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National, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of Government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.

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"In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the Government. It also remains true, as a general rule, that the powers confided by the Constitution to one of the departments cannot be exercised by another.

"It may be said that these are truisms which need no repetition here to give them force. But while the experience of almost a century [in 1880] has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that such attempts have been made ***" Kilbourn v. Thompson (103 U. S. 190-191. (1880)). The court held that the subject matter of this congressional investigation was Judicial, and not legislative, that it was then pending before the proper court, and that the House lacked power to compel Kilbourn to testify on the subject. The proposition in the Kilbourn case is that one of the three grand departments should not encroach upon the other. Thus what is true of the relationsip between the legislative branch and the judicial branch is likewise applicable to attempted encroachment by the legislative branch with respect to the executive branch.

At an earlier day in our national history the Supreme Court summarized the responsibility of the President for the administration of the executive branch in the celebrated case of Marbury v. Madison. There Chief Justice Marshall said: "By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which Executive discretion may be used, still there exists and can exist no power to control that discretion" (1 Cranch (5 U. S.) 137, 164 (1803)).

This extract from Chief Justice Marshall's opinion in Marbury v. Madison certainly indicates a measure of the extent to which the President's discretion may be exercised by his subordinates, subject, of course, to conformity with his orders.

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I recognize, of course, that Congress has broad powers of inquiry and investigation as an "attribute of the power to legislate." I have had some years of personal experience as counsel to legislative investigations. I recognized then and do now that the power to legislate is itself subject to constitutional limitations. So, too, is the power to investigate. It is limited by the fourth amendment prohibition against unreasonable searches and seizures and the privilege against self-incrimination protected by the fifth amendment." Although the exact scope of the limitations is unclear the protections of the freedoms of religion, speech, and the press contained in the first amendment also operate to limit congressional investigative power.

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The limitations on the investigative power are not confined to those expressly set forth in the Constitution. The classic expression of this principle is contained in Kilbourn v. Thompson, previously mentioned:

28 McGrain v. Daugherty, 273 U. S. 135, 175 (1927).

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29 In Hearst v. Black 87 F. 2d 68 (D. C. Cir. 1936), a legislative subpena was held to be too broad contrary to the fourth amendment. Cf. Federal Trade Commission v. American Tobacco Co., 264 U. S. 299, 307 (1924). "We cannot attribute to Congress an intent to defy the fourth amendment or even to come so near to doing so as to raise a serious question of constitutional law." But see In re Chapman, 166 U. S. 661, 668 (1897).

30 McGrain v. Daugherty, supra, note 28, at 173-174; Kilbourn v. Thompson, supra; Quinn v. United States, 349 U. S. 155 (1955).

31 See Rumely v. United States (App. D. C.), 197 F. 2d 166, 173; affd. United States v. Rumely, 347 U. S. 41 (1953). The Supreme Court declined to decide the issue on constitutional grounds. It held that the questions asked were outside the scope of the House resolution authorizing an inquiry into lobbying; that only direct pressures were intended to be investigated, and not attempts to influence public opinion by books and other writings. a 103 U. S. 191.

"It is

essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other." ***

This is not mere doctrine.

It was regarded by the Founders as necessary to prevent the tyranny and dictatorships that result from the undue concentration of governmental powers in the same hands. Mr. Justice Brandeis has observed:

"The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy."

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Nor is there any question that protection against legislative autocracy was one of the principal aims of the Founders. From their knowledge of English history, the early settlers knew of the tyranny of the Long Parliament and others that followed it. What was particularly vivid in their minds were the harsh measures which colonial legislatures adopted for the early settlers. Those who dared criticize legislative proceedings or to reflect upon their integrity were punished directly and without the intervention of courts or the authority of statutes, and the punishments were frequently severe and degrading." The Supreme Court has said:

"When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned." "

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It was probably based upon experiences such as these that Jefferson concluded: "One hundred and seventy-three despots would surely be as oppressive as one." So too, Alexander Hamilton out of his experience declared: "The tendency of the legislative authority to absorb every other has been fully displayed and illustrated." *7 Therefore, it is not surprising that when the Federal Convention met in 1787 to adopt a new Constitution, its members were determined to enhance the powers of the Executive and to restrict the powers of the legislative branch.38

The doctrine of the separation of powers was thus the very foundation stone of the Federal Government as established by the Constitution. It was regarded as the basic guaranty of the liberties of the people against tyranny. In view of this background, it is not remarkable that it has retained vitality and been given practical application throughout our history. Each branch has acted upon it and been protected by it. It has been held that the legislative branch in the exercise of its investigatory powers may not exercise basically judicial functions. Kilbourn v. Thompson, supra; United States v. Icardi (140 F. Supp. 383 (D. C. D. C. 1956)). Similarly the courts may not properly intrude on the exercise of legislative functions. Methodist Federation For Social Action v. Eastland (141 F. Supp. 729 (D. C. D. C. 1956)), or on the Executive, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Co. (333 U. S. 103 (1948)). And the President may not exercise legislative functions. Youngstown Sheet & Tube Co. v. Sawyer (343 U. S. 579 (1952)).

