at this moment. The situation in the Cost of Living Council, today, where large segments of American society are controlled as far as wages and prices are concerned, but have really very little knowledge of the nature of the controls, the details of the regulations, by which they are supposed to live and conduct business. There is a need, a very real need, in this important and wide area for this same kind of action.

The importance of this kind of action is also illustrated by another contemporary example, which is Judge Gesell's decision that the termination of Mr. Cox's employment was illegal because of the existence of the published regulation. This again underscores the importance of publication-to know what the status of an order is at any given moment.

Mr. GRISWOLD. Irrelevantly and to my regret, I could only dissent from Judge Gesell's decision. It is irrelevant, which seems to me one reason why it might well not have been announced.

Senator HART. Mr. Griswold, I may have missed a point. I wish to further pursue the distinction between a statute and these regulations until the statute is repealed by act of Congress it remains the obligation of each of us. These items that are filed and published in the Federal Register are revocable at will by the issuing branch or office, is this not correct?

Mr. GRISWOLD. Well, in the same sense that statutes are revocable at will by Congress if it chooses to repeal them.

Senator HART. But the process of repealing a regulation can be instantaneous so long as you get notice that it is in the Register.

Mr. GRISWOLD. Instantaneous? It can be done rather quickly in some agencies; in some other agencies it would be rather difficult. There are requirements in some statutes that hearings be held, that notice be given of such hearings and it might take quite a while before a particular regulation could be repealed.

Senator HART. That was really what I was trying to find out. Is the delay for hearing the result of a general statute or simply a departmental regulation?

Mr. GRISWOLD. No; it is ordinarily the requirement of a particular statute applicable to one agency but not generally. I know of no general statute that deals with that.

COULD JAWORSKI, ALSO, BE WASHED OUT?

Senator HART. Going to the Federal Register regulation making provision for Mr. Cox's successor, Mr. Jaworski, how soon could Jaworski be washed out?

Mr. GRISWOLD. Well, this gets me into a somewhat complicated and constitutional question which has no particular relevance to the matter we are considering here. But my personal opinion, as a lawyer, would be that he could be washed out as quickly as the President chose to do it.

Senator HART. Instantaneously?

Mr. GRISWOLD. Instantaneously is pretty fast-but almost. It seems to me that is a consequence of the Myers decision of Chief Justice Taft in the 1920's which gives the President authority over employees

1 See Appendix, p. 777.

2 See Appendix, p. 783.

26-147-74-pt. 3- -2

in the executive branch, at least to the extent of removing them from office.

Senator CHURCH. Instantaneously seems the proper term. Or however long as it takes the President to say: "You are fired."

Mr. RICHARDSON. May I interject one distinction here.
Senator HART. Yes, please.

Mr. RICHARDSON. Gentlemen, the points that Dean Griswold addressed, when he touched on the existence of a constitutional issue, involves the question of the power of the President to fire any member of the executive branch as distinguished from the case of the Special Prosecutor from the power of the Attorney General. In the case of Mr. Cox the White House concluded that rather than raise this issue the Attorney General should be directed to discharge Mr. Cox.

ATTORNEY GENERAL HAS IMMEDIATE AUTHORITY

As to the Attorney General there was no question of his power to do it immediately, except to the extent that the departmental order which established the office and spelled out its powers had the force of law. This is, of course, a question that Judge Gesell considered.

In any event, however-passing the question of the merits of his decision-I think it is inescapably clear the Attorney General could instantaneously have revoked that order and then fired Mr. Cox.

There is one further distinction that is to be made with respect to the kind of orders entered in the Federal Register. In the case of Mr. Cox, what was involved was a departmental internal order dealing with the administration of a particular departmental function. I don't know what the regulatory revocation requirement would be when you have a law, a regulation which is, in effect, quasi-legislative in character and had been adopted pursuant to the Administrative Procedure Act and is designed to have the effect of law applied to citizens generally, I defer to the Dean on that.

