Mr. RICHARDSON. To give you a really intelligent answer I would need to know more than I do about what specific authorities under these 470 sections are exercised and ought to be exercised on a continuing day-to-day basis. I would certainly agree that the burden should be put on the executive branch to identify these and, as you pointed out, to come forward and ask for their extension or their incorporation into the basic laws under which Government agencies normally operate.

But I would certainly want to know first whether some of these should be continued uninterruptedly before I could be confident that the right thing to do was to declare them all inoperative as of a date certain when the emergencies were terminated. Also, it would seem to me it ought to be possible-given the work that has already been done to impose some sort of understood date in agreement with the executive branch by which it would submit to you the specific statutory provisions that it believes are needed. You could then agree or not depending on what the powers are.

Senator CHURCH. This is what we hope to do.

Mr. RICHARDSON. In that event, of course, you could do both. You could enact the extension of those, at the same time that you enacted the law, which is now being drafted to be introduced by yourself and Senator Mathias, providing for the termination of the emergencies on the 91st day after enactment.

WHAT EMERGENCY POWERS ARE NEEDED?

At any rate, having identified those provisions of the law which ought to be part of the normal array of governmental authorities, the next question is: What are the specific powers that should be capable of being invoked upon the declaration of an emergency?

Now, the issue here is one of power, and the concern that the committee is addressing involves the abuses of power which may occur, in the absence of any awareness on the part of Congress or of the public, through the exercise of some emergency authority that has survived the original emergency that called it forth.

So it seems to me, then, there needs to be some subclassification which addresses the types of situations justifying a specific kind of authority or power.

1

I found illuminating and useful the testimony before this committee on April 11 of this year by Cornelius P. Cotter of the University of Wisconsin at Milwaukee. He summarizes the types of situations that have resulted in statutory declarations of emergency or the creation by statute of emergency powers. He divides them into economic including depression, inflation, strikes, housing, agricultural, commodity-to that, today, we would certainly add energy-natural catastrophe, including drought, agricultural pests, famine; and, national security, including neutrality, defense, civil defense, and war. On the face of it, the responses of these differing varieties of situations would call for differing kinds of authorities.

He then enumerates the types of authorities that have been created by Congress in order to deal with various kinds of emergencies. He has grouped these into four categories, power over persons, power to

1 See Part 1, hearing of April 11, 1973, pp. 19-33, 275–344.

acquire property, power to regulate property, and control of communications.

I go into this simply to say that it would seem to me important to go a step further than the draft bill now before you goes and consider the question of definition of an emergency and the correlation with each different type of emergency of the powers that are appropriate to deal with it. This would lead me then to suggest the possibility that the committee may wish to consider the drafting of a code of emergency powers that seeks to match the prescription to the diagnosis or the remedy to the requirements. This, it would seem to me, is also a matter in which the executive branch ought to be willing to cooperate. Now, if you had that kind of code subdivided both with respect to types of situations calling for or justifying the exercise of an emergency power, and specifying those particular powers that were exercisable in a given situation, you would then have created a stronger statutory base for the type of provision in the last part of the bill headed "accountability and reporting requirements of the President." This I understand to be the part of the bill which was adapted from Dean Griswold's initial proposal for the creation of the Federal Register. All I am saying, by way of an addendum to that, is that if you had a more complete statutory classification by type of emergency and type of power, you could then also maintain a clearer kind of inventory and constitutional oversight over the exercise of those powers under the accountability and reporting provisions that you have proposed.

PROVIDE AUTOMATIC TERMINATION OF EMERGENCY ACTS

Finally, I would like to add that it seems to me that in principle the idea of providing for an automatic termination of a state of emergency, subject to extension or earlier termination by Congress, is valid and sensible.

