should do the work that they are now doing in flood control and harbor improvements, why should they be so alarmed about what might happen to them. I just ask that for information. I don't know. Mr. WHITTINGTON. I can only answer for myself. If they are called upon, the Corps of Engineers might speak for themselves. But answering for myself, and undertaking to interpret the sentiment of the country against their being stripped of their functions, I would say this: that at a time when the Corps of Engineers are doing more internal improvements, more flood control, and more rivers and harbors work than ever before in their history, at a time when they are being utilized and when there is no real duplication, the average taxpayer, the average citizen, of whom I trust I am one, think it would be most unwise to strip them of their function. Mr. RICH. You did not answer my question. Mr. WHITTINGTON. I said they would have to speak for themselves. But speaking for myself, assuming that they are human, they want to continue the fine work. I assume, sir; I think that is a fair assumption, to answer your question, that they have made. They feel, I am sure, that if there were an undertaking to transfer them from the supervision of the Department of the Army where they are now serving and where they have served since we began our internal improvements in 1920, that they would be hindered. Mr. RICH. Where could they put them, besides the Army? Mr. WHITTINGTON. That is what I want to know, and for that reason I do not want to take a chance by putting them anywhere else than under the direction of the Department of the Army because they are doing their work now; they are doing it efficiently under the Department of the Army. That is the Department they will have to be under In War. Mr. RICH. Are they fearful of the President? Mr. WHITTINGTON. I will have to say they will have to answer for themselves, if you want to get their answer. I do not want to undertake to speak for anyone else myself but people, I think, whose interests I have at heart—I think, to answer your question—that the people, the citizens of the country, feel that it would be most unwise now to give to the Executive, and I think that any Executive who undertook to exercise the power, would meet the same fate that was accorded to President Hoover, if he undertook to strip them of their power.
Now, in favoring reorganization, effective reorganization, to pre: vent waste and extravagance and to promote economy and efficiency, I don’t want, if you will pardon the language, to “gum up the works,” by presenting a matter here that would hinder that, and that would be to give the power to transfer. Mr. RICH. Just one further statement. If any President, regardless of who he might be, would make such a recommendation, I personally do not believe the Congress would permit it to be changed. That is my own personal opinion. What is your idea about that? Do you think the Congress would permit the President to make a recommendation of that kind and that the Congress would approve it? Mr. WHITTINGTON. I trust that I have anticipated your question. I have answered it and I will repeat, at your request, only that why not profit by experience? The Executive had the power under the Reorganization Act of 1932. President Hoover undertook to transfer them and President Roosevelt profited by President Hoover's experience. President Roosevelt, one of our greatest Presidents, did not undertake to touch them. Why hamper him? Because the President is going to follow the directions of the department. r. RICH. You are speaking about these Presidents. I remember very distinctly that one President made the statement that he would consolidate Government departments and eliminate certain functions of government at a time when we had 500,000 Government employees, and it was only 10 years after that until we had 2,000,000 employees. He did not do what the said he would do. Mr. WHITTINGTON. I am glad you have such an excellent memory. But I am trying to confine myself to this. Chairman DAwsON. In the light of your statement, setting forth your experience in these matters of reorganization, and in the light of the statement that you made here, that you believe that reorganization of our executive branch is indicated by some form of action or some form of powers, either given to the Congress or given to the Chief Executive, and that it can best be done by Congress delegating to the Chief Executive some of the functions, some of the authority as set forth in the bill that is before us now. Mr. WHITTINGTON. I so stated on the beginning, Mr. Chairman, and I stated that while law-making is a legislative function, that within the limits of the Constitution, by prescribing standards, and by setting up the yardstick as this bill under consideration does, that it is within the legislative prerogative and the only practical way to provide reorganization is to pass a bill substantially as we have it here. I might say in that connection that when we had under consideration the reorganization plan of 1932, I think Mr. William D. Mitchell, who was Attorney General of the United States—and that act, as I recall, provided that it might be defeated by one branch of the Congress, and Mr. Mitchell rendered an opinion—and he cited authorities to show that you could not deprive either branch of Congress of its law-making power and that provision of that reorganization submitted by President Hoover was unconstitutional. The memorandum from William D. Mitchell to President Herbert Hoover on January 24, 1933, follows:
JANUARY 29 1949.
