Mr. LAZARUS. I think it's hard to make an argument for restricting the communication of ideas or facts. I see no reason why Justice ought not notify Congress. I also, however, think that there are situations in which Justice is entitled not to make appeals.

Mr. LUDLAM. And the second situation is where the Justice Department asserts the right under 28 U.S.C. 2403 to intervene in the case in which it is not a party to challenge the constitutionality of the statute.1 I know of one case, the Simkins case, where this happened. There were substantial objections raised by the defendants in the case that section 2403 does not permit the Department to intervene to attack the statute.

I have copies of all of the briefs on that point in the Court which I have obtained from the court of North Carolina and which I would like to submit for the record.

[The May 8, 1962, Motion to Intervene of the United States appears as exhibit 49 in the appendix at pp. 474 to 477. The June 7, 1962, Objection of Defendants to the Intervention of the United States of America appears as exhibit 50 in the appendix at pp. 478 to 481. The June 15, 1962, Reply to Defendants' Objection to the Intervention of the United States of American appears as exhibit 51 at pp. 482 to 489. An excerpt from the June 26, 1962, oral argument on the "Motion to Intervene appears as exhibit 52 in the appendix at pp. 489 to 497. The June 26, 1962, Order Allowing Intervention appears as exhibit 53 in the appendix at p. 498. The District Court opinion on the merits of the case may be found at 211 F. Supp. 628 (M.D.N.C. 1962) and the Court of Appeals Opinion at 323 F. 2d 959 (4th Cir. 1963).]

Mr. LUDLAM. And also I've obtained the legislative history of section 2403, which indicates that the Congress clearly thought that it would be used to defend statutes and not attack them.

[Excerpts from the debate on passage of 28 U.S.C. 2403 in 1937 appear as exhibit 97 in the appendix at pp. 548 to 555.]

I would like to ask what your views are on the Department's intervention to attack a statute.

Mr. LAZARUS. Two things. First of all, I believe that the text of 2403-and I might be wrong about this-but it's my recollection that the text of 2403 does not clearly require that Justice only support the constitutionality of a statute

Mr. LUDLAM. That's correct.

Mr. LAZARUS [continuing]. Although, obviously, it would be strange if people had the Simpkins situation in mind when they drafted the statute. Secondly

Mr. LUDLAM. The legislative history was emphasized in the defendant's briefs.

1 28 U.S.C. 2403 provides as follows:

"§ 2403. Intervention by United States; constitutional question

"In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality."

71-846-76- -12

Mr. LAZARUS. Obviously so. Secondly, I think that the Simpkins case, again-it's such an unusual case that it would be unwise to predicate some generally applicable provision on the fact that it occurred. It was a case in which there were two features of the situation which I believe justify the Department of Justice's position.

The first is or perhaps three features the first is that what happened-just to give the facts, as I

Mr. LUDLAM. When you are given your answer, please make it clear that the subcommittee agrees that the statute in that case was clearly unconstitutional. I'm only trying to raise the larger issue of whether the Department should intervene to attack a statute, even though you and I and everybody up here agrees that it was an obnoxious statute.

Mr. LAZARUS. Yes. I think that not only was it an obnoxious statute but it had become clearly unconstitutional because of an intervening decision of the Supreme Court, and therefore would be appropriate for Justice to, in a case in which it was a party and the statute were issued, to simply state to the court that it would not defend the statute. And any private party would do the same thing in many situations.

But the statute was also obnoxious in a way which flouted the interests and policy of the Civil Rights Division of the Justice Department. In other words, it had an interest in promoting desegregation in the administration of federally supported hospitals, which was the issue in the case. And therefore, I think Justice was justified in supporting the policies of the Civil Rights Division.