In this connection, however, it may be desirable to make differentiations, if you were to follow the course I have suggested of defining more specifically the types of emergencies and powers to be invoked. In other words, you might have a different provision for the duration of emergency powers in the event of a declared war, for example, than you would have powers to deal with a natural catastrophe. The question of constitutional authority and oversight ought to be re-examined after there has been further opportunity to consider whether to codify situations and authorities along the lines I have suggested.

This Messrs. Chairmen and members of the Special Committee, is all that I had thought of as appropriate to say by way of opening remarks. Of course, I will be glad to respond to and participate in any discussion of other things-including some of those mentioned in your opening statement, that I have not touched on.

Senator CHURCH. You have given us a very fine extempore statement, as well as suggestions that we might consider red alert and amber alert and codification of emergencies which is a new suggestion to the Special Committee, one to which we want to give serious attention. We appreciate your comments.

Dean Griswold, do you have an opening statement that you would like to give at this time before we move to questions?

STATEMENT OF ERWIN N. GRISWOLD, FORMER SOLICITOR GENERAL OF THE UNITED STATES

1

Mr. GRISWOLD. Yes, Senator Church. I prepared a statement 1 which is to some extent anticipated by the statement on behalf of the Special Committee which the co-chairmen read at the beginning of the hearing, and I will summarize it.

I would like to say at the beginning though, since I understand that the Special Committee wants me to focus particularly on the question of publication of Executive action that it is hard to recall now the chaos which existed in this area before the Federal Register Act was passed in 1935. Prior to that date there was no systematic publication of the rules and regulations of Government departments.

I recall that when I was a young lawyer in the Justice Department in the early 1930's I was writing a brief involving a criminal prosecution for violation of a regulation of the Food and Drug Administration-then in the Department of Agriculture. I thought it would be a good idea to find out the exact text of the regulation. Apparently nobody had done that before in the handling of the case. But it could not be located in the library of the Department of Justice, so I went to the office of the Solicitor of Agriculture. There was no one there who had the text available but I was referred to the office of the Assistant Secretary who had oversight of the Food and Drug Administration. There I was taken to a file cabinet where there was a single typed copy of the relevant regulations. On this typed copy, there were handwritten amendments but there was nothing to indicate who had made the amendments, or when they had been made. Thus, it was impossible to tell with any certainty what was the text of the regulation which was in effect at the time of the actions involved in my case. Also, there was really no way that the citizen outside of Washington could know what was required of him under a statute imposing criminal penalties. It was as a result of this, and other similar experiences, that I worked on the idea of establishing a systematic means of publishing Federal administrative actions.

Early in the administration of President Franklin Roosevelt, I aroused the interest of Assistant Attorney General John Dickinson of the Department of Justice. He presented the plan to President Roosevelt, and received a firm veto. President Roosevelt said that under no circumstances would he have the United States involved in publishing a newspaper. This set us back considerably, and it was only when the "hot oil" regulation became involved before the Supreme Court that the idea got back on the track again. Shortly thereafter, with the great help of Congressman Emanuel Celler, the Federal Register Act was adopted by Congress.

I think here I would like to interpolate one observation. In the statement as read by Senator Church this morning it says that the purpose of the Federal Register Act was to give the Congress and the public the means to determine whether an order given by the executive branch was legal-I would respectfully disagree with that. I don't think that was in the mind of anyone at the time when the Federal Register Act was proposed, or when it was enacted by the Congress.

1 See p. 748.

I think the purpose of the Federal Register Act was to make available to the citizen knowledge of what the regulations are so that he will know what he is supposed to comply with. If he wants to raise a question of legality, that was to be presented in proceedings before the courts. Courts frequently held regulations to be invalid for one reason or another, but I don't think that the purpose was to determine whether it was legal. The purpose was to determine what it was. Senator CHURCH. Doesn't it follow if the citizen doesn't know what the Government is doing he has no basis upon which to challenge the legality of the act?

Mr. GRISWOLD. Yes, Senator, I think that follows. On the other hand, it has a good deal to do with the scope of what was intended to be published. The basic objective was to give notice to people who were affected.

