The obvious purpose of all such laws is to keep the executive agencies fully responsive to the Congress. THE RIGHT OF CONGRESS As heretofore pointed out, the law which governs us is the common law, the Constitution and the acts of the Congress as interpreted by the courts. Notwithstanding the present trend of the executive departments to make rules and regulations and to give to them the authority of law, those rules and regulations are recognized only as they have a foundation on some act of Congress. Nor have we, as yet, given to the opinions of either the Executive or the Attorney General the force of law or of a rule or Executive order based upon an act of Congress. Keeping this truism and the judicial decisions in mind, it must be admitted that the Congress has the power to require the Executive and the executive departments to give it the information necessary to enable it to carry on its constitutional functions. The United States Supreme Court, in the case of McGrain v. Daugherty (273 U. S. 135, decided in 1927), among other things, said: We are of opinion that the power of inquiry-with process to enforce it is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both Houses of Congress took this view of it early in their history— the House of Representatives with the approving votes of Mr. Madison and other members whose service in the Convention which framed the Constitution gives special significance to their action-and both Houses have employed the power accordingly up to the present time. The acts of 1798 and 1857, judged by the comprehensive terms, were intended to recognize the existence of this power in both Houses and to enable them to employ it "more effectually" than before. So, when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful. We are further of opinion that the provisions are not of doubtful meaning, but, as was held by this Court in the cases we have reviewed, are intended to be effectively exercised and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is truerecourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquirywith enforcing process-was regarded and employed as a necessary and appropriate attribute of the power to legislate-indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the 'constitutional provisions which commit the legislative function to the two Houses are intended to include this attribute, to the end that the function may be effectively exercised. With regard to the Senate resolution involved, the Court further said: It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice-whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers-specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation and that the Department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year. The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better but in view of the particular subject matter was not indispensable. Since the decision in McGrain v. Daugherty, the authority of congressional committees to obtain information from the executive departments has been consistently upheld. In Townsend v. U. S. (App. D. C. 1938) 95 F. (2d) 352, February 7, 1938, cert. den. (1938) 303 U. S. 664) the court pointed out that in light of McGrain v. Daugherty, supra, a legislative purpose would be presumed, and that "power to conduct a hearing for legislative purposes is not to be measured by recommendations for legislation or their absence." In U. S. v. Bryan (72 Fed. Supp. 58 (May 21, 1947), p. 61), the court said: Manifestly, the sole purpose for which the Congress may carry on investigations and secure information is in connection with the exercise of its legislative function and with the appropriation of moneys. In connection with the exercise of these powers, however, the Congress is not limited to securing information precisely and directly bearing on some proposed measure, the enactment of which is contemplated or considered. The collection of facts may cover a wide field. Obviously, in order to act in an enlightened manner, it may be necessary and desirable for the Congress to become acquainted not only with the precise topic involved in prospective legislation but also with all matters that may have an indirect bearing on the subject. In U. S. v. Dennis (72 Fed. Supp. 417 (June 13, 1947)) the court said: The necessity for investigation and inquiry into matters affecting, or which may affect, our Government is one of prime importance. In McGrain v. Daugherty (273 U. S. 135, 174, 47 S. Ct. 319, 328, 71 L. ed. 580, 50 A. L. R. 1) the Court stated: "We are of the opinion that the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified.' In Fields v. U. S. (Oct. 27, 1947 (App. D. C. 1947), 164 F. (2d) 97, cert. den. (1948), 16 L. W. 3216) the court said: A legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin. One of the earliest instances of the exercise of this power is found in Sir Francis Goodwin's case in 1604, wherein authority was delegated to a parliamentary committee to summon particular witnesses and to require the production of records. Prior to the adoption of our Constitution colonial assemblies frequently assumed authority to punish for contempt any person who refused to appear in answer to a summons or who failed to disclose information required for the effective administration of government. After the Constitution was adopted Congress assumed this power. In 1792 it appointed an investigating committee "to call for such persons, papers, and records, as may be necessary to assist their inquiries.' From that date to 1929 Congress authorized over 300 investigations to assist the perforamnce of its several functions. Since that time Congress has made abundant use of investigating