CONGRESSIONAL RECORD--SENATE [S.111. A BILL TO IMPROVE THE ADMINISTRATIVE PROCESS BY MAKING FEDERAL AGENCIES MORE RESPONSIVE TO THE WILL OF THE PEOPLE AS EXPRESSED BY THEIR ELECTED REPRESENTATIVES IN CONGRESS]

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• Release Decision: RIFPUB
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• Sequence Number: 21
• Publication Date: January 23, 1979
• Content Type: OPEN

"". ~. ~~ C?NGRESSItONA]L RECOITD~-E v..vvv- vvv . vv- . .
S 410 SNAE J a n u a n j 23 197
, .- t
PAP-FRWORX CONSIDERATIONS _ J(Zlt
tlon of paperwork, which would be felt both 6. October 17, 1977. Senator Nelson pre- ? Mr. BUMPERS. Mr. President,
In't the taxpayer and government levels. cents memorandum to President Carter and the past two sessions of Congress I
ti?
--- Vice President Mondale on this date reccm- troduced a bill to amend the Adminid
vurxss
TI IZEFORr2 Lscis 8t 3100,000 to -"- "+'"~=rc riwcuure Act W make : eae $200,000 level with one-third agencies more responsive
to the will _ ' "'
1. Summer 1975. Senate Small Business of investment ment credit retained; in the follow. the people as expressed by their elec
Committee openshearing on "Tax Reform g terms:
. representatives in Congress. I first
`or Small Business," June 17-18-19, 1975, and cAPrr&L COST. RECOVERY
wa r the 94
lietins work with business groups to explore Because most small businesses use Congress the and the (S. bill 2408) in
Congress e bill was referred
irrprovemento to depreciation/capital forma- straight-line depreciation the Committee
, proposes an optional simple straight-line de- the Subcommittee on Administraf4
2. July 31, 1975. Senator Nelson summa- predation system, with 8 shorter useful Practice and Procedure of the Co ' _
rizes first round of. hearings in testimony to life-perhaps three years-for investments mittee on the Judiciary. The Cha `=t
house' Ways and Means Committee, as fol- In new or used equipment up to an appro- of the subcommittee, the distinguishe
lows: priate level (perhaps $100,000 to $200,000). Senator from Massachusetts ( ?`' - e
'Capital RecoveTiiese provisions of Wh thi
eres system is elected, it would elimi- KENNEDY), held hearings on S. 2408 v`rr.
the Code should be greatly simplified so they nate the complicated combination of bonus May 3, 1976, at which I testified. - :: 0i a
will be more equally useable by businesses of depreciation, ADR, and rapid depreciation
smaller sizes and resources. Complexity is as and amortization methods, investment > Later, when S. 800, another a
much a problem as inflation for new and credit, salvage value, disputes about useful istrative-law bill, passed the Ben '
smaller firms seeking to recover their capital life, and recapture provisions for smaller the Senator from Massachusetts and t'
i:?,on
for renewal of existing plant and equipment. businesses. It would relieve much of the discussed S. 2408 on the floor of
The Committee for renewal of existing plant pressure for "indexing" depreciation n. sul._ Senate At that ? - - rlhe
delve more deeply Into comparisons between future. It is contemplated that this benefit and bar avttcii. the views Oi the Den
the Canadian and American capital recovery would be available to businesses of all sizes and bar on this proposal, and I and 1
systems, And the proposals for accelerated but that it would be simple and understand nhenied my intention to reintrOd
-, ca ital recovery costs versus inflation- able and therefore attractive to, and most the bill promptly-'on the convening'. inctexed accounting.- used by the great majority of small enter- the 95th Congress. t S C
3. Sept. 23, 1975. Second series of- hear- prises, for whom it would constitute a true I introduced S. 86 on January 1 :.ci,;
logs on Small Business Tax Reform begin. reform in this important area. i
ni.ng September 23, 1975, featured the fol- - 7. December 1977. Informal memos with 1977. The bill was identical to S. 24 yc
lowing: panel of witnesses on capital forlii of the 94th Congress The Senate Ju- it
- premnary computer estimates of revenues.'o;:r rnation and capital recovery: Panel Deem- and tax savings for 3-year accelerated de- diciary Committee did not hold hear'` ::: e
hers: Norman B. Ture, Economic Consultant, predation at $50,000 and $100,000 levels sent 1ngS on S. 86 during the 95th Congress:" i,,.
