PRESIDENT NIXON'S EXECUTIVE ORDER 11605 RELATING TO THE SUBVERSIVE ACTIVITIES CONTROL BOARD AND S. 2466 AND SENATE RESOLUTION 163 THURSDAY, OCTOBER 7, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding. Present: Senators Ervin and Gurney. Also present: Rufus L. Edmisten, chief counsel and staff director, and Joel Abramson, minority counsel. Senator ERVIN. I believe we have just one other scheduled witness. Counsel, please call the next witness. Mr. EDMISTEN. Mr. Chairman, our witness this morning is Prof. Arthur S. Miller of the National Law Center, The George Washington University, who is also a consultant to this subcommittee. Senator ERVIN. I wish to welcome you to the subcommittee in this capacity, and you may proceed to present your views in your own way. Professor MILLER. Thank you, Mr. Chairman. I have a prepared statement, as you know, and I would like to read it if I might. I hope that it is not too long for your patience. STATEMENT OF ARTHUR S. MILLER, NATIONAL LAW CENTER, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C. Professor MILLER. The constitutional questions, Mr. Chairman, involved in Senate Resolution 163 and S. 2466 relate to the manner in which Executive Order 11605 was promulgated and to its contents. In my judgment, the Executive order is faulty on both counts. In my formal remarks here, I should like to concentrate on the question of the "inherent" powers of the Executive; but some attention will also be paid to the authority that the Exeuctive order attempts to allocate to the Subversive Activities Control Board (SACB). At the outset, I think it is important to note what the Executive order is not: 1. It is not an exercise of the emergency powers of the President, whatever they may be in a given circumstance. Even though the Nation has lived under a declaration of national emergency since December 1950, there is no apparent attempt here to call upon that nebulous congeries of powers to buttress the Executive order. All that is cited as authority by the President is that catch-all phrase, invented, I believe, by Attorney General Robert Jackson, "*** the Constitution and statutes of the United States ***". Then certain sections of title 5 of the United States Code are mentioned, not one of which refers to emergency action. The President, furthermore, makes a talismanic incantation of ". finding such action necessary in the best interests of national security," but surely that cannot and does not add to his constitutional and statutory powers. No matter how fast or how often that particular phrase may be repeated, it is emphatically not a reason for given governmental action. Rather, it merely restates the question-to which I refer below-of whether Government, executive or congressional, can act in the first instance in the delicate area covered by the Executive order. Let me be very clear about this: Of course, the national security must and should be protected through governmental action. I know of no one who dissents on that position. In the final analysis, however, the responsibility is in the Congress, not the Executive-although I hasten to add that it is beyond argument that the two branches must cooperate. As Woodrow Wilson once put it, "Warfare between the two may be fatal." 2. Despite the reference to national security, this is not a question of the exercise of foreign affairs. In that area, there is a situation of shared power between the Congress and the Executive. This involves domestic affairs, purely and simply, and any reference to Supreme Court cases dealing with the foreign affairs powers of the National Government-such as the Curtiss-Wright, Belmont, and Pink casesis irrelevant. 3. This is not an area involving congressional silence. Congress has spoken; it established the SACB. That the Federal courts have largely eliminated any function of the Board is also irrelevant to the question of power. That they have done so argues, it seems to me, for abolition of the Board rather than for investing it with powers of doubtful constitutionality through a bald assertion of raw Executive power. The subcommittee-the American people-have witnessed a number of examples of such assertions of power in recent years. It is not, however, an invention of this administration. Others have taken actions in the past which are similar and which are sometimes used to justify present-day activities. But during this calendar year, the subcommittee has considered, among other matters, (a) what seems to be a misuse of the pocket-veto power; (b) the "impoundment" by the Executive of more than $12 billion in funds appropriated by Congress; and (c) "executive privilege." In not one of these does there seem to be a valid constitutional basis for executive action. In addition, the Attorney General has asserted that the Executive has an "inherent" power to wiretap in internal security matters without judicial or legislative sanction. I will come back to some of these matters, particularly the wiretap problem, in a few minutes. In sum, there is growing evidence of a direct confrontation between the Executive and the Congress. The challenge is clear; the Executive is acting in the field of congressional responsibility. I feel that it is long past time for the Congress to redress some of the imbalances that have appeared and halt the further aggrandizement of power in the executive branch. Enactment of Senate Resolution 163 and S. 2466 would certainly further that end. THE PROBLEM OF POWER Although the basic question toward which my remarks will be addressed is that of Presidential legislation, it is appropriate to discuss briefly the even more fundamental question of the power of the Federal Government to enact such legislation, even by the Congress. The question is difficult, for the Executive order raises some crucial constitutional problems. Certainly there is no expressly granted power for such "legislation;" nowhere does the Constitution set it forth. Accordingly, if valid-however promulgated-it must be implied under the necessary and proper clause of article I, section 8. Permit me to set forth a few propositions concerning the constitutional power to act. 1. There can be little doubt about the power of Congress to legislate minimum standards for Government employment, including loyalty and security. But here, as elsewhere, constitutional principles come into collision. The right to insure loyalty among employees runs into the first amendment right of freedom of expression, which all individuals have. By the very nature of things, neither right is an absolute. The Government cannot demand loyalty to the point of stifling all dissent; and freedom of expression has its limits. I consider this to be self-evident, beyond argument, so to speak. 