Mr. BROOKS. Mr. Ash, don't you feel that while the President has the responsibility for the defense of this country, that his appointment of the man he loves and trusts the most in defense matters as Secretary of Defense, though confirmed by the Senate, that man is still loyal to that President, responsive to that President, in his constitutional responsibility for the defense of this country?

Mr. ASH. Surely.

Mr. BROOKS. The highest responsibility we have?

Mr. Asн. I surely do.

Mr. BROOKS. And the Department of Labor?
Mr. ASH. That is right.

Mr. BROOKS. Commerce? All of these men are trusted cohorts, friends, and associates of the President. They are confirmed by the Senate. And yet the Senate doesn't do anything terrible to them.'

I don't have this great fear of the Senate. I really wonder why the administration is so concerned about whether or not you would be confirmed or whether a Director of the OMB should be confirmed the Senate. It is not a bugaboo. They would probably confirm you.

On page 6 of your statement you say the Director and the Deputy Director are "vested with no significant statutory powers or duties." The Legislative Reorganization Act of 1970 directs specificallythis is one of the matters the chairman mentioned-directs OMB to develop a data processing system for budgetary and fiscal data for all Federal agencies in cooperation with the Comptroller General of the United States.

This is to help the Congress evaluate the budget that you will submit, that the President will submit with your help.

It also in that bill says, in section 203:

Upon request of any committee of either House or of any joint committee of the two Houses, the Secretary of the Treasury and the Director of the Office of Management and Budget shall (1) furnish to such committee or joint committee information as to the location and nature of data available in the various Federal agencies with respect to programs, activities, receipts, and expenditures of such agencies; and (2) to the extent feasible, prepare for such committee or joint committee summary tables of such data.

Do you consider this function significant, and what is the status of it?

Mr. Ash. There are two or three questions here. I will try to sort them out.

It is true that is one, along with two others or so. responsibilities that have been assigned directly to the Office of Management and Budget. I think they are not sufficiently significant to be the base to make the difference of whether the function is subject to confirmation or not, and that is why, in my statement, I did allow there were some functions that since that Reorganization Plan No. 2 of 1970, had been assigned directly to the Office of Management and Budget. So that one belongs, a couple of others are there. But I doubt if that would be the basis that the Congress has in mind.

Mr. BROOKS. What is the status of that effort?

Mr. ASH. As to the status of that, I do know that-it is a little behind schedule. Work is in process, but one of the things I find I must be giving some immediate attention to is to get that one moved up in

schedule, so that we can meet the times that I am sure the Congress expects of us.

Mr. BROOKS. You are the most modest Director of the Bureau I ever met. You are very modest, but I am suspicious of that velvet glove and iron fist, Mr. Ash. I think those agencies are going to find later that the hammer is going to hit.

Will the OMB submit at the request of a congressional committee the raw data on budget requests that comes directly from the departments and agencies?

Mr. As. There is a procedure on that that has been worked out over the years and it does conform to the Budget and Accounting Act of 1921, and the process has gone, as I understand it, like this, and will continue to go like this: that the departments and agencies will submit to the President through the Office of Management and Budget their proposals, ideas, recommendations for various programs, funding levels, and other aspects of those programs.

Those will be considered, those will be at some time brought into the annual budget, quite possibly modified in various discussions that ensue. The President will submit his budget, it will go before the Congress for hearings, at which time the appropriate congressional committees will be able to, in eliciting whatever information they need, ask the departments and agencies, may ask them, what their original submissions were; the departments and agencies in response will provide that and along with that information, will observe that this is not the President's budget, that this has been considered from a higher perspective and a broader perspective than their own, and therefore does not represent the budget or even their proposed budget for that agency as at least subsequently modified by Presidential action. Mr. HORTON. I have one final question.

Mr. WYDLER. Mr. Chairman, I have a parliamentary inquiry. Did we, at any point confirm Mr. Roback? I don't remember that action.

Chairman HOLIFIELD. The confirmation of all of the staff is done by agreement. The minority submits a list of names to the chairman and the majority list is approved and the full staff is approved; yes. Mr. ROBACK. If I may, Mr. Chairman, the suggestion has been made that we abolish the Office of Management and Budget and recreate it. I don't think we ought to do it in my case. [Laughter.]

Mr. ASH. Mr. Roback, I didn't intend to get you in all of this trouble. Chairman HOLIFIELD. Mr. Horton.