Washington. D.C.; Michael Sumichrast, Chief to high Administration staff officials for I remain firmly convinced that legis` : e I
Economist, National Association of Home consideration. lation of this nature is sorely needed'. r-. e a
Butlders: Rolla :d M. Btxler, President, J. B. T. 8. January 1978 Suggestion for 3year ac Thf M
.--ereore,r. President, I introdu
Instruments. Inc., and Chairman, Small celerated depreciation at $100,000 to $200,-
Business Tax Policy Task Force. National As- non levels maned lief.- for appropriate reference S. I1L ?a 1ii1
P1, Coopers and Lybrand. Chairman, Tax nol, vuY ~_ a ===s r.lgl,~ of U.S. aeon- gress, and S. 86 of the 95thVC0v
gy tctlForelgn Countries---Overhaul oYe ,s
d Government
Regulation Committee, Tax and Capital Formation Policies Urgently
unc l of smaller Enterprises Cleveland Needed for Small Bi" S
,,usness,enate remarks
f Lie; Jerry T. Jones, President, Sonleraft by Senator Gaylord Nelson, Congressional
CJ7il 'Chairman, Board of Directors, National Record, Jan. 4, 1978. ps. 19968..
ociat:.,h of Black Manufacturer; and 9. March 1978: Introduction by Senator
nes W. Rau, Director of. Taxation, Allis Nelson of $100,000 three-year accelerated de-
Corp., Chairman. Taxation Com- preciation bill at $100,000 of purchases with
rat -tee, Wisconsin State Chamber of Coin- one-third of investment credit retained (S.
erce, and also representing the Wisconsin 2742) "Small Business Depreciation Sim-
-,,a.nufacturers Association and Metropolitan p113cation and Reform Act", Congressional
+Mwau:tee Association of Commerce. Record, March 14, 1978,' page S3672-73.
The representatives of the Council of 10. September 1978. On basis of computer
Smaller Enterprises presented a parer en- revenue estimates, the decision 'was made
titled "Present Tax Depreciation Rules are to increase to full Investment credit and
Yesterday's Answer to Today's Problem" lower purchase limit to $25,000. This leads
'nhich concluded: "Present tax depreciation to Introduction of S. 3493 on September 12,
rules and regulations need to he over 1auled 1978
ptoyin C. ! ' for procedural reasons, "Accelerated and portion of Public Law 89-554, (80TitleStatUhl
);4
g < liberal, noncumbersome, rapid de- Simplifled Depreciation for Small Business", now codified as Section 708 of ,
5. 393led,,,
eciation Iv rite-off method which will maxi-
Conaressiannt Rornrd nn<
several year $za,0u0 accelerated depreciation passes therefor the following: .. , rep buslnessagrou si.e fu. h Pd i~iisconsin Senate on 62-25 roI1C811 vote, Congressional "To the extent necessa ^' +. a _,_,__ 44
cvt 1, S"S"
inflation" on purchases of equipment assum. 12. Oct. 15, 1978. Senate accelerated depre. decide de novo all relevant questions oY law
inv elation provisi ... --. _ ... ,
, p
. .vii _ ___-__ '-'- _ ___.-___ __'-_?-~ rya aYLL1 Xy
rates under the most favorable existingrde- ate conference because of out-year revenue visions, and determire ine the meaning or anon
CGsts. -_- -_ .. _
and
=acll:ues. _~_? ===vra4uieu>: crenit, substantially identi- V111u, and whenever the validity of any such'
4. 1975. H.R. 7543 introduced in the House cal to Amendment No. 4483 except for tech- rule or regulation is drawn in question In:A
of Representatives by Prep Waggonner nlcal changes any court of the Unitd Stt
. pro-.eaes or of any'; ,osln and 1g0_S-,r a depreciation for equipment State, the court shall not uphold the valid- x
h ra=1LL14y Is clearly andi~
convnc." 5. 1976. Preliminary revenue estimates on S. Ill. A bill to improve the adminis- inglp shown: Provided, however, That
3- and ?r-year .ra live r...,.....__ I__ _ -
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called administrative- "expertise," all !T=
sues of law, and it would .reverse the
traditional presumption that agency
at this point in my remarks.
ordered to be printed in the REcoRD, aSs
follows: ..
