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dates' qualifications. This might insure that candidates for District Attorney would have requisite qualifications of competence and experience, but I doubt that it would have a substantial effect on preserving independence. More drastic measures are needed, so long as District Attorneys, like judges, are chosen by popular election.

One source of the problem of actual and apparent threats to independence is the enormous expense of running an effective election campaign in New York City in the 1970's. Candidates are engaged in an escalating arms race with ever-increasing budgets for the modern electronic weapons used in the electoral wars. In elections for judge or district attorney, the big advertising budgets may be necessary to win, but are they relevant to qualifications for office, and do they jeopardize the winner's independence or the appearance of his independence?

I see no reason why candidates for judicial or quasi-judicial office should be forced to advertise themselves like toothpaste by expensive spot announcements on radio and television. I urge the Bar Associations and the Judiciary Committees of the New York State Senate and Assembly to study the question whether paid electronic advertising should be barred from a campaign for judge or district attorney.

Minimum standards of dignity in judicial advertising have been set forth by Bar Associations, but these do not get to the heart of the matter-the cost of advertising, and the relevancy of the advertisements to the qualifications for office. Of course, advertisements in support of my candidacy have appeared on television. We do what we have to do under the present system. It is unreasonable to expect unilateral disarmament in the midst of a war that both sides consider just. Any restriction must be applicable to all parties.

A related attack on the problem would be to provide, by statute, effective limits on spending by candidates for office, at least judicial and quasi-judicial office. The Election Law has some restrictions, but they are not satisfactory, because there are substantial exceptions that nullify them. These exceptions should be eliminated, so that there are actual ceilings on campaign expenditures, at least for district attorneys and judges.

I have posed many questions tonight, and I have not presumed to suggest more than a few possible answers. But the current plague of doubt challenges us to ask the questions and examine them fully. Even the discussion itself will be enlightening. For it will bring to the surface the principles that underlie our national and state structures of justice.

JUSTICE DEPARTMENT ORGANIZATIONAL CHART

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HON. SAM J. ERVIN, JR.,

U.S. Senate,

Old Senate Building,

Washington, D.C.

DUKE UNIVERSITY,

RULE OF LAW RESEARCH CENTER,
Durham, N.C., April 23, 1974.

DEAR SENATOR ERVIN: In response to your letter of April 18, 1974, I would, of course, be honored to have my paper, "The Executive Branch Myth," appended to the Committee's published hearings.

*

I cannot refrain from mentioning one interesting development since I wrote the paper. You will remember that I cited the "greater-include-the-less" fallacy as part of Nixon's erroneous idea of presidential power, and recalled the confrontation of Coke and James I, in which the King could not see why, since he was the theoretical fountainhead of justice, he could not snatch cases away from the judges and decide them himself. We had a perfect parallel to this from the White House some weeks ago: since the President is the chief law enforcement officer of the country, when he obtained knowledge of the commission of a crime he did not need to notify the Justice Department, since his own knowledge constituted notice to himself!

Best regards,

ARTHUR LARSON.

THE "EXECUTIVE BRANCH" MYTH

(By Arthur Larson)

An essential step in preventing any repetition of the recent approach toward a quasi-dictatorship in this country is a restoration of the correct concept of the "Executive Branch" and the President's relation to it.

The prevalent concept, actively sponsored by the President, and widely accepted by commentators, average citizens, and even some scholars, is the product of what might be called an organization-chart approach. On this chart, there is something called the "Executive Branch," embracing practically everyone in the federal government except the members and staffs of the Congress and the judiciary. At the peak of this enormous triangular construct, flaring out downward to include perhaps three million people, is the President; and, since in an organization chart power runs from the top down through all the lines and boxes of the diagram, the all-too-easy conclusion is that the President is the absolute boss, czar, and master of every individual within that chart. That the President himself believes this is obvious from his actions.1 At the height of the executive privilege controversy, for example, he asserted through Attorney General Kleindienst that he had the right to forbid every individual in the Executive Branch to give information to Congress. At the height of the misnamed "impoundment" controversy, he ordered government employees to cut back or abandon upwards of a hundred government programs that Congress had ordained should be carried forward, with the power and responsibility assigned in many cases not to the President but to departments or agencies. And when American Airlines or Mr. Vesco, at a time when they were worried about possible actions of independent regulation agencies, were induced to give large sums of money to the President's campaign fund, it could only mean that they had been led to accept a picture of the Executive Branch as including the Federal Aviation Agency and the Securities and Exchange Commission, with the corollary that the President could influence or control the actions of these bodies.

For an example of the popular mental picture unthinkingly accepted by even experienced political analysts, one may cite the following passage from a Stewart Alsop column:

"[T]his President has been forced to abandon two basic presidential rightsthe right to exercise undisputed control over his own branch of government and the right to absolute confidentiality in discussion with subordinates in that branch."

