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this authority. A number of factors must taken by the Conimission itself, and apbe considered for a correct evaluation of plications for writs of mandamus to the Departments and the court's posi- compel obedience with the Commistion. First, there is the express language sion's substantive cease and desist orof the Federal Trade Commission Act. ders, to be undertaken by the Attorney Section 9 states, with respect to the en- General. forcement of subpoenas, that "the com- Any contradiction which could submission may invoke the aid of any court sequently be read into the Act as the of the United States in requiring the result of the difference in methodology attendance and testimony of witnesses of enforcement was the subject of exand the production of witnesses.” (Em- tensive comment prior to its enactphasis supplied.) With respect to com- ment.65 That comment makes it clear pelling compliance with substantive that inclusion of the mandamus proF.T.C. orders to cease and desist, Sec- vision in the Act was not intended to tion 9 states that “[u]pon the application and does not have any relation to the of the Attorney General of the United provisions concerning Commission subStates, at the request of the commission, poenas and court proceedings for their the district courts of the United States enforcement. The mandamus paragraph shall have jurisdiction to issue writs of was intended to apply to nothing other mandamus commanding any person or than the substantive provisions of the corporation to comply with the pro- Act and the Commission's orders comvisions of this Act or any order of the manding obedience to them.66 commission niade in pursuance thereof." In addition, the legislative intent conThus, the Act contains two separate pro- cerning independence, and particularly visions applicable in two distinct sets of independence from control of the Execucircumstances: a provision with respect tive for investigative purposes, buttresses to subpoena enforcement, to be under- this conclusion.67
* Mr. COVINGTON. I think the conflict is niore apparent than real, and, frankly, it was an oversight in the final draft. It is a fact that there is a slight conflict there. It is one, however, the court would have no difficulty in determining, because in the section which embodies the method of dealing with processes of the commission, process for subpoena process of enforcing ordinary orders respecting reports, process for production of docu ments, process for the punishment of contumacious witnesses, and all the other ordinary machinery for the actual operation of the commission investigations and hearings, there is found that provision. It might very well be held to relate entirely to the proceeding under the section to which the gentlemen refers. And the exclusive jurisdiction conferre. upon the circuit court of appeals is expressly related to and found in the section whic deals with unfair methods of competition in business. In addition thereto, as indicatedthat section 9, to which the gentleman refers, was dealing entirely with methods an processes—it provides that the jurisdiction of the district courts of the United State shall be invoked only upon the application of the Attorney General of the United State and only at the request of the commission. Assuming all the gentleman says, it woul not become a conflict of juridiction until the application of the Attorney General to th district court after the request of the commission bad been made. The commissic would never use that method to enforce its unfair competition orders. (51 Cong. Re 14,927]
* For reasons not spelled out in the decision, this was not dealt with by the majorit even though the dissenting opinion by Judge Heaney makes specific reference to the legislati history of Section 9 of the Federal Trade Commission Act, as well as the distinction betwee mandamus proceedings and subpoena enforcement. 390 F.2d 330, et seq.
* But the great value to the American people of the Interstate Commerce Commissie has been largely because of its independent power and authority. The dignity of u
The second aspect concerns the statutory language upon which the court and the Department rely-Sections 516 and 519 of Title 28, United States Code. Section 516 provides that:
Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. Section 519 provides that:
Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.
The crucial terms are "except as otherwise authorized by law” and “an agency,” which were inserted when this section was codified.
This insertion, however, was to effect a profound change in preexisting law and resulted in the interpretation that now specific legislation is required for an exemption from the application of this section; general legislation, such as contained in Section 9 of the Federal Trade Commission Act, was previously considered sufficient.68 A review of the history of this codification and the previous statutory provisions makes it clear, however, that such a result was not intended. While the insertion of these terms cannot be called inadvertent, they were nevertheless not intended to change preexisting law. The legislative history
proposed commission and the respect in which its performance of its duties will be held by the people will also be largely be use of its independent power and authority. Therefore the bill removes entirely from the control of the President and the Secretary of Commerce the investigations conducted and the information acquired by the commission under the authority heretofore exercised by the Bureau Corporations or the Commissioner of Corporations. All such investigations may hereafter be made upon the initiative of the commission, within constitutional limitations, and the information obtained may be made public entirely at the discretion of the commission. (H.Rept. 533, 63d Cong., 28 Sess. 3 (on H.R. 15,613, a predecessor of the Commission's organic statute).) Supra note 59.
According to the historical notes, Section 516 is based on former 28 USC Judicial Code 507, which, in turn, is based on R.S. 361, which provided that:
The officers of the Department of Justice, under the direction of the Attorney General, shall give all opinions and render all services requiring the skill of persons learned in the law necessary to enable other officers in the Departments, to discharge their respective duties; and shall, on behalf of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested. ..
