eral direction of the President, as in the case of the Secretaries of State, War, Navy, and Postmaster General; nor do the acts appointing the Secretary of the Treasury and the Attorney General. On the other hand, Attorney General Cushing points out that none of the acts, except the one establishing the Treasury Department, subject the chief executive officers to the duty of responding to direct calls for information on the part of the two Houses of Congress. Attorney General Cushing adds:

* * * This, however, has come, by analogy or by usage, to be considered a part of their official business. And the established sense of the subordination of all of them to the President, has, in like manner, come to exist, partly by construction of the constitutional duty of the President to take care that the laws be faithfully executed, and his consequent necessary relation to the heads of departments, and partly by deduction from the analogies of statutes (6 Op. A. G. 332-33).

Attorney General Cushing calls particular attention to one other fact. While, by express provision of law, the Secretary of the Treasury was given the duty to communicate information to either House of Congress when desired, and while it is practically and by legal implication the same with the other secretaries, and with the Postmaster and the Attorney General, the provision of law, which enacts that the Secretary of the Treasury shall make report and give information in person, does not appear to have been at any time practiced upon by Congress, either in regard to the Secretary of the Treasury or any other head of department. "But heads of departments have in some cases been called on to make explanations in person to commit tees of Congress" (ibid., p. 333).

Attorney General Cushing also rendered an opinion to the Presi dent wherein he wrote at some length of the "Relation of the President to the Executive Departments." 85 He reviewed the laws which created the original seven executive departments. In summarizing those laws, Attorney General Cushing stated that the original theory of departmental administration continued unchanged, namely, executive departments, with the heads thereof discharging their administrative duties in such manner as the President should direct. The heads were, in fact, executors of the will of the President. It could not, wrote Attorney General Cushing, be otherwise in view of the constitutional provisions, quoted above, which lodge the executive power in the President, and which make him the "responsible executive minister of the United States" (7 Op. A. G. 463).

Attorney General Cushing then stated the general rule:

*** I think here the general rule to be as already stated, that the Head of Department is subject to the direction of the President. I hold that no Head of Department can lawfully perform an official act against the will of the President; and that will is by the Constitution to govern the performance of all such acts. If it were not thus, Congress might by statute so divide and transfer the executive power as utterly to subvert the Government, and to change it into a parlimentary despotism, like that of Venice or Great Britain, with a nominal executive chief utterly powerless, whether under the name of Doge, or King, or President, would then be of little account, so far as regards the question of the maintenance of the Constitution (7 Op. A. G. 469–70).

The foregoing quotation poses an interesting question: Suppose Congress should pass a law which would compel heads of departments to give information and papers to either House of Congress

857 Ops. A. G. 453.

or its committees? Suppose further that the law left no discretion whatever in the head of the department or in the President? According to Attorney General Cushing such a law might well be subversive of our form of Government and might well render our Chief Executive a President in name, but "utterly powerless."

We have thus far dealt with the establishment, by 1849, of the Departments of State, War, Treasury, Justice, Post Office, Navy and Interior. In 1889, the Department of Agriculture was made an executive department. The original statute of 1862 required the Commissioner of Agriculture to make annual reports to the President and Congress, containing an account of his receipts and expenditures, and special reports on particular subjects whenever required to do so by the President or either House of Congress. In 1928, the statute was amended to provide for the making by the Secretary of Agriculture of an annual general report of his acts to the President; the provision concerning special reports on particular subjects when requested by the President or either House of Congress is still retained.86

A Department of Labor, with a Commissioner of Labor was first created in 1888, with provision for an annual report to the President and Congress "of the information collected and collated by him." He was likewise authorized to make special reports on particular subjects whenever required to do so by the President or either House of Congress, and he was directed to make a detailed report of his expenditures to Congress.

87

88

In 1903, a Department of Commerce and Labor was established as an executive department. The act requires the Secretary of Commerce and Labor to annually report to Congress, accounting for all receipts and expenditures, and describing the work done by him. He is also required to make special investigations and reports when required by the President or either House of Congress. The act also provides for the creation of a Bureau of Corporations, with a Commissioner of Corporations at its head, whose duties were to gather information for the President, in order to enable him to recommend legislation to Congress. The Commissioner is required to report to the President, who is responsible for making public so much of the information collected for him as he (the President) sees fit.89

I have referred to the Commissioner of Corporations and his duties prescribed in this act of 1903, because it furnishes an excellent illustration of a demand by the Judiciary Committee of the Senate upon the Attorney General and the Commissioner of Corporations for records which by express provision of law the President had the right not to make public. It will be recalled that President Theodore Roosevelt directed all the papers to be brought to him, despite a threat of imprisonment of the Commissioner of Corporations for contempt of a Senate subpena, and he defied the Senate committee to do its worst.90

86 May 29, 1928, 45 Stat. 993.

87 25 Stat. 183, sec. 8.

