16 THE FEDERAL BAR JOURNAL this authority. A number of factors must be considered for a correct evaluation of the Department's and the court's position. First, there is the express language of the Federal Trade Commission Act. Section 9 states, with respect to the enforcement of subpoenas, that "the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of witnesses." (Emphasis supplied.) With respect to compelling compliance with substantive F.T.C. orders to cease and desist, Section 9 states that "[u]pon the application of the Attorney General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof." Thus, the Act contains two separate provisions applicable in two distinct sets of circumstances: a provision with respect to subpoena enforcement, to be under taken by the Commission itself, and applications for writs of mandamus to compel obedience with the Commission's substantive cease and desist orders, to be undertaken by the Attorney General. Any contradiction which could subsequently be read into the Act as the result of the difference in methodology of enforcement was the subject of extensive comment prior to its enactment. That comment makes it clear that inclusion of the mandamus provision in the Act was not intended to and does not have any relation to the provisions concerning Commission subpoenas and court proceedings for their enforcement. The mandamus paragraph was intended to apply to nothing other than the substantive provisions of the Act and the Commission's orders commanding obedience to them." In addition, the legislative intent concerning independence, and particularly independence from control of the Executive for investigative purposes, buttresses this conclusion."7 * Mr. COVINGTON. I think the conflict is more 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 which 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 had 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 majority even though the dissenting opinion by Judge Heaney makes specific reference to the legislativ 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 Commissic has been largely because of its independent power and authority. The dignity of u REGULATORY INDEPENDENCE 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. 17 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." 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 because 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., 2d 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 inferred. An equal lack of any such indication is shown by the history of the enactment of present 28 USC $16 and 519. As to the provisions in Section 519, the committee reports not only show 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. 18 THE FEDERAL BAR JOURNAL of these provisions conclusively shows that none of the predecessor statutes applied to such proceedings as the Commission's subpoena enforcement cases, and that by adopting the codifications the Congress did not intend to effect any changes in preexisting law. As a matter of fact, Congress expressly disavowed such a purpose. It is clear, therefore, that the legislative history of Section 9 of the Federal Trade Commission Act, long-established practice, the legislative history of the codifications of Title 28, and applicable legal precedent " did not intend the result achieved by the court. Now, however, the Commission must apply to the Attorney General for enforcement of subpoenas, which is inconsistent with congressional intent on regulatory independence. One of the most important aspects of the Commis sion's functions and duties is its ability to investigate independently, and the subpoena power, along with enforcement authority, is a very necessary part of its investigatory tools. Frequently its existence alone will obviate the need for its use. Under present conditions, however, the Commission's ability to investigate has been seriously curtailed. The Guignon decision also brings into sharp focus the problems presented by the inability of the Commission to request the Supreme Court to grant writs of certiorari. In order to seek certiorari it must obtain the support of the Solicitor General, which in this case was not achieved. G. Humphrey's Executor The precise limits of regulatory independence have not been crystallized H.Rept. 901, 89th Cong., 1st Sess. on H.R. 10104, which codified and revised Title 5 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 mere 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.) TO Supra note 69. "Cf. 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 seek 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 responsibilities. [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 firs applying to the Attorney General. F.T.C. v. Continental Can Co., 267 F.Supp. 713 (S.D.N.Y. 1967). Contra, F.T.C. v. Guignon, 261 F.Supp. 215 (E.D.Mo. 1966), aff'd, 39 F.2d 323 (8th Cir. 1968). REGULATORY INDEPENDENCE and judicial expressions on the point have been scant. Some guidelines, however, have been established. When Franklin Delano Roosevelt assumed the duties of his office in 1933, he desired to establish his own economic policy. Roosevelt felt that in the execution of this policy he needed control of the Federal Trade Commission. This he intended to accomplish by removing one commissioner openly opposed to Roosevelt's economic policy-Commissioner Humphrey. Roosevelt at first asked Humphrey to resign, on the ground "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." " When