Mr. LUDLAM. The only point I would make in response is that that can be a slippery standard in some cases-about how clearly the intervening statute would hold it to be unconstitutional and how clear the policy is on the part of the Department arguing this thingthat there are some problems in applying it. I also would suggest that there is a possibility that the Justice Department should perhaps exhaust its legislative remedies before it would proceed to intervene to attack a statute. Do you have a brief comment on my response?

Mr. LAZARUS. Well, I don't think that, on the last point you made -does Justice have to exhaust its legislative remedies, or in other words, does it have to go to Congress and ask them to repeal the Hill-Burton Act before it can go to court and take the position that the Hill-Burton Act is unconstitutional? I think the answer to that is "no," as a practical matter. It's just that Congress probably wouldn't do it or wouldn't have done it. It would take a long time. And it's really in a case where the law is so clearly unconstitutional -and unconstitutional for reasons that Congress didn't have in mind when it passed the statute, because Brown v. the Board of Education hadn't been decided.

I just think that it's a waste of everybody's time, including the Congress' time. And I agree that there may potentially be a slippery slope problem. There are often slippery slope problems. But the distinction, nevertheless, is there and if difficult cases arise, they'll just have to be dealt with. I don't think that was a difficult case.

Mr. LUDLAM. That's all of the questions I have. I just wanted to state personally that I appreciate Mr. Lazarus taking the time in his busy schedule to think through these comments and to appear, despite the fact that he's just coming off the flu, which everybody seems to have these days.

Senator ABOUREZK. All right; I want to express my thanks to Mr. Lazarus for your appearance today and your excellent testimony. Mr. LAZARUS. Thank you very much, Mr. Chairman.

Senator ABOUREZK. The next witness is Dean Redlich of the New York University School of Law. I'd like to welcome you to the subcommittee, Dean Redlich.

I hope that you will begin your testimony and we have a series of questions for you as well. And I just wanted to say that there's a posibility I'll be called out briefly. I have to run out and testify at another committee hearing for just a very short time and then I'll come back down. I want the staff counsel to continue the hearings while I'm gone, because we are in a kind of time squeeze, as usual.

So I'll just get up and leave when the call comes, without interrupting you. We certainly appreciate you coming down.

Mr. REDLICH. Thank you, Senator, I have a time problem also, having unfortunately to testify this afternoon in Albany, N.Y.

and

Senator ABOUREZK. What time do you have to leave here?

Mr. REDLICH. I have a plane at 11:45, which means I ought to leave here around 11:20, at the latest.

Mr. LUDLAM. That won't be any problem. Your secretary was kind enough to read your statement to me over the phone last night and it's an excellent statement. It doesn't take very long to read it, so why don't we proceed?

Mr. REDLICH. Fine; thank you very much.

TESTIMONY OF NORMAN REDLICH, DEAN, NEW YORK UNIVERSITY LAW SCHOOL

Mr. REDLICH. I am also very pleased to be here, Senator. I am Norman Redlich, Dean of the New York University School of Law. I have served as a government lawyer in several contexts. From December 1963 to September 1964 I was a senior assistant counsel to the President's Commission on the Assassination of President Kennedv.

My principal experience as a government lawyer has been with the city of New York during the administration of Mayor John Lindsay. At various times during his administration, I held the three jobs in the law department, which is the equivalent of the Justice Department in the Federal Government. And for the last 2 years of Mayor Lindsay's term from 1972 to 1974, I was corporation counsel of the city of New York, which is the chief legal officer of the city.

Since my return to teaching, I have developed a course in professional responsibility and am the author of a book on teaching materials in this area. I also teach constitutional law and am chair

man of a committee of the Association of the Bar of the City of New York dealing with the lawyer's role in securities matters and am helping that association to develop standards of professional responsibility for government lawyers.

Although this committee is, quite properly, concerned with questions arising out of the Justice Department's role as the attorney for the executive branch and its frequent role as attorney for officers and Members of the Congress, I'm convinced that the issues you're considering are relevant to State and local governments as well.