2

Legally and constitutionally, there are several fallacies in this passage: there is no such thing as a monolithic entity called the "Executive Branch;" even if

there were, it would not be the President's "own branch;" and certainly he has never had and should not have "undisputed control" over everyone in that "branch."

The leading case supplying the needed corrective to these notions is Humphreys' Executor v. United States. The issue involved was the extent of Congress' right to limit and specify the grounds upon which the President might removea Federal Trade Commissioner. Humphreys had been removed before the end of his term for a cause not included by Congress among the authorized grounds for removal. The key question certified to the Supreme Court was: had Congress the constitutional right so to limit the grounds for removal? The Court held that the right existed. Paradoxical as it may sound, the Court based this curtailment of presidential power squarely on the principle of separation of powers, in the following crucial sentence:

"The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments."

The Court distinguished the earlier case of Myers, Admx. v. United States," in which the President, acting alone, had removed from office a first-class postmaster before the expiration of his fixed term. The Act under which the postmaster, Myers, had been appointed had also prescribed the mode of removal: it should be by the President by and with the consent of the Senate. The Court held that the removal was valid, and that the portion of the statute attempting to limit the President's power was unconstitutional. Here also the ground was separation of powers-this time in the form of the necessary right of the President to discipline purely executive officers without encroachment by the Congress. The distinction drawn in Humphreys is clear: the officer in Myers was "purely executive," while in Humphreys he was quasi-legislative and quasi-judicial.5

If, then, the Federal Trade Commission is not part of the Executive Branch, plainly the conventional mental picture of the Executive Branch organization chart requires drastic revision. The correct view, taught by Humphreys, is that legal and constitutional questions about government officers must be decided on the basis, not of their physical presence within one of three imaginary pyramids of bodies, but on the basis of the source of the power they exercise in carrying out a particular function.

One cliche that must be quickly discarded is the idea that the distinction between "executive" and "legislative" is that the legislative branch passes laws and the executive branch executes them, administers them, carris them out. A moment's reflection will show that, in a sense, everyone in government is "administering" and "carrying out" laws. The courts, for example, are administering laws all the time. Moreover, when Congress delegates to an agency the power to issue detailed regulations supplementing its own legislation, in order to fill in gaps and keep the rules current, the agency in one sense is "executing" the law entrusted to it. But the decisive point is that the power it is exercising is legislative. There is a simple and quick way to check out this distinction. It is to ask: if the agency did not do this particular job, who would have power to do it-Congress or the President? As to the familiar power of issuing implementing regulations, the answer is clear: Congress had this residual power. Indeed, if it had the time, Congress might well issue all the detailed rules and regulations and not delegate this function at all. But could the President, drawing solely upon his inherent executive power under the Constitution, issue detailed regulations on, say, misleading advertising or the contents of a stock prospectus? Clearly not.

When the distinction between executive, legislative, and judicial is approached on this "power" or "function" basis rather than on the organization-chart basis, an astonishing proportion of what goes on in the supposedly "executive" branch is seen to be not executive at all. After all, we do have one well-established benchmark: the Federal Trade Commission has been authoritatively classified as a legislative and judicial, rather than an executive, agency. Without going through all the dozens of federal commissions and agencies one may select three Footnotes at end of article.

representative examples and point out that, if the F.T.C. is in this category, then so certainly are the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Power Commission. In each case Congress has marked off a certain area of business and put a Commission in charge, with authority to fill in the statute so as to accomplish the general policy of Congress, whether it be fair competition, fair methods in securities transactions, fair distribution of broadcasting opportunities, or fair power rates and services. In each case, also, the Commission sits in judgment and passes on the rights and liabilities of the businessmen within the prescribed area. In each case, the Commission has power to take testimony, to administer oaths, to require the production of books and records, and to issue subpoenas. In each case the Commission's orders are reviewable only by an appellate court, the Circuit Court of Appeals. In each case the Commission is responsible to Congress for investigations and reports on the area covered by its work, so that Congress may enact appropriate legislation—a duty that was singled out in the Humphreys opinion as an evidence that the Commission was an agency of Congress.

The effect of the present functional analysis is by no means confined to the “independent" commissions and agencies; it applies also to the Executive Departments to the extent they contain components exercising judicial or legislative power. An obvious illustration would be the Benefits Review Board, which is organizationally a part of the Labor Department, but which functionally is a judicial appeals body hearing appeals from decisions of hearing examiners on claims for workmen's compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act. And, of course, the practice of delegation by Congress to Executive Departments of legislative power to issue detailed regulations is very common. A leading authority on administrative law, Kenneth Culp Davis, says:

"All agencies have a large degree of independence, whether or not they are supervised by cabinet officers, but no agency is fully independent. Agencies in the executive departments and so-called independent agencies are about equal in the extent to which they can be brought under congressional supervision; the difference has only to do with presidential supervision. . . .