FEDERAL REGISTER ACT Now HAS BROADER SCOPE

The broader idea is entirely relevant now but it does involve, I think, an extension of the scope and purpose of the Federal Register Act, with which I am in entire sympathy.

As was indicated in the opening statement, with respect to Presidential action, the Federal Register Act requires the publication of Presidential proclamations and Executive orders, and that is the only inclusive provision. However, there is an exception, "except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents or employees thereof."

Now, it should be observed that the Federal Register Act provides no sanction for the failure to file a document with the Office of the Federal Register. The one exception, which is consistent with my previous observation, is in Section 1507 of the present Title 44 of the U.S. Code: "A document required by Section 1505 (a) of this title to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies have been filed with the Office of the Federal Register." Here again it evidences the intention is to protect the citizen from being bound by something which he did not know. Indeed the title of my article on this, which I stumbled on in our library came from an old phrase, "Government in Ignorance of the Law" again evidences that the purpose was to bring it out and make it known. As Senator Church has observed, it follows from that, if it is known you can question its legality. However, the basic objective was to make it known so people could understand what they were supposed to do. I suppose that, being a lawyer, it was very much in my mind that it would make available to law libraries a publication which people-who knew the ways of the legal materials could find the precise text what their clients were supposed to deal. I don't think there was any particular thought that every citizen on Main Street would have Section 314 right in his hands; but there would be a way by which the profession-not only in Washington, but also in Paduca or Peoria-could, without too much difficulty, find out the terms of what it was their clients were supposed to comply.

Senator CASE. Dean Griswold, in the Act is there anything which involves a certification of the authority of the person who issues the order? The custodian of the Register, whatever his title is, does not have the authority to validate that question. That is to say, suppose a commission or something like that issues an order and sends it over, does he put it in the Register whether or not he has any knowledge of the authority of that person to issue such an order? Mr. GRISWOLD. No, I don't understand that the director of the Office of the Federal Register has any supervisory or censoring powers to determine whether the order is valid or not. If it is sent to him by a proper Federal officer and appears to be one of the items covered by Section 1505, then it is his duty to publish it.

PUBLICATION DOES NOT MEAN AUTHORIZATION

Senator CASE. Then it is right that his publishing of it adds nothing to the authority or the validity of the material?

Mr. GRISWOLD. His publishing it has nothing to do with the authority, except it makes it binding against a person even though he does not know about it.

Senator CASE. If it is a valid order.

Mr. GRISWOLD. It provides notice, as we say, even though the man does not have knowledge. Citizens are bound by the law whether they know it or not-except that there should be some way that they can find out about it. It is published in order to give notice.

Senator CASE. Is there anything comparable in statutory law to this system?

Mr. GRISWOLD. No. A statute passed by Congress is published pursuant to an act of Congress. But it is my understanding that, if somehow or other there is a slipup and it isn't published, it is still a statute and it is still binding. And in history there have been a few such cases where, for one reason or another, an act which it was later determined was duly passed by both Houses and signed by the President, due to a slipup, did not get into the Statutes at Large. I understand that, with respect to statutes, the combination of the actions by Congress and the signature of the President, or the passage over the veto makes it a law and binding whether it is published or not.

Senator CASE. Suppose there is an error in the publication of something in the Federal Register, is a person bound by what is there?

Mr. GRISWOLD. As far as I know that question has never come up. It has been decided that if there is an error in the printing of the Statutes at Large, the enrolled bill controls regardless of what is printed. As far as I know, no question has arisen where a regulation is adopted in one form but printed by the Federal Register in another. That would be a nice question for one of my successors as Solicitor General to consider at that time.

Senator CASE. Thank you. I am sorry to go into that. I wanted to have you demonstrate the difference between statutes and regulations.

CHAOS OF CONTROL REGULATIONS

Senator MATHIAS. While we have interrupted you, there is a point here that is so close to what you are saying it is worth bringing up