Chairman HOLIFIELD. Are you saying, Mr. Dixon, that the Congress cannot change a law at any time that it decides that it wants to change a law?

The Reorganization Act No. 2 of 1970, was by the affirmation of Congress. It did change the situation from the Bureau of the Budget to the Office of Management and Budget, in an interim period. We didn't change it at the beginning of the Presidential term or congressional term.

So any statutory power that the legislative branch can be utilized, if it is utilized properly, at any time.

You won't take the position that the Congress could not abolish the Office of the Budget of the Bureau, having been the entity that established it; would you?

Mr. DIXON. I think I agree with that, Mr. Chairman, in the broad sense that Congress has power to change the law so long as the effect does not violate some ban against retroactivity in the Constitution, or in this case interfere with the President's power of removal over an incumbent.

Chairman HOLIFIELD. But the Constitution is not involved in the Presidential power of appointment, except in a general way unless it pertains to those offices specified in the Constitution; is that not true? Mr. DIXON. True. Looking to future appointments Congress has the broad power to dispose

Chairman HOLIFIELD. But wait. Let's look at the present.

I am going to ask Mr. Brooks now to explain his idea that he brought before us this morning.

Mr. BROOKS. As I understand it, you do agree that Congress has the authority to abolish a Government agency; is that correct? Mr. DIXON. Yes.

Mr. BROOKS. And if Congress did, it would eliminate whoever was running that agency by that same action; is that correct?

Mr. DIXON. Yes.

Mr. BROOKS. Good. We have done that. That is clearly stated.

If we abolished the existing Office of Management and Budget, better known as OMB, and created one called the Office of Budget and Management and vested in it all of those functions that it had previous to 1970 before the Reorganization Act when Congress took them away from the Director or the then-Bureau of the Budget, and gave them to the President, now wouldn't that meet your constitutional test of Congress abolishing an agency and creating another one, which is certainly within their prerogative?

Mr. DIXON. Mr. Brooks, I heard that comment this morning and I think there is a line

Mr. BROOKS. There is a what?

Mr. DIXON. There is a line to be drawn between a simple abolition of an agency and removing an individual through subterfuge by abolishing the present agency

Mr. BROOKS. Counselor, subterfuge is an interesting word which I wouldn't want you to use in regard to me, because what I am planning to do, hoping to do, is to change what the existing Director says is a very weak agency. He says he doesn't have power. He is a very modest man with a giant cannon.

I want to change that and give him some authority and restore those many functions to the agency which were in its power for many, many generations. That is clearly not a subterfuge. This is a realinement of the structure and one which I was not in favor of changing in 1970, one which I want to change back.

So I don't like the word subterfuge. I am telling you clearly what I am planning to do. If you want to imply subterfuge, I will start implying some things myself as to "inferior" officers. If you think Mr. Roy Ash is inferior to anybody you know in the Government except the President, I want you to tell me who that super paramount soul is.

Mr. HORTON. If the gentleman would yield, I think what the witness is trying to get across is that it is different if you create a new agency or if you try to use a subterfuge to try to remove an individual that the President has appointed. Is that the point you were trying to make?

Mr. DIXON. That is what I was stating, Mr. Horton, precisely.

Mr. HORTON. I think that is what is involved here; an attempt to try to remove an individual who has been appointed by the President. Mr. BROOKS. Mr. Chairman, would the gentleman yield?

In the reorganization plan of 1962, some 10 or 11 years ago, they did establish a new title in the National Science Foundation and abolished the old one in the same act. The Office of Director of the National Science Foundation was abolished, and they created a new one. This is something you probably were particularly familiar with, Mr.

Holifield.

Chairman HOLIFIELD. Yes.

Mr. BROOKS. But this happens very often in the legislature and it is not called subterfuge. If you want to read the difference in the functions under this procedure, under the present 1970 Reorganization Act, you will see a very clear delineation of authority within the then Bureau of the Budget and today's

Mr. DIXON. The word "subterfuge" is an unfortunate term. It was taken out of context. Our position is that there is a serious constitutional problem with the application of these bills retroactively to the incumbents in the OMB, the Director and Deputy Director.

