Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Accounting to Committees

In the course of signing H. R. 6042, a defense appropriations bill, on July 15, 1955, President Eisenhower rebuked Congress for including therein Section 638 requiring the Secretary of Defense to secure prior consent of the House and Senate Appropriations Committees before separating from his Department functions which he thinks could better be performed by private industry. The President alleged that the Congress has no right to confer upon its committees the power to veto Executive action or to prevent Executive action from becoming effective. Invoking the constitutional principle of the separation of powers, he declared his intention to ignore this provision.[560]

While the bill which President Eisenhower reluctantly signed represented an effort to delegate a share in the executive function to committees of the Congress, such legislative action is not wholly without precedent. A survey of legislation in the fields of foreign affairs and economic or military emergency since 1933 indicates not infrequent attempts by Congress to secure for its committees some measure of continuing influence over the exercise of powers delegated to the executive. This may take the form of requiring periodic or special reports to policy committees instead of the full houses, it may take the form of compulsory consultation with committees—and whatever this entails by way of consequent committee influence on administrative action, or the committee may be secured a suspensive, enabling, or veto power over administrative action. It would be rash to construct, on the basis of our study, a judgment of the potential good or evil attending the increasing effort of Congress to share the detailed burdens of administration. The trend, it seems clear, exists, however.

Reporting to Committees: The requirement that administrative units report to superiors, to Congress, or to units of the latter, may be designed to achieve many purposes. The requirement may be devoid of any overtone of control—e.g., its aim may be limited solely to providing of technical information or advice as an aid to policy formulation, or it may be utilized to promote maximum scrutiny and control of executive action. For when one must report in detail and frequently on the discharge of delegated functions, it is necessary either to attempt to mislead the Congress—a dangerous pastime—or to toe the line and act as a meticulous surrogate of the legislature, in anticipation of an imminent accounting with it.

Thus it would be difficult to distinguish the informative and control purposes of the provision of the Supplemental National Defense Appropriations Act of 1948 requiring that the Secretary of Defense report quarterly “to the Committees on Appropriations and Armed Services of the Congress ... the amounts obligated” for “the construction of aircraft and equipment.”

The Secretary’s reports were to include a statement of finding by the President that the contracts let were necessary in the interest of the national defense and that the contract specifications insured the maximum utilization of improvements in aircraft and equipment consistent with the defense needs of the United States.[561] The Mutual Defense Assistance Act of 1949 permitted the President, upon his own determination of the need therefore, to transfer funds from one project to another provided for in the Act. The amounts transferred could not exceed five percent of the total funds appropriated.[562] Whenever he made such a determination, however, he was required forthwith to notify the Committee on Foreign Relations of the Senate, the Committees on Armed Services of the Senate and of the House of Representatives, and the Committee on Foreign Affairs own determination of the need therefore, to transfer funds from one to report to the Congress biannually on the administration [of the Act.][563] The Mutual Security Act of 1951 contained a similar provision.[564]

Similar to the above is the 1950 requirement that the Secretary of the Navy annually file with the Committees on Armed Services in the Congress information as to the proceeds of all sales of condemned naval material and the expenses connected with such sales.[565] The 1950 statute permitting the summary suspension of civilian officers and employees of specified departments and agencies (State, Commerce, Justice, Defense, Treasury, Atomic Energy Commission, National Security Resources Board, National Advisory Committee for Aeronautics) gave the President authority to extend the list of agencies to which the Act applied. Any additions to the list, however, had to be based upon the best interests of national security and communicated to the Committees on the Armed Services of the Congress.[566]

In the Mutual Defense Assistance Act of 1951, which established an embargo on the shipment of arms, ammunition, and implements of war to any nation or combination of nations threatening the security of the United States, Congress gave the Administration the power to determine what items constituted arms, ammunition, and implements of war and items should be embargoed.[567] Aid to any nation knowingly permitting shipment of such materials or equipment to the U.S.S.R. and its satellites was to be suspended, unless the President found that unusual circumstances indicated that the cessation of aid would clearly be detrimental to the security of the United States. Upon making such a decision, the President was to report his decision and the reasons for it to the Appropriations and Armed Services Committees of the Senate and House of Representatives, the Committee on Foreign Relations of the Senate, and the Committee on Foreign Affairs of the House of Representatives. Moreover, the President was required to review, at least once each quarter, all determinations made previously and report his conclusions to the foregoing committees.[568]