Mr. HORTON. I just wondered how this would affect your relationship with the Congress. Are you available to testify to the Congress now and are you accessible to Members that might have questions about subjects in the area of your jurisdiction as Director of OMB?

Mr. ASH. Yes, sir; fully. Since I have been aboard this 1 month, I have spent more time testifying before and preparing for congressional hearings than on any other single subject.

Mr. HORTON. That is not effective as far as

Mr. Ash. No, sir; not one bit.

Mr. HORTON. One other question has to do with your role as an assistant to the President. Does that responsibility affect your role as OMB Director?

Mr. ASH. No, sir. Those are two functions, just as the Secretary of the Treasury in this case also has two functions, and it does not signify a change, just a definition of two jobs with only one paycheck.

Mr. HORTON. They are different jobs, though

Mr. Asн. Yes, sir.

Mr. HORTON (continuing). And at this point, neither one of them is subject to confirmation. They are confidential jobs that are directly related to the functions of the President?

Mr. Asн. That is right, yes, sir. As an example of the assistant to the President role, the President has many department and agencies reporting directly to him. One of them is the General Services Administration. Part of my function, as assistant to the President, is to help him in his overseeing role of the General Services Administration. This I do as an assistant to the President, not as a Director of the Office of Management and Budget.

Mr. HORTON. No further questions.

Chairman HOLIFIELD. Any further questions?

Mr. ST GERMAIN. So what you are saying is that the President should be allowed to pick the man that would go into this office because they are going to be working very closely and he shouldn't be required to be confirmed, that is what you are saying?

Mr. Asн. Yes.

Mr. ST GERMAIN. Mr. Brooks brought up the fact that the confirmation shouldn't be a bugaboo; in most instances confirmations are practically automatic.

The thing that occurred to me was I think that a couple of the Presidents have picked Justices of the Supreme Court, nominated them, and there were mistakes made in those nominations. I think one was withdrawn and another man withdrew his own name, so that even the President can make a mistake on occasion in making appointments for advisers. Doesn't the immediate past history show that?

Mr. Ash. I am sure anybody who is human, including the Director of the Office of Management and Budget, can make mistakes.

Mr. ST GERMAIN. So even the President can be misinformed? He had relied on information provided to him by advisers on these nominees, and lo and behold, the facts hadn't all been presented to him?

Mr. As. I don't know the particular point you are making or the facts about those particular appointments, so I don't want to be speaking for the President in saying anything in response to that.

I hear what you say, but I must say I don't know what all the facts were as of that time, and

Mr. ST GERMAIN. All right. Thank you.

(Subsequent to Mr. Ash's testimony, the following correspondence was received:)

Hon. CHET HOLIFIELD,

EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., March 13, 1973.

Chairman, Subcommittee on Legislation and Military Operations, House Committee on Government Operations, House of Representatives, Washington, D.C. DEAR CHAIRMAN HOLIFIELD: This is in reference to my written report to you of March 1, 1973, and my appearance, together with Assistant Attorney General Dixon, on March 5, 1973, before your subcommittee concerning a group of bills

calling for the Senate confirmation of the Director and Deputy Director of the Office of Management and Budget.

During the hearing before your subcommittee, Representative Brooks proposed a substitute bill which would abolish the Offices of Director and Deputy Director of the Office of Management and Budget and immediately reestablish those offices as positions subject to Senate confirmation. The substitute bill would also provide for the transfer to the Director of the Office of Management and Budget of all of the functions that were transferred from the Director of the Bureau of the Budget to the President by Reorganization Plan No. 2 of 1970.

During the hearing on March 5, 1973, Assistant Attorney General Dixon expressed the opinion that the substitute bill presented by Representative Brooks was constitutionally defective because it proposed to accomplish by indirection that which cannot constitutionally be achieved directly—namely, the legislative removal of executive branch officials.

Since that time, Mr. Dixon has sent you a written statement reaffirming his oral opinion that the substitute bill is constitutionally defective. My legal staff members have advised me that they are in full accord with the views expressed by Mr. Dixon.

Aside from that constitutional issue, the provisions of the substitute bill that would have the effect of requiring future appointments of Directors and Deputy Directors of the Office of Management and Budget to be made subject to Senate confirmation are, in effect, comparable to provisions of the bills on which I reported and testified and are objectionable to this administration for the reasons that I expressed in connection with that group of bills. In addition, the provisions of the substitute bill that would provide for the transfer from the President to the Director of the Office of Management and Budget of functions that were transferred from the Director of the Bureau of the Budget to the President by Reorganization Plan No. 2 of 1970 are objectionable as a backward step in our effort to bring about better management and greater efficiency in the executive branch.

