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SPECIAL COMMITTEE ON THE
TERMINATION OF THE NATIONAL EMERGENCY
FRANK CHURCH, Idaho
PHILIP A. HART, Michigan
CHARLES MCC. MATHIAS, JR., Maryland
WILLIAM G. MILLER, Staff Director
Opening statement by Senator Church, co-chairman_.
Richardson, Mr. Elliot L., former Attorney General of the United States.
Griswold, Mr. Erwin N., former Solicitor General of the United States___
44 U.S.C. Chap. 15-Federal Register and Code of Federal Regulations__
Civil Action No. 1954-73, U.S. District Court for the District of Columbia-
Administrative Legislation, by Prof. John A. Fairlie, Michigan Law Re-
Government in Ignorance of the Law-A Plea for Better Publication of
Executive Legislation, by Erwin N. Griswold, Harvard Law Review,
Presidential Power: Use and Enforcement of Executive Orders, by Robert
Executive Orders and Proclamations: A Study of a Use of Presidential
Powers, Committee on Government Operations, December 1957-----
President and Congress, by Louis Fisher, The Macmillan Co., 1972:
NATIONAL EMERGENCY Constitutional Questions Concerning Emergency Powers
WEDNESDAY, NOVEMBER 28, 1973
SPECIAL COMMITTEE ON THE
TERMINATION OF THE NATIONAL EMERGENCY
The Special Committee met at 10:10 a.m., pursuant to call, in room 4221 of the Dirksen Building, the Honorable Frank Church and Charles McC. Mathias, Jr., co-chairmen of the committee, presiding. Present: Senators Church, Mathias, Hart, and Case.
Staff members: William G. Miller, staff director; and Thomas A. Dine, professional staff.
Senator CHURCH. The hearing will please come to order.
This is the only committee of the Congress that is fully bipartisan; it is chaired by both Senator Mathias and myself. We follow the practice of what Senator Mathias calls a "Punch and Judy show" of reading the opening statement in a half and half manner. I start the first half and Senator Mathias finishes the opening statement and, in this way, we maintain our treasured political equilibrium. So I will begin.
OPENING STATEMENT BY SENATOR CHURCH, CO-CHAIRMAN
Today, the Special Committee on the Termination of the National Emergency continues its series of hearings on the broad constitutional questions raised by the delegation of extraordinary powers from the Legislature to the executive branch. We are honored today to have as witnesses two of this country's most distinguished lawyers, former Solicitor General Mr. Erwin N. Griswold and the former Under Secretary of State, Secretary of Health, Education, and Welfare, Secretary of Defense, and Attorney General of the United States, Mr. Elliot Richardson.
We have asked Mr. Griswold and Mr. Richardson to give us their views of how the country can best provide the means and authority for the executive branch to meet emergency situations, but do so in such a way that basic constitutional processes and guarantees are not abridged.
In previous hearings with former Attorneys General, a Supreme Court Justice, political scientists, and legal scholars, we have focused primarily on the historical implications of the statutory grants of enormous power from the Legislature to the Executive. The Special
Committee has primarily focused upon the constitutional implications of 40 continuous years of declared states of national emergency. During these four decades Congress has passed over 470 statutes which give the President extraordinary powers to be used, if necessary, during war or national emergency. The work of the Special Committee has already borne fruit. The National Emergency Petroleum Act, S. 2589, which passed the Senate last week contains provisions which prescribe termination procedures, a limitation of time of delegated authority, and reporting and oversight procedures, for any actions taken pursuant to authorities delegated by Congress. These provisions in the emergency energy bill were drafted by Senator Mathias and myself.1
Today, our main concern is with the broad question of the accountability of the executive branch for actions taken pursuant to authority contained in statutes which delegate extraordinary power to the President. We are extremely fortunate to have former Solicitor General Mr. Erwin Griswold with us today to give us his views upon the broad question of how to provide effective accountability for Executive actions. Mr. Griswold is acknowledged to have been largely responsible for the passage of the Federal Register Act of 1935, which required the publication in the Federal Register of all Executive orders and proclamations. It should be pointed out that Mr. Griswold's draft bill was considerably tighter than the law as passed. Despite the shortcomings of the act, which have become evident since 1935, the purpose of the Federal Register Act was to give Congress and the public the means to determine whether an order given by the executive branch was legal.
FEDERAL REGISTER ACT CIRCUMVENTED
Unfortunately, it is clear that particularly in the last 20 yearsa practice of public administration has gained currency in which many national security, defense, and urgent or sensitive decisions which could have serious political implications by the Executive are not, in fact, recorded as intended by the Federal Register Act.
Mr. Richardson has served at the State level as attorney general; in the legislature as a policy aide to Senator Leverett Saltonstall, and in a number of already-mentioned key Cabinet positions—particularly in the sensitive areas of foreign policy and defense. He is in a unique position to discuss the circumstances under which Executive decisions are made and we hope he will give us his views as to how the Legislature can better provide statutory guidelines for the accountability of the Executive for the actions it takes pursuant to delegated powers.
Many Executive decisions made in time of national emergency establish substantive rules binding not only the executive agencies, but often affect the interests of the general public as well. They have in effect the force of law. It would not be an overstatement to say that government in time of emergency is government principally by the Executive. The pattern of the past 40 years reveals that in times of emergency, the Legislature has given up its usage of the deliberative
1 See Appendix, p. 765. 2 See Appendix, p. 767.