S.111
:idi
and
In
legisl
by th
to a
ii a
b-1
p0 al
point
 S4-12
hot beehi giving blind obeisance to ad-
ministrative determinations of law in re-
cent years," and by Professor Byse's
"impression * * * that the courts have
shifted, or are in the process of shifting,
from the view that regulations are pre-
sumptively valid." These opinions call
in question the very predicate for my
bill-that courts in most cases are de-
ferring to agencies, even on questions of
law-so it seems appropriate to begin the
debate by examining the present state
of the law at some length. The questions
to be answered are, "Do courts defer to
agencies on questions of law," and "Is
an agency regulation presumed valid?"
A number of opinions of the Supreme
Court are in accord with the rule of
NLRB v. Hearst Pubs., Inc., 322 U.S.
(1944), that an agency's interpretation
of its own governing statute is to be up-
held if it is reasonable and has warrant
in the record, regardless of whether the
court would itself have reached the same
conclusion as an original matter, Ifi
Hearst, the question was whether news-
boys are "employees" within the mean-
ing of section 2(3) of the National Labor
Relations Act, 29 U.S.C. section 152(3);
as opposed to independent contractors.
In upholding the Board, the Supreme
Court said:
Undoubtedly questions of statutory in-
terpretation, especially when arising in the-
first instance in judicial proceedings, are for
the courts to resolve, giving appropriate
weight to the Judgment of those whose spe-
cial duty is to administer the questioned
statute . but where the question is one
of specific application of a broad statutory
term in a proceeding in which the agency
administering the statute must determine it
Initially, the reviewing, court's function is
limited ... the Board's determination that
specified persons are "employees" under this
Act is to be accepted if it has "warrant in
the record" and a reasonable basis in law.
(322 U.S. at 130-31.)
The key phrase "warrant in the rec-
ord" appears to come from Rochester
Tel. Corp. v. United States, 307 U.S. 125
(1939), in which the question was
whether one company had "control" of
another within the meaning of section
2 (b) of the Communications Act of 1934,
47 U.S.C. 152(b). The Court held that the
agency's decision on this issue must be
upheld:
So long as there is warrant in the record
for the judgment of the expert body it must
stand. (307 U.S. at 145-46.)
It should be observed, however, that
the Court characterized the question of
"control" as an issue of fact, so the
Hearst court's use of this citation can be
questioned.
The wide latitude given to the NLRB
by Hearst is further illuminated by the
dissenting opinion of Mr. Justice Rob-
erts. Taking what might have been
thought, at least at one time, the more
orthcxiox view, he argued:
Congress did not delegate to. the NLRB
the (Unction of defining the relationship
lof etnplo:?mentl so as to promote what the
Board understood to be the underlying
purpose of the statute. The question who
an employee, so as to make the statute
applicable to him, is a question of the mean-
ing of the Act and, therefore, is a judicial
and -not an administrative question. (322
U.S. stat 125-26.)
Approved For 149 MbbMAB :ftUA 8 - U t 0030001007 1nttary 23, 192
To the same effect is Gray v. Powell,
314 U.S. 402 (1941), involving the mean-
ing of the term "producer" under the
Bituminous Coal Act of 1937, 50 Stat. 72.
The statute did not expressly define this
term. On undisputed facts, the agencys
interpretation and application of the
statutory term were upheld. The Court
spoke rather broadly of the range of
cower committed to the agency:
In a matter left specifically by Congress to
the determination .of an administrative
body, . . ..the function of review' placed
upon the courts ... Is fully performed
when they determine that there has been a
fair hearing, with notice and an opportunity
to present the circumstances and argu-
ments to the decisive body, and an applica-
,tion of the statute in a just and reasoned
manner. (314 U.S. at 411.)
Where, as here, a determination has been
left to an administrative body, this delega-
tion will be respected and the administrative
conclusion left untouched. Certainly, a find-
ing on Congressional reference that an ad-
mittedly constitutional act is applicable to a
particular situation does not require such
further scrutiny. Although we have here no
dispute as to the evidentiary facts, that does
not permit a court to substitute its judg-
ment for that of the Director ... It is not the
province of a court to absorb the administra-
tive function to such an extent that the ex-
ecutive or legislative agencies become mere
fact-finding bodies 'deprived of the advan-
tages of prompt and definite action. (Id. at
412.) ? .
In short, the agency will be upheld unless
its conclusion "is so unrelated to the tasks
entrusted by Congress to the Commission as
in effect to deny a sensible exercise of judg-
ment... . ." (Id. at 413.)
