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with the change, and therefore really, in effect, exercising his own executive power of removal.

Mr. HENDERSON. You are saying, Mr. Dixon, that if the President recommends the legislation to Congress and Congress enacts the legislation and the President signs it, then there is no problem from your standpoint?

Mr. DIXON. I am merely suggesting that that may be an explanation for the past events which you mentioned. And we have not explored the constitutionality of that in our memorandum.

I do feel that the comment I made is relevant, and perhaps supportable constitutionally. But we have not explored that in detail. Mr. HENDERSON. One other question.

You did not cite any Federal cases in your brief. Would you say that because of the fact that Congress has exercised its power many times in the past, and that no cases exist, that there is a presumption of constitutionality for what Congress has done, and also for what is being proposed here?

Mr. DIXON. Presumptions of constitutionality deriving from lack of any attempt to resort to the courts are not dispositive of the issue of what a court may do when a real case presents itself.

Now, we have cited two Federal cases on page 2 of our statement, the bottom of the page, in a footnote. In the quotations from these two cases, in each case we note the word "exclusive." The Myers case, footnote 2, page 2, talks about the executive power and the exclusive power of removal.

The Humphrey case is even stronger. The Humphrey case at this point involves the Supreme Court going back and restating the Myers case principle regarding the President's removal power concerning a purely executive officer. And in the Humphrey case, the Supreme Court said that such an officer in the executive branch is subject to the "exclusive and illimitable power of removal of the Chief Executive." Mr. HENDERSON. But neither Myers nor Humphrey dealt with the problem of abolition of the office.

Mr. DIXON. That is true. And if we had a simple abolition matter here, we would not be within that line of very persuasive State cases, out of Pennsylvania and Utah, which indicate, that a legislature cannot almost in the same breath, abolish and reestablish. Something more than a mere abolition is happening in such instances.

Mr. HENDERSON. But those State cases involve either the State constitutions or State legislatures; they would not necessarily apply to the Federal Constitution, or legislation which Congress has enacted.

Mr. DIXON. In Pennsylvania and Utah the State constitutional provisions as we quote them are fairly directly analogous to the Federal situation. There are some differences, but I think they are fairly directly analogous. These State cases may, as a matter of principle, we think, furnish guidelines to what might be a decision by a Federal court should the question arise.

Mr. ROBACK. You refer in your statement on page 4 to the Budget Director being one of the inner circle of the President's advisers. Mr. DIXON. Yes.

Mr. ROBACK. The Budget Director is in the outer circle also; he has to report by law to the Congress, he has to supply information, he

deals with the public in various ways, he determines legislative policy in many ways, through bulletins and circulars. He is something quite different, if you want to look at it empirically, than only an adviser, is that not so?

Mr. DIXON. As was indicated by the witnesses this morning earlier before I appeared, and some comments from the subcommittee, there seems to be no problem, no serious problem, regarding the activities of the Director of OMB in what might be called, by word of art, this outer circle of relations with Congress and testifying, and so on.

We are addressing ourselves to the other side of the coin, and that is, his personal, intimate relationship with the President as a very close adviser and the relationship that thus arises between the President as an independent constitutional officer and his primary aides in the inner circle concept.

Mr. ROBACK. That is a matter of perhaps a judgment or value in looking at the relationship.

Let me ask you another question. You submitted a statement the other day in which you pointed out that Attorney General Katzenbach advised President Johnson with regard to dual officeholding by Sargent Shriver, that the Congress could not by legislation oust an official from a position to which he had been appointed by the President, right?

Mr. DIXON. Yes; that is correct.

Mr. ROBACK. That was in your statement the other day.

Now, in your new and amplified statement, you do not refer to the Katzenbach memorandum.

Mr. DIXON. We did not want to extend the record unduly on this

matter.