2. The Executive order makes all persons within a group responsible for the actions of the group, if found by the SACB to fit within the categories of "totalitarian, Fascist, Communist, subversive," et cetera. Although purporting to speak only about Government employment, that is about as damning a label as anyone can have pinned upon him. With the computerization of dossiers, this type of conclusion about organizations and their members will be widely dispersed. What that means is that a person will be considered "guilty" by association. I do not speak of guilt in the criminal sense but in the sense that sanctions can and will be imposed upon him for belonging to an organization. Guilt in this country has always been personal, although there have been some nasty episodes in American history where guilt of a type was both group-based and racial. I refer here particularly to the forcible exclusion of American citizens of Japanese ancestry from the west coast during World War II, upheld, it must be noted, by the Supreme Court. Noteworthy also is the fact that the initial exclusion orders were by Executive order, although Congress did ratify the Presidential action subsequently. That massive deprivation of civil liberties is a blot on our history; it should not be repeated now in another form by continuing Executive Order 11605 in existence. 3. In effect, the Order allows sanctions, which might be considered a form of punishment, without the procedural safeguards of the Bill of Rights. In this connection, may I invite your attention to Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1962). There, the Supreme Court, speaking through Mr. Justice Goldberg, held that statutes imposing forfeiture of citizenship for certain acts, without prior court or administrative proceedings, were penal in nature and deprived the two appellees of their citizenship without due process of law and without according them their fifth and sixth amendment rights. I believe there is a similar circumstance here. The groups are given a hearing but not individually. The analogy is clear; and, in my judgment, applicable to Executive Order 11605. Individuals may be deprived of jobs because of innocent associations, not only with the Government but also because of the proliferation of computers, with other organizations. I am aware-and here I interpolate on my formal remarks, Mr. Chairman-that there is a statement of "knowing" membership, and so on, either in the order or the rules of the Board itself. But what is "knowing membership?" Is it constructive notice or actual notice? Or how are we to know? According to the Merrill case, decided by the Supreme Court about 25 years ago, everyone in the United States is held to the terms of the Federal Register and to have constructive notice of the terms of the Federal Register. Is that the sense in which "knowing" is used here? 4. That the Executive order will have a chilling effect upon the exercise of first amendment freedoms seems utterly clear. Included is not only the freedom of speech, expressly mentioned in that amendment, but freedom of association, which has been recognized by the Supreme Court. Cf. Boorda v. Subversive Activities Control Board, 421 F.2d 1142 (D.C. Circuit, 1969). I have not attempted to discuss all possible constitutional objections to the Executive order. What has been said is convincing to me that the order should not, and probably would not, be sustained if challenged in court. THE EXECUTIVE'S "INHERENT" POWERS What I have said thus far is mainly prologue to the principal point I wish to make in this testimony: that the Executive order has no basis either in the Constitution or in any statute. Accordingly, it is legislation without delegated power to do so and, as such, the order is invalid. The statutes cited in the order do not even remotely delegate power to the President to invest the SACB with powers not already given to it by the Congress. Hence, if the order is to be upheld, it must be on some theory of inherent Executive power. I do not believe-and, here, I interpolate again-that title 3, section 301, of the United States Code is applicable here either. That is the "Presidential Sub-delegation Act of 1950," as I recall it. The President must have power in the first instance in order to delegate it to anyone. I do not believe he has it here. And it is to that perplexing question that I now turn. It is a problem that is, to say the most for it, terra incognita in constitutional law. The leading judicial discussion is in the well-known Steel Seizure case, 343 U.S. 579 (1952). The facts of that case need not be recounted here. The result is equally well known-the Court struck down President Truman's seizure of the steel mills during the Korean war. Several opinions were written, of which that of Justice Jackson seems to me to be particularly useful in present context. It merits quotation at some length. Said he : The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies. and lose sight of enduring consequences upon the balanced power structure of our Republic. (343 U.S. at p. 634) Let me comment briefly on that statement. It would be understandable, perhaps, but quite out of order, for representatives of the execu tive branch to attempt to confuse the problem of Executive power with the result sought to be achieved, at least ostensibly-control of "subversive" elements in the Nation. Even if the result is considered proper and the means chosen also fits within constitutional boundaries, the question of basic power still remains: How and where did the President get that power? I can perceive no source for it. Justice Jackson, in the Steel case, went on to say: A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way. The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. (343 U.S. at pages 634-35) That statement seems to me to sum up accurately and succinctly "the state of the art," both judicial and scholarly, with respect to Presidential powers. No one has written the definitive study. Perhaps none can be written. Justice Jackson then went on to set forth three categories of Presidential actions, in as good a statement as is avaliable on Presidential power and legal consequences: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (343 U.S. at pages 635-38) Can there be any doubt in which category Executive Order 11605 fits? Surely it is not the first, for there is no express or implied congressional delegation to vest the SACB with additional powers. Can it be defended under the more flexible second test? The answer seems to be clearly negative. The SACB was established by Congress and vested with certain powers, most of which have been rendered nugatory by the courts. There is no twilight zone of concurrent legislative and executive power. 70-655-72—5 |