The phrase "except as otherwise authorized by law” was not contained in R.S. 361. Nor did it contain "or agency” because it was enacted prior to the establisment of a major permanent independent agency. Furthermore, it did not apply to litigation in the district courts and referred to Executive Departments exclusively. If the revisors of former 28 USC Judicial Code 507 had intended to make so great a change in preexisting law as to repeal the Commission's authority to go to court without the aid or consent of the Attorney General, it would seem that their notes would have so advised the enacting Congress. No hint of such intention appears either in those notes or in the committee reports, and, accordingly, an intention to amend Section 9 of the Federal Trade Commission Act in this respect cannot be
An equal lack of any such indication is shown by the history of the enactment of present 28 USC 316 and 519. As to the provisions in Section 519, the committee reports not only How no intention that the recodification should amend the Commission's authority under Section 9, but also affirmatively show a determination to make no change in the existing law.
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of these provisions conclusively shows sion's functions and duties is its ability that none of the predecessor statutes to investigate independently, and the applied to such proceedings as the Com- subpoena power, along with enforcemission's subpocna enforcement cases, ment authority, is a very necessary part and that by adopting the codifications of its investigatory tools. Frequently its the Congress did not intend to effect any existence alone will obviate the need for changes in preexisting law. As a matter its use. Under present conditions, howof fact, Congress expressly disavowed ever, the Commission's ability to insuch a purpose. It is clear, therefore, vestigate has been seriously curtailed. that the legislative history of Section 9 The Guignon decision also brings into of the Federal Trade Commission Act, sharp focus the problems presented by long-established practice, the legislative the inability of the Commission to rehistory of the codifications of Title 28, quest the Supreme Court to grant writs and applicable legal precedent" did not of certiorari. In order to seek certiorari intend the result achieved by the court. it must obtain the support of the SoliciNow, however, the Commission must tor General, which in this case was not apply to the Attorney General for en- achieved. forcement of subpoenas, which is inconsistent with congressional intent on
G. Humphrey's Executor regulatory independence. One of the The precise limits of regulatory inmost important aspects of the Commis- dependence have not been crystallized
H.Rept. 901, 89th Cong., 1st Sess. on H.R. 10104, which codified and revised Title S and enacted it into positive law.
Like any other recent codifications undertaken as part of the program of the Committee on the Judiciary of the House of Representatives to enact into law all 50 titles of United States Code, there are no substantive changes made by this bill enacting Title 5 into law. It is sometimes feared that more changes in terminology and style will result in changes in substance or impair the precedent value of earlier judicial decisions and other interpretations. This fear might have some weight if this were the usual kind of amendatory legislation where it can be inferred that a change of language is intended to change substance. In a codification statute, however, the courts uphold the contrary
presumption: the statute is intended to remain substantively unchanged. [p. 3.) With respect to present 28 USC 519, the report states that it was derived from former 28 USC 507(b) and that “The words 'Except as otherwise authorized by law' are added to provide for existing and future exceptions ..." (p. 187.)
Supra note 69.
- Cj. F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966). In that case, with respect to the issue whether the Commission had authority to scek a pendente lite injunction, the Supreme Court stated:
There is no explicit statutory authority for the Commission to appear in judicial review proceedings, but no one has contended it cannot appear in the courts of appeals to defend its orders. Nor has it ever been asserted that the Commission could not bring contempt actions in the appropriate court of appeals when the court's enforcement orders were violated, though it has no statutory authority in this respect. Such ancillary powers have always been treated as essential to the effective discharge of the Commission's se
sponsibilities. [p. 607.) In a recent subpoena enforcement suit before the United States District Court for the Northern District of Georgia, Civil Actions 12,430, 12,431, 12,432, in a decision dated April 2, 1969, the court, although the issue had not been raised, went out of its way to state:
Unlike other orders a subpoena issued by the Commission need not be enforced by first applying to the Attorney General. F.T.C. v. Continental Cao Co., 267 F.Supp. 713 (S.D.N.Y. 1967). Contra, F.T.C. v. Guignon, 261 F.Supp. 215 (E.D.Mo. 1966), ag d. 393 F.2d 323 (8th Cir. 1968).