Another famous opinion often cited
for a similar proposition is Norweigan
Nitrogen Prods. Co. v. United States, 288
U.S. 294 (1933). The question there was
whether the notice and hearings afforded
by the U.S. Tariff Commission were
"reasonable" within the meaning of
section 315 of the Tariff Act of 1922, 42
Stat. 858, 941. In upholding the Commis-
sion, the Court, speaking through Mr.
Justice Cardozo, said:
True indeed. it is that administrative
practice does not avail to overcome a statute
so plain in its commands as to leave nothing
for construction. True it also is that admin-
istrative practice, consistent and generally
unchallenged, will not be overturned except
for very cogent reasons if the scope of a com-
mand is indefinite and doubtful. The prac-
tice has peculiar weight when it involves a
contemporary construction of a statute by
the men charged with the responsibility of
setting its machinery in motion, of making
the parts work efficiently and smoothly while
they are yet untried and new. (288 U.S. at
315.)
as in the judgment of the Board are n ea
ssary or proper to effecutuate the p
to the power of the Board' to issue reg
of simple interest, if two. requiremen
The Court upheld the rule, relying pal
to effectuate the purposes of the act, bu'6-
We have consistently held that whefeh
reasonable minds may differ as to which ?o
authority. (411 U.S. at 372.)
It may be conceded that the force ii
the general rules here quoted varied?
whetherc it is newly enacted, the specific
regulations, the technical complexity of
the subject matter, whether a regulation
the whole, however, the law may be ac>
curately summarized by the followingq
quotation from Udall v. Tallman, 38;
When faced with a problem of statutoi
we need not find that its construction- is th
The Supreme Court has continued to
elaborate the doctrine in more. recent
cases. A good example is Mourning v.
Family Pubs., Inc., 411 U.S. 356 (1973).
Section 121 of the Truth in Lending A,+'
disclose certain info' uire rmati "to each courts can be cited to sustain the ram
poses, it suffices to mention a few ex
tended and upon whom aer cr it is ex-
shall --
prescribe regulations-- - -__.... ... urt
to carry out to administrative interpretations of
the purposes of (the
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January' 23,f~~/~ CONGRESSIONAL RECORD -- SENATE . S 411
City of St. Paul v. United States, 432 F. rebuttable presumption of the existence Cir. 1975) (per curiam) there is
2d 455, 458-59 (Ct. Cl. 1970) ("In a num- of a state of facts to justify the exertion a judicial Presumption of the validity of
ber of cases this court has also held of the police power," 296 U.S. at 185.. administrative action and the burden
that it can invalidate. such a regu- Referring to a regulation of a State ad- was upon the [plaintiff] ? ? * to over-
lation only if it clearly contradicts the ministrative agency, the Court added: come that presumption." Accord, e.g. Air
terms or purposes of the new statute.") But where the regulation is within the Transport Ass'n of America v.-Fed era:
E. W. Coslett & Sons, Inc. v. Bauman, scope of authority legally delegated, the pre- Energy Office, 382 F. Supp. 437, 45".
354 F. Supp. 330, 332-33 (E.D. Pa. 1973) sumption of the existence of facts justifying (D.D.C. 1974) ("Moreover, the party a`
(deferring to a Federal. agency on an its specific exercise attaches alike to statutes, tacking the regulatory scheme carries
issue of State law!) ; City of Burlington v. to municipal, ordinances, and to orders of ad- the burden of
Turner, 336 F. Supp. 594, 602 (S.D. Iowa ininistrative bodies. (Id. at 188.) Persuasion."); United Black 1972) (deferring to the agency even Fund. Inc, . Hampton, ("Ish2 ld
As I have already noted, nothing .in Supp. Supp. 898, 903, (D.DC. 1972) ?2) ("It should
where there is a dearth of expertise and city of Chicago appears contrary to this be noted * * ? that there is judicialpre-
the statute in question has neither been rule. It would not make any difference sumption of the validity of administra-
continuously interpreted -nor, examined in any event, because an opinion of a tive action, that-the burden is on a plain=
contemporaneously` with its enactment). court' of appeals, even a recent one, tiff to overcome that presumption, and
In practice, this doctrine can cede_to- surely, cannot have enough force to over. .that the Court will uphold such action if
administrative agencies, a branch of rule one of the Supreme Court. In any it has a rational basis.")
Government hardly contemplated by the case, recent opinions of the Supreme Mr. President, It would unnecessarily -
Constitutfon, a share of the judicial . Court, as well as lower Federal courts, lengthen this statement to add the cita-
power. It is hornbook law that Congress prove that the presumption of validity tions of all the other cases that are to
may not actually delegate legislative is still a vital doctrine of law. A few ex- the same effect, but I have collected them
power to any other person or agency. amples will suffice.
