This is particularly true when the effect of reading a gratuitous limitation into this sentence is to produce an absurdity, as it does in the present case, with officials in the executive branch being called upon to investigate and prosecute others in that branch, including those officials who are above them in authority and indeed have the power to fire them. As the Court said in Humphreys, "one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will."

The writer has not yet seen a copy of the opinion of Judge Gerhard A. Gesell of the Federal District Court holding that the firing of Archibald Cox as special prosecutor was illegal. The newspapers summaries, however, suggest that the reasoning behind the decision, although mainly based on a technical violation of the Department's own rules, may in part have been related to the theme of this paper. Judge Gesell said, “Mr. Cox served subject to congressional rather than presidential control."

So far we have examined the implications of jettisoning the "organizationchart" approach to executive power in favor of a functional approach. There remains one further corrective to be administered-that of getting rid of the "greater-includes-the-less" concept of presidential executive power. This fallacy, which is closely related to the organization-chart fallacy, assumes that, since the president is pictured as the embodiment and repository of all executive power, he can if he chooses do directly what any of his subordinates have power to do. For example, President Nixon is reported to have called up Special Prosecutor Cox and told him at first hand to lay off the Ellsberg psychiatrist case, and to have called up Attorney General Kleindienst and told him to drop the ITT appeal. The average citizen may indeed wonder what was unusual or improper about the President's giving such orders. It is all too easy to forget that the vast bulk of the powers fueling the "Executive Branch" consists of delegations, not to the President, but to Department Heads, Agencies, Commissions and others-in their own names. As a matter of statutory law (quite apart from any constitutional issue) this is the typical pattern, not a conferral of power on the President that then trickles down to the working level.

To take a mundane illustration: suppose, while I was Acting Secretary of Labor, I made a determination that under the Davis-Bacon Act the prevailing wage in a particular area for certain work was $3 an hour, under a statute saying "The Secretary of Labor shall determine the prevailing wage etc." Now suppose President Eisenhower had decided that the figure ought to be $4 an hour. Could the President have overruled me? Could he have issued an order over his own signature decreeing a wage of $4 an hour? He could not. The statute gave the power to me, not to him, and no amount of superior rank could' change that. He could threaten to fire me unless I changed my decision. But if I refused to accede, and if he fired me, I would indeed depart but my order would remain. The only way he could get the order changed would be to keep firing Secretary after Secretary until he reached one that was complaisant, just as President Nixon had to run through two Attorneys General to get Cox fired. The cynic may wonder whether this distinction between power to act directly and power to get your way by firing subordinates is very important. At times, and with certain people, it could be quite important. It is not often that a President is willing to sacrifice two of his most respected cabinet officers to get his own way on a single firing. Given strong cabinet officers, and a less desperate President, the reality of possession of ultimate statutory power by departments and agencies rather than by the President is significantly reflected in the everyday conduct of government business. But what is perhaps even more important is the difference this makes in the way Cabinet Members and President feel about their respective roles. We are told that, at the height of the Haldeman-Ehrlichman-Colson era, cabinet members were treated like office boys, while the White House clique tried to arrogate almost all effective power to itself. "I'm the chief ass-kicker around here," one of them boasted. But if the Cabinet and Agency members are secure in the knowledge that the powers they are wielding are their own, as normally they are by statute, they are bound to have a sense of independence and integrity that they would not have if they thought of their power as derivative from the White House.

It is interesting that the point at stake here is closely similar to the issue precipitating the epochal confrontation between Lord Coke and King James I that signalled and symbolized once and for all the supremacy of rule of law in the Anglo-American tradition. In English law, the theory has always been that the King was the fountainhead of law, and that all judges were conduits for the Crown's authority when they decided cases. But early in the seventeenth century, King James I decided to take this theory literally and, with the best "greater-includes-the-less" logic, made it known that, since the judges were only the delegates of the King, he might take what causes he pleased away from them and decide them himself. This led to a stormy conference on Sunday, November 10, 1612, at which the Chief Justice, Coke, said:

"... that the King in his own person cannot adjudge any case... but this ought to be determined and adjudged in some court of justice according to the law and customs of England. . . . Then the King said that he thought the law was founded upon reason. and that he and others had reason as well as the judges, to which it was answered by me that true it was that God had endowed His Majesty with excellent sciences and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason but by the artifical reason and judgment of the law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it . . . ; with which the King was greatly offended and said that then he should be under the law, which was treason to affirm as he said: to which I said that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege." 12