86 32 Stat. 825.

8 32 Stat. 828.

90 See pp. 30-32 of this memorandum. An interesting account of the removal of a trunkful of papers by the Commissioner of Corporations to President Theodore Roosevelt is contained in 43 Congressional Record 3728 (1909).

The Department of Labor was made an executive department in 1913, with a separate head known as the Secretary of Labor. By the same act of March 4, 1913, the Department of Commerce and Labor was thereafter to be called the Department of Commerce, with a Secretary of Commerce at the head thereof. The Secretaries of Labor and Commerce must each make annual reports to Congress of receipts and expenditures; and describing the work done by their respective departments; they are also required to make such special investigations and reports as the President or Congress may require.

We note differences in the wording of the report requirements by the three departments just discussed. The Secretary of Agriculture must report annually to the President; the Secretaries of Commerce and Labor to the Congress. The Secretary of Agriculture is to make special reports on particular subjects whenever required to do so by the President or either House of Congress; the Secretaries of Commerce and Labor must make special investigations and reports when required to do so by either House or by the President.

Title 5 of the United States Code deals with the executive departments. Sections 1 through 117 of chapter 1, dealing with salaries of heads of departments, vacancies in office, etc., are specifically made as applicable to the 3 departments just discussed, as they are to the other 7 departments created between 1789 and 1849.2 By definition, the word "department" means 1 of the 10 executive departments enumerated in section 1 of title 5.

93

The establishment of the executive departments by the first constitutional Congress, the maintenance of the same "great outlines" of those departments in 1855, and the addition of the three last named departments, partake of one uniform system and function--to enable the President to perform his duties under the Constitution as the Chief Executive Officer of the Nation.

94

Two famous debates, one in the first administration of President Cleveland, the other in Theodore Roosevelt's administration, witnessed the conflict between the Senate and the Executive concerning the right of the former to demand and the latter to withhold information and papers. Both of those conflicts were resolved in favor of the Executive. Papers demanded of heads of departments by resolutions, by committees, and by subpena were not produced. It was admitted during those debates that there was nothing in the wording of the acts creating the departments as they existed in 1886 and 1909, nor in any other provision of law, which could compel the production of documents or information by the executive departments. Public interest was invoked by the Executive or by the heads of departments as a reason for forbidding disclosure.

Despite the provisions relating to the establishment of the Treasury Department, 95 which require the Secretary of the Treasury to give information to either branch of the Legislature respecting all matters referred to him by the Senate or the House or which shall appertain to his office, and despite the wording above discussed in the acts cre

91 March 4, 1913, 37 Stat. pp. 736 and 738.

02 Sees. 512, 591, 611 of title 5 of U. S. C.

93 Attorney General Cushing to the President, on the Relation of the President to the Executive Departments, 7 Op. A. G. 453, 460.

04 For summaries of the arguments during those debates, see pp. 14-16 and 18 of pt. I of this memorandum.

951 Stat. 65, 5 U. S. C. 242.

ating the Secretaries of Agriculture, Commerce, and Labor, we must remember that they are executive departments. As members of the executive branch, the Constitution places independent duties and obligations upon them to the President within the scheme and framework of our Government. Thus we saw Secretary of the Treasury Mellon and President Coolidge successfully resisting demands for information and papers, which had been requested by Senate resolutions, from the Internal Revenue Department. Ogden Mills, Secretary of the Treasury in President Hoover's administration, similarly refused to disclose confidential data in the Treasury Department following a request therefor by resolution of the House of Representatives.96 Secretary of the Treasury Sherman, in President Hayes' administration, refused to comply with a request of the chairman of the Committee on Commerce of the Senate on the ground that the papers were of a confidential character and would disclose confidential communications between the President and the Secretary of the Treasury.97

The fundamental public interest to be served may always be cited by a head of a department or by the President in opposition to a blanket demand for information or papers by a congressional committee or by a resolution of either House. This view is supported by Alexander Hamilton, Secretary of the Treasury in Washington's administration, who stated that although his Department was subject to Congress in some points

he thought himself not so far subject as to be obliged to produce all the papers they might call for. They might demand secrets of a very mischievous nature." Attorney General Cushing, in an opinion entitled "Resolutions of Congress," wrote in 1854:

In a word, the authority of each Head of Department is a parcel of the executive power of the President. To coerce the Head of Department is to coerce the President. This can be accomplished in no other way than by a law constitutional in its nature, enacted in accordance with the forms of the Constitution.