Accordingly, enactment of the substitute bill would not be in accord with the program of the President.

Sincerely,

ROY L. ASH, Director. Chairman HOLIFIELD. If there are no further questions of Mr. Ash at this time, the chairman would invite Mr. Dixon from the Department of Justice to the table, and Mr. Ash, if you wish to remain while these questions are being put, that would be fine.

Mr. Dixon?

STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL; ACCOMPANIED BY HERMAN MARCUSE

Mr. DIXON. Yes.

Chairman HOLIFIELD. We hope to finish up with Mr. Dixon's testimony and Mr. Wilbur Cohen's, the former head of the HEW, to testify before we adjourn.

Mr. Dixon, go ahead.

Mr. DIXON. I am pleased to appear before the committee as the representative of the Department of Justice to present its position on the 10 bills which relate to the manner of the appointment of the Office of Management and Budget.

I have submitted to your committee a detailed prepared statement, and I believe that it will save your committee's time if I limit my oral statement to the highlights of my written presentation.

Chairman HOLIFIELD. That would be very great. We are pushed for time. We will accept it, as presented, for the record.

(The prepared statement of Robert G. Dixon and additional information subsequently received for the record follow:)

PREPARED STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL

Mr. Chairman, I am pleased to appear before the committee as the representative of the Department of Justice to present its position on 10 bills all of which relate to the manner of appointment of the Director of the Office of Management and Budget; some also apply to the appointment of the Deputy Director of that Office. The bills fall into four groups:

(1) H.R. 2237 would require that the Director of the Office of Management and Budget shall be appointed by the President by and with the advice aud consent of the Senate, and the Deputy Director by the President alone. This bill would apply only to future appointments.

(2) H.R. 204 and 4265 would apply to any occupant of the office of the Director on and after the date of enactment of the legislation, and would require Senate advice and consent. In addition, they would require the President to nominate a new Director within 90 days after the occurrence of a vacancy.

(3) H.R. 2411, 2966, 3065, and 3390 would require Senatorial advice and consent to the appointment not only of the Director but also of the Deputy Director, and would be applicable to the incumbents of those offices.

(4) S. 518, H.R. 3932, and H.R. 4370 would require advice and consent of the Senate to appointments to both offices and would apply as well to incumbents. Appointment of the incumbents in that manner would limit the term of the offices of the Director and Deputy Director to 4 years, the intent being that their terms cannot exceed that of the President who appointed them.

I

The method of appointing the officers of the United States is governed by article II, section 2, clause 2 of the Constitution. That clause provides that the President shall appoint by and with the advice and consent of the Senate “* Ambassadors, other public Ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

The constitutional plan thus contemplates the appointment of officers of the United States by the President by and with the advice and consent of the Senate, unless Congress vests the appointment of such "inferior" officers as it sees fit in the President alone, the courts of law, or the heads of departments.

A preliminary question is whether the Director and Deputy Director of OMB are "inferior officers" within that constitutional provision. If they are, Congress has the discretionary power to determine how they are to be appointed. As you know, Congress has determined in the past that they are to be appointed by the President alone. 31 U.S.C. 16. Moreover, Congress in effect confirmed this in accepting Reorganization Plan No. 2 of 1970, which did not disturb that method of appointment.

During the debate in the Senate on S. 518 it was stated repeatedly that the two officers here involved had become so important that they ceased to be “inferior officers" within the meaning of the Constitution. This view misreads the Constitution. In this context the word "inferior" is not used in a qualitative but in a hierarchical sense. It does not refer to the importance of the position (as witness the long tradition of confirmation for postmaster and military officers down to the level of second lieutenant), but to the status of the officer, viz.. whether he is inferior to the one who appoints him. As the Court of Claims held in Collins v. United States, 14 C.Cl. 568, 574 (1878):

***The word inferior is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested-the sense of petty or unimportant; but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested-the President, the courts of law, and the heads of departments."

Hennen v. United States, 13 Pet. 230, 257-258 (1839), and United States v. Germaine, 99 U.S. 508, 509-510 (1878), and Professor Corwin (The President,