VIEWS OF THE ADMINISTRATION WITH RESPECT TO CHANGES IN THE METHOD OF PRESIDENTIAL APPOINTEES The Bureau of the Budget Shortly after the Hoover Commission 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 to the committee an analysis of all of the Commission's recommendations, indicating by which of the following methods they could be carried out: (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 he set forth the information requested. In connection with substantive legislation, it was stated that "Only those items are classified under 'substantive legislation' which cannot be accomplished without statutory changes." In the opinion of the Bureau, the Hoover Commission's recommendations that "the confirmation of postmasters by the Senate should be abolished," and that "all officials below the rank of Assistant Secretary (in the Treasury Department) should preferably be appointed from the career service without Senate confirmation," could be accomplished 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, pp. 25 and 29). Since the Hoover Commission made no recommendation with respect to the Department of Justice, as such, the Bureau of the Budget made no comment relative to that agency. However, since the changes in the method of appointment of marshals involve the same considerations as those relative to changes in the method of appointing postmasters, the views of the Bureau would appear to apply equally to both. Views of the President, the Postmaster General, and Hon. Herbert Hoover, Former President of the United States In connection with earlier reorganizations in the Post Office Department, and legislation designed to implement certain of the Hoover Commission's recommendations relative to the Post Office, the President, the Postmaster General, and Mr. Herbert Hoover all indicated that the transfer of the appointment of postmasters from the President, subject to Senate confirmation, to the Postmaster General under civil service, would require substantive legislation. These views are set forth in detail in Staff Memorandum No. 82-2-29, dated May 12, 1952, Reorganization Plan No. 2 of 1952, pages 3-8. Only extracts will be presented here. The President's message transmitting Reorganization Plan No. 3 of 1949 In the President's message, transmitting Reorganization Plan No. 3 of 1949, relative to reorganizations in the Post Office Department, he stated: "This plan carriers 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 * * *" (H. Doc. No. 224, 81st Cong., 1st sess., p. 1; 95 Congressional Record 7968, 7969). [Emphasis supplied.] In a subsequent message, relative to the need for reorganizations in the Post Office, the President discussed the importance of giving to the Postmaster General full authority to appoint postmasters and other postal employees, subject only to civil service, concluding his message with the statement that "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). The Postmaster General The Postmaster General, shortly thereafter, transmitted to the Congress drafts of two bills which contained the implementing legislation referred to by the President in his messages. The bill, which provided for the appointment of postmasters under civil service, was introduced as S. 2213. In testifying before a subcommittee of the Senate Committee on Post Office and Civil Service, Mr. Donaldson stated unequivocally that, in his opinion, a change in the method of appointment of postmasters was not a reorganization matter, and its purposes could only be accomplished by legislation. (An extract of his testimony is contained in Staff Memorandum No. 82-2-29, dated May 12, 1952, Reorganization Plan No. 2 of 1952, p. 5.) Subsequently, in a letter to the chairman of this committee, the Postmaster General wrote: "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 before a subcommittee of the Senate Committee on Post Office and Civil Service, 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 * * * 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 before the Committee on Post Office and Civil Service, U. S. 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. 120). [Emphasis supplied.] 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: "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 President's authority under this act. Either most of the seven plans must be regarded as simply preliminary steps, or must be absorbed, now or later, in full legislation if we are to effect the efficiencies and economies sought by the Commission" (hearings before the Committee on Expenditures in the Executive Departments, U. S. Senate, 81st Cong., 1st sess., on message of the President on initial program of reorganization of the executive branch of the Government, and Reorganization Plans Nos. 1, 2, 3, 4, 5, 6, and 7, of 1949, June 30, 1949, p. 19). [Emphasis supplied.] Addressing himself to Reorganization Plan No. 3 of 1949 (reorganizations in the Post Office Department), Mr. Hoover stated: "The President's Plan No. 3 relates to the Post Office. Again it is a preliminary step, going as far as the President's authority under the Reorganization Act of 1949 permits * * * (hearings, etc., op. cit., p. 21). Senator Long subsequently raised the question of whether a reorganization plan has the effect of law and whether it would supersede existing legislation. Mr. Hoover replied that he assumed that legislation on the whole of one of these questions might supersede one of these plans. He further stated that: "I have been advised by all of our legal friends, that it would be utterly impossible, for instance, to reorganize the Post Office or the armed services or to provide a new accounting or budgeting system and a new personnel system in the Government without special legislation by the Congress. The President's authority, I am advised, does not extend that far" (hearings, etc., op. cit., p. 26). The views set forth above appear to indicate clearly that the transfer of the appointment of postmasters from the President to the Postmaster General under civil service requires the enactment of substantive legislation. It follows that if a change in the method of appointment of postmasters cannot be accomplished by a reorganization plan, a change in the method of appointment of marshals would not be a proper subject for a reorganization plan, since the same considerations are involved. Whether or not these considerations should apply, as well, to the appointment of customs officials also appears to merit the consideration of the committee. 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. Approved : 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 * * *." 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, he stated: 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 |