Of course, no separate resolution of either House can coerce a Head of Department, unless in some particular in which a law, duly enacted, has subjected him to the direct action of each; and in such case it is to be intended, that, by approving the law, the President has consented to the exercise of such coerciveness on the part of either House (6 Op. A. G. 682–83).

Attorney General Cushing, in the same opinion, referred to the act of 1789, which made it the duty of the Secretary of the Treasury to give information to either branch of the Legislature, in person or writing, as may be required by the Senate or the House of Representatives. He concluded, however, that every communication of the head of a department to either House must be understood to be made with the assent, express or implied, of the President.

THE JOINT RESOLUTION AUTHORIZING THE SECRETARY OF AGRICULTURE TO PUBLISH THE NAMES AND ADDRESSES OF TRADERS ON THE BOARDS OF TRADE

An illustration of Attorney General Cushing's opinion that only a law, constitutional in its nature, approved by the President, can force

96 See pp. 19-21 of this memorandum.

9717 Congressional Record 2332 (1886), 2618.

The Writings of Thomas Jefferson (1905), vol. 1, p. 304.

the head of a department to communicate information, otherwise confidential, is furnished by the joint resolution which became law on December 19, 1947.99 That resolution authorized the Secretary of Agriculture to publish the names and addresses of persons transacting business on the boards of trade and the amounts of commodities purchased or sold by them. It also required the Secretary of Agriculture to furnish to committees of Congress, upon request, any such information in his possession.

The Secretary of Agriculture had been subpenaed by the Senate Committee on Appropriations to furnish it with a list of traders in commodity futures. The Secretary pointed to the Commodity Exchange Act, which prohibited him from furnishing data and information which would disclose the business transactions of any person and the trade secrets of names of customers. He also cited the opinion of his counsel to the effect that it would be a violation of law to comply with the Senate committee's request.2 The Senate, therefore, by the resolution aforementioned, amended the Commodity Exchange Act so as to permit the Secretary of Agriculture, in his discretion, to disclose and make public the information. President Truman signed the resolution and thereafter the Secretary of Agriculture released the information to the newspapers and communicated it to the committee. In view of the public statements by both President Truman and Secretary of Agriculture Anderson on the subject of speculation in commodities, particularly in basic food products and its effect on the national economy, we must conclude that the President deemed it in the public interest to sign the joint resolution. Had the President thought otherwise, he undoubtedly would have vetoed the resolution, and directed the Secretary to keep the information which he had collected confidential.

THE CIVIL SERVICE COMMISSION RECORDS

The withholding of confidential papers, in the public interest by the executive branch of the Government, applies also to records of the Civil Service Commission. The Commission was created by act of Congress in 1883.5 The President is authorized to appoint, by and with the Senate's consent, three Commissioners, and he alone may remove any Commissioner. The President is authorized to prescribe regulations for the admission of persons into the civil service; it is the duty of the Commissioners to aid the President in preparing, and in carrying into effect those regulations."

The act provides that the Commission shall, subject to rules made by the President, make regulations for, and have control of, examinations, and shall supervise and preserve the records. The Commission is required to make an annual report to the President for transmission to Congress. There appear to be no other statutory provisions relating to the records of the Commission."

Public Law 392, ch. 523, 80th Cong., 1st sess.

17 U. S. C. 12; 42 Stat.. sec. 8. p. 1003.

293 Congressional Record 11738, 11739, Dec. 18, 1947. 393 Congressional Record 11735-11743. Dec. 18, 1947.

* See Senator Ferguson's references to President Truman and Secretary Anderson's state ments concerning speculations in grain, and the address of the President of the United States to joint session of the House and Senate, November 17, 1947, wherein he said "Legislation is required, moreover, to prevent excessive speculation on the commodity exchanges," 93 Congressional Record 10704.

5 January 16, 1883, 22 Stat. 403; 5 U. S. C. 632.

65 U. S. C. 631, 633 (1).

75 U. S. C. 633 (3) and (5).