When the Congress has created an administrative entity such as the Public Health Service or the Office of Education, headed by a Presidential appointee vested with statutory authority, I think it inappropriate that the Secretary alone be empowered to abolish the entity and take to himself the statutory authority of its chief officer. There should be no question of the Secretary's authority to supervise and direct his subordinates, but such drastic action as would be permitted by S. 140 is not necessary to this end.

4. The statement of the functions of the new Department, in sections 3 and 4 of S. 140, while otherwise admirable, contains in my judgment one serious flaw. It would require the Department to "aid, stimulate, and encourage" the development of voluntary, that is, private, activity in the fields of its concern, to "promote, foster, and encourage" such voluntary activity, and to "advise and cooperate with" voluntary agencies functioning in those fields.

A Department of Health, Education, and Security will inevitably maintain close contact with private organizations concerned with these subjects, and its activities will inevitably stimulate and encourage the efforts of such organizations to further the common objectives. A legislative mandate merely to do these things would be no more than a mandate to good administration. But I believe that such provisions as are contained in S. 140 would be bound to have collateral and probably unintended effects, and that it would be wiser to omit them from the bill.

Enactment of these provisions would seem to commit the Congress as well as the Department to a policy of lending governmental support to private organizations in the whole range of activities dealt with in this legislation. It may be questioned whether the creation of an executive department is an appropriate occasion for the adoption of so far-reaching a national policy, or one which, at least in the case of Federal aid to education, is so controversial. I suggest that this issue can better be dealth with in connection with each substantive program, as was done last year in the Hospital Survey and Construction Act, when the pros and the cons applicable to the particular program can more readily be appraised. It is by no means axiomatic that the same conclusion should be reached in every case.

A legislative mandate to aid and cooperate with private organizations, moreover, is necessarily indiscriminate in its operation. Whatever measures are commanded with respect to those private agencies of which we all approve are also commanded with respect to less meritorious organizations. An organization which by the terms of its charter and by its actual performance may lay claim to be functioning in the field of health, education, or security may also be engaged in conduct which we should hardly wish to abet-in subversive activity, in fostering intolerance, in the promotion of dishonest or criminal "remedies" for the ills of the human body. Even if we might disregard such extreme examples, it would be quite impossible for the secretary to determine the bona fides of all the myriad organizations functioning or claiming to function in the fields of health, education, and security.

I suggest, therefore, that cooperation with private agencies should not be dictated by statute, but should be left for effectuation in accordance with sound administrative judgment.

5. A related question is raised by the provision of section 5 (b) requiring advisory committees to contain representatives of private organizations. While I am a strong advocate, as I believe the record of the Federal Security Agency will show, of the use of advisory committees composed of nongovernmental persons, and while such committees will ordinarily contain members who are prominent in the work of leading private organizations, I think it a mistake to require their appointment in the capacity of representatives of those organizations. Persons so appointed are likely to be bound by the stated views of the organizations for which they speak, and thus to be unable to participate fully in the free give and take of ideas which is necessary to fruitful committee discussion and to the reconciliation of conflicting views.

Such a provision is quite unnecessary for the purpose of assuring to the private organizations an opportunity to present their views to the Department. Other channels for that purpose will always be open, and are assured (if assurance is necessary) by the Administrative Procedure Act.

98634-47-pt. 1-3

6. If, as I hope, the references to voluntary agencies should be eliminated from the bill there would remain in section 3 a direction that the Department, in operating through State and local agencies, seek to preserve and protect the independence and autonomy" of those agencies. Insofar as the operations of the Federal Security Agency have had any bearing upon the matter it has been our consistent policy to preserve and protect such "independence and autonomy."

This Agency administers a number of programs of grants to the States, in most of which the Congress has laid down more or less extensive conditions which a State must meet in order to obtain Federal funds, and has charged the Agency with the duty of seeing that the conditions are observed. On the whole, I think it fair to say, our relations with the State and local agencies have been harmonious. From time to time, however, differences of opinion have arisen, and in a few instances they have led to charges of improper interference by this Agency or one of its units. Sometimes these difficulties have arisen because we have been unable to satisfy both parties to a dispute between a State and its local subdivisions.

Section 3 of S. 140 would not amend any of the grant-in-aid statutes or any of the conditions contained in them. The Department would still be obligated to enforce these conditions. I do not believe that future relationships would be improved by the general directive contained in section 3.

7. A difficult technical problem is raised in section 1 (b) of the bill making title IV of the Revised Statutes applicable to the new department.

