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[H. J. Res. 63, 79th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution to authorize the passage of legis lation, notwithstanding a Presidential veto, by a majority of the Senate and House of Representatives Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of both Houses concurring), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:


"SECTION 1. The second and third paragraphs of section 7 of article I of the Constitution are amended to read as follows:

"Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider it. If after such reconsideration that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the Journal of each House, respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

'Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.'

"SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission."

[H. J. Res. 64, 79th Cong., 1st sess.]

JOINT RESOLUTION To create a joint committee from the Senate and House of Representatives to investigate and report as to how the Federal Government may get relief from the overburden of its governmental responsibility

Whereas the vast increase since its organization of the territory in which the Federal Government has jurisdiction, the natural development in such territory, and the shift of new governmental responsibility to the Federal Government has created an aggregate of Federal responsibility, which is overloading its machinery and rendering it increasingly difficult to discharge with efficiency and economy through the agencies at its command either its original or its acquired responsibilities, and under which increasing responsibilities it is difficult, if not impossible, to prevent the Federal Government from becoming distinctively bureaucratic in its operations: Therefore be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That a joint committee of three Members of the Senate, to be appointed by the President pro tempore of the Senate, and three Members of the House, to be appointed by the Speaker of the House of Representatives, is hereby created and directed to examine into the conditions set forth in the preamble hereof, and to examine as to how and in what way the Federal Government may either increase its efficiency or get relief from the overburden of its present governmental responsibility, so as to bring and keep such responsibility within its capacity efficiently and economically to discharge.

SEC. 2. That said joint committee so created shall choose one of its own members as chairman, and is authorized to employ clerks and stenographers, not exceeding three to sit while Congress is in session and during any recess, to hold sessions wherever a majority of members deem it advisable or necessary, to send for persons and papers relating to the subjects under investigation, and to

confer with the governors, members of the legislatures, and other officials of the several States. And it shall be its duty and it is hereby directed to report its findings, conclusions, and recommendations to the next session of the Congress. The said joint committee is authorized to incur all expenses necessary to carry out the purposes hereof, which expenses in the sum of not to exceed $7,500 shall be paid out of any money in the Treasury of the United States not otherwise appropriated.

The CHAIRMAN. Judge Smith, we are very glad to have you with us this morning. We will be pleased to have you proceed in your

own way.


Mr. SMITH. Mr. Chairman and gentlemen, the Select Committee of the House Investigating Executive Agencies has conducted investigations for something like 2 years and has filed some eight reports, the culmination of which was a report with a bill that recommended many of the things that you gentlemen are now considering in the way of reformation of the procedures of Congress.

That bill was H. R. 5485 in the Seventy-eighth Congress. I do not recall the number of the bill in the present Congress, although an identical bill was reintroduced in this Congress.

Mr. Cox. Mr. Chairman, I would like that bill incorporated in connection with his remarks.

The CHAIRMAN. It will be inserted at the conclusion of Judge Smith's statement.

Mr. SMITH. Our investigation into executive agencies, which was an investigation to determine the instances wherein the executive agencies had exceeded their legislative authority, brought us to some rather startling examples and conclusions, and this bill was directed solely at those things that we had run into.

Now, that bill, and our report, in brief, recommended four things, and I will enumerate them:

A joint legislative staff for both Houses.

A joint committee on appropriations which would also be staffed, and the functions of that committee would be to observe and investigate the expenditure of the funds that Congress appropriated, in order that Congress may keep a check on whether those funds were being expended for purposes for which Congress had appropriated them.

Then we recommended the appointment of a permanent standing joint committee of the two Houses, to do pretty much the same thing that our special committee has been doing, and that is to investigate complaints that executive agencies have proceeded beyond the authority granted by law.

Then we also recommended a study, such as this committee is now conducting, of better methods of procedure of Congress.

I would like to confine my statement pretty much to the reasons why we thought Congress should have a staff of its own, accountable only to the Congress, for the purpose of drafting legislation, and why we thought we should have a standing and permanent committee to observe the operation of the executive departments, with a view of reporting back to Congress and correcting anything where we felt that, by interpretation or otherwise, the executive agencies were doing beyond the authority which Congress had granted.

Now, I think those two things are of immense importance, and if I might have the indulgence of the committee I want to illustrate why I think they are important, by certain specific cases that have come to my attention.

The CHAIRMAN. Please do so.

Mr. SMITH. Let me say as a preliminary, under our Constitution legislation is supposed to be enacted by the Congress. I want to call your attention to what I assert to be a fact, that we now have not only legislation by the Congress, but we have four other types of legislation. I will go into each one of them a little more fully and illustrate by specific examples: We have legislation by sanctions; we have legislation by subsidies; we have legislation by executive regulations, under authority of acts of Congress; and we have legislation by interpretation-interpretations that Congress never dreamed of when we enacted the law.

I think that is of very grave moment and a matter that this committee especially ought to give very serious attention to. I do not think the American people realize to what extent our system of government is being changed by these innovations in the way of the four types of legislation that I have enumerated.

I do not think Congress as a Congress realizes it. On the other hand, I think almost every individual Member of Congress realizes what is going on, and they talk about it and fuss about it and they say something ought to be done about it, but as a rule Congress does not do anything about it.

Now, much of this stuff is done in perfectly good faith. I am not bere to say that any of it is not done in good faith. It is done under the spur of the emergency, but when we once break down the constitutional boundaries and begin to do things that there is not any authority under the Constitution or the law for, we get into a field that spreads and gets worse, like a spreading disease.

Personally I am very much disturbed about it and I hope that we can do something to check it and bring us back within the limits of what we ought to do.