Mr. ROBACK. I wonder if it is because you took a second look at the memorandum and saw that the only constitutional way in which Congress I am reading from it can bring about the removal of an executive officer without abolishing his office is by way of impeachment. Did you take a second look and decide maybe you should not emphasize the Katzenbach memorandum because it recognizes the right of Congress to abolish an office?

Mr. DIXON. No; that is not the case. I am trying to find it in my burgeoning file on this matter.

Mr. ROBACK. Look at page 3 of the Katzenbach memorandum.

Mr. DIXON. If you will bear with me just a moment, I believe in one of these files we have the relevant document.

Here it is. I believe I am on the right page

Mr. ROBACK. The middle of the page.

Mr. DIXON. There is a footnote number at the bottom which starts out: "Congress would limit the President's powers".

Mr. ROBACK. Right.

After the footnote, the sentence that follows the footnote number.

Mr. DIXON. Yes.

Mr. ROBACK. It is evident that Attorney General Katzenbach recognized that you could remove people not only by impeachment but by abolition of the office.

Mr. DIXON. I have found that sentence.

I think that here again he was thinking only in terms of a complete. abolition of the office, and not a process which had the effect of really

getting at the question of continuance in office of an incumbent by requiring going through a new process of senatorial confirmation.

Mr. ROBACK. Mr. Dixon, you are really now arguing, you are now in the position of arguing that if this were a legitimate abolition, there would be no constitutional question, but you are in effect imputting improper motives to the Congress in the sense that they want to get Ash; that is what your position comes to, does it not?

Mr. DIXON. I don't believe we have to go that far. If that were the construction, then we would fall back on the concept of bill of attainder in the Lovett case, but I think we have not reached that point yet.

Mr. ROBACK. Either you are arguing that this is because the Congress is out to get Ash, or you are saying that abolitions are improper for technical reasons. The only reason this office is being abolished is a technical one to meet an asserted constitutional argument. And as pointed out in the testimony, offices have been abolished and re-created simultaneously many times for technical reasons, including Reorganization Plan 1 of 1962, where the Office of Executive Director of the National Science Foundation was abolished and re-created simultaneously.

Mr. DIXON. We are familiar with that case. And I think it is not at all relevant, for the reason that this again moved from the Presidnt. Mr. ROBACK. But it had the force and effect of law, and it doesn't really make any difference as far as the law is concerned. Congress was a necessary part of making that legal.

Mr. DIXON. I am informed that is the case of the National Science Foundation.

Mr. ROBACK. You will find it in the statutes at large; it is as legal as anything.

Mr. DIXON. But in that case the incumbent actually served for an additional 9 months after this whole matter occurred, without confirmation. Why it occurred I don't know, because it was required as a part of the reorganization bill. But the basic response on the National Science Foundation question, to repeat, is that the Reorganization Acts are different.

Mr. ROBACK. We developed in the hearings on Reorganization Plan 2 of 1970 that all the powers of the Budget Director were being transferred to the President for several reasons. And one reason that they were transferred to the President, as acknowledged in testimony, was that otherwise you could not legally have a reorganization, you had to transfer something.

Now, that is a technical convenience it is done all the time. Are you going to impute to the Budget Bureau and the President improper motives because they make such reorganizations for technical reasons? Mr. DIXON. The word "technical" is again a word of art. And I would like to fall back on the basic question of the effect of what is. being done, and whether the effect of what is being done has the support of the President, including his power of removal, or whether it is something running against the grain of the President's power to remove or not to remove an incumbent in an office which he has filled in a proper fashion.

Mr. ROBACK. As the chairman pointed out, in the final analysis this is not a bill to remove the Budget Director, it is a bill to give the Senate an opportunity to confirm him.