That is perhaps why my own experiences as the head of what may well be the second largest law office in the country-the law department of the city of New York employs over 400 lawyersmight be helpful to this committee.

To give you an idea of the range of problems I faced, I was the lawyer for the entire executive branch of the city government, as well as the city council, which is the legislature. I was the lawyer for a quasi-legislative body, called the board of estimate, which consists entirely of elected officials in New York. I was also the lawyer for the board of education, 31 community school boards, the board of higher education, which runs the city university, the New York City Health and Hospitals Corp., which runs 18 municipal hospitals, the Off-Track Betting Corp., and a wide range of government agen

cies.

There were few problems involving multiple clients, conflicts, intrusion into the legislative branch, and privilege of confidential communications which we did not face. I would like to make some general and brief observations and then be available for your questions.

Setting aside for one moment the question of separation of powers between the executive legislative branches. I think it is highly desirable that a government be represented in litigation by one legal entity such as the Department of Justice.

The executive branch should speak with one voice and whatever differences exist within that branch should be ironed out internally rather than argued out in the courts. An Attorney General or a corporation counsel of the city always wears two hats. He is a lawyer; he is also a public official.

He has a statutory responsibility to conduct the litigation of his government and he has a greater role to play in the formulation of policy in litigation than would be the case in private litigation.

At the same time, he has to recognize that he is but one of many voices in the formulation of that policy. There are no rules that one can draft which will resolve the question of who determines the policy of the government in a lawsuit. The concentration of authority in one legal department forces the policy to be made.

A chief legal officer who assumes an arrogant role in exercising this responsibility will run into serious trouble within his administration, as will an agency head who tries to treat that chief legal officer as a hired gun.

The problems are compounded, of course, when the Attorney General or other chief legal officer intrudes into the legislative sphere by representing the officers or members of the legislature.

And the problems which arise in that context are also present in those cases where a legal department of a government represents independent boards or corporations, such as a board of education, the Health and Hospitals Corp., the city university—the kind of situation we have in New York.

In all of these cases, there are two basic problems: One, the involvement of the chief legal officer, through his control over litigation, in the policies of an independent arm of the government, such as the legislature or those of a board or corporation which is independent of the executive; and two, the difficulty of representing that other arm of the government when its policy and the legal position which it espouses are in conflict with those of the executive branch.

On the first question, I believe that the process which is created by section 118 of title 2 of the United Statts Code provides a desirable preservation of the separation of powers between the executive and legislative branches, notwithstanding the intrusion of the Attorney General into the legislative branch as its lawyer.

The Attorney General should have an obligation to represent officers of the Congress, if requested to do so. I'm not quite sure, however, why that obligation should not also extend to representing individual Members of the Congress as well, if requested, provided they are being sued because of something arising out of their official roles.

As we know, there may be good reasons why in individual cases the Justice Department should not represent Members of the Congress, such as cases of conflict of interest or conflict of position with other clients. But these conflicts arise, it seems to me, whether the client is an officer of the Congress or a Member of it.

Once the Justice Department is invited into the legislature's domain by a request for representation, I believe that the Department has a duty to represent the legislative client with the same professionalism and zeal which would be provided to a client in the executive branch.

In my experience, the cases of conflict of politics between the executive branch and the legislature were comparatively rare. Very often the legislature or board of education would support a position which I or the mayor did not approve. However, there are a wide range of positions which the legislature has a right to asert in court and which do not reach the level where the legal Department should refuse to handle the matter or refuse to asert the position.

The client, in this broad range of cases, is entitled to have these positions heard, even if they are positions with which the chief legal your case, the Congress-has to recognize that if the Justice Deofficer does not agree. At the same time, however, the client-in partment is asked to undertake the representation, the control over the case rests with the Department. There may be arguments which the Department feels it cannot make, quite apart from questions of conflicts with other clients. And the decision of these matters should rest with the lawyer.

This is an authority which, as I have indicated, should be exercised with great restraint. But if the legislature is not prepared to