Government Investigations, Inventories, Audits
Statutory provisions in this category are classifiable as follows: investigations, inventories, audits, etc., (a) incidental to program development or enforcement; (b) precedent to the establishment of policy in certain fields; (c) designed to aid specified agency clientele (private groups); (d) accusatory in nature; (e) military intelligence.
Investigations Incidental to Program Development or Enforcement: The Economy Act passed in the first month of the Roosevelt administration effected reductions in government pensions and salaries with a view to reducing the cost of Federal operations. Salary reductions were to vary with fluctuations in a cost of living index to be ascertained through investigation by government agencies.[519] The Agricultural Adjustment Act of 1933, in setting up an emergency program for the rehabilitation of growers of certain commodities directed the Secretary of Agriculture to make investigations and such reports to the President concerning the program as appeared necessary to its execution. In conjunction with the National Industrial Recovery Act of June 1933 was a 1934 amendment which authorized the President to establish a board or boards to investigate issues, facts, practices, or activities of employers or employees in any controversies arising under section 7 (a) of the statute which were burdening, obstructing, or threatening to burden or obstruct, the free flow of interstate commerce.[520]
The Second War Powers Act required the Secretary of Commerce, under Presidential direction, to make such special investigations and reports of census or statistical matters as might be needed in connection with conduct of the war. The Act imposed a penalty against anyone who refused to answer questions, gave false statements or deliberately neglected to answer questions asked by Departmental subordinates in the conduct of investigations.[521] It also accorded the government the right to inspect the plants and audit the books of defense contractors.[522]
Before presenting to a court a certificate requesting a stay of judicial proceedings on claims for damages caused by naval vessels during the War, the Secretary of the Navy had to conduct an investigation of the case in order to satisfy himself that the issuance of the certificate was necessary.[523] A principal purpose of the Employment Act of 1946 was the establishment of an agency to investigate and report upon the current state of the national economy.[524] The Housing and Rent Act of 1948 specified that the Housing Expediter should make surveys from time to time with a view to decontrolling housing accommodations at the earliest practicable date.[525] The Federal Civil Defense Administrator is charged by the statute creating the Federal Civil Defense Administration with responsibility to prepare national plans and programs, and to request reports on state plans directed at fulfillment of the objectives of the Act.[526]
Policy Development: A number of statutes contain provisions designed to satisfy congressional need for information as an aid in policy-making. A joint resolution of April 1934 directed the Federal Power Commission to investigate the rates charged by private and municipal corporations, prepare a compilation of the respective rate structures and submit the information requested to the Congress as quickly as possible. In making its compilation, the Commission was requested to submit any analysis it had made of the difference in rates charged between the privately owned and publicly owned utilities.[527] The Commission might require reports and testimony from private power officials and was given the right to examine and copy any documentary evidence relative to the sale of electrical energy or its service to consumers by any corporation engaged in the sale of electricity.[528] Collecting accurate and comprehensive information regarding the rates charged for electrical energy and its service to residential, rural, commercial and industrial consumers throughout the United States[529] was directed toward satisfying needs of both the agency and the Congress.
Again in 1934, Congress established a Commission to make an immediate study and survey of aviation and its relation to the United States and to report to Congress its recommendations of a broad policy covering all phases of aviation and its significance to the United States.[530] The Railroad Retirement Board was directed to make specific recommendations for such changes in the retirement system created by the Railroad Retirement Act of 1934 as would assure the adequacy and permanency of the retirement system on the basis of its experience and all information and experience then available. For this purpose the Board was directed from time to time to make investigations and actuarial studies necessary to provide the fullest information practicable for the Board’s report and recommendation.[531] In the third year of World War II a Joint Committee on Organization of Congress was established. The Joint Committee was given the responsibility of preparing a full and complete study of the organization and operation of the Congress together with recommendations for improvement in its organization and operation. Congress sought from the study and report the means for strengthening the Legislative branch of the government by simplifying its operation, improving relations between the Congress and other branches of government, and enabling it to better meet its responsibilities under the Constitution.[532] While some of the more archaic rules under which the Congress operated, indeed to some extent still does operate, were long overdue for a complete overhaul, the more immediate stimulus to action arose from a candid and searching appraisal of Congress’ inability to stem the rising tide of government by the executive. The demands of emergency government of all kinds even before the Japanese attack on Pearl Harbor, tended to reduce the role of the Congress to that of mere ratification of executive action, the latter usually taken without regard to possible Congressional objections. Reorganization of the Congress resulting from the Joint Committee study and report was in response to a growing awareness of the need to improve the functioning of Congress as an organ for control of a wartime executive.