Below is the only paragraph in the letter of Attorney General William B. Mitchell to President Herbert Hoover on January 24, 1933, which refers to reorganization of the legislative branch of the Government (Congressional Record, 72d Cong., 2d sess., vol. 76, pp. 2446—2448). Paragraph 6 is on p. 2447 and is quoted below:
“In the act of June 30, 1932, making an appropriation for the legislative branch of the Government for the fiscal year ending June 30, 1933, and for other purposes, and with a view to economy in the operation of the Government, the Congress gave authority to the President, by Executive order, to consolidate, redistribute, and transfer various Government agencies and functions; and established a general formula for his guidance. By section 407 it was provided that the Executive order should be transmitted to the Congress in session and should not become effective until after the expiration of 60 days from such transmission and that “if either branch of Congress within such 60 calendar days shall pass a resolution disapproving of such Executive order or any part thereof, such Executive order shall become null and void to the extent of such disapproval.’ It must be assumed that the functions of the President under this act were executive in their nature or they could not have been constitutionally conferred upon him, and so there was set up a method by which one House of Congress might disapprove Executive action. No one would question the power of Congress to provide for delay in the execution of such an administrative order, or its power to withdraw the authority to make the order, provided the withdrawal takes the form of legislation. The attempt to give to either House of Congress by action which is not legislation, power to disapprove administrative acts, raises a grave question as to the validity of the entire provision in the act of June 30, 1932, for Executive reorganization of governmental functions.”
I may say also in this regard, with respect to legal and constitutional views, with modesty, if you will parden me, that in my argument on the Reorganization Act of 1945, on the floor of the House, on October 2, October 3, October 4, when we had the Reorganization Act of 1945 under consideration, that I included a brief in that argument by permission of the House, as to the constitutionality and the legality of this legislation. y recollection is that that brief was inserted first in the Congressional Record by the late Justice, the former Senator and the former Secretary of State Byrnes, who was Chairman of the Reorganization Committee when the act of 1939 was passed by Congress. I believe now that while we cannot delegate to the President the right to make laws, we can delegate to the President, under standards and yardsticks the matter of reorganizing the executive department under decisions of the Supreme Court. Chairman DAwson. Then, in the light of your legal knowledge, you believe that this bill as presented here is constitutional in its scope, that the Congress does not go beyond its power to delegate. Mr. WHITTINGTON. I so stated in general. I favor the program and the plan of reorganization contemplated by this bill, emphasizing over and over again, without undertaking to repeat, that while in this bill now—let us be realistic—I know this bill contains some exemptions as introduced by the chairman, and I am in accord with that. For instance, as I remember, in section 7, in the definition of agencies, this term does not include the Comptroller General of the United States or the General Accounting Office, and we have always regarded them as an agency of the Government and I am in accord with the views.