What the agencies are doing, therefore,. Probably the leading recent case on quotations, appendix, , I includinn rehreaeptativd
must be the interpretation and executive , a commend the appended
judicial review of agency action is Citi- list to the attention of my y colleagues.
of law made by Congress. In deciding zens to Preserve Overton Park v. Volpe, All of the cases in the list are recent. As
whether their actions accord with the 401 U.S. 402 (1971). In the course of a a matter of fact, I made an effort to
will of Congress, assuming that a factual wide-ranging opinion strictly limiting single out all-of the cases decided by the
finding on which a certain proposal may the area in. which agency action is not Federal courts in the last 5 years on this
be predicated has been made, the agen- reviewable at all, the court reaffirmed point, and they are remarkably uniform
cies must, as a matter of logical necessity, traditional dogma: , in their be construing and. interpreting law. This certainly teaching. Ifeel sure thaaanopen
is a traditional and , the secretary's decision is en. reading these opinions with an span
proper function of titled to a presumption or regularity. See, mind cannot fail to reach the conclusion
the judiciary, and, to the extent that the e.g., Pacific States Box & Basket Co. v. White, that the presumption of administrative
courts affirm construction of statutes 296 U.S. 176, 185 (1935); United States V. correctne
that they would not themselves have Chemical Foundation, 272. U.S. 1, 14-15 ss is. an tr doctrine of
adopted as an original matter, they are (1926). judge-made law, not likely kely to to be changed
abdicating one of their most lam rtant or even substantially modified in the
The origin of the rule may be in a gen- absence of an act of Congress.
duties. - eralized presumption, long dear to courts,
ould other specific oPro e s
On the second question, whether rules that any official act is regular and law- shOne jection
^ to the bill
r.d regulations issued by Federal agen- fu l. k addressed. s phrase de
nov '
Nathan-
presumption of ' Chemical Foundation, cited by the son dislikes "the cryptic phrase `de novo
cies are entitled to a Court in Overton Park, states: al ts va idity, my differences with Professors with all i t uncertain congoi~loew" I
The presumption of regularity supports find this attitude surprising, iriview of
Byse and Nathanson are, if anything, the official acts of public officers and, in the the fact that the Administrative Proce-
sharpe
r. In particular, Professor Byse absence of clear evidence to the contrary, dure Act itself, 5 U.S.C. section 706(2)
the "impressio that the
courts have shifted, o rare in the process ccourts presue that they harged ttheirotfic l du ies.a(272rU Sri tdi~- (F), already requires reviewing courts to
"unwar
of shifting from the view that regulations 15.) ranted set aside the agency facts to action- the that is exte
nt tha-
are presumptively valid." In support of This presumption operates not only facts no that
this opinion he cites City of Chicago V. the facts are subject to trial de vo by
this pi 2h 7 (s City o. C cart. on the overall question of validity of the reviewing court." The Freedom of In-
agency action, but also with respect to formation Act, 5 U.S.C. section 552(a)
denied, 405 U.S. 1074 (1972). The Fed- certain subsidiary issues that may be (3), also uses the phrase. As P. matter,
eral Power Commission had decided to raised in a suit to overturn an agency's this act provides, in language that is a-
set gas rates on an area-wide basis, determination. A common issue in such strong legislative precedent for the pro-
Using composite cost data from all of the cases, for example, is whether an posal I am making today: "In such a case-
prcducers in a given area, instead of set- agency's ruling in a particular case is a (where an agency has withheld docu-
ing rates for an individual producer, departure from its own precedents. There ments) the court shall determine the
based upon that producer's own costs. is a presumption, the Court has said, matter de nova and the burden is on the
The question arose whether the area-rate that the policies of Congress will be car- agency to sustain its action." The ccm-
system should be applied to pipeline com-
panies as well as to so-called lade end- rise out best if these administrative pre- mitten reports on the FOL', contain
fate P cedents are adhered to: - strong supportive language that is also
Cat prdo ducers of gas. The Commission There is, then, a presumption that'. . applicable to the present bill:
apply the area system to the [the) policies [committed to an agency by That the proceeding must be de novo is
pipeline companies, and the court of Ap- Congress] will be carried out best if the set-that
peals affirmed this decision. Although tied rule is adhered to. From this resum assthtihl ip opre y of'th the ultimate decision
P Ps the propriety 'the agenc. ac It from
Is
Professor Byse's letter and casebook t.oa flows the agency's duty to explain its made by the court and to prevent it rem
Clilhorn & Byse, Administrative Law' departure from prior norms. becoming meaningless' judicial sanctioning
Cases and Comments 736-37 (6th ed. Atchison, T. & S. F. Ry. v.-Wichita Bd. of agency discretion (S. Rep. iso. 813, 89th
1274), both assert that the case is con- of Trade, 412 U.S. 800, 808 (1975) Cong., 1st Sess. 8 (19E5) ); See also H.R. Rep.