A wise exercise of restraint has operated to prevent a test of all the possible situations in which one branch might invade the functions of another. However, there is little doubt that the investigative power of Congress could not constitutionally support an investigation into the discussions of the members of a Federal court relating to the decision in a specific case because this would be utterly destructive of a free judiciary. This certainly was the view of the House of Representatives in the converse situation, involving attempts to require the disclosure of certain information to courts. It resolved that:

"No evidence of a documentary character under the control and in the possession of the House of Representatives can, by the mandate of process of the ordi

Myers v. United States, 272 U. S. 52, 293 (dissent) (1926).

Potts, Power of Legislative Bodies To Punish for Contempt. 74 U. Pa. L. Rev. 691, 697-712 (1926).

United States v. Lovett, 328 U. S. 303, 318 (1946).

Jefferson, Notes on the State of Virginia, p. 120 (1954 ed.).

The Federalist, No. 71.

Warren, Presidential Declarations of Independence, p. 10, Boston U. L. Rev., pp. 1, 2 (1930).

nary courts of justice, be taken from such control or possession but by its permission." 30

The same considerations may be said to operate with respect to an investigation of confidential advice within the executive branch. It has long been believed that the President may in his own discretion withhold documents from a court. In the trial of Aaron Burr, Chief Justice Marshall said:

"In no case of this kind would a court be required to proceed against the President as against an ordinary individual. *** In this case, *** the President has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of the reasons for and against producing it, he is himself the judge. It is their operation on his mind, not on the mind of others which must be respected by the Court." 40

Under the doctrine of Marbury v. Madison, supra, this power may be exercised on his behalf and with his approbation by those whose acts "are his acts." This finds support in the judicial recognition, without reference to statute, of the fact that the privilege against revealing military secrets "is a privilege which is well established in the law of evidence." United States v. Reynolds (345 U. S. 1, 7), and cases there cited. The Reynolds case also indicates that the privilege "which protects *** state secrets" stands on a parallel footing with the military secrets privilege. (id.).

To conclude that a constitutional privilege exists in the President and in those acting on his behalf and pursuant to his direction to withhold documents and information as against a congressional demand for production or testimony does not wholly dispose of the problem. A further question arises. Is the Executive or the Congress to determine whether the privilege is appropriately asserted in a given case? There is no judicial precedent governing this question.

As a practical matter only the President can make the determination as to disclosure. A House Judiciary Committee took this view in deciding who is the best judge in a close case, of the propriety of divulging to any committee of the House state secrets. It first noted that "in contemplation of law, under our theory of government, all the records of the executive departments are under the control of the President of the United States." Then it recognized what is so plainly implicit in the doctrine of separation of powers:

"The Executive is as independent of either House of Congress as either House of Congress is independent of him, and they cannot call for the records of his action or the action of his officers against his consent, any more than he can call for any of the journals and records of the House or Senate."

Finally, it came to the question as to whose decision must be accepted in this matter. Its report stated:

"Somebody must judge upon this point. It clearly cannot be the House or its committee, because they cannot know the importance of having the doings of the executive department kept secret. The head of the executive department, therefore, must be the judge in such case and decide it upon his own responsibility to the people. ***” 41°

One of our great legal scholars, William Howard Taft, following his term as President and prior to his appointment as Chief Justice, summarized the situation succinctly and accurately when he said:

"The President is required by the Constitution from time to time to give to Congress information on the state of the Union, and to recommend for its consideration such measures as he shall judge necessary and expedient, but this does not enable Congress or either House of Congress to elicit from him confidential information which he has acquired for the purpose of enabling him to discharge his constitutional duties, if he does not deem the disclosure of such information prudent or in the public interest." "2

We are dealing in this field with one of the most difficult, delicate, and significant problems arising under our system. The doctrine of separation of powers and the system of checks and balances was designedly established in the Constitution as the basic guarantor of the rights of the people. Tyranny by dictators or royalty, by legislatures and by courts were all known to the founders. What they attempted to establish was a government in which no 1 of the 3 elements could become preeminent, subordinate the others and ultimately be in a position to dictate to, rather than serve, the citizenry.

39 H. Res. 427, 81st Cong.. 2d sess. See 96 Cogressional Record 565–566.

40 2 Burr Trials 536 (1808).

41 H. Rept. 141, 45th Cong., 3d sess. 3-4 (1879).

Taft, Our Chief Magistrate and His Powers, 129.

