Before closing there is an additional point I would like to mention. The spokesman for the Association of Interstate Commerce Commission Practitioners, Mr. James A. Bistline, discussed the crucial question under Reorganization Plan No. 1 of 1969, as to the tenure of the Chairman of the Commission under such Plan. This, of course, bears heavily on the issue of the degree of encroachment by the Executive Department upon the independence of the I.C.C.

I want to call specific attention to the League's approach to the present practice of one-year term for the Chairman. As indicated in the quoted League policy at page 3 of this statement, we would contemplate the Chairman would be elected from among the members of the Commission by a majority vote "... to serve for a term of up to three years with no restriction on the right of succession." It is the League's view that this approach makes a genuine contribution to the so-called single-year term problem, while at the same time strengthening the independence of the Interstate Commerce Commission, as an arm of Congress, from encroachment by the Executive Branch of the federal government.

For all the reasons stated above, The National Industrial Traffic League records its opposition to Reorganization Plan No. 1 of 1969 and requests that such Plan be disapproved by the Congress.

Respectfully submitted,

APPENDIX A

L. J. DORR, Executive Vice President.

[Excerpts from statements of Senator Johnson in opposition to Plan 7, the parenthetical references being to pages of the CONGRESSIONAL RECORD, Volume 96, Part 6]

SENATOR JOHNSON OF COLORADO

Mr. President, today I shall emphasize my opposition to this plan for at least two compelling reasons. First, it has the effect of making a one-man commission out of the Interstate Commerce Commission. This would be a complete destruction of the democratic safeguards which Congress enacted into law when it created the Interstate Commerce Commission.

Secondly, by giving the President the right to appoint the Chairman of this all-powerful Commission, we are in effect transferring to the executive branch of the Government control over an agency which was established as an arm or Congress. (page 7155)

Mr. President, lack of efficiency has never been the criticism made of totalitarian governments. But in this Republic we should not value our democratic institutions so lightly that we will sacrifice the safeguards of democracy merely for greater efficiency. (page 7155)

Of course we hear, and shall no doubt continue to hear, that the best man on the Commission should be made Chairman and then be given full power over the administration of the Commission. I would prefer, however, Mr. President, to have 11 good men on this Commission rather than one superman and 10 men reduced by law to be mere "yes men." Under the reorganization arrangement the supporters of Plan No. 7 are advocating, instead of getting a superman Chairman we are more apt to get a super politician in that office. I have great fear that we will not be able to get good men to accept appointment to the ICC if they are to be mere figureheads with all of the power vested in a political Chairman appointed by the President. (page 7156)

I am opposed to small groups of the staff running the affairs of an agency-men who were neither appointed by the President nor confirmed by the Senate, and who are not responsible to the people in any degree.

Make no mistake about it, plan No. 7 is away from democratic institutions and is a long step toward malignant bureaucracy. (page 7157)

It is clear that divesting the whole Commission of authority and concentrating power in the chairman is intended to carry out the philosophy and recommendation expressed in the Hoover Commission's first report (H. Doc. 55, 81st Cong. page 7) to establish by statute "a clear line of control from the President" to department and agency heads "cutting through the barriers which have in many cases made bureaus and agencies partially independent of the Chief Executive.' The plain fact is, Mr. President, that plan No. 7 would make the Interstate Commerce Commission dependent upon and subordinate to the policy determining power of the Executive, including the political direction and emphasis to be given in the administration of the law.

This is directly contrary to the express intention of Congress in creating the ICC. It was intended to be an arm of the Congress, and I vigorously oppose its transfer to the Executive. (page 7157)

[Excerpts from statements of Senator Schoeppel in opposition to Plan 7, the parenthetical references being to pages of the CONGRESSIONAL RECORD, Volume 96, Part 6]

SENATOR SCHOEPFEL

The two really important changes which plan 7 is designed to bring about in the Interstate Commerce Commission are: First, centralization of control of the administrative affairs of the Commission in the office of the Chairman; and second, the transfer of the power to select the Chairman from the Commission to the President, so that the Chairman will hold office, as such, at the pleasure of the President. The Hoover Commission recommended the first of these two changes, but deliberately refused to recommend the second, which is by all odds, the most important and the most far-reaching part of the plan we now have before us. In spite of that fact, we are asked to support plan 7 as a product of the labors of the Hoover Commission. The truth is that this is not a Hoover Commission plan, but one that represents a very material departure from the recommendations of that body. (page 7158)

The industries regulated by the Commission, those that are affected by the exercise of its regulatory powers, as well as those that practice before it, are unanimous in their condemnation of the plan. Carriers, shippers, and railroad labor speak with one voice in opposition to the plan. Among the organizations expressing opposition were: Railway Labor Executives Association, National Industrial Traffic League, Association of Interstate Commerce Commission Practitioners, Association of American Railroads, American Short Line Railroad Association, American Trucking Associations, Freight Forwarder Institute, National Council of Private Motor Truck Owners, Transportation Association of America.