and judicial expressions on the point consent of the Senate. In a dictum the have been scant. Some guidelines, how- Court further indicated that the Presiever, have been established. When dent had the unlimited right to remove Franklin Delano Roosevelt assumed the members of quasi-legislative and quasiduties of his office in 1933, he desired judicial bodies. to establish his own economic policy. After reviewing the legislative history Roosevelt felt that in the execution of of the Federal Trade Commission Act this policy he needed control of the and the debates in both Houses, the Federal Trade Commission. This he in- Court stated that tended to accomplish by removing one [T]he language of the act, the legislative commissioner openly opposed to Roose- reports, and the general purposes of the velt's economic policy-Commissioner
legislation as reflected by the debates, all
combine to demonstrate the Congressional Humphrey. Roosevelt at first asked
intent to create a body of experts who shall Humphrey to resign, on the ground "that gain experience by length of service a the aims and purposes of the Adminis- body which shall be independent of executration with respect to the work of the
tive authority, except in its selection, and Commission can be carried out most
free to exercise its judgment without the
leave or hindrance of any other official or effectively with personnel of my own any department of Government." selection." 12 When this request was ig- The Court recognized that tenure of nored, Roosevelt, on August 31, 1933,
office at the will of the President would and after some intervening correspond- stultify the intent of Congress, an intent ence, wrote to Humphrey the following: evidenced by the fact that Congress fixed
You will, I know, realize that I do not commissioners' terms of office. The feel that your mind and my mind go along
Court also pointed out that removal together on either of the policies or the administering of the Federal Trade Com.
power in the President would nullify the mission and, frankly, I think it is best for
independence of the Commission and the people of this country that I should have stated that “it is quite evident that one a full confidence.
who holds his office during the pleasure When Humphrey again refused to re
of another, cannot be depended upon to sign, Roosevelt, on October 7, 1933, maintain an attitude of independence wrote him that "effective as of this date against the latter's will.” 75
A more you are hereby removed from the office succinct explanation of the necessity for of Commissioner of the Federal Trade the Commission's independence cannot Commission." In this attempt to remove
be found. a commissioner of an independent
In addition, the Court was influenced agency solely on the basis of incom- considerably by the traditional concepts patibility of views rather than for the of separation of powers and therefore reasons spelled out in the statute, Roose- gave particular consideration to the relavelt relied on the Supreme Court de- tionship between regulatory indepencision in Myers v. United States." There dence and the quasi-judicial functions of the Court held that Congress could not
the agency: constitutionally restrict the President's We are thus confronted with the serious power to remove an executive official question whether not only the members of who had been appointed by the Presi
these quasi-legislative and quasi-judicial
bodies . . . continue in office only at the dent either alone or with the advice and
pleasure of the President.
*Letter by Roosevelt to Humphrey, July 25, 1933.
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We think it plain under the Constitution to believe that many of the congressional that illimitable power of removal is not actions undertaken in the interest of possessed by the President in respect of officers of the character of those just orderly and efficient operation of govnamed."
ernment, which subsequently adversely In a previous case," the Court dealt
affected regulatory independence, were at considerable length with the impact of
accidental rather than a conscious and the separation of powers doctrine
deliberate effort to limit such regulatory
upon actions by the Executive affecting the independence. Academic considerations independence of officials acting in a
aside, however, the fact remains that judicial capacity. A reading of both
when Congress assigned these regulacases suggests that the Court, after hav- tory tasks to independent agencies it did ing determined the function involved, evidenced by the organic acts, to be
so because it expected its mandate, as applied the separation of powers doctrine to the issue of independence from
carried out by vigorous and effective control by the Executive. In theory such
enforcement policy. This policy was a test would be ideal for its simplicity.
intended to be continuous and irrespecUnfortunately, in modern practice such
tive of the changing political fortunes a separation would be extremely diffi- dictating White House occupancy. To cult, if not impossible, as these func
the extent we have deviated from this tions, to varying degrees, coalesce in
intent the resulting diffusion of control different governmental endeavors."
has taken its inevitable toll in regulatory
efficiency. For example, this situation CONCLUSION
has undoubtedly had a deleterious imThese are some of the outstanding pact on antitrust enforcement activities developments which demonstrate that by the Federal Trade Commission as regulatory independence is rapidly be
well as the activities of other agencies. coming more fanciful than factual. Con
To varying degrees, therefore, erosion of gressional intent was clear from the out- independence has at the same time unset that the quasi-legislative and quasi- dermined the agencies' effectiveness. It judicial regulatory agencies were to be
is ironic that this loss of efficiency should independent and free from the influence, be, at least in part, the result of precisely direction or oversight of the Executive those statutes designed to foster the Department. Moreover, the above-noted orderly and efficient conduct of governreasons for this—the quasi-legislative ment. Perhaps, then, the public interservice as an arm of the Congress and est has and may continue to suffer loss continuity in effectuation of public of efficiency instead of capturing that policy as declared in the broad outlines illusive objective if there should be conof the law-are as valid today as in tinuing erosion of effective congressional 1887, more than 80 years ago. I tend oversight instead of oversight by others.
* Id. at 607.
" Williams v. United States, 289 U.S. 553 (1933). See also, Lusk v. United States, 173 a.ci. 291 and cases cited therein; Wiener v. United States, 357 U.S. 349 (1958).
For example, the quasi-judicial authority conferred upon the Secretary of Agriculture by the Packers and Stockyards Act.