A postwar statute of limited dimensions was enacted in August 1953, enabling the President to lend to Italy, France, and any friendly foreign nation in the Far Eastern area, on terms satisfactory to him, naval vessels of stated categories.[569] This legislation charged the Secretary of Defense with the duty to keep the respective Committees on Armed Service of the Senate and the House of Representatives advised of all transfers or other dispositions of naval vessels.[570] The Defense Cataloguing and Standardization Act of 1952 established within the Department of Defense a Defense Supply Management Agency which was to develop a single catalogue system and related supply standardization program.[571] The Director of the Agency was required to transmit to the Committees on Armed Services of the Senate and House of Representatives on January 31 and July 31 of each year, progress reports on the cataloguing and standardization programs.[572] Similarly, in authorizing the Secretaries of the Army, Navy, and Air Force to acquire or develop industrial plants as needed for defense mobilization Congress required the Secretary of Defense to report semi-annually to the Committees on Armed Services of the Senate and of the House of Representatives with respect to those activities authorized by statute which were not otherwise the subject of reporting under law.[573]

The foregoing can perhaps best be characterized as legislative adaptations of Carl J. Friedrich’s so-called “rule of anticipated reaction.”[574] In context the rule implies that administrative officers, aware of the imminent necessity of reporting to the legislature the details of exercise of discretion under delegatory statutes, will attempt so to pattern their action as to maximize the likelihood of legislative approval.

Consultation with Committees: Legislative restraint is less obvious—though nonetheless present—in statutes which, instead of requiring detailed reporting of administrative discharge of delegated functions, provide for periodic or continuous administrative consultation with congressional committees. The Economic Co-operation Act of 1948 created a Joint Committee on Foreign Economic Co-operation, consisting of ten members from the Foreign Relations and Appropriations Committees of the Senate, and the Foreign Affairs and Appropriations Committees of the House. The Economic Cooperation Administrator was to consult with the committee from time to time as the Committee might request.[575] In 1950 the Secretary of Defense was empowered after consultation with the respective Armed Services Committees of the Congress to provide the facilities necessary or the administration and training of the Reserve components of the Armed Forces.[576] The Defense Production Act of 1950 established a Joint Committee of Defense Production to make a continuous study of the programs authorized by the Act, and to review the progress achieved in the execution and administration of such programs. It required all agencies and officials administering programs authorized by the Act, at the request of the committee, to consult with the committee, from time to time, with respect to their activities under this Act.[577] A Joint Committee on Immigration and Nationality Policy was created to make a continuous study of the administration of the Immigration and Nationality Act of 1952.[578] The Act instructed the Attorney General and the Secretary of State to submit to the Committee all regulations, instructions, and all other information as requested by the Committee relative to the administration of the Act. The Secretary of State and the Attorney General were required to consult with the Committee from time to time with respect to their activities under this Act.[579]

Committee Participation in Administrative Decision-Making: The history of recent use of the “legislative veto” might lead one to expect that, in those instance in which it seeks to retain a power of continuous oversight of administration action, Congress would be prone to locate this function in either or both houses rather than to delegate it to committees. However, the fiscal 1956 Defense Appropriations Act, earlier mentioned, is by no means the first instance in which committees have been assigned the function of participating in administrative decision-making. In fact, careful study of the functioning of Congressional Committees might reveal that compulsory consultation and joint committee-agency decision-making are more the rule than the exception.[580]

Certainly Congress, in requiring the Atomic Energy Commission to report to the Joint Committee on Atomic Energy any instances in which it imparted atomic secrets to other nations, contemplated committee control of such action. Arrangements with other nations were not to be consummated until the Joint Committee on Atomic Energy had been fully informed for a period of thirty days in which the Congress was in session.[581] If the Committee disapproved the arrangement and found the Commission unresponsive to its influence, the former would have time in which to report this fact to Congress.

When it authorized the establishment of a long-range proving ground for guided missiles in 1949, Congress stipulated that prior to the acquiring of lands under this law the Secretary of the Air Force had to come “into agreement with the Armed Services Committees of the Senate and the House of Representatives with respect to the acquisition of such lands.”[582] This clearly established a joint committee-agency decision-making arrangement. A 1951 statute required the Secretaries of the Army, Air Force, and Navy, and the Federal Civil Defense Administrator, to come into agreement with the two Armed Services Committees whenever real estate actions by or for the use of the military departments or the Federal Civil Defense Administration were involved.[583] The Emergency Powers Interim Continuation Act of July 1952, continued this provision in force.[584]

In conclusion we mention a device for securing to congressional committees a form of suspensive power over administrative action. This is the familiar provision for suspension of deportation orders where either the Immigration and Naturalization Committee of the House or of the Senate Committee on Immigration has favorably acted on a bill for the relief of the alien in question. The Act cited here was restricted in effect to the Seventy-fifth Congress, and stays of deportation under it were to be terminated at least by the date of adjournment of the first regular session of the Seventy-sixth Congress.[585]