this request was ignored, Roosevelt, on August 31, 1933, and after some intervening correspondence, wrote to Humphrey the following: You will, I know, realize that I do not feel that your mind and my mind go along together on either of the policies or the administering of the Federal Trade Commission and, frankly, I think it is best for the people of this country that I should have a full confidence. When Humphrey again refused to resign, Roosevelt, on October 7, 1933, wrote him that "effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission." In this attempt to remove a commissioner of an independent agency solely on the basis of incompatibility of views rather than for the reasons spelled out in the statute, Roosevelt relied on the Supreme Court decision in Myers v. United States." There the Court held that Congress could not constitutionally restrict the President's power to remove an executive official who had been appointed by the President either alone or with the advice and 19 consent of the Senate. In a dictum the Court further indicated that the President had the unlimited right to remove members of quasi-legislative and quasijudicial bodies. After reviewing the legislative history of the Federal Trade Commission Act and the debates in both Houses, the Court stated that [T]he language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service-a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of Government." The Court recognized that tenure of office at the will of the President would stultify the intent of Congress, an intent evidenced by the fact that Congress fixed commissioners' terms of office. The Court also pointed out that removal power in the President would nullify the independence of the Commission and stated that "it is quite evident that one who holds his office during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." 75 A more succinct explanation of the necessity for the Commission's independence cannot be found. In addition, the Court was influenced considerably by the traditional concepts of separation of powers and therefore gave particular consideration to the relationship between regulatory independence and the quasi-judicial functions of the agency: We are thus confronted with the serious question whether not only the members of these quasi-legislative and quasi-judicial bodies... continue in office only at the pleasure of the President. "Letter by Roosevelt to Humphrey, July 25, 1933. "272 U.S. 52 (1926). Humphrey's Executor v. United States, 295 U.S. 602, 625-26 (1935). *Id. at 629. 20 THE FEDERAL BAR JOURNAL In a previous case," the Court dealt at considerable length with the impact of the separation of powers doctrine upon actions by the Executive affecting the independence of officials acting in a judicial capacity. A reading of both cases suggests that the Court, after having determined the function involved, applied the separation of powers doctrine to the issue of independence from control by the Executive. In theory such a test would be ideal for its simplicity. Unfortunately, in modern practice such a separation would be extremely difficult, if not impossible, as these functions, to varying degrees, coalesce in different governmental endeavors.78 CONCLUSION These are some of the outstanding developments which demonstrate that regulatory independence is rapidly becoming more fanciful than factual. Congressional intent was clear from the outset that the quasi-legislative and quasijudicial regulatory agencies were to be independent and free from the influence, direction or oversight of the Executive Department. Moreover, the above-noted reasons for this-the quasi-legislative service as an arm of the Congress and continuity in effectuation of public policy as declared in the broad outlines of the law are as valid today as in 1887, more than 80 years ago. I tend to believe that many of the congressional actions undertaken in the interest of orderly and efficient operation of government, which subsequently adversely affected regulatory independence, were accidental rather than a conscious and deliberate effort to limit such regulatory independence. Academic considerations aside, however, the fact remains that when Congress assigned these regulatory tasks to independent agencies it did so because it expected its mandate, as evidenced by the organic acts, to be carried out by a vigorous and effective enforcement policy. This policy was tive of the changing political fortunes intended to be continuous and irrespecdictating White House occupancy. To the extent we have deviated from this intent the resulting diffusion of control has taken its inevitable toll in regulatory efficiency. For example, this situation has undoubtedly had a deleterious impact on antitrust enforcement activities by the Federal Trade Commission as well as the activities of other agencies. To varying degrees, therefore, erosion of independence has at the same time unis ironic that this loss of efficiency should dermined the agencies' effectiveness. It be, at least in part, the result of precisely those statutes designed to foster the orderly and efficient conduct of government. Perhaps, then, the public interest has and may continue to suffer loss of efficiency instead of capturing that illusive objective if there should be continuing erosion of effective congressional 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 Ct.Cl. 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. |