Thus, we see that the reason the court found a legislative power to summon private persons for inquiry, in connection with the exercise of the legislative function, was because of a practice, long continued, of summoning private persons before the House of Congress to give testimony and to produce papers, and in the legislative acts which prescribed penalties for failure of such persons to appear. In response to the contention of Mally Daugherty that the power of inquiry by Congress, if sustained, might be oppressively exerted, the court replied 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 the court's assumption, Congress did not keep its power of inquiry within restraint and proper bounds, "the decisions in Kilbourn v. Thompson and Marshall v. Gordon point to admissible measures of relief” (p. 176). On the facts before it, the court concluded that the purpose for which Mally Daugherty's testimony was sought, was to obtain information in aid of the legislative function. Hence, he was at fault in failing to appear. It is the limitations upon the power of Congress to inquire, even when exerted against a private person, which concern us here. In the Kilbourn case 37 the Supreme Court held that the House of Representatives had exceeded its power, because it sought to inquire into a matter concerning which redress could be had only in a judicial proceedings, which was then pending. The United States Government was a creditor in a bankruptcy proceeding where its rights were being asserted in the bankruptcy court. The Supreme Court held, therefore, that conformably to the constitutional separation of governmental powers, it was for the Federal Bankruptcy Court to adjudicate the bankrupt's estate. The rights of the United States could be properly pressed before the court. Since the congressional investigation sought information from a private person concerning a matter which was pending before the court, and which could not be a proper subject of legislation, the court held that the witness who had refused to testify before the committee could not be punished for contempt. In Marshall v. Gordon,38 the district attorney of the southern district of New York had sent a letter to the chairman of a subcommittee of the House, which was ill-tempered and well calculated to arouse the indignation of the members of the subcommittee and of the House. The district attorney had given the letter to the press, so that it might be published contemporaneously with its receipt by the chairman of the subcommittee. A select committee of the House reported that the district attorney was guilty of contempt of the House, and a formal warrant for his arrest was issued to the Sergeant at Arms, which was followed by an application for discharge on habeas corpus. This is the only case we know of where the United States Supreme Court dealt with the right of the House of Representatives to adjudge in contempt an official of the executive branch. The question before the Supreme Court was whether the House had the power, under the Constitution, to adjudge the district attorney in contempt and to punish him for such contempt, without subjecting 37 See p. 62 of this memorandum. 38 243 U. S. 521, 546. him to the statutory modes of trial provided for criminal offenses. The Court held that the writing of the irritating letter and its publication were "not intrinsic to the right of the House to preserve the means of discharging its legislative duties" (p. 546). The letter related only to the presumed operation which it might have upon the public mind and the indignation naturally felt by members of the committee on the subject. The foregoing discussion of the Daugherty case focuses attention upon this important point: Congress has, in the past, exceeded its powers, both with respect to its attempted punishment for contempt of private persons and of a United States official, and the Supreme Court did not hesitate to reject the improper assertions of congressional power. Returning to the question we asked, How is the Supreme Court likely to decide the issue concerning the withholding of confidential papers by the executive branch from Congress and its committees? We may thus summarize: 1. Ever since 1796, the executive branch has asserted the right to say "no" to the Houses of Congress, when they have requested confidential papers which the President or the heads of departments felt obliged to withhold, in the public interest." 40 2. Beginning with the denial by a court in a criminal trial, of a subpena for the production of a letter by President Adams in 1800," the courts have uniformly held that they will not compel a President or head of department to give testimony or to produce papers which, in his judgment, required secrecy.*1 3. More significant still is the fact that never in our entire history has either House taken any steps to enforce requests for the production of testimony or documents which have been refused by the executive branch. In the two famous debates on this subject, in the Cleveland and Theodore Roosevelt administrations, it was admitted that it was useless to pass resolutions aimed at forcing compliance by the Executive with congressional requests for papers and documents, when the Executive could ignore such resolutions.42 It appears clear, therefore, that we have, in the words of the Supreme Court in the Daugherty case, “a practical construction, long continued, of the constitutional provisions respecting their powers, by the executive and legislative branches. The long-continued practice of the executive branch to withhold confidential papers, in the national public interest, from the legislative branch, and the passage of no law by Congress to change that practice, argue persuasively for the possession of such a power, under the Constitution, by the Executive. It is not likely that the United States Supreme Court will lightly ignore more than 150 years of legislative acquiescence in the assertion of that power. Our conclusion is fortified by the views of William Howard Taft, who wrote, following his retirement from the presidency and prior to his appointment as Chief Justice: There is in the scope of the jurisdiction of both the Executive and Congress a wide field of action in which individual rights are not affected in such a way 20 See résumé and conclusions, p. 44. 