Senator HART. Well then, we understand that the Federal Registerwhich, as Dean Griswold says, was initially intended to advise the public of its obligations may contain a recital of the function and jurisdiction of Mr. Richardson's successor or Mr. Cox's successor. That is in print. Could the Attorney General revoke that by declaring "I hereby revoke" or does he have to publish something to follow it up?

Mr. RICHARDSON. I think the former is sufficient. I think he would want to publish it since it was published in the first place.

There was, so far as I am aware, no legal requirement that the order setting forth the powers and authorities of the Special Prosecutor be published in the Federal Register in the first place. At my confirmation hearing, I had had a discussion with Senator Mathias which touched on this. I said I would do it because it seemed to be consonant with the kinds of things that had been published in the Federal Register. But I don't know that there was any requirement that this be done. I think it took effect upon its issuance internally, even before the printing processes of the Federal Register office actually put it into print. Thus, I think it would have been subject to ratification upon the signature of an order by the Attorney General revoking it.

Senator HART. Thank you, very much.

Senator CHURCH. This whole matter of administrative law has somewhat baffled me. I believe I only had one introductory course in administrative law in law school, and we don't deal much with it in the Congress where we deal with statutory law. In order for a statute to pass or for legislation passed by the Congress to become law, it requires the President's signature.

Mr. GRISWOLD. Or passage over his veto.

CAN PRESIDENT DELEGATE POWER TO AGENCY?

Senator CHURCH. Or passage over his veto.

The Constitution charges the President with faithfully executing the laws that Congress passes, that he signs, or that are passed over his veto. Now, in doing this, can he delegate that authority entirely to an administrative agency? Could the agency, thereafter, interpret and implement the law through the issuance of various regulations by publishing them in the Register as it chooses, without any of those decisions or regulations that are published to implement the law coming back to the President for his review and approval? In other words, is the President able at that point simply to delegate his authority for the implementation of the law to some administrative agency that then can issue these regulations without further referral back to the President?

Mr. GRISWOLD. I would say, generally speaking, that the answer to your question is yes. However, that it is always very widely within the control of Congress. Congress frequently exercises that control as in the statute making the authorization setting up, not many years ago, a new Department of Health, Education, and Welfare, and a new Department of Transportation. Perhaps those were set up in the first place by reorganization orders, but those were pursuant to acts of Congress. Those statutes almost invariably authorize the agency to make all necessary rules and regulations for carrying the act into effect. I don't think anyone expects the President, personally, to make all of the decisions which are involved in operating the whole governmental enterprise.

Senator CHURCH. No. But my question really had to do with the constitutional burden on the President to oversee the implementation of the law by the agencies. He has a very big Executive bureaucracy nowadays to assist him in that manner. I wonder what his constitutional duty was in that respect?

Mr. GRISWOLD. His constitutional duty is to see that the laws are faithfully executed. If he became aware of and concluded that an agency under his field of operation was acting illegally it would be his duty to take steps to stop it. On the other hand, we have a considerable number of agencies which are called independent agencies. There is great doubt as to how far the President has any authority to control these. The usual ones, like the National Labor Relations Board, and the Federal Trade Commission-it was the Federal Trade Commission, for example, where the Supreme Court held that the President could not remove the Commissioner because it was an independent agency—not directly under the President's authority.

So, I don't think any sweeping black-and-white answer can be given to your question beyond the fact that the President has the duty to see that the laws be faithfully executed.

Senator CHURCH. Thank you.

"SPECIAL FORMS OF EXECUTIVE ORDERS"

Mr. GRISWOLD. As I see it, the problem which the Special Committee should consider is the one which it has directed its attention to in the draft bill which was given to me this morning, and that is whether the existing provision in Section 1505 (a) (1) of Title 44, making the Federal Register Act applicable to "Presidential proclamations and Executive orders" is broad enough. At the time the Federal Register Act was passed by Congress, these were apparently the only forms of Presidential action of general applicability. In more recent years, other types of documents have been devised, such as national security directives and memoranda, and other categories. It may well be that these are simply special forms of Executive orders, and that they are comprehended by the existing provision in the Federal Register Act. It is, however, clear that there has come to be an ambiguity on this matter, and it is surely appropriate for this committee to recommend to the Congress an amendment or enlargement of Section 1505 which would clear up this ambiguity.

