of a commitment to fidelity to the legal process that should be recognized and, I think, commended.

Professor MILLER. Senator, I would like to mention that Professor Dixon is an old and valued friend and colleague, and we hope to welcome him back to the university1 some day; and I do have a couple of questions for him.

I will defer to Mr. Edmisten, if he wants to go first.

Mr. EDMISTEN. I would probably be briefer. I really have looked forward to this special time because Professor Dixon used to be one of my professors, and I dearly love the opportunity to ask the questions this time.

Senator ERVIN. Do you want to turn the tables on him?

Mr. DIXON. Let us make this pass/fail, shall we? [General laughter.]

Mr. EDMISTEN. I have noticed, Professor Dixon, that on many occasions, a person comes up from the Justice Department-and I will give you an example. During this subcommittee's impoundment hearings, in 1971, before impoundment became a popular subject, a former Deputy Attorney General and your predecessor, Mr. Rehnquist, came before the subcommittee, and said he was speaking for the Department. And then, Mr. Sneed, the Deputy Attorney General, appeared at some later hearings, and said that Mr. Rehnquist did not know what he was talking about, that he was only speaking for himself.

I notice that you said this morning, you were speaking for the Department. What process do you use? When do you speak for the Department, and when do you not?

Mr. DIXON. My testimony was prepared, largely, I would like to add, by the professional cadre in Justice who are not only career servants, but are in accord on these constitutional positions I have taken. It was submitted to the Deputy Attorney General and the Attorney General, and they indicated that I could appear as the Department spokesman on this matter. And I have done so.

As we all know, there is a long-standing process going back through many administrations-I am not sure how many decades ago it began-it is customary to have testimony submitted to, in the old days, the Bureau of the Budget, now the Office of Management and Budget, to see if it is consistent with the President's program, and to see whether or not it should be actually endorsed. This is a matter in which we have been told that the Office of Management and Budget has no objection to my testimony, in terms of any consistency with the President's program.

Mr. EDMISTEN. When you go on Capitol Hill, you speak for the Department?

Mr. DIXON. Yes. It is true, I suppose, that perceptions may change, as matters may move from one Attorney General to another, or to put it more precisely, from one administration to another. I believe a national election did intervene between Mr. Rehnquist's testimony and Mr. Sneed's testimony. If legal issues are clear-and they often are not all that clear in areas like separation of powers-a position

1 The George Washington University, Washington, D.C.

taken at one time should not be lightly abandoned. I would certainly take that position. Beyond that, I can only say that, because impoundment has been in court since that time, and is still in courtin fact, Mr. Kitch, of the Solicitor General's office, argued a case in the Court of Appeals here fairly recently-I feel I should not go beyond and comment on the merits of the matter. But

Mr. EDMISTEN. I think you have lost 36 cases on that issue, and I do not see how a Presidential election could bear on that.

Mr. DIXON. I was not going to mention that count, Mr. Edmisten. Senator ERVIN. You are saying that elections may change the policy of the Department, like an individual may change his mind. Mr. DIXON. One reason we have elections is to reorder national priorities. Spending is a national priority. It is related to inflation. Congressional practice on enactment of appropriation bills has not always been consistent, in terms of the clarity of the language, mandating or not mandating expenditure. There has seldom been a clear-cut mandate. In that broad context, absent anything by way of judicial rulings, argumentation continues until there is a court ruling.

Mr. EDMISTEN. I want to take issue on another thing that you said, that is the matter of the Subversive Activities Control Board. Senator Ervin conducted hearings before this subcommittee on whether or not that particular Executive order, which undertook to give more legal authority to the Internal Security Act of 1950 than the sponsors of that act ever dreamed of.

If I recall, the administration withdrew its request for funding for the Subversive Activities Control Board, because apparently they thought it was so bad that money was not even requested. So, I do believe that question was resolved.

Mr. DIXON. It was resolved, not in a substantive or ultimate legal sense. But it was certainly resolved in the sense that the Board passed off the scene.