Perhaps one way of putting the present point would be this: just as there must be some separation of powers between the branches of government to prevent undue concentration of power, so there must be some separation of powers within a given branch, for the same reason. The former separation is largely constitutional; the latter largely statutory. Until recently, this separation within the Executive Branch seemed to be working quite well. Under Franklin D. Roosevelt, strong cabinet officers like Ickes and Morgenthau obviously performed as proud possessors of personal power, as did, for example, George Humphrey, Robert Anderson, and John Foster Dulles under Eisenhower. Under Nixon, however, several things occurred to break this pattern. The super-cabinet emerged, which sharply diminished the role of the cabinet member. The White House staff burgeoned, with a duplicate State Department and other staffs making the crucial policies and decisions. At strategic points in the Departments, junior executives drawn from and loyal to the White House were deployed, further undercutting the Secretaries. The key point to note is that all three of these developments had the effect of distorting the healthy statutory pattern of putting power and responsibility in the same place. While the statute conferred legal power on the Secretary, with the corresponding obligation of answerability to Congress, the super-cabinet, the White House staff, and the junior political commissars inserted at key points in the departments usurped the real power and were not answerable to Congress or anyone else, other than the President.

CONCLUSION

A number of specific courses of action fall quite naturally into place, once these two fundamental rectifications in the central concept of the Executive are accepted: the functional division of powers between branches instead of organization-chart picture of the "Executive Branch," and the statutory division of powers within the Executive instead of the "greater-includes-the-less" approach. For a start, Congress should be continuously alert to the practical question of the power to fire officers of agencies, commissions and departments-since in close cases this may become tantamount to the power to control. It is a revealing experience to dig through the basic statutes creating these agencies, as the writer once did, and discover that as to many of the most important "independent agencies" nothing is said about the removal power at all, and that as to the rest there are almost no two removal clauses alike." At the least, Congress should always provide carefully for the grounds of removal of heads of any new bodies, and, if it could find the time, should go back and insert a standard clause on removal for limited and specified causes in the organic

Footnotes at end of article.

statutes for all existing bodies, other than those which, under Myers, would be outside its control.

By the same token, in creating new programs, Congress should never underestimate the extent to which the bodies created are in law the arms of Congress, with all that concept entails. Drafting to prevent "impoundment" would present no problems; suitable provisions for reporting to Congress and for other forms of congressional supervision should be considered; as a last resort, if necessary, the General Accounting Office pattern can be followed to get certain jobs done completely free of presidential interference.

Creation of the office of a special prosecutor would fit within this pattern. Indeed, the suggestion made by Lloyd Cutler of a permanent independent Special Prosecutor, appointed for a 15-year term, and charged solely with the responsibility of investigating charges involving official misconduct and campaign law violations, deserves careful attention.

As to the problem of concentration of non-responsible power within the Executive Branch, the most significant change Congress could effect would be to cut down, through the appropriation power, as well as through reorganization legislation, the overgrown White House bureaucracy. The Office of Management and Budget needs particular scrutiny because of the vast power it has acquired over the years. Perhaps it should become an independent agency; in any event, it should be at least subjected to the same kind of rules as to confirmation, congressional appearances and reporting to Congress as apply to other agencies of comparable size and power. And as to the super-cabinet, to the extent that it undercuts and thwarts the administrative pattern created by Congress through legislation or reorganization plans accepted by Congress, Congress has a right to pass upon such a fundamental reorganization and insist that, like any other reorganization, it be abandoned if not acquiesced in through the normal procedures.15

Quite apart from specific measures, however, the most important change that could flow from acceptance of the ideas here urged would be a rejection, once and for all, of the idea that the President "owns" the Executive Branch, that he must have "undisputed control" over it, that this includes every job not nailed down by either the judicial or legislative branches, and that within this vast fiefdom he ultimately embodies, personifies, and at pleasure wields, all the constitutional and statutory power that exists within "his own" branch. Instead, we must restore in everyone-the President, the Congress, the courts, the columnists and scholars, and the public-the only valid and workable concept of our unique form of government, with a complex but statutory diffusion and distribution of functions and powers both between and within branches.16 Anyone who has been close to the presidency can certainly understand the frustration of trying to drive a certain program or policy through this tangled network of power balances, and can almost sympathize with the yearning to achieve "undisputed control" of an entire branch of government. But we now have seen the appalling dangers of a near success in achieving such control, and the American choice is by now clear enough to give Congress the support it needs to restore balanced government in this country sub Deo et lege.

