Communication Related to Framing of a Particular Decision
The foregoing advice and consultation provisions fall short of setting the requirement in a specific action context. They seem to have the objective of maximizing the likelihood that interested official and private groups will have the opportunity to influence program content. At the same time they imply or categorically state that the action agency need not be guided by such advice. It is not patently clear in any instance that the administrator must defer action until after consultation; and, of course, in one instance he is specifically advised that he is free of such a requirement.
The statutes referred to below clearly link the prescribed advice or consultation to the taking of specified action by the administrator. In some instances he must advise with others prior to taking action, but is not required to follow the advice. In others he is enabled but not required to act upon receipt of a report or information from another agency. An occasional statute will require not only consultation, but the making of specific findings precedent to exercising powers delegated by Congress. The administrator will sometimes find himself in a position in which he may take certain action only if it is acceptable to, or meets the approval of, other groups. And, carrying us to the end of this progression, we have the statutory requirement that the administrator act in conformance with advice received.
Must Seek Advice Prior to Acting: A June, 1934 amendment to the Tariff Act of 1930 sought to assist recovery from “the present emergency in restoring the American standard of living” by authorizing the President to enter into reciprocal trade agreements for the relaxation of duties and import restrictions.[668] Prior to concluding individual agreements, however, the President had to seek information and advice with respect thereto from the United States Tariff Commission, the Departments of State, Agriculture, and Commerce and from such other sources as he deemed appropriate. The advice need not be followed, but it must be sought precedent to concluding a reciprocal trade agreement. The 1934 grant of power to the President to prohibit the sale of arms to participants in the Chaco War made the exercise of that power contingent upon prior consultation with governments of other American Republics.[669]
Similarly, in granting the President power, in March, 1941 to authorize the transfer of American military equipment to the government of any country whose defense the President considered vital to the defense of the United States, Congress specified that no defense article not manufactured for such a foreign power might be disposed of except after consultation with the Chief of Staff of the Army or the Chief of Naval Operations of the Navy, or both.[670] The War Risk Insurance Act of 1950 permitted the Secretary of Commerce “with the approval of the President, and after such consultation with interested agencies of the Government as the President may require,” to “provide insurance and reinsurance against loss or damage” of American merchant vessels “by war risks.”[671] In 1950 security provisions were added to the Civil Aeronautics Act of 1938. Among these was an authorization for the Secretary of Commerce to establish zones or areas in the airspace above the United States as he found necessary in the interests of national security. Having established such spaces, he might, “after consultation with the Department of Defense and the Civil Aeronautics Board ... prohibit or restrict flights of aircraft” within them.[672]
These statutes simply open up the channels of communication and insist that they be used prior to the taking of action. They do not explicitly require the administrator to accept proffered advice, and whatever effect they have upon his freedom of discretion is subtle and impalpable.
May Act on Receipt of Advice or Request: The 1937 statute extending the life of the Reconstruction Finance Corporation permitted the Board of Directors of the Corporation to report to the President that private credit was sufficiently available from private sources to meet legitimate demands of any class of eligible borrowers, whereupon the President might authorize the directors to suspend lending to that class.[673] Here, in effect, the Board of Directors of the RFC was given power to report (recommend) and thereby enable presidential action. The 1947 surplus property act authorized the disposal agency, upon the request of the Administrator of Civil Aeronautics, the Secretary of War, or the Secretary of the Navy to omit any of the terms, or conditions for the transfer of title to such property.[674] The agency granted a dispensing power which it was enabled to exercise upon receipt of a request from specified officials.
The first of these two statutes enabled the President to act after the RFC had made what amounted to a finding. In this, it is similar to the Nationality Act of 1940, which provided that the President might, in his discretion, exempt certain aliens in the United States from the classification of alien enemy, provided the Department of Justice investigated and established the loyalty of the alien.[675] A Department of Justice finding of loyalty enables but does not compel the President to act.
The Secretary of War was granted power in 1941 to remove any officer from the active list of the Regular Army for such causes and under such regulations as he might prescribe. He could not exercise this power in individual cases, however, until the officer had been recommended for removal by a board of not less than five general officers convened for this purpose by the Secretary of War.[676]
Action on Making an Independent Finding: At least two of the statutes covered in this survey required the President not only to consult, or to receive recommendations prior to taking action, but in addition, to make an explicit finding of fact. The India Emergency Food Aid Act of 1951 permitted the President, after consultation with appropriate Government officials and representatives of private shipping, and after finding and proclaiming that private shipping was not available on reasonable terms and conditions for transportation of supplies made available under Act, to provide for carriage in government-owned ships.[677] Four days after signing the Act, the President proclaimed that he had consulted with public officials and private shipping representatives, and had found it necessary to use government ships.[678] The 1951 amendments to the Universal Military Training and Service Act authorized the President “upon finding by him that such action is justified by the strength of the Armed Forces in the light of international conditions,” and “upon recommendation of the Secretary of Defense” to decrease or eliminate periods of compulsory military service.[679]
The remaining statutes, in varying degree, subject administrative decision-making to external controls.