40 See p. 48 of this memorandum. 41 See pp. 32-40 of this memorandum. that they can be asserted and vindicated in a court. In this field, the construction of the power of each branch and its limitations must be left to itself and the political determination of the people who are the ultimate sovereign asserting themselves at the polls. Precedents from previous administrations and from previous Congresses create an historical construction of the extent and limitations of their respective powers, aided by the discussions arising in a conflict of jurisdictions between them." Referring to the Daugherty case, the Supreme Court, in Sinclair v. United States (279 U. S. 263, 291), stated: And that case shows that, while the power of inquiry is an essential and appro priate auxiliary to the legislative function, it must be exerted with due regard for the rights of witnesses, and that a witness rightfully may refuse to answer where the bounds of the power are exceeded or where the questions asked are not pertinent to the matter under inquiry. It has always been recognized in this country, and it is well to remember, that few, if any, of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs. In order to illustrate the purpose of the courts well to uphold the right of privacy, we quote from some of their decisions (pp. 291-292). Both the Daugherty and Sinclair cases dealt with private individuals who had refused to testify before Senate committees. We have noted the statement of the Supreme Court that there are bounds of power which Congress and its committees may not exceed in questioning private persons, whose rights are guarded "by fundamental law." The rights of the executive branch would seem to be guarded by the same fundamental law, the Constitution, which declares the executive branch to be independent of the other two branches, and gives it the right to resist unbounded assertions of inquiry. If, in the judgment of the Supreme Court, private witnesses may rightfully refuse to answer, the President and heads of departments have their rights, not to answer inquiries requiring disclosure of confidential information. which they have asserted almost from the beginnings of our Govern ment. PRESIDENT TRUMAN'S DIRECTIVE TO OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH On March 13, 1948, President Truman, by memorandum addressed to all officers and employees in the executive branch of the Government, issued the following directive: The efficient and just administration of the Employee Loyalty Program, under Executive Order No. 9835 of March 21, 1947, requires that reports, records, and files relative to the program be preserved in strict confidence. This is necessary in the interest of our national security and welfare, to preserve the confidential character and sources of information furnished, and to protect Government personnel against the dissemination of unfounded or disproved allegations. It is necessary also in order to insure the fair and just disposition of loyalty cases. For these reasons, and in accordance with the long-established policy that reports rendered by the Federal Bureau of Investigation and other investigative agencies of the executive branch are to be regarded as confidential, all reports. records, and files relative to the loyalty of employees or prospective employees (including reports of such investigative agencies), shall be maintained in confidence, and shall not be transmitted or disclosed except as required in the efficient conduct of business. Any subpena or demand or request for information, reports, or files of the nature described, received from sources other than those persons in the executive 44 Taft Our Chief Magistrate and His Powers (1916), pp. 1–2. 'branch of the Government who are entitled thereto by reason of their official duties, shall be respectfully declined, on the basis of this directive, and the subpena or demand or other request shall be referred to the Office of the President for such response as the President may determine to be in the public interest in the particular case. There shall be no relaxation of the provisions of this directive except with my express authority. 