FOOTNOTES

1 The conception of the Executive Branch here criticized did not, of course, originate with President Nixon. President Roosevelt, for example, assumed he had the right to replace a member of the Federal Trade Commission, although by law the member held office for a definite term and was removable only for specified causes, for no better reason than that "I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission. President Eisenhower similarly thought he had power to remove a member of the War Claims Commission, as to whom no removal provisions were specified in the legislation, merely because "I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection." Both attempts were rebuffed by unanimous decisions of the Supreme Court, in Humphreys Executor v. United States 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958). But apparently the message of such decisions has never quite succeeded in permeating the views and attitudes of successive presidents, and particularly of the White House group that surrounded President Nixon.

2 Newsweek. Nov. 12, 1973, p. 124. Emphasis supplied.

295 U.S. 602 (1935).

4 272 U.S. 52 (1926).

For a detailed discussion of this issue, including the early precedents and debates, see Larson. "Has the President an Inherent Power of Removal of his Non-executive Appointees?," 16 Tenn. L. Rev. 259 (1940).

Davis, Administrative Law Treaties, Vol. 1, p. 22, 24.

The correct view of the so-called "Executive Branch" as a highly complicated network of interwoven executive, legislative, and judicial functions has always been accepted by legal experts specializing in administrative-constitutional law. Thus, Everett C. McKeage, President of the Public Utilities Commission of California, wrote:

"If there is one irrefutably established fact about regulation it is that regulation is legislative in nature. However, some of the regulatory commissions in the state and federal fields are both legislative and judicial because of the fact that judicial power, in addition to legislative power, has been deliberately conferred upon them. Equally true is it that the regulatory process is no part of the executive branch of government. . Of course, if the people or the legislative branch of government should desire to confer regulatory authority upon the executive branch by proper legislative and constitutional authority, that delegation could be made. The regulatory duties of the Secretary of Agriculture and the Secretary of Interior are examples, in the federal field, of such delegated regulatory authority."

McKage, The Folklore of Regulation, 48 A.B.A. Journal 222 (1962).

See also the quotation from Davis at text accompanying N.6.

The Landis Report submitted to President-elect Kennedy in December, 1960, recommended a substantial increase in executive power over the independent agencies, in the interests of coordination and efficiency, basing the move on the President's constitutional duty to see that the laws are faithfully executed, but President Kennedy did not follow through on these recommendations.

8 See article op. cit. N.5.

The Court continues:

"A reading of the debates shows that the president's illimitable power of removal was not considered in respect to other than executive officers. And it is pertinent to observe that when, at a later time, the tenure of office for the Comptroller of the Treasury was under consideration, Mr. Madison quite evidently thought that since the duties of the office were not purely of an executive nature but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply. 1 Annals of Congress, cols. 611-612.

"In Marbury v. Madison, supra, 1 Cranch, 137, at pages 162, 165-166, 2 L.ed. 60, it is made clear that Chief Justice Marshall was of opinion that a justice of the peace for the District of Columbia was not removable at the will of the President; and that there was a distinction between such officers and officers appointed to aid the President in the performance of his constitutional duties. In the latter case, the distinction he saw was that 'their acts are his acts' and his will, therefore, controls; and, by way of illustration, he adverted to the act establishing the Department of Foreign Affairs, which was the subject of the 'decision of 1789.'"

10 167 U.S. 324 (1897).

11 100 U.S. 371 (1879).

12 Conference between King James I and the Judges of England, 12 Rep. 63 (1612). 13 Among the agencies having no removal provisions in their statutes are the Securities and Exchange Commission the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Home Loan Bank Board, the Federal Power Commission, the Veterans' Administration, the United States Tariff Commission, the United States Employees' Compensation Commission, and the Railroad Retirement Board.

Probably the reason no removal provisions were placed in the legislation creating some of these agencies, such as the FCC, FPC and SEC, is that they were established after Myers and before Humphreys, and Congress evidently thought that under Myers it could not constitutionally limit the President's removal power. The Task Force of the First Hoover Commission stated as to these three commissions:

"Whatever their actual legal status, the members of several of them appear to consider themselves not subject to removal without cause, and it is reasonable to assume that any attempt to remove members arbitrarly would stir up serious controversy." Task Force Report on Regulatory Commission, The Commission on Organization of the Executive Branch of Government 14 (1949).

14 See article op. cit. N.5.

15 Another practical suggestion tangentially related to the theme of this paper, and strongly related to the content of the "Watergate hearings," would be to enact legislation compelling the depoliticization of the Cabinet and White House staff. It is, of course, traditional that some Cabinet Members and White House staff members engage in a certain amount of political activity. Until recently this practice, although arguably somewhat questionable in any quantity, had remained largely inoffensive because of being kept within some reasonable bounds.