The dangers which follow from the failure of one branch of the Government to respect the powers of any of the others is as great today as when Washington, in his farewell address, felt impelled to caution that:

"It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administraton, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. * * * "If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation, for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any practical or transient benefit which the use can at any time yield."

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Mr. ROGERS. Now to go on to the principle of separation of powers as it relates to independent agencies. The principle of separation of powers indicates the relationship of the independent regulatory agencies to this question of the extent of the inquiry which can be made by Congress of another branch. I refer to such regulatory agencies, sometimes styled independent commissions, as the Federal Communications Commission, Interstate Commerce, Federal Trade, Federal Power, and Securities and Exchange Commissions. They have been frequently described as exercising quasi-judicial, quasi-executive, and quasi-legislative functions.

No categorical statement as to the extent of the inquiry which can be made by Congress will be applicable equally to each of the independent agencies. Statutes created these agencies at different times in our history and contain varying mixtures of judicial, executive, and legislative functions. Some statutes create agencies which have predominently legislative functions. Some statutes create agencies which are predominantly legislative in character, others subject the agency to a strong proportion of executive control, in others the judicial function predominates. It is clear then that no answer to the question of the extent of permissible congressional inquiry of the independent agencies, or of permissible executive direction of independent agencies, can be given without considering the specific agency concerned, the statute creating it, the fact situation involved, and the particular function which the agency is exercising.

Not only by the original statutes creating the agencies, but by other legislation, Congress has itself subjected the independent regulatory agencies to executive control. For example, the President has been authorized to apply the Federal employees security program to all departments and agencies of the Government. This includes the regulatory commissions. Hence the regulatory commissions are also subject to the requirements of secrecy governing employee security matters. The President's power to remove commission members for inefficiency, neglect of duty, or malfeasance (as specified in the Federal Trade, Interstate Commerce, and Atomic Energy Commissions and the Civil Aeronautics Board) imply that he may exercise a certain amount of managerial authority over the commissions.

Thus in many respects the functions and operations of the so-called independent regulatory agencies are subject to executive control. Referring to my discussion of the fundamental principle of separation

41 Richardson, op. cit. supra, note 5, at 219.

of powers above, the extent of the inquiry which can be made by Congress of one of the independent agencies should be determined on this principle. To the extent that the agency exercises executive functions it would have the right and duty to furnish or withhold information from congressional inquiry to the same extent as would other executive departments and officers of the Federal Government.

On July 12, 1955, Attorney General Brownell had occasion to advise the Chairman of the Securities and Exchange Commission as to limits of congressional inquiry into executive functions of the SEC. Attorney General Brownell stated:

With regard to your statement that the Commission is bound to respect the privileged and confidential nature of communications within the executive branch of the Government on the principles as set forth in the President's letter of May 17, 1954, to the Secretary of Defense, I concur. Any communication within the Securities and Exchange Commission among Commissioners or the Commissioners and the employees is privileged and need not be disclosed outside of the agency. Likewise, any communication from others in the executive branch to members of the Commission or its employees with respect to administrative matters comes within the purview of the President's letter of May 17, 1954.

Senator HENNINGS. In connection with that, General, may I ask you whether you believe, and I think I know what your answer would be, that a Presidential assistant may intervene with a regulatory agency without such authorization from the President himself?

Mr. ROGERS. Well, I don't think that I can answer that without knowing the facts. I mean the question of intervention.

Senator HENNINGS. Well, intervention, as we would understand it, would be an undertaking to influence the action or decision of the independent agency as such.

Mr. ROGERS. In this case, the particular case at issue was a case where a call had been made from the White House for a postponement of a hearing before the SEC and the Attorney General at that time wrote a letter in which he said that the executive privilege did not apply to that conversation and the parties involved testified fully on the conversation, so the answer, I think, on that question is that no, the executive privilege would not apply to that type of conversation.

Now it would apply if the conversation related to the efficiency of the members or malfeasance on the part of members or if the conversation referred to appropriations, the need for appropriations, if it referred to possible qualifications of new commissioners, and so forth.

Senator HENNINGS. Suppose it referred to the actions to be taken or to be withheld by the independent agency itself?

Mr. ROGERS. I don't think that would be privileged.
Senator HENNINGS. That would not be privileged?
Mr. ROGERS. No.

Senator HRUSKA. Will the Senator yield?

Senator HENNINGS. Yes.

Mr. ROGERS. May I say, Mr. Chairman, of course, in those instances where

Senator HENNINGS. Such as television applications?

Mr. ROGERS. No, sir. What I was thinking about is CAB at present, as you know, has certain functions in CAB route applications, so that there might be a situation where it would be a privileged communication.

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