Mr. HENDERSON. You will certainly admit, won't you, Mr. Dixon, that the placing of these statutory responsibilities in the Director of the Office of Management and Budget, which this bill does, really creates a different type of office than the one that is being abolished. Mr. DIXON. As we look at the 67 statutes-and we have not covered them in detail in our memorandum here-many of them appear to be special and the ones that do not go to the basic discretion of the President to control the budget process through the Director of OMB. We also--and this is part of our concern-see the possibility of perhaps a very unfortunate precedent here. This bill is only a single instance. But if this can be done, then it might be argued that the Congress, by subjecting every single presidential adviser with important duties or ministerial duties to the process of senatorial confirmation, could in effect transform us from our Presidential system under our separation of powers concept, to something like making the President a figurehead.

Mr. HENDERSON. Look at the Budgeting and Accounting Act. It stressed the fact that the preparation of the budget is a Presidential responsibility. But the Budget and Accounting Act says that the Director of the Office of Management and Budget, not the President, but the Director of the Office of Management and Budget, shall prepare the Budget under the direction of the President, and to this end shall have authority to assemble, correlate, revise, reduce, or increase the request for appropriations of the several departments and establish

ments.

Now, that is a very responsible authority, separate from that which may exist in the President. And we give that back to the Director of the OMB in the Brooks substitute.

Mr. DIXON. We feel that the clear understanding and intent of the Budget and Accounting Act of 1921, as supported by continuous practice down to the present day, as indicated by this morning's witnesses, was to create an officer who would be the "President's man." In fact, this was mentioned on the floor of the House, I believe, by Congressman John Garner in the course of the debate on the Budget and Accounting Act. That is now submitted in appendix A to our present statement which we also submitted as appendix A to our prior statement, where Mr. Garner is quoted.

Further in the debate on the Budget and Accounting Act of 1921 it was said that to be sure the person appointed to the Office of the Bureau of the Budget Director would be a very important person. In the debate it was even said that he might be viewed as a second man in Government. Despite this recognition of his being viewed as an official so closely tied to the Presidency, and the President's own powers regarding the budget process for the executive branch, it was said, he should not be subjected to confirmation power. Indeed, it was the lower House which insisted on that, thus in effect overruling in the conference committee, the Senate preference for senatorial confirmation.

Mr. HENDERSON. But the language in the act is clear, no matter what Mr. Garner said, and no matter what the distinguished political scientists said this morning. It puts the responsibility in the hands of the Director of the Office of Management and Budget.

Mr. DIXON. But subjecting him to direct Presidential appointment with no other participation, and making him subject to the direct Presidential power of removal, leaves him as a Presidential agent, really, in terms of his discharge of his duties.

Mr. HENDERSON. One last thing-more of a comment, I suppose. It seems a rather novel position that you take, Mr. Dixon, that the President would have to initiate legislation of this kind to make it valid. It is almost inconceivable to me that that would necessarily follow.

Mr. DIXON. We have not taken the position at all that there is a total lack of power in Congress to consider the issue of senatorial confirmation in reference to some future appointee to the Office of Budget Director. We feel there are many policy reasons why the confirmation power should not be extended. And we agree with the witnesses this morning, the professional witnesses from the fields of political science and public administration that the matter should stay as it is. If, however, Congress should not agree with that testimony this morning, and the first Hoover Commission recommendation, and the many other quotations we have on the policy issue in appendix B to our statement of March 5, and enacts such a confirmation provision applicable to future appointees, that might present a quite different constitutional question it might not present any constitutional question.

Chairman HOLIFIELD. Thank you very much, Mr. Dixon. It is evident that you have done a lot of work since you were here before. I wasn't aware that you were a new man on the job. I am sorry that it has been necessary to subject you to so much night work.

Mr. DIXON. Well, it has been a rewarding experience, Mr. Chairman. And I have tried to give you all the information I could possibly round up on this subject.

Chairman HOLIFIELD. We are deeply grateful to you for your help. Thank you very much.

The meeting is adjourned subject to call of the Chair.

(Whereupon, at 12:45 p.m., the subcommittee adjourned, to reconvene subject to call of the Chair.)

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