Most modern statutes applicable generally to the executive branch of the Government are couched in terms which include both departments and independent establishments, and these, I feel sure, are uniformly construed as applying to a newly created agency. There are still on the books, however, a number of statutes which speak only of departments. In the case of title IV of the Revised Statutes, many of the provisions of which are so limited, the term "department" is defined (R. S. 158, 159, 5 U. S. C. 1, 2) by listing the executive departments, and this definition has been amended in the past when a new executive department has been created. The codifiers of the United States Code have (5 U. S. C. 2) construed this definition as applicable to all of the statutes assembled in chapters 1 to 11 of title 5 of the Code, including many sections which are not drawn from the Revised Statutes and to which the definition is not in terms applicable. Perhaps it is reasonable to assume that whenever the Congress has used the word "department" alone it has intended to refer to existing of future executive departments and to no other agencies.

Some of the provisions in title IV of the Revised Statutes appear to be archaic, and their application to the new Department to serve no useful purpose. (See, for example, R. S. 173-175, 5 U. S. C. 23-25, relating to the duties of the chief clerk, and R. S. 166, 5 U. S. C. 38, relating to details of personnel.) In other cases it would be difficult to know which provisions would be inapplicable because "inconsistent with" S. 140. (See R. S. 177-182, 5 U. S. C. 4-9, relating to the temporary filling of certain posts by the President.) Again, there are provisions which, while not in conflict with S. 140, are apparently inconsistent with the Social Security Act (see R. S. 184, 187, 5 U. S. C. 48, 94, relating to examination of witnesses), or with the Public Health Service Act (see R. S. 178, 5 U. S. C. 5, relating to vacancies in certain offices). There are relatively few provisions which seem to be of any present value.

Omission of section 1 (b) would not wholly solve the problem, since the question would remain whether some provisions of law which use the word "department," but to which the definition in the Revised Statutes is not in terms applicable, might be construed to apply to the newly created Department. But this course would at least avoid the danger that the incorporation of title IV of the Revised Statutes would constitute a reenactment of provisions which might modify later legislation.

On the whole, I am inclined to recommend the elimination of section 1 (b), and the substitution of language specifically incorporating these provisions of law which would serve a useful purpose. These should include R. S. 161 (5 U. S. C. 22), authorizing regulations for the internal management of the executive departments, and R. S. 190 (5 U. S. C. 99), forbidding ex-employees for 2 years from handling certain claims against the Government. Although it is quite unnecessary at the present time, there could be no objection to the inclusion of R. S. 165 (5 U. S. C. 33), authorizing the employment of women clerks in the ex

ecutive departments, or R. S. 170 (5 U. S. C. 51), forbidding compensation for extra services except as expressly authorized by law.

8. By reason of section 5 (e) of the Reorganization Act of 1945, enactment of S. 140 might preclude any further transfers, under the Reorganization Act, to or from the Department. Unless this result is desired, a saving clause should be inserted.

The Bureau of the Budget advises that there is no objection to the submission of this report to your committee.

Sincerely yours,

WATSON B. MILLER, Administrator.

The CHAIRMAN (continuing). I also include a letter from the Secretary of Labor, who approves, in principle, the general purpose of S. 140, but calls the attention of the committee to certain sections of the bill which might conflict with functions of the Labor Department unless amended.

(The letter from the Secretary of Labor is as follows:)"

Hon. GEORGE D. AIKEN,

DEPARTMENT OF LABOR,

OFFICE OF THE SECRETARY,
Washington, February 27, 1947.

Chairman, Committee on Expenditures in the Executive Departments,
United States Senate, Washington, D. C.

DEAR SENATOR AIKEN: This is with further reference to your letter of January 20, 1947, requesting my views concerning S. 140, a bill "To create an executive department of the Government to be known as the Department of Health, Education, and Security."

I approve in principle the general purpose of S. 140. The language of the bill, however, raises several questions to which I should like to direct your attention.

The language of sections 3 and 4 of S. 140 might be deemed broad enough to provide a statutory basis for needlessly and expensively duplicating useful and necessary health, educational, and security functions of the Department of Labor in the labor field. Governmental functions in these fields, which are peculiarly related to the problems of workers, can, I believe, most appropriately and efficiently be discharged by the Department of Labor. In fact, such functions must continue to be exercised in this Department as an inseparable part of its duty to promote the welfare, working conditions, and employment opportunities of wage earners.

I also note that section 6 (a) would transfer the Office of the Federal Security Administrator and the constituent units of the Federal Security Agency to the new Department of Health, Education, and Security. I assume that the transfers contemplated by sections 6 (a), (b), and (c) are limited to those agencies presently within the Office of the Federal Security Administrator and the Federal Security Agency. I think I should make it clear that the Department of Labor, however, has consistently taken the position that the Bureau of Employment Security should be in this Department. For this reason I do not wish my approval of the general purpose of S. 140 to be construed as indicating that that agency should be included in the new Department.