One certainly would think that if plan 7 really provided for greater efficiency in handling the business of the Commission, it would be favored by some of these organizations whose members would stand to benefit. The fact that all of them are arranged in opposition to the plan is of more than ordinary significance. It means that those who are in day-to-day contact with the work of the Commission, and who are better acquainted than anyone else with its organizational structure, with its procedure, and with its functioning, find nothing in the plan of reorganization sufficient to warrant their lending their support to it. They represent divergent interests before the Commission, but all of them see eye-to-eye on this proposition. (page 7159)

As I have stated, the two principal changes in the Interstate Commerce Commission proposed by Reorganization Plan No. 7 are (1) centralization of the control of the affairs of the Commission in the office of its Chairman, and (2) the transfer of the power to select the Chairman from the Commission to the President. Each of these changes is objectionable, but the evils inherent in the separate features are magnified many times by their combination in a single plan. The cumulative effect of these two revisions in structure is to center in the hands of the Chairman a tremendous amount of control over the affairs of the Commission, and then to make him a subordinate of the President-holding office as Chairman at the pleasure of the President-thus opening the way for Executive domination of an independent establishment which has always been and should continue to be a bi-partisan arm of the Congress. (page 7159)

If the Commission were subject to executive direction or political influence, if it were amenable to pressure to decide not on the basis of the law and the facts but on the basis of someone else's notion of the requirements of public policy, then confidence in its impartiality would be gone and its usefulness would be destroyed. Yet one of the avowed objections of plan No. 7 in having the Chairman of the Interstate Commerce Commission hold office as such as the President is said to be to "enable the President to obtain a sympathetic hearing for broader considerations of national policy which he feels the Commission should take into account," to use the words of the Hoover Task Force Report on Regulatory Commissions—

page 32-a viewpoint repeated by the former executive secretary of the task force, Mr. Harold Leventhal, in his testimony on the pending resolution. In the President's message of March 13, 1950, transmitting the 21 plans, it is said that the first 13 of them, including plan No. 7, "all have the same objective: To establish clear and direct lines of authority and responsibility for the management of the executive branch."

These proposals are all incompatible with the constitutional doctrine of separation of powers and the traditional system of checks and balances. They are designed to give the President an improper measure of control over the quasi-legislative and quasi-judicial functions of the Interstate Commerce Commission.

This incompatibility is strikingly illustrated by the unanimous decision of the Supreme Court of the United States in Humphrey's Executor v. United States (1934), (295 U.S. 602), one of the great landmarks of constitutional law on the subject of the relation of the independent regulatory commission to other branches of the Federal Government. President Roosevelt had attempted to remove Commissioner Humphrey of the Federal Trade Commission, for reasons, as stated by the President, that "I do not feel that your mind and my mind go along together either the policies or the administration of the Federal Trade Commission," and "that the aims and purposes of the administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection." The case presented squarely the question whether a member of an independent regulatory commission holds office at the pleasure of the President, subject to removal by him at any time for failure to carry out Presidential policies. This, in turn, involved the further question whether such a commission is a part of the executive branch of the Government or is independent of it. The Supreme Court decided against the President on both points. It held that (1) the President was without power of removal, and (2) the Federal Trade Commission, like the Interstate Commerce Commission, is not a part of the executive branch of the Government, but is a quasi-legislative and quasi-judicial agency which cannot, consistently with the purpose of its establishment, be subjected to Executive control. (page 7159)

The proposal to place independent regulatory commissions within an executive department, or to put them under the direct administrative control of the President, is violative of the constitutional principle of separation of powers and the system of checks and balances. The functions of these agencies are not executive but quasi-legislative and quasi-judicial. The Message to Congress of March 13, 1950, dealing with plan 7, characterizing it, among other things, as a bold approach to the problem of delineating responsibility and authority for the management of the executive branch of the Government, reveals the same basic misconception of the status of the independent commissions that was unanimously condemned by the Supreme Court in the Humphrey Case. The purpose of providing that the Chairman of the Interstate Commerce Commission shall hold office as such at the pleasure of the President is expressly stated to be to provide clearer lines of management responsibility in the executive branch. But as the decision of the Court in the Humphrey case makes clear, the Interstate Commerce Commission is not in the executive branch, and should have no line of responsibility to that branch. The Chairman should not be made to hold office as such at the pleasure of the President, because, to quote the language of the Court:

It is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will-(page 7160)

[Excerpts from statements of Senators Bricker and Tobey in opposition to Plan 7, the parenthetices refer ences being to pages of the CONGRESSIONAL RECORD, Volume 96, Part 6]

SENATOR BRICKER

The proposal is a part of a well-conceived program to subordinate Congress to the will of the Executive, and a planned program to take the policy-making power of the Government out of the hands of the elected representatives of the people, and turn it over to appointed bureaucrats, who already have assumed more authority than the Congress ever intended to give them. (page 7163)

SENATOR TOBEY

The point I make is that those of us who have sincerely committed ourselves to supporting the Hoover plan, and who want to do that thing, and who have gone before our people and told them we are going to do so, now find ourselves in an anomalous position. We find by advices received from top men connected with the Hoover plan-I will not mention any name, but I talked with one of them over the telephone, a man who was near the top, and he assured very definitely, without mentioning any names, that in his judgment the reorganization plans do go far beyond what was contemplated and what was intended by the Hoover Commission. Therefore, as an individual Senator, I say that when I vote in favor of the resolution to disapprove the pending reorganization plan, it will be with the distinct understanding that the plan should go back and be clearly reviewed so as to make sure it squares with the Hoover Commission's recommendations. What we are afraid of is centralization of power of commissions, against the people's interest, and in such a way as to contravene the legislation which puts them under the watchful eye of standing committees of the Senate. (page 7169)

[Excerpts from statements of Senator McClellan in opposition to Plan 7, the parenthetical references being to pages of the CONGRESSIONAL RECORD, vol. 96, pt.6]

SENATOR MC CLELLAN

I also feel responsibility in this matter by reason of the fact that I served as a member of the Hoover Commission, and am anxious to see a proper reorganization of the executive branch of the Government.

Mr. President, frequently the task force of the Hoover Commission is quoted in support of some plan or some phase of some plan which is submitted to us, and which we have under consideration. Yet the task force's recommendations and report are not the Hoover Commission's recommendations and report. The task force simply made studies; and the recommendations and report of the task force were made by those who conducted those studies, who made those recommendations to the Commission, but the Hoover Commission rejected many of those recommendations. So, when the report of the task force [recommending that agency chairman be appointed by the President] is quoted, it should be remembered that that is not necessarily the decision and recommendations of the Commission which was constituted to make this study and to make the recommendations respecting reorganization plans. We must not let anyone confuse us by quoting what some task force may have said. (page 7170)

I may say that in my humble opinion, having served on that Commission, it was never the intent of the Commission, by any language it used anywhere or at any time, to have these regulatory bodies tampered with through a reorganization which goes to the extent of having any effect, influence, control, supervision, or direction over their quasi-judicial or quasi-legislative functions. I am sure the Commission never had any such purpose, whatever language one may find in the report. (page 7171)

*

What is wrong with this agency, the ICC, that it must be reorganized? Mr. President, if you search the record of the testimony, you will not find one statement of inefficiency, you will not find any proof of lack of economy. What is the purpose or reorganizing it? All one needs to do is to read the plan itself, to find that the whole effect of it is to converge power. It is not to promote efficiency, it is not to reorganize in order to effect economies, but it is to concentrate more and more power. Where? Under the direction and control and authority of the Chief Executive of this Nation. (page 7171)

Mr. President, I do not have time to refer to the testimony, but representatives of management, of ownership, of the transportation systems testified.

Not only that, Mr. President, but representatives of labor testified. One representative of labor listed the number of organizations he represented. He stated that practically all of the labor organizations within the railroad systems were against it, that labor in transportation is against it, and management in transportation is against it. Patrons of transportation facilities are opposed to it.

35-377 0-69 -7

What is the reason for that opposition? Because, Mr. President, they have respect for the present independent agency which Congress has created as an agency of Congress. They do not want executive power over it, any more than they want Congress to control it. They want it to be independent. (page 7171-7172)

MR. LONG. Does not the Senator's arguement boil down to the fact that the Hoover Commission never recommended that the President be given authority to designate the Chairman, and if he does designate the Chairman, the Chairman will be compelled to follow the President's views, while, if the Commission designates its own Chairman, he will have to follow the Commission's views?

MR. MCCLELLAN. The Commission has power to submit to the Chairman any task it wants him to perform by a simple resolution. Once it delegates it to the Chairman it can withdraw it if the duty is not properly performed. If the President appointed the Chairman, the Commission would be helpless if it did not perform its duties in accordance with the wishes of the President.

Mr. President, this plan should be overwhelmingly defeated. I hope it will be. (page 7172)