Professor MILLER. Let me expand on that a minute, would you? As I recall Mr. Rehnquist's testimony-and this bears on your testimony with respect to the power of delegation of the President to what you call a quasi-judicial Board-and Mr. Rehnquist testified that the President's power was clear, to delegate powers to the Subversive Activities Control Board. I think that is in the public record, and that was the testimony of the Department then. Are you now repudiating your predecessor?

Mr. DIXON. No, not without more facts or study. I would not repudiate my predecessor at this point.

Professor MILLER. You did say that the President could not delegate through a quasi-judicial or quasi-legislative Board, which is what S. 2803 calls an independent Department of Justice.

Mr. DIXON. Well, a question was raised about it. There was no open disagreement with the testimony mentioned, but that testimony was itself questioned in a later judicial ruling.

Professor MILLER. Well, Mr. Rehnquist did testify to that effect. He said that it was clear that the President would have the power

1 Hearings before the Subcommittee on Separation of Powers on President Nixon's Executive Order 11605 relating to the SACB, 92d Con., 1st. sess.

to do it. Now, you say that it is clear that the President cannot do it. Is that your testimony?

Mr. DIXON. My testimony would go no further on this point than to say, in the light of the court comment that followed Rehnquist's testimony, that the present bill, we think, would raise some uncertainties regarding the nature and kind of power of a law-enforcement nature delegated to that kind of a body, such as bringing routine criminal prosecutions.

Professor MILLER. Sort of quasi-repudiation?

Mr. DIXON. A quasi-repudiation? You might say that, but we must, I think, make the distinction between core criminal enforcement and certain other specialized programs, such as listing subversive organizations.

Mr. EDMISTEN. You mentioned a moment ago that the attorneys in the Justice Department are under the Hatch Act. I know that to be true. My wife, as you may know, is an attorney in the Department. Why should not all Department of Justice attorneys, including the U.S. attorneys, as Mr. Kleindienst mentioned a minute ago, and the U.S. marshals, be in a professional cadre, so that there would be a professional group of attorneys in the Justice Department below the Assistant Attorneys General level?

Would you not favor that?

Mr. DIXON. Yes. We have made, by administrative practice, indeed, a rather stringent internal regulation on employee conduct. We have accomplished not only that objective, but also, as I mentioned in my testimony, the objective of divorcing the top officials, such as Attorney General, Deputy or Assistant Attorneys General, from direct involvement in the election and campaigning process. I mentioned Attorney General Saxbe's espousing that policy for himself and his aides, and I think we may be at a turning point, where the long tradition of appointing the national campaign manager, or important campaign leader of a President, to the post of Attorney General will be passing away, off of the scene. We may be at the end of an era analogous to the end of the era when we had Postmaster Generals so appointed. This may be one of the more important institutional lessons of the last few months. Whether or not it is advisable to imbed that in legislation may be a bit more debatable. You can always raise the question of the extraordinary person, and you might want to make an exception in the rule. But our feeling in Justice is that there should be this divorce, expressing viewpoints really impressed upon us by Watergate, and expressed by Mr. Richardson and by Mr. Saxbe as Attorneys General.

Also, I might note that Attorney General Kleindienst, who testified earlier this morning, took, I think, a very professional position. When some of his former associates and acquaintances became involved in the Watergate disclosures, he resigned. But he was not personally involved. I think it was a tragedy for him, personally, that some persons, because of timing of the resignation, thought it was a unified matter. That was a very responsible act, and I think that it probably was beneficial for the Department in terms of public acceptance at that point to have a new Attorney General, although I have no doubt in my own mind that Mr. Kleindienst, whom I

have come to know and like very much, carried on most effectively, professionally. I would in conclusion agree that there should be a substantial divorce between partisan politics and the Attorney Generalship, and I think we are achieving it.

Mr. EDMISTEN. Yesterday, Dr. Santos P. Amadeo suggested that the Bureau of Prisons is improperly within the Department of Justice, and perhaps it should be removed and put in the Department of Health, Education and Welfare. What do you think about that suggestion?

Mr. DIXON. I cannot express a departmental position on that precise issue, but I am not certain in my own mind that there is evidence of the sort that would indicate such a change is needed right now, or would be extremely beneficial if it occurred. The Bureau of Prisons operates with substantial autonomy, as I understand it, and I would not view that as being a change which is necessary at this point.