trary to the traditional doctrine of pre- (opinion of Marshall J, joined by four No. 1497, 89th Cong., 2d Sess. 9 (1966).
surnptive validity, I must say that a Justices and-announcing the judgment in any case, the meaning of the phrase
thorough reading of the- opinion fails to of the Court):
disclose any such tendency to- me. Cases in lower courts announcing the th"de novo" is at the courts will decide issues fe law
The casebook- goes so far as to claim same rule are legion. Many such cases anew, without deference to . previous
that city of Chicago repudiates the Su- are in the District of Coliuribia, perhaps agency determinations. Some sucri
Preme Court's opinion in Pacific Box & the most frequent forum for suits against phrase must be added to the statute if
Basket Co. v. White, 296 U.S. 176 (1935). Federal administrative agencies. A typi- present judicial practice is to be changed.
That was a unanimous opinion delivered cal statement is contained in Maryland- The Administrative Procedure Act, 5
by Mr. Justice Brandeis, in the course National Capital Park & Pl n
of which the Courts ~,v At decide that `'the
X-ip0?`V 'Pet ReIL'AW 004k1:IZI IClA4RQ' ITI5 WA` `~' Ir decide all re:evant
 Approved For Release 2004/04/15 : CIA-RDP83-00156R000300010021-1
CONGRESSIONAL RECORD -SENATE . January 23, 1 ,9
questions of law * ? * (and) interpret
constitutional and statutory pro-
visions. * * ". That language, though
plain enough, has not sufficed to'require
courts actually to decide issues of law for
themselves.
A word should also be said about the
objection of the Judicial Conference of
the United States. Its position is simple
enough: it opposes the- bill because it
does not want any more work to do. Mr.
President, I am a little taken aback by
this attitude, which hardly becomes a
public servant. The judges, like the rest
of us, should accept the tasks they are
assigned and do their duty. At any rate,
the answer to this objection, if it is a
fact that the courts' workload will in
crease, is not to junk a needed reform,
but to give the courts the manpower
they need to do the job.
The question remains, after all the
legal argumentation over precedents and
other technical points is done with, "Is
there a need for a change in the law?"
Put another way, have agencies become
so powerful today that they should be
checked? This is not a question of law..
strictly speaking; at all, but a question
of Government, or politics. If there is
an issue of public policy on which there
is a broader consensus in this country, I
am unaware of it. A glance at only a
small portion of the mail that comes
into congressional offices. each day will
suffice. The theme of over-regulation re-
curs with at least as much frequency as
any other. Nor does the voice of com-
plaint come only from businessmen who.
it might be thought, have an economic
motive for their desire to shake the re-
straints of Government.
Citizens' groups of all kind, environ-
mentalists, consumers, unions, and
others, are unanimous in complaining
that Government, most-often manifested
in regulations issued by executive or ad-
ministrative agencies, has become too in-
trusive. For agencies to concern them-
selves with how close toilets should be
to farmworkers, or with whether a
school's "dress code" can allow girls to
have longer hair than boys, is nothing
but ridiculous.
What is to be done about it? Most
opzonerts of my proposal suggest that
Congress created the problem and should
therefore be responsible for solving it. In
pointing the finger of blame at the leg-
islative branch, they are correct, and I
would be the last to dispute it. Begin-
ning at least as early as the creation of
the interstate Commerce Commission in
1337, and continuing with ever greater
intensity since the coming of the New
Deal. Congress has avoided many hard
choices simply by delegating much of its
work to independent or executive agen-
cies. Most of this delegation has escaped
constitutional censure because it was ac-
companied by some standards of action,
however vague, but the fact remains
that Congress, by giving the agencies
such latitude, is responsible, at least
vicariously, for much of the agencies'
abuse of office.
Why then should Congress not cor-
rect its own errors? The answer is that
it should, at least by the extent of being
stingy about creating new agencies or
delegating new powers to existing ones.