Action if Acceptable to Others: Congress in 1935 imposed, for three years, limitations upon imports of Philippine yams, twines, cables, and other fibers. The limitation was subject to continuance for an additional three years by presidential proclamation, provided such extension was acceptable to the President of the Commonwealth.[680] Such an extension was made by a proclamation of January, 1938, in which the President recited that “the President of the Commonwealth of the Philippines has indicated to me ... his acceptance of an extension of the operation of that Act for an additional period of three years.”[681] Unlike the earlier statutes which require consultation prior to action, or sometimes permit action only following recommendation and findings, here the substance of the President’s action is subject to approval from a source external to the presidency.
Action Upon Receipt of Prior Approval: We have already employed, in another context, the provision of the War Risk Insurance Act of 1950, which hinged action by the Secretary of Commerce to the prior approval of the President.[682] The Defense Production Act of 1950 exempted from anti-trust prosecution business agreements made pursuant to the request of the President. The President was given a limited authority to delegate this power to subordinate officials, but only upon the condition that such officials consult with the Attorney General and with the Chairman of the Federal Trade Commission not less than ten days before making any request or finding thereunder. In addition, the request was to be subject to the prior approval of the Attorney General.[683] In August, 1950, Congress legislated on the matter of termination of government employment for security reasons. Persons whose employment was thus terminated might be employed elsewhere in the government only if the Civil Service Commission approved a request coming from the individual or the prospective employing agency.[684]
The Rubber Producing Facilities Disposal Commission was directed to “consult and advise with the Attorney General” concerning the disposal of such facilities. The 1953 statute creating the Commission required that its report to Congress, suggesting an appropriate manner of disposing of government-owned producing facilities, be submitted first to the Attorney General who would advise the Commission “whether, in his opinion, the proposed disposition would violate the anti-trust laws.” His findings approving the proposed disposals were to be appended to the report which the Commission made to Congress. Thus, in effect, the Commission was gently admonished to bring in a report bearing the Attorney General’s approval.[685]
Must Act in Conformance With Request: The next group of statutes compel the administrator to accept and to act in accordance with recommendations or requests coming from a source beyond his agency. The Foreign Agents Registration Act of 1938, as amended in 1942, permitted certain exemptions from its registration provisions. The Attorney General might, after notice to the employing government or the person concerned, and with the approval of the Secretary of State, terminate in whole or in part an exemption from registration granted to United States residents who were employees of a foreign government. When the Secretary of State initiated a request for termination of an exemption, the Attorney General had to comply with the request.[686] The Second War Powers Act of 1942 contained a provision for the waiving of navigation and inspection laws under certain conditions. The head of each department or agency responsible for the administration of the navigation and vessel inspection laws was directed to waive compliance of such laws upon the request of the Secretary of the Navy or the Secretary of War to the extent believed necessary in the conduct of the war by the officer making the request.[687]
The discretion of federal jurists has to some extent been subjected to constriction by the executive. The Secretary of the Navy was given power, in a July, 1944, statute, to certify to federal courts that pending suits arising out of damage caused by naval vessels or towage or salvage services to naval vessels would, if tried, tend to endanger the security of naval operations. Upon receiving such a certification, the federal court having jurisdiction in the case was required to stay further proceedings until six months after the cessation of hostilities or such earlier date as the Secretary of the Navy might set.[688]
Congress, in February, 1952, took emergency action temporarily suspending the import duty on lead. The Tariff Commission was to advise the President at the end of any month in which the average market price of lead delivered at New York had fallen below eighteen cents per pound, “and the President shall, by proclamation, not later than twenty days after he has been so advised by the Tariff Commission, revoke such suspension of the duties.”[689] In June, 1952, the President issued a proclamation under this Act, revoking the suspension of the duty.[690]
The converse of these arrangements whereby an administrator is compelled to take prescribed action upon the request, or upon a finding of others, is the situation in which he may be barred from taking contemplated action, in consequence of a request or finding coming from another agency. Our final illustration falls into this bracket. The President was permitted by the Export Control Act of 1949 to “prohibit or curtail the exportation from the United States ... of any articles, materials, or supplies, including technical data.” But he could not exercise this power “with respect to any agricultural commodity, including fats and oils, during any period for which the supply of such commodity is determined by the Secretary of Agriculture to be in excess of the requirements of the domestic economy.”[691]