Section 6 (b) would also transfer to the proposed Department the Committee on Economic Security and the Federal Board of Hospitalization. The Committee on Economic Security is an interdepartmental committee which is composed of the Secretary of Labor, Chairman, the Secretaries of Treasury, Agriculture, and Commerce, the Attorney General, and the Administrator of the Social Security Administration. This Committee was established by Executive Order 6757 of June 29, 1934. The Committee's functions have been to study and advise on the whole problem of economic and social security. In view of its interdepartmental character it would appear inappropriate to include this Committee within the new Department. Likewise the Federal Board of Hospitalization, as an interdepartmental committee created under the Bureau of the Budget to consider

the whole problem of hospitalization and to prevent unnecessary duplication of funcions and facilities, may more properly be continued as such without transfer. The Bureau of the Budget advises that while the general objectives of the bill are in accord with the program of the President, this advice is not to be construed as involving any commitment with respect to each and every recommendation contained in this report.

Yours very truly,

L. B. SCHWELLENBACH.

The CHAIRMAN (continuing). So I am sure the members of the committee will see that we have a very large-sized problem before us. This meeting called this morning is a preliminary hearing in anticipation of general hearings which will be held on the bills pertaining to this whole subject a little later.

This morning we will call first upon the sponsor of the bill, Senator Fulbright, who introduced the bill in behalf of himself and Senator Taft.

Senator Fulbright.

STATEMENT OF HON. J. WILLIAM FULBRIGHT, UNITED STATES SENATOR FROM THE STATE OF ARKANSAS

Senator FULBRIGHT. Mr. Chairman, I have a very short statement which I would like to read to the committee.

The CHAIRMAN. Take all the time you want, Senator. Senator Taft will not be available until 11 o'clock.

Senator FULBRIGHT. I have also a few interpolations I shall use in the discussion of this statement.

Mr. Chairman and members of the committee, I appreciate this invitation to appear before you and testify in behalf of this bill to create a Department of Health, Education, and Security, with Cabinet

status.

This is the second bill to create such a Department which Senator Taft and I have jointly introduced. In the last days of the Seventyninth Congress we introduced S. 2503. We did so in order to provoke discussion, give the opportunity for thorough study and have the benefit of comments of all interested persons. In the interval between the Seventy-ninth and Eightieth Congresses, the bill did lead to considerable discussion. We have found it advisable to make very few changes in the bill, and it is substantially in the form of the first draft.

In this case Senator Taft and I are in complete agreement on the importance and desirability of establishing the proposed new Department in the Cabinet.

The measure is designed simply to promote good government. What type of agency ought to handle Federal public health functions, educational activities, social security and the like? Should it be an independent agency, a whole battery of scattered units or an integrated department with Cabinet status? We think the answer is the department this bill would create.

What might appear to some as perhaps controversial issues really do not exist with respect to this bill at all. This bill does not present any issues as to what the functions of the Federal Government should or should not be with relation to health or education or public welfare.

In considering the bill, this committee and the Congress are not asked to decide what health programs should be adopted, or what is the proper scope of Federal activity in the schools, or whether social security benefits should be available at the age of 50 or 70. These issues were involved in the past when bills were introduced proposing that the Federal Government adopt specific programs for Federal activity. These issues will continue to come up when new programs or amendments to old programs are proposed in the Congress from time to time.

Concededly they involve differences of political philosophy. But, not one of those issues is before this committee in this bill. It is simply a question of setting up permanently, and by legislative action, an efficient, economical, unified administration to handle such programs as the Congress has approved or may approve in the future. The creation of an executive department headed by a member of the President's Cabinet to administer the Federal programs in health, education, and social security is by no means a new idea. As the chairman has pointed out, during the past 25 years, under both Republican and Democratic administrations, the establishment of such a department has been recommended on a number of occasions. In fact, measures approving the creation of such a department have actually passed both Houses of Congress, but unfortunately this agreement in principle fell short of creating the department due to differences in detail between the measures adopted by the two Houses.

S. 3331 was passed by the Senate on March 28, 1938. H. R. 8202 was passed by the House on August 13, 1937.

I may say, from the differences of opinions that have already arisen in consideration of this bill, it is evident that this same danger of a division on details confronts us.

The Federal Security Agency, since the effective date of Reorganization Plan No. 2 of 1946, has administered most of the Federal activities proposed to be transferred to the new Department of Health, Education, and Security. That was a long step forward. I am told that it answered some of the problems of State agencies.

The unification of previously scattered functions in the Federal Security Agency has also made possible economies which result from coordination and simplification. However, the unification to date is purely an Executive act. In order to assure the performance of these economies, the Congress should enact legislation such as S. 140 to preclude the possibility of functions in the fields of health, education, and security again being scattered among numerous small individual units on a piecemeal basis, with duplication of effort and the unnecessary employment of personnel.

This bill would bring the present functions of the Federal Security Agency, which, after all, is an independent agency, within the traditional framework of responsible government. I think any Cabinet department is likely to be a more responsible body than an independent agency. It is more responsible to the President because its head meets frequently with the President and other Members of the Cabinet, instead of only when he is in trouble or when the President sends for him. He can run his job in better coordination with other departments, particularly where two or more departments have related