Congress ought to rest from creation for
a while, and I suspect such a respite
would meet with universal public ap-
proval. As to those laws and agencies
that already exist, the matter is not so
simple. Congress could, in theory, review
all the existing statutes and repass them,
this time making more particular and
specific the mandate of each agency.
The difficulty is that each of the broad
legislative grants of power to agencies
have already been particularized by thee
agencies themselves, "These surrogates
for Congress have spun out whole codes
of regulations and interpretations, most
of 'which have the-force of law. Each-of
these specifications has acquired its own
constituency of support, and it is not
realistic to expect an elected Congress to
tackle the massive task of reviewing the
whole complex of administrative edicts
now on the books. -
One other possibility of congressional
action for the future should be addressed.
A number of bills were introduced in the
last Congress to allow either House, by
resolution, to prevent any rule or regula-
tion of a Federal agency from going into
effect. No doubt similar proposals will be
before us this year. The idea has some ap-
peal. It would interpose the Congress be-
tween the agencies and the people. The
history of the device of one-House dis-
approval as a check on Executive action,
however, is discouraging. There is rea-
son to fear that in practice most regula-
tions would go routinely into effect.
The sheer volume of material that
would have to be reviewed. each day
would almost compel this result. In the
end, agencies would be even more
strongly insulated from judicial review
than they are now. Suppose, for example,
that you are a judge before whom a
regulation's validity is being challenged.
The regulation was transmitted -to the
appropriate committees of Congress and
was not, within the time allotted by law,
disapproved by either House. There is a
strong inference, unlikely to escape even
the most theoretical judge, that Congress
has tacitly affirmed that the regulation
is not contrary to its intent in enacting
the agency's governing statute. The citi
zees contesting the regulation are prob-
ably worse off than they would have been
had it never been submitted to Congress
in the first place.
Some have suggested that the execu-
tive branch should put its own house in
order, and that one way to help is to
destroy the independence of the quasi-
judicial agencies like the Securities and
Exchange Commission and make them
responsible to the President. The idea
will appeal greatly to those who believe
in symmetry as an end in itself, and cer-
tainly it would inescapably fix responsi-
bility for all agency action in an elected
officer answerable to the people. On the
other hand, I can see no particular rea-
son to believe that such a change would
result in regulations more narrowly
drafted, or more clearly within the in-
tent of Congress. Agencies directly and
immediately responsible to the Presi-
dent-HEW, YEA-have offended just
as markedly as those that are in some
sense independent.
-
trative overreaching, W. President,;
reliance on one of, the three traditioi
gress to enact the Norris-LaG-uardiaAft
Congress wished also to protect thess *
- The courts, from the Supreme.CoOfflffl
accept, but advocate, the new social
fact, to the extent that agency staff.
too active, not too passive, and no part?a
place to-begin. One can easily see how
ereign immunity, took root in England,
where the King-or the King in Parlia-
proof. To be sure, the citizen should
still have the burden of raiLina the +cc?a
 January 23, ~~oved Forq~a 4~D 4 RDP83-00156R00030001d021-
c v1Y5it71f RECORD - SENATE
of a regulation's validity, by pleading or the legislative process, not to hinder it,
in some less formal way. He can still for legislation can never be specific
to given the burden of going forward enough to insure that in every instance
with the evidence. But on the ultimate the specific will of the legislators is car-
issue of whether an agency Is lawf ally ried out. A statute, once enacted, escapes
within power delegated by Congress-. the control of its writers,'as it were, and
itself only a creature of the people's becomes a living thing, with a life and
constitution, It is wrong to give the ser- growth of its own. Those chosen by the
vant an automatic edge in the guise of a Congress to execute the statute may or
"presumption." may not do so faithfully. Political proc-
The same may be said of th:; rule that esses are not always sufficient to compel
an agency's construction of its own stat- them to follow the spirit of the law.
ute should be deferred to. One can un- When they transgress it, a power of cor-
derstand why the Supreme Court in the rection should reside somewhere " and,
1940's was anxious to defend the Labor under our system, that place is the
Board's authority against unsympa- courts.
thetic courts of appeals, and some such Administrative agencies, after all, are
motive may explain the language _ in no more law-making bodies than are
Hearst. But on reflection the rule there courts. They are the creatures-of: Con-
announced Is reduced to no more than gress, possessing only those, powers given
this: That within some fairly broad range them by legislation. It is not enough, for
of choice, an agency decides the limits example, for an administrative official to
of its own powers, Is judge in its own argue that no law prohibits his action,
and B, an agent of Government, B wins
because he says so. This Is a monstrous
rule, and no amount of usage or prece-
dent should prevent the Congress from
overturning?tt.