Mr. McCoRMACK. On the ground that it is an arm of Congress. Mr. WHITTINGTON. Thank you, Mr. McCormack. I am in accord with the statement made as reported by the President. I have heard him before, as well as the Comptroller General, Lindsay Warren. But the difference between Mr. Warren and me is that when he made his statement that there was to be a—and I say that without any sort of criticism—ought not to be any exemption, that you yourselves have included the judges of the District of Columbia in this bill and you have included the GAO. Now, then, I make the statement that if there ought to be any exceptions or exemptions, either the ICC or any other agency of the Government, I know of no agency that is more entitled, and I know of no agency where it would be more sound to exempt, than the Corps of Engineers. Chairman DAwson. I think evereyone who has listened to you, Mr. Whittington, agrees with you. I have been very much interested in the force, the way you have always made the statement in your defense of the engineers, Corps of Engineers. If there are to be any exemptions, then there is no organization more entitled to exemption than the corps. I think we agree with you on that, but I was impressed with your statement “if there are to be.” I was impressed that you thought there should be no exemptions other than those set up in the bill itself; there should be no further exemptions. I want to ask you one further question, and correct me if I am wrong. I am asking these questions seeking to bring it out into the light, in view of the hysteria that seems to obtain in the minds of certain individuals and peoples as shown by the great number of telegrams we have received Fo the corps, and justly so, showing anxiety about the Marine Corps which, like the Army engineers, has a sentiment built up throughout the Nation, that immediately you would try to attack them in a fundamental matter the very citadel would rise up. Now, in view of the fact that whatever reorganization plan the President might promulgate, in the final analysis, the Congress itself has the power to either disapprove of it or to approve of it; and if either the Corps of Engineers or the Marine Corps or the Interstate Commerce Commission unduly were reorganized, said to be reorganized in the Executive order, in your opinion, don’t you think that immediately the friends of those agencies, both within the Government and without the Government, would become alert and then would do the very thing that they are doing now, that they would contact the Members of the Congress with a view to stopping the actual law itself that would affect them? Mr. WHITTINGTON. I merely repeat that whether we have exemptions or not, I believe that the people of the country will insist, either on the floor of the Congress or in the Executive Office, that the Corps of Engineers be not stripped of their functions; and I would be less than frank if I had not stated in the beginning what I have always stated with respect to reorganization, and while I want to be fair with all of the agencies, and while I am familiar with the work of the Corps of Engineers, and when I think that President Roosevelt with power to reorganize instead of undertaking, as had President Hoover, to strip the Corps of Engineers of their functions and transfer them from the War Department, President Roosevelt reaffirmed and assured me in my conviction that the Corps of Engineers ought to be retained because, when there had been one failure after another in our program during the great depression, in one district and in one city, New York among others, he called not only the Corps of Engineers to do the work but absolutely placed them in the administration of the temporary WPA work. So that I would say, Mr. Chairman, in all fairness, that the bill that you have introduced contains at least one exemption, and I am not criticizing it. And I have said, furthermore, that other exemptions—and I have named them—have been suggested by responsible administration leaders, my devoted friends, whom I follow, and I say if either your exemption or the others ought to be included in this bill, that by precedent and reason there is better reason for exempting the Corps of Engineers. Mr. HoLIFIELD. Mr. Whittington, we all respect very o your standing in Congress and your testimony this morning. We know that your background gives you the position of being able to testify with great worth to our committee. . Returning for a moment to section 7, I want to ask you if you agree that there are really two exceptions there. One excepts the courts of the District of Columbia. You would not say that the courts would come under the executive branch, would you? Mr. WHITTINGTON. I think they ought to be separate in the District of Columbia. I think the judicial and executive functions should remain separate and apart as coordinate branches of the Government. Mr. HoLIFIELD. Yes. The question I really wanted to ask you was: Do you think that the courts could be changed in the District of Columbia by Executive order? Mr. WHITTINGTON. I am not sure that they could. Mr. HoliFIELD. I think they are in the judicial branch of the Government rather than in the executive branch. Mr. WHITTINGTON. And are probably not subject to change by Presidential order. I have confidence in the Comptroller General, my devoted friend for 24 years; and that Office is exempt under the terms of this bill as the agency of the Congress. Now, I am suggesting that there be made an exemption of the Corps of Engineers because in all applications and in all legislation involving the construction of rivers and harbors works they are the impartial agency not only of the Congress but of the country and of the Treasury. When your constituents and mine are asking us to pass projects, we are entitled to the impartial report of an impartial agency, the Corps of Engineers, just as I believe the Congress is entitled to i. impartial accounts of the GAO. Mr. Holi FIELD. I certainly agree with you as to the worth of the Army Corps of Engineers, * the point I am trying to bring out, is that the two exceptions that are made there, one is the courts, which I consider properly in the judicial branch. The other is the GAO which is properly in the legislative branch, and the reaffirmation of that point is merely for clarification because we have always considered it subject to Congress and not subject to Executive order. So the exceptions noted in section 7 should properly be excepted because