committees, a natural consequence of the expanding scope of legislative concern with administration. In U. S. v. Josephson ((C. C. A. 2d, 1947) 165 F. (2d) 82, December 9, 1947, cert. den. (1948) 16 L. W. 3253) the appellate court remarked: It is, of course, well settled that Congress may make investigations in aid of legislation. (E. g., McGrain v. Daugherty, 273 U. S. 135, 174, 47 S. Ct. 319, 71 L. ed. 580, 50 A. L. R. 1; United States v. Norris, 300 U. S. 564, 573, 57 S. Ct. 535, 81 L. ed. 808.) And it is immaterial that in the past this particular committee has proposed but little legislation * *. Information gained by a committee of this nature, provided its search for the truth may not be frustrated by such obstructive tactics as those employed by the appellant, might well aid Congress in performing its legislative duties, viz, in deciding that the public welfare required the passage of new statutes or changes in existing ones or that it did not. The trend of more recent unreported decisions has been to uphold the power of the Congress to require the executive departments to give the information sought. ABUSE OF POWER The argument so often made, and which undoubtedly will be renewed in the debate of this resolution, that congressional committees will abuse the power, if it be granted, has been adequately answered by the statement of the Court in McGrain v. Daugherty ((1927) 273 U. S. 135). The Court said: The contention is earnestly made on behalf of the witness that this power of inquiry, if sustained, may be abusively and aggressively exerted. [Italics supplied.] If this be so, it affords no ground for denying the power. The same contention might be directed against the power to legislate, and of course would be unavailing. We must assume, for present purposes, that neither House will be disposed to exert the power beyond its proper bounds, or without due regard to the rights of witnesses. But if, contrary to this assumption, controlling limitations or restrictions are disregarded, the decisions in Kilbourn v. Thompson and Marshall v. Gordon point to admissible measures of relief. And it is a necessary deduction from the decisions in Kilbourn v. Thompson and In re Chapman that a witness rightfully may refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry. The contention made on page 4 of the committee report (H. Rept. 1595) is here renewed. The Executive office is created by the Constitution. Over the Executive himself and his acts, while within the limits of his constitutional power, the Congress has no jurisdiction. It seeks none. The executive departments, which were created by some act of Congress, which depend for their continued existence upon legislative appropriations, are in an entirely different category. It is axiomatic that that which the Congress creates, it may destroy or regulate. That line of reasoning was recognized by the United States Supreme Court in the Daugherty case, when it said: Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation and that the Department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year. Both the majority (p. 3) and the minority (p. 12) reports referred to the refusal of John R. Steelman, an assistant to the President, to appear before a subcommittee of the House Committee on Education and Labor in answer to a subpena served upon him personally. Mr. Steelman, as reason for his failure to appear, in his letter1 stated that the President had directed him not to appear. In view of the fact that section 192 of title 2 of the United States Code does not excuse any individual from answering process issued by a congressional committee, it was Mr. Steelman's duty to appear before the subcommittee. The President had no authority to write an exemption or proviso into the law. Mr. Steelman should have appeared and if, when questions were put, it appeared that the matter was confidential, undoubtedly he would have been excused from testifying. Had the subcommittee sought to force him to make answer to improper questions, he might then have claimed his privilege. The same rule of law, the same procedure available to courts to compel the attendance of witnesses and the giving of testimony, are available to congressional committees. The recognized procedure in courts is for the witness to appear, and if he, because of a privilege recognized by the law, cannot be required to answer, that privilege is to be claimed by the witness or by the individual in whose behalf it exists. The judicial decisions uphold the right of the Congress to the authority sought by the adoption of the pending resolution. Logic and reason are to the same effect. The resolution should be adopted. 1 See appendix to this report. CLARE E. Hoffman. APPENDIX The letter referred to on page 92 of this report is as follows: Hon. CLARE HOFFMAN, House of Representatives, Washington, D. C. MY DEAR MR. CONGRESSMAN: I am returning to you herewith two subpenas recently issued to me on behalf of your subcommittee. On Saturday, March 6, I received a subpena calling for my attendance at a hearing to be held that afternoon. On Monday, March 8, I received another subpena calling for my attendance at a hearing to be held the same day. As you know, my official duties are to advise and assist the President of the United States. After the receipt of each of these subpenas, I promptly informed the President, and in each instance the President directed me, in view of my duties as his assistant, not to appear before your subcommittee. Sincerely yours, JOHN R. STEELMAN, The citation referred to on page of this report is as follows: Section 192 of title 2 of the United States Code: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." |