For a precise illustration of an attempt to utilize public opinion as a sanction, we need only look to the Labor-Management Relations Act of 1947, which, in specifying the procedures to be followed in settling national emergency strikes, obviously contemplated the marshalling of public opinion, at a strategic point, through publication of the second report of the President’s board of inquiry, describing the current position of the parties and the efforts made for settlement.[439] The report is releasable after expiration of a sixty-day suspension of the strike, as ordered by a Federal district court on petition of the Attorney General.[440]
In the Armed Services Procurement Act of 1947, Congress announced its intention that a fair proportion of the total purchases and contracts for supplies and services for the government should be placed with small business concerns, and provided with certain exceptions for suitable advance publicity to achieve this end.[441]
In setting up the Small Business Administration in July 1953, Congress directed it to provide technical and managerial aids to small-business concerns, by advising and counselling on matters in connection with government procurement and on policies, principles, and practices of good management. Part of this responsibility would be met by maintaining a clearing house for information concerning the managing, financing, and operation of small business enterprises, by disseminating such information, and by such other activities as were deemed appropriate.[442] Designed to achieve a similar result is the provision of the Federal Defense Act of 1950 enumerating among the functions of the Federal Civil Defense Agency that of publicly disseminating appropriate civil defense information.[443]
To protect private enterprise the Defense Housing and Community Facilities and Services Act of 1951 requires that private enterprise be afforded full opportunity to provide the defense housing needed wherever possible and that, among other things, the number of permanent dwelling units needed shall be publicly announced and printed in the Federal Register.[444] The Domestic Minerals Program Extension Act of 1953 provides that the responsible agencies controlling such strategic or critical minerals and metals purchase programs publish the amounts of each of the ores and concentrates purchased at the end of each calendar quarter under the program.[445]
Publicity Designed to Enable Public Opinion to Influence and Restrict Administrative Action: Characteristic provisions in this category range from the requirement of publicity prior to taking action, sometimes with the explicit provision for outside approval or disapproval of proposed agency action, to the simple publication of action taken by the agency, and sometimes to an explanation thereof. The Bank Conservation Act of 1933 stated that before returning to private management a bank for which he had appointed a “conservator” (receiver), the Comptroller of the Currency publicize his intentions and obtain permission of the depositors and stockholders.[446]
A steadily increasing number of statutory provisions require an agency to report in advance to Congress, the substance of contemplated agency action, which action cannot be implemented unless approved by the Congress.[447] One example will suffice as an illustration. The Alien Registration Act of 1940 entrusted the Attorney General with a limited power to suspend deportation of certain aliens upon his finding that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of the deportable alien.[448] Whenever deportation is suspended for more than six months, however, the Attorney General must furnish Congress the name of the person involved and all of the facts and pertinent provisions of law in the case. The information sent to the Congress is printed as a public document. If during the time Congress is in session the two houses pass a concurrent resolution stating in substance that the Congress does not favor the suspension of such deportation, the Attorney General is obligated to deport the alien in the manner provided by law.[449]
The Reciprocal Tariff Act of 1934 provides that prior to conclusion of a foreign trade agreement reducing tariffs, reasonable public notice of the intention to negotiate an agreement should be given in order that any interested person might have an opportunity to communicate his views to the President.[450] A similar provision in the Emergency Price Control Act of 1942 required, so far as practicable, consultation by the President with members of affected industries prior to establishment of maximum prices, and publication of such regulations or orders accompanied by a statement of the considerations involved in the issuance thereof.[451]
The remaining statutes simply provide for publication of agency action, although in a context which indicates that publication could be viewed as a check upon the agency’s discretion. The Coordinator of Transportation, an office created by the Emergency Railroad Transportation Act of 1933, was required to make public in such reasonable manner as he might determine orders which he issued under the Act.[452] The orders were to become effective not less than twenty days from the date of publication[453] and in the interim interested parties might file petitions asking that the order be reviewed and suspended pending review.[454] The Chairman of the War Production Board, acting with the Attorney General, was given the power with regard to the antitrust laws and the Federal Trade Commission Act to temporarily suspend action against violators. The Attorney General was required to order published in the Federal Register every instance of the exercise of this power.[455] The Japanese Evacuation Claims Act of July 1948 provided that written records of hearings, open to public inspection, be maintained.[456] In formulating new criteria for identification of a critical defense housing area Congress, in the Housing and Rent Act of 1953, required publication in the Federal Register of notices that before applying the new criteria, a determination had been made to the effect that a specified area constituted a critical defense housing area.[457]
Suppression of Information by Government
Statutory provisions falling within this category may be subdivided into four groupings: (a) exceptions to statutory reporting requirement; (b) suspension of the requirement that contracts be let only after public bidding; (c) suppression of information concerning patent applications of military significance; (d) maintenance of secrecy of testimony under certain conditions at the request of the person testifying.