Now if we hypothesize there is no constitutional problem with the application of these bills to future appointees, even with that hypothesis it would be unconstitutional to apply these measures retroactively to the incumbents in the Office of OMB. The question might be raised, well, is there some other way to accomplish the objective to change the incumbents, except by removal by the President, which we contend he possesses exclusively, and is the Brooks proposal a method of doing so.

And so I was responding to your question whether there was no problem in simply abolishing OMB as now constituted, and reconstituting it with the requirements of senatorial confirmation for the new nominee and the new agency, and that prospect does give me pause. For example, I don't think that-and again hypothesizing a constitutional issue that we could get around the life tenure of Federal judges prescribed in the Constitution by abolishing a court or series of courts and then reconstituting those very same courts with precisely the same functions they had before.

Mr. BROOKS. It is provided by the Constitution that we have the full authority to change the regulations and the functions and the procedure whereby a director shall be selected and that is within the prerogative of the Congress, but to change the life tenure of a Federal judge most lawyers in this country would agree would require a constitutional amendment.

Nobody says you are going to change the life tenure of the Federal judges.

Mr. WYDLER. Would the gentleman yield on that question?

I think we should have it clear here. As I understand, the Constitution has provided for a Supreme Court and Justices thereof, but the rest of the structure of the courts is really left to legislative enactment by the Congress; isn't that right?

Mr. DIXON. Not entirely correct.

As I view the present controversy, as I have spelled out in my full testimony, at issue here in congressional entrenchment on the President's power to appoint and remove his executive officials.

Mr. WYDLER. I am not asking you for policy now. I presume you are a constitutional expert and this is really why I am asking this question. Under the Constitution as I read it. the Constitution provides for the establishment of the Supreme Court and Justices thereof, but thereafter it requires certain Federal courts to be established by act of Congress. It says nothing in the Constitution about how many courts of appeals there will be or where the district courts will be located, or how many judges will be in each district court.

So actually there is nothing in the Constitution which stops us from doing what you are saying; just eliminate all these particular courts in a specific State, and say everything is vacant now, and you could go back and then appoint somebody else to be judges.

Mr. BROOKS. Would the gentleman yield?

The distinguished counselor and his friends at the Justice Department will be back before the Judiciary Committee this year. They want another 50 judges. There is no question about it. Congress can decide whether to create those 50 judgeships. When they are appointed they will have life tenure. We are not questioning that. But they are going to have a lot more of them, not less.

We can create more judgeships, but unfortunately we never take away judgeships. Once we create them, we keep them forever and ever, even if the population of that State goes down to two, we still would have four Federal judges, and there would be robes and chambers and bailiffs and secretaries, but the life tenure continues. Nobody denies that and you could change it, and they are trying to change it right

now.

But, they say they need 50. What is it, 48 or 52? Was that number.

52?

Mr. DIXON. Mr. Brooks, I am newly minted in this position. This is my third day. I don't have the exact figure.

Mr. BROOKS. All right. Bless your heart, then. We understand. It is your third day and it is Mr. Ash's second month.

Chairman HOLIFIELD. Mr. Horton?

Mr. HORTON. Mr. Chairman, I don't know whether we finished with the witness' testimony. Had you finished your testimony?

Mr. DIXON. No.

Mr. HORTON. Are you willing to just put it in the record now, and then we will ask questions? What do you want to do?

Mr. DIXON. Mr. Horton, I would like an opportunity to pin down the key points in my testimony because I have only alluded to them. Mr. HORTON. Could we let him finish his testimony without taking my questions?

Chairman HOLIFIELD. Sure. Go ahead and summarize the rest of your testimony.

Mr. DIXON. All right, thank you, Mr. Chairman.

The thrust of my testimony concerns the issue of retroactivity. This is the concern of the Department of Justice, namely, whether Congress can require that an officer who has been appointed by the President alone pursuant to enabling statute may retain his position only if he is reappointed by the President, by and with the advice and consent of the Senate.