"Indeed, the President's supervision of policy growing out of rule making and adjudication in the executive departments is negligible, for, contrary to the assumption that the political scientists seem to make, nearly all such business is of such narrow compass that seldom does any need arise for coordination either with the President's program or with activities of other parts of the government."

6

Once this revised and corrected mental picture of the "Executive Branch" is accepted, several consequences of direct relevance to the Select Committee's responsibility are seen to follow. Obviously the President and his inner circle have no authority to give orders as to the carrying out of these non-executive functions. This being so, they certainly cannot barter favorable rulings on such matters for campaign contributions. Moreover, when Congress has, in the exercise of its legislative power, set in motion a program under which, say, certain funds are disbursed when certain conditions stipulated by Congress are satisfied, the President cannot cut into the flow of this legislative power by asserting some "executive" authority over the acting officer-as the courts have now held with almost complete unanimity in the dozen or more "impoundment" cases. And, as to "executive privilege," how can it be invoked as to officers or functions that are not executive under the Humphreys tests? Suppose, for example, Congress wants certain information from a Federal Trade Commissioner for purposes of legislation; can anyone suppose the President has any right to tell the Commissioner not to respond, when the Supreme Court has labeled him a legislative and judicial rather than an executive officer?

An important practical consequence of this re-analysis is to remind Congress that it has the power, if it wishes to use it, to create non-executive agencies to carry out its will, as it has done in the case of the General Accounting Office, thus surmounting the "impoundment" problem beyond all doubt. It could even lodge the powers of both appointment and removal in Congress, to remove any possible presidential influence of an indirect kind. Congress has atypically given the appointing power of non-executive officers to the President, but it is a mistake to infer from this that some kind of implied control is intended to

Footnotes at end of article.

accompany the appointment function. This practice can be adequately accounted for by the homely fact that it is much more awkward (although not impossible) for a collective group like Congress to make appointments than for a single individual, the President. After all, the President appoints judges, and no one suggests that this carries with it any implied right of control.

Having said all this, one must face in the other direction and recognize that, under Myers, there are of course many "purely executive" officers, and that, as to these, the picture of an executive hierarchy headed by the President is still accurate. Just where the line is between the Myers category and the Humphreys category is not of prime importance for present purposes; the concern here is mainly to explode the conventional stereotype of the "Executive Branch" by showing that a very large part of it is not executive at all. In Myers, the function involved was delivering the mail-a function that obviously requires the exertion of neither judicial nor legislative powers. Another function that has been identified as "purely executive" is the conduct of foreign affairs. In the Humphreys opinion, the court summed up a rather controversial episode in the following language:

"The so-called 'decision of 1789' had relation to a bill proposed by Mr. Madison to establish an executive Department of Foreign Affairs. The bill provided that the principal officer was 'to be removable from office by the President of the United States.' This clause was changed to read 'whenever the principal officer shall be removed from office by the President of the United States,' certain things should follow, thereby, in connection with the debates, recognizing and confirming, as the court thought in the Myers case, the sole power of the President in the matter. We shall not discuss the subject further since it is so fully covered by the opinions in the Myers Case, except to say that the office under consideration by Congress was not only purely executive, but the officer one who was responsible to the President, and to him alone, in a very definite sense." "

A category of special current interest is that of prosecutor. There is a Supreme Court case, Parsons v. United States 10 involving the power of removal of a district attorney, that supports the assimilation of this category to Myers. This decision applies, of course, to the office of district attorney as normally constituted; whether Congress could constitutionally create a special prosecutor not removable by the President is a question receiving a great deal of debate and research elsewhere, and is too big a question to do justice to here. In line with the thesis of this paper, however, it may be pointed out that the view, associated with Professor Alexander Bickel, that the prosecutorial function must inherently be a monopoly of the executive branch, suffers from the very tendency described at the outset to compartmentalize all government functions by where they fall on an organization chart, and from the tendency to confuse the power of appointment with the power of control.

In Ex parte Siebold," the Supreme Court said that a marshal, an executive officer usually appointed by the President, was nevertheless "preeminently an officer of the courts," and that his appointment could be lodged in the courts. The court said:

"It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution. Attorneys and prosecutors are, of course, no less "officers of the courts" than marshals.

There is nothing inherent in the prosecutorial function to require that it be an executive function. Indeed, it is common among civil law countries to regard prosecution as a judicial function, and to consider the European juges d'instruction, performing this function, as a distinct branch of the judiciary. There is, therefore, no intrinsic reason why the sweeping language of Article II, Section 2(2) of the Constitution should not be given its normal meaning and application here:

"Congress may by law vest the appointments of such inferior officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Footnotes at end of article.

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