Mr. EDMISTEN. Thank you.

Professor MILLER. I have just one or two questions, Mr. Chairman, if I might, relatively brief, I think. One is on Nader v. Bork. It is not the holding of Judge Gesell-to rely on his opinion to some extent that Solicitor General Bork acted illegally in discharging Archibald Cox?

Mr. DIXON. Yes. The holding, after getting over a hurdle of standing pursued as an initial issue, was that the discharge was improper because it was executed not in accord with the departmental regulations, which embody certain understandings going back to the confirmation of Richardson, to the effect that a discharge could occur only for extraordinary improprieties. That decision is being appealed, as you know, but we can discuss the holding.

Professor MILLER. The statement, then, of Judge Gesell is just sort of extracurricular to the issue of the case? Whether or not the court employs a prosecutor, that was not the issue of the case at all? Mr. Dixon. No, the quotation from Judge Gesell was, as we professors and lawyers call it, a dictum of Judge Gesell on that case, but was endorsed by Chief Judge Sirica and eight other judges of the district court bench.

Professor MILLER. Sort of ipse dixit?

Another question. Are you familiar with the case of Ernest Fitzgerald, a former Deputy Assistant Secretary of the Air Force, who had to bring an action in the Civil Service Commission to get his job back, and who is now with the Air Force?

Mr. DIXON. The only knowledge I have of that area is based on reading press accounts, or scanning press accounts, and I am not involved in that.

Professor MILLER. Is he, under your identification, an executive officer?

Mr. DIXON. Any person of that sort in an executive department would be an executive officer or employee, depending upon the status. Professor MILLER. Could the President fire him without cause? Mr. DIXON. When

Professor MILLER. Because, as one White House assistant said, he was not loyal enough to the White House when he testified before Senator Proxmire on the C-5-A?

Mr. DIXON. There is a proposition flowing from executive control and accountability of the administration to a given President, that he is entitled to subordinates who will support his program, and not sabotage it.

Professor MILLER. I did not say sabotage, Mr. Dixon. I wonder, if the President is entitled to fire him, why is Fitzgerald now working for the Air Force?

Mr. DIXON. As I said, the Fitzgerald case is not one I have intimate detail on regarding the facts.

Professor MILLER. If he is an executive officer, the President can fire him. If he is not, if he is otherwise, he is under some sort of civil service rules, something that protects him from Executive firing, and he is in the same position as Humphrey in Humphrey's Executor, is he not?

Mr. DIXON. Civil service restraints going below the level of political appointees, as in Fitzgerald's case, most certainly do give some tenure or protection.

Professor MILLER. That leads me to my final question, then. How does that deal with your concept of-I think you use the term "inherent executive powers," over the Department? As I understand your concept, the President has control of the entire executive branch. How can you say that civil service rules are valid and constitutional, if you also can say, on the other hand, that the President has complete control of the executive branch?

Mr. DIXON. The President would have complete power to control the outcome of the act by a civil servant by reversing the action of the civil servant through a superior, or by transferring the matter in hand to somebody else.

Professor MILLER. I am talking about this charge, getting rid of him, firing him.

Mr. DIXON. A discharge situation would have to follow the restraints of the rules and regulation, as occurred regarding Fitzgerald, and that would be enforced, ultimately, by a suit for backpay. We have had examples of that in our history.

Professor MILLER. One further small question. The Court of Appeals recently-and the Department of Justice did not choose to take it to the Supreme Court-said the President had a constitutional duty to put into effect a pay raise for certain Government employees. That is by statute, correct? Does that interfere with the inherent executive power of the President for Congress to mandate a pay raise for executive employees?

In other words, what are the parameters, what are the boundaries of this concept of inherent executive power?

Mr. DIXON. The core would be inherent, or constitutionally allocated power. Actually, the term "allocated by the Constitution" is a better term than "inherent power," because we go back to article II, section 1, for this. It has been understood historically, as vesting in the President the responsibility to discharge executive functions and as protecting them against restraints by Congress, under his power to remove his subordinates. In the area of expenditure of funds, there have been, as you know-it is a key feature of the im