I want to illustrate some of these different types of legislation I told you about by some specific cases.

Take legislation by sanctions. Well, we have the War Production Board and we have the O. P. A., and we have other emergency agencies; we have the President's power of seizure, and those can be used and sometimes are used in a rather arbitrary manner.

I do not want my remarks here to be construed as critical, I am just illustrating. You take the Montgomery Ward case, which is a case of what I would term Government by sanctions. I am not going into the merits of the case, as to who is right and who is wrong about it, but the fact is in that case the whole controversy arose over what is known as the maintenance of union provision that Montgomery Ward failed to observe.

Well, there is no law in the world which authorizes the maintenance of union provision by the War Labor Board, and yet that has been grafted onto the law of the land and is accepted as such.

Now, how can we enforce it? We cannot enforce it in courts, so we enforce it by sanctions. That is to say, we go back to one of the war powers and say, "Under the law the President has the power to seize this property if the party does not perform," and therefore Montgomery Ward & Co. was seized.

Along the same line I would like to cite another case that seems to me far more alarming than the Montgomery Ward case. I do not remember the name of that corporation, but I do have the War Labor Board's file on my desk at this time, because the complaint about it came to our committee.

In that case there was a labor dispute between a company, which makes landing lights for war planes, and certain individuals who are officers of a union. That controversy arose because three union officers undertook to extort money from the management in order to stop some slow-downs that were occurring in the plant. The management complained to the district attorney and as the result of that complaint these men were arrested red-handed when the money was passed.

They immediately were fired and they demanded their reinstatement. Of course the employer refused to reinstate them. They called a strike because they were the officers of the union, and they stopped production for a period of 30 days. In the meantime they were convicted of extortion. They still demanded their reinstatement, and they have appealed to the War Labor Board and the War Labor Board ordered their reinstatement, notwithstanding the fact that they had been convicted of extortion.

Now, that was on the ground that they should reinstate them and then go through the process of collective bargaining with them before they discharged them.

But the real part of the case is after the War Labor Board ordered their reinstatement and the company refused to comply with the order: the War Labor Board reported that to the Economic Stabilizer and demanded enforcement proceedings, and the Economic Stabilizer thereupon ordered the War Production Board to cut off the supplies that they were using to make these landing lights for airplanes, and from the last account which I had on that case-and the parties were in my office last week-they were in the position where they had to stop making landing lights for airplanes used in the war effort because they would not reinstate the three convicted extortioners into their jobs in the plant.

They had no recourse to the courts. It was purely a case where there had been, as I have said before, legislation by the use of sanetions. They were being forced to do something that there was no law to compel them to do, and forced at the expense of a very vital part of the war effort.

Now, let us take, for instance, legislation by subsidy. Well, that would seem to be a rather far-fetched way to enact legislation, but take the meat question which is very much in the public eye at the present moment.

Our committee made an investigation of that subject something over a year ago and filed a report, which is House Report No. 898 of the Seventy-eighth Congress, the third intermediate report. You gentlemen, of course, are familiar with the situation there, that is. that the legislation by Congress provided that no prices could be fixed upon agricultural products without the consent of the Secretary of Agriculture. That is specifically written into the law.

Well, it became desirable, from the standpoint of the Administration, to fix prices on livestock-before we get to that, excuse me, let me interpolate.

By Presidential order the functions of the Secretary of Agriculture in that respect were transferred to the War Food Administrator. Now, the War Food Administrator declined to consent to this fixation of prices on livestock, and so then there came along legislation by subsidies. A subsidy was fixed on livestock and it was provided that if a person sold his livestock within certain price limits, that then he could obtain a subsidy, but if he refused to observe the price ceiling fixed by the O. P. A., then he did not get any subsidy.

So, to all intents and purposes, that was just as much legislation fixing the price on livestock as if Congress had acted, and Congress had specifically refused to act in the way of fixing prices on livestock. In the same connection, we find that certain conditions which amounted to legislation were fixed in the contract for receiving the subsidy payment. One that I recall was that no person should receive the subsidy unless he complied with the requirements of the so-called F. E. P. Č. Executive order. Well, there had never been any legislation setting up F. E. P. C. Whether it is a good thing or a bad thing still remains to be seen, so far as Congress is concerned.

But by the use of subsidies very effectively was enacted an F. E. P. C., so far as the payment of subsidies for livestock was concerned. All of that is set forth in this report to which I have previously referred.

Then let us take legislation by regulation. It is hardly necessary to go into that because you know how much of that there is. There it a good deal more legislation by regulation than there is by Congress. But I was struck with one illustration of legislation by regulation which came to my attention just last week.

You know in many areas factories have what they call home work. People who are physically disabled, people who are old, people, perhaps, who have seen better days and do not care to go to a factory to work, have work sent to their homes and do embroidering, sewing, and buttonhole making.

Well, they came in contact with the Wage and Hour Division, and the Wage and Hour Division found it very difficult, naturally, to police home work so far as wages and hours are concerned. Of course, this difficulty of enforcing the wage-and-hour provision on home work was always patent, but they struggled with it for a good many years.

And then some bright boy conceived the notion that they would settle this thing by regulation, and they looked back at the law and they found that Congress had said that the Wage and Hour Division might make orders, and in subsection (f) of section 8 Congress said this:

Orders issued under this section shall define the industries and classifications therein to which they are to apply and shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such order, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rate established therein.

So proceeding on that basis the Wage and Hour Division just issued an order that there should not be any home work, with certain exceptions, which I shall discuss later.

The people affected went to court about it, and that case went to the Supreme Court and was recently decided in the case of Gemsco, Inc. v. Walling, and two or three other consolidated cases.

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