An important recent statute within this category is the Civil Rights Act of 1957.[533] This Act created a Commission on Civil Rights, empowered only to investigate, to study, to appraise and make findings and recommendations. It was not to be a Commission for the enforcement of civil rights. Specifically, the Civil Rights Act of 1957 directed the Commission to:
“(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin, which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;
“(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and
“(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution.”[534]
The Commission was instructed to submit to the President and Congress a comprehensive report of its activities, findings, and recommendations not later than two years from the enactment of the Act. The Commission’s report was submitted to the Congress on September 9, 1959,[535] just in time to win the Commission a two year lease on life.
Many of the statutes in this category are directed at securing information on which to base natural resources or scarce materials policy. In 1947 the President was requested to prepare, through the appropriate departments of the Government, a comprehensive plan for the development of the resources of Alaska, and the expansion and development of the facilities of commerce between the United States and Alaska and within the Territory. The President was requested to have the report ready for the consideration of the second session of the Seventy-fifth Congress thirty-five days after Congress reconvened.[536]
A strategic materials stockpiling statute of 1939 directed the Secretary of the Interior through the Director of the Bureau of Mines and the Director of the Geological Survey to make scientific, technological, and economic investigations concerning the extent and mode of occurrence, the development, mining, of ores and other mineral substances found in the United States which were considered essential to the common defense or the industrial needs of the United States.[537] Preparatory to enacting definitive post-war legislation establishing United States policy with regard to the domestic rubber-producing industry, Congress in 1947 provided for the conduct of a thorough study of the field.[538] Under the Rubber Producing Facilities Disposal Act of 1953 the Rubber Producing Facilities Disposal Commission was created and granted access to all available information concerning the Government-owned rubber-producing facilities in the possession of any department, agency, officer, Government corporation, or instrumentality of the United States concerned with Government-owned rubber-producing facilities.[539] Included in the data it was required to furnish the Congress was an inventory report concerning the Government’s current stocks of synthetic rubber and its component materials.[540]
Endeavoring to expand production of abaca within the Western Hemisphere, Congress in 1950 authorized such surveys and research as were necessary or desirable to obtain the best available land in the Western Hemisphere for abaca production.[541]
Information-Gathering For the Aid of Agency Clientele: In 1938 Congress set up the Mediterranean Fruit Fly Board to conduct a complete investigation and survey of all losses sustained by growers and farmers in the State of Florida resulting from the campaign to eradicate the Mediterranean fruit fly within the State.[542] It carefully stipulated that the Board’s report did not bind Congress legally or morally to grant relief to the affected farmers.[543]
Like the farmer, the small businessman receives his full share of congressional consideration. For the sake of the nation and the small businessman, the Small Business Concerns Mobilization Act of June 1942 sought to integrate him into the war effort.[544] It created the Smaller War Plants Corporation and included among its functions that of making studies with respect to the means by which small business concerns may be supplied with essential raw materials and receive fair and reasonable treatment from all Government departments without interfering with the efficiency of the war-production program.[545] In liquidating the Reconstruction Finance Corporation in July 1953, Congress substituted for it the Small Business Administration, which, among other things, was to obtain information as to methods and practices which Government prime contractors utilize in letting subcontracts and to take action to encourage the letting of subcontracts by prime contractors to small-business concerns.[546] It was also to make a complete inventory of all productive facilities of small-business concerns which could be used for war or defense production, or to arrange for the inventory to be made by any other governmental agency which has the facilities.[547] Further, it could obtain from suppliers of materials information pertaining to the method of filling orders and the bases for allocating their supply, whenever it appeared that any small business is unable to obtain materials from its normal sources for war or defense production. And it was directed to make studies and recommendations to the appropriate federal agencies to insure a fair and equitable share of materials, supplies, and equipment to small-business concerns in order to effectuate war or defense programs.[548] On the other hand, as a condition to securing loans from the Administration, small business concerns must certify to it the names of any attorneys, agents, or other persons engaged by or on behalf of such business enterprise for the purpose of expediting applications made to the Administration for assistance of any sort, and the fees paid or to be paid to any such persons.[549]
Accusatory Action: The two items of legislation involved here—one a joint resolution, the other a concurrent resolution—extended the statute of limitations as it affected “the possible prosecution of any person or persons, military or civilian, connected with the Pearl Harbor catastrophe of December 7, 1941”[550] and created a joint congressional committee to make a full and complete investigation of the facts relating to the events and circumstances leading up to or following the attack made by Japanese armed forces upon Pearl Harbor on December 7, 1941.[551]
Intelligence: The obvious example here is the statute setting up the Central Intelligence Agency in 1947. Its Director was intrusted with responsibility for protecting intelligence sources and methods from unauthorized disclosure and for operating an American intelligence network.[552]