But the "Watergate hearings" have now shown what can happen when restraint is abandoned and large numbers of highly-paid public employees spend most of their timedoing the work of one political party or candidate at the taxpayer's expense. What makes the practice not only intolerable but dangerous is the coupling of vast government power and political manipulation in the same hands.

One development aggravating this danger has been the shift of the role of the President's chief politician from the Postmaster General to the Attorney General. The Postmaster General presided over nothing more worrisome that some patronage; but the Attorney General decides who is to be prosecuted and who spared, and in many other ways controls the law enforcement process in this country. To marry this function to that of head political operator could only spell disaster, as events proved.

To be realistic, however, one must make some allowance for political functions at this level. After all, no one denies that the staffs of Senators and Congressmen also do political work. The problem is to keep such activity within bounds, and above all to keep it from infecting or being aided by governmental power.

Congress could by legislation authorize a high-level position in the White House, with a small staff, with a dignified title, and with protolary status of perhaps cabinet rank, for the frankly-acknowledged function of handling political activity by anyone else, inIcluding Cabinet members, White House staff, and other political appointees, with the

single exception that Department and Agency officials could discuss and defend their own programs at any time, including during the course of a political campaign. The President himself, of course would have to be omitted from any such reform; the problem of off-setting his inherent political advantages is a separate one already receiving considerable attention.

The suggestion is perhaps a drastic one, but in a sense it is no more so than the depoliticizing of the Civil Service and the abuses to be dealt with today seem to be at least comparable to those that led to the decision to take politics out of rank-andfile government employment.

18 This process is doubly important in an administration whose theme is that "loyalty is the name of the game"--meaning, of course, personal loyalty to the President. Such personal loyalty may be commendable and touching within a small circle of close personal assistants; but even as to a Cabinet Member it must be remembered that his first loyalty is to the law from which he derives his authority, and not to the President. If he is in any doubt on the matter, he would do well to go back and re-read the oath he swore on taking office. When, for example, that law commands him to withhold grant funds from a school engaged in racial discrimination (Civil Rights Act of 1964, Title VI), and the President commands him to dispense such funds anyway, it is clear enough where the Secretary's legal loyalty lies, and being within something called an "Executive Branch" has nothing to do with the matter.

[From the Library of Congress, Legislative Reference Service, Aug. 17, 1966]

FROM "ATTORNATUS" TO THE DEPARTMENT OF JUSTICE-AN HISTORICAL PERSPECTIVE OF THE NATURE OF THE ATTORNEY GENERALSHIP OF THE UNITED STATES AS EMBODIED IN THE DEPARTMENT OF JUSTICE ACT OF 1870

(Prepared by James A. Hightower, Government and General Research Division) "The due administration of justice is the firmest pillar of good government."-George Washington Letter to Edmund Randolph, September 26, 1789.

Perhaps the most remarkable group of men ever assembled in one time and place situation were those intellectual and revolutionary leaders of late eighteenth century America who created and set in motion a great experiment: the Government of the United States. The singular genius of these men lay not in their philosophical originality, but in their ability to distill, adapt, and institutionalize the evolutionary and revolutionary experiences of history. When establishing the office of the Attorney General of the United States in 1789, the First Congress did not seek an invention of the absolutely new, but it sought, with bold innovations, the actualization of theories and practices of an earlier time. Indeed, the very concept of a national public attorney, as codified in Section 35 of the Judiciary Act of 1739 (1 U.S. Stat. 73), was the product of more than 500 years of trial and error experimentation in England and, subsequently, in the American Colonies and States.

ENGLISH PRECEDENTS

In the very early days of English legal history 'attornatus' was a general term which implied no professionalization, but which was merely applied to anyone appearing for another in a legal proceeding.' The accepted legal custom of the day, embodied in Roman and English law, was that parties to a suit should themselves appear in court. The original concept of 'attornatus,' therefore, was an agent appointed by a principal (usually a nobleman) who was incapacitated and could not himself be present at a suit in which he was a party. In these earlier years an attornatus, or agent, served only in the absence of his principal and was appointed to conduct only that particular suit.

English noblemen-because of the necessity imposed on them by such factors as distance to courts, amount of litigation, extended absences, old age, or other problems-began the practice in the thirteenth century of retaining attorneys to act for them in any suits in which they might be involved in the future. By 1278 such an agent became known as a general attorney and was often empowered to appoint other attorneys to act on behalf of his principal. One hundred and twenty years later, the general attorney began to be recorded as the attorney general:

"The earliest use of the term 'attorney-general' with which I have met occurs in the certificate signed by the Duke of Norfolk's four attorneys general (attornies generalx) testifying to his embarkation on his banishment in 1398."

8

Footnotes at end of article.