In our view the answer to that question is clearly in the negative. Under the Constitution, the power to remove an officer of the executive branch is vested exclusively in the President. Congress can oust an officer only by the process of impeachment. Indeed, we feel the express power of impeachment negates any other removal power in Congress over executive officials.

While Congress can impose reasonable qualifications for civil officers, for future appointments, it may not impose such qualifications retroactively so as to remove an incumbent from office. And in effect that would be the effect of this before the committee regarding Mr. Ash.

The President's responsibility over the removal of purely executive officers has been settled by a long line of legislative and judicial decisions. This goes back, as I mentioned in my full statement, to the great debate of 1789 and Madison's remarks in that regard that the "power of removal is an Executive power."

I also outlined the rule that Congress cannot limit the President's power of removal of purely executive officers, which line of precedents culminates in the landmark decision in the Supreme Court in Myers v. United States.

Now, the law at issue in Myers provided that postmasters appointed by advice and consent of the Senate could be removed only by that process. The Supreme Court held that unconstitutional. Today we are faced with the other side of the President's monopoly over removal of executive officers; namely, that only he can remove those officers and that Congress can't remove them by legislation.

There has been few attempts by Congress to accomplish that in the past. However, whenever in the past Congress sought to remove executive officers by legislative action, the Executive with aid from the courts, if needed, has successfully challenged those attempts.

In 1924, for example, in regard to the Teapot Dome matter, the Senate passed a resolution calling for the removal of the Secretary of the Navy. President Coolidge refused to give official recognition to the passage of that resolution and prevailed.

In December of 1930 the Senate confirmed the nomination of three members of the Federal Power Commission and ordered that the reso

lution of confirmation be forwarded to the President, who thereupon appointed them. At the Christmas recess, however, the Senate voted to reconsider the nominations and asked the President to return the resolution. President Hoover refused to comply on the grounds he could not "admit the power in the Senate to encroach upon the Executive function by removal of a duly appointed executive officer under the guise of reconsideration of his nomination."

The Supreme Court upheld that action by President Hoover in the United States v. Smith case cited in my full testimony.

We feel the situation involved in the United States v. Lovett is highly pertinent here. An appropriation rider in 1943 provided that no appropriated funds could be used after a certain date to pay the salaries of three specified Federal employees unless they were appointed by the President by and with the advice and consent of the Senate.

Prior to that date, President Roosevelt approved the bill reluctantly to keep the war going, but refused to submit the nominations required by the rider. The disbursing offices thereupon felt themselves precluded from paying the salaries of the officials involved and instituted suit in the Court of Claims in the Supreme Court. The Department of Justice sided with the plaintiffs while special counsel retained by Congress argued for the validity of the rider. The principal argument advanced by the Department was that it represented an unconstitutional infringement of the Executive's power of removal; a position with which I agree. The Court invalidated the legislation on the grounds that it constituted a bill of attainder. Its reasoning we feel, rested at least in part on the proposition that Congress cannot remove officers in the executive branch.

The most recent example of this sort of incident concerned Sargent Shriver. He held the office of Director of the Peace Corp and the Office of Economic Opportunity, simultaneously. Legislation introduced after he had been so appointed would have precluded the same person from occupying both positions at the same time. The proposal was defeated by Congress mainly on the grounds that Mr. Shriver was capable of administering both offices efficiently. The constitutional aspects of the issue were not discussed extensively in the congressional debate. Attorney General Katzenbach, however, submitted a memorandum to President Johnson in which he concluded that Congress could not by legislation oust an official from a position to which he had been appointed by the President.

We have attached a copy of that memorandum to the Department's report on H.R. 204.

I will omit the part of my prepared statement dealing with the 4year term and reconfirmation question.

Mr. HORTON. Mr. Chairman, I think that is a very important memorandum. This is a memorandum from Attorney General Katzenbach on this very question; is it not?

Mr. DIXON. Yes.

Mr. HORTON. To President Johnson, and you say it is attached to the Department's report on H.R. 204?

Mr. DIXON. Yes.