It would be relatively easy to make a rather sweeping amendment of Section 1505 so that it would cover all forms of Executive action. In all likelihood, though, this sweeping approach would not be desirable. The exceptions included in the original Federal Register Act seem to have continued validity; namely, that there should not be published in the Federal Register matters relating to only a single individual or a very small number of persons. For example, an Executive order providing that a certain named person need not retire at age 70 is not of general applicability, and there seems no reason why it should be published. If all such actions were required to be published, the Federal Register might be even more cluttered than it is, and it might be difficult for citizens and their counsel to get important information from such a maze.

Similarly, Executive orders which relate solely to internal housekeeping should not be required to be published. For example, if the President wishes to designate someone as his Special Counsel, or to allocate some particular duty to a member of his staff, it would not seem to be either necessary or desirable to require that this be published in the Federal Register; but matters of general applicability, no matter how designated or what title is given, should be published in order to make known to the general public, including the citizens affected, and other groups, such as the press, what the relevant and applicable Federal regulation situation is.

This could be brought about, as I see it, by a relatively simple amendment to Section 1505 (a). And here again what I am going to say has been considerably anticipated by Section 304 of the draft statutewhich I did not see until this morning-but the words could be inserted after "Presidential proclamation and Executive orders" as follows:

G

whether so designated or otherwise, the purpose being to in-
clude all forms of Presidential action pursuant to authoriza-
tion by statute, or under the constitutional or inherent power
of the President.

The sentence would then continue with the exceptions, which would remain as they are, and which have lurking ambiguities in them, but I am not sure we can ever eliminate all of them.

As I have said, another form of the same idea is in the draft of the bill which may well be superior to what I have just suggested, but if an adequately comprehensive formula can be devised, it should cover the situation, and yet not require the publication in the Federal Register of actions which are purely special, or which involve only matters of housekeeping within the executive branch of the Government.

RELEVANT DOCUMENTS MUST BE PUBLISHED

As I see it, no further sanction is needed except to make it clear that the relevant documents must be published no matter how they are designated, or what name is attached to them, with the correlative provision that no such item is binding on any individual unless it is published or he has actual knowledge of it. On the whole, it seems to me better to do this by a single sweeping designation, rather than to try to list all the titles and sorts of documents which have been devised in recent years. If the latter road is followed, then the requirement of publication can be readily circumvented simply by adopting new titles which are not included in the listing made by Congress.

Senator CHURCH. Dean Griswold, at this point may I ask two questions.

The first, do you see any need for different treatment of the publication of Presidential actions taken pursuant to emergency powers, given the President as a result of a declaration of emergency, and the publication requirements that apply to general law in the normal situation?

Mr. GRISWOLD. Yes, Senator, it does seem to me that there might well be a provision, though it would have to be thought out carefully, requiring specifically that actions taken pursuant to emergency authorizations made by Congress should be published and printed in the Federal Register. I say that with slight hesitation because I am not at all sure that there are not some actions under that which ought not to be published for one reason or another. For example, military orders issued by the President, and I am not even sure that Congress has the constitutional power to require that they be published because the Constitution does make the President Commander-in-Chief of the Army and Navy. Thus, if he gives military orders to the Army and Navy, obviously, in many circumstances, those should not be published because that simply makes them available to the enemy.

Let's assume a full-scale war declared by Congress, like that in 1941 to 1945. I have no doubt that President Roosevelt issued many orders to the Army and Navy, which everyone would agree should not then have been published, even though they might eventually come out as historical documents. So I don't like to give a sweeping answer that any action taken pursuant to emergency powers should be required to