45 Simultaneously with the directive, the President issued a statement in which he called attention to the Federal employee loyalty program and the policy of the administration to carry out that program on a confidential basis. He called attention to the loyalty order, which indicates, in part IV, the necessity of preserving reports and other information in strict confidence. The directive was aimed to effectuate that policy, even in cases where a subpena was served upon the executive officials, whether the congressional committees or by courts. The President, in the public interest, was assuming the responsibility for informing the court or congressional committee if, in a particular case confidential information could be properly released. The President's statement referred to his predecessors in office, beginning with 1796. The declinations of information by Presidents Washington, Jefferson, Monroe, Jackson, and Cleveland to the Houses of Congress were cited by President Truman as historical precedents for his directive and policy to keep loyalty files of Government per:sonnel confidential. The Condon episode was, in all probability, the primary reason for the issuance of the President's memorandum. A House Committee on Un-American Activities had released a report charging disloyalty on the part of Edward U. Condon, Director of the National Bureau of Standards, and a subcommittee had thereafter sought to obtain all relevant papers, including investigative reports, from the Secretary of Commerce, of which Mr. Condon is a bureau head. The Secretary of Commerce refused to make available the contents of the confidential files relative to loyalty investigations with regard to Dr. Condon, although he had received a subpena which directed him to supply such information.47 48 Since the loyalty program provides for a loyalty investigation of every person entering the civilian employment of any department or agency of the executive branch of the United States, it is easy to perceive the chaos which would result from exposing to public view investigative data and records gathered by the Government concerning its employees. RESOLUTION DIRECTING ALL EXECUTIVE DEPARTMENTS TO FURNISH INFORMATION TO HOUSE AND SENATE COMMITTEES (H. J. RES. 342) 49 On March 5, 1948, Congressman Hoffman introduced a joint resolution directing all executive departments and agencies of the Federal Government to make available to any and all committees of the House of Representatives, and the Senate, any information which may be deemed necessary to enable them to properly perform the duties delegated to them by the Congress. 45 Executive Order No. 9835 of March 21, 1947. 40 See résumé and conclusions, p. 44 ff. 47 94 Congressional Record, vol. 41, p. 2261, Mar. 5, 1948. See also 94 Congressional Record, p. 2088, Mar. 2, 1948. 48 Executive Order No. 9835, pt. I, sec. 1. 49 94 Congressional Record, vol. 42, p. 2317, Mar. 5, 1948. The purport of the resolution is to require the executive branch of the Government to make available to congressional committees information, the disclosure of which, the President has expressly determined, would be contrary to the public interest. The resolution is aimed at the coercion of the executive departments. Its purpose is to compel the heads of those departments, against the wishes of the President, to furnish information, papers and documents to congressional committees, after the President has determined that it would be against the national public interest to do so. In effect, the resolution proposes to make of the executive departments an adjunct of the legislative branch. Henceforth, says the resolution, heads of the executive departments are to be the servants of the majority of a congressional committee, which shall have the power to supervise the executive branch of the Government. In short, to the extent that congressional committees are to direct the executive departments, in violation of, and against the orders of the President, and the heads of those departments, those committees will be clothed with a supreme unrestrained executive power. It will be recalled that the Legislative Reorganization Act of 1946 was the result of the work of Senator La Follette and Congressman Monroney, who headed a joint committee of both Houses in the preparation of the original bill. As finally adopted, the reorganization act was the "end product of more than a year of study, hearings, and deliberations conducted by the Joint Committee on the Reorganization of Congress." 50 It will also be recalled that, following debate, Senator La Follette yielded to Senator Donnell's amendment of section 136; the Senate was persuaded that the legislative branch had no power, under the Constitution, to inspect and review, or to conduct a surveillance or superintendence of the executive branch. 51 Tested by the Supreme Court decisions, and by the action of both Houses of Congress,52 the resolution constitutes an unconstitutional encroachment by the legislative branch upon the executive branch. To conclude: The statutes designed to compel witnesses to testify and to produce records before congressional committees affect only private individuals. They do not cover heads of departments or other Government officials. The most important contribution to clear thinking concerning the right of the legislative branch to compel the executive departments to furnish testimony and records, regardless of the public interest involved, as determined by the President, may be found in the legislative history of the Legislative Reorganization Act of 1946. The considered judgment of the Senate, after debate, concurred in by the House, was that there is no power, under the Constitution, in the legislative branch of the Government to impose its will upon the executive branch, whether under the guise of an "inspection and review" of its activities or a "surveillance," or a superintendence, or any other unrestrained control of the executive departments. The clear import of the Daugherty and Sinclair cases is that the United States Supreme Court will not sanction unrestrained inquiry of the executive branch by the Houses of Congress. 50 92 Congressional Record 6344 (1946). 51 See pp. 54, 55 of this memorandum. 52 See the action of the Judiciary Committee of the House, in the Seward case, pp. 41-42 of this memorandum. |