The proper disposition of power in our
Government has been described in the
following clear-eyed dissent by Mr. Jus-
tice Jackson, joined 'by Mr. Justice
Frankfurter, no foe of administration as
a modern technique of governing:
a
matter how much deference is due to ? the n a e, and upholding those ap-
SIXTH CIRCurr
en fact iu d Surely as due to the plications of statute that, while not Borg V. Weinberger, 381 F. Supp. 1212 (E.D. ogg's Live agency is not a law unto itself, but the perhaps. to the judges' personal liking, Mich. 1974) : "There is a strong presump-
Court does not really face up to the fact are nevertheless within the range of tion that administrative exercise of discre-
that this is the justification It is offering for choice left by Congress to the agency, tion is proper. unless the action reflects such
sasaining the Commission's action. (Seca- The courts, that is, cannot do everything an abus of power as to be arbitrary and
rities & Exchange Commission V. Chenery I am convinced however, that they can capricious.. v?
It was, after all, Franklin D. Roosevelt do more than they have, if directed and Smith v. City of Cookeville, the te, Sag FSupp,
encouraged by an amendment to the terraination in thus always,
Caase isentitledd tod a
himself who wrote: Administrative Procedure Act such as I presumption of The practice of creating independent regtt- am today proposing. lion is not to shield i... [the ddeeccision) from
lato l tr ry commissions, who to mdwork, . Judicial review, however imperfect, is a thorough, probing, in-depth review."'
threatens to aIn a ad t "ion jurh iccialial at least a constant reminder to the ad- EIGHTH cmcm'r a the Government for which there is no sane- ministrative agencies that they are not First National Bank of Fayetteville v.
tion in the Constitution. ASee Davis; Admire- all-powerful. Congress after all, paints Smith, 508 Fed 1371, 1378 (8th Cir. 1974) :
istrative Law Treatise section 1.04 at p. 28 with a broad brush. That is the nature "To have administrative action set aside
(1958)?) of our legislative process. It is for the as arbitrary and Capricious, the
courts to see that the broad policies com- lenging the action must prove the at it was
It may be objected that this proposal manded by Congress are not distorted willful and unreasoning action, without con-erat It intrude the courts into policy areas in individual situations by the agents of cirr umstance of thesregcase a,r.ci ,of 73 C.J the S? facts or
Public
where they have no business. Courts have Congress. The courts cannot write the Admin. Bodies and Procedure ? 209 at 569
made policy, of course, ever since the tune, but at least they can see that those (1951)."
Common law was conceived, but in a who are playing it maintain the key NINTH,CrRCMT
society increasingly governed. by specific chosen by its composer. As Archibald Daly v. Volpe, 514 P.2d 1108, 1111 (9th Cir.
statutory pronouncements enacted by an MacLeish has argued, the courts' labor 1975) : " the
elected legislature-to sa nothing be .ggiveon of restrative
say hang of a is "the labor of order," Apologia. 85 Harv that
. ven n to administrative
iv
written Constitution, it must be conceded L. Rev. 1505, 1508 (1972), to reduce the decisions."
that the courts' law-making power is confusion, sometimes the chaos of the TEMPORARY E5tZRC.TNCY COURT OF APPEALS
largely interstitial. As statutes become administrative process to order, so that Texaco, Inc. V. Federal Energy Admin., 531
more numerous and more detailed each that process will make sense for the in- F?2d 1071, 1077 (T.E.C.A. 1978), cert. denied,
or
Year, the should fbecome, rather to en orcenthes, e divM ual cit j izen de t, it fs my hope that the -U?S- to de . The burden is oa y of the
policies of the Congress. than to create bill I Introduce today will be a step to- ectors to demonstrate the lnvaudtt
regulations!,
and enforce policies of their own. To ward restoring order to the administra-
EAir Transport Ass'n of America V. Federal 1341 hold that agency decisions In conflict tive process and, even more important, ~ p Jice 520 F.2d "This cur (has re-
with a policy of Congress should be over- toward restoring our citizens' con- 1xate y (per curiam) : 'This court has re-
turned by the courts, however, peatedl recd rrized t e trong presumption
Approve(? orKe18aVd'1~b #Pikl:RCFAPFWP133-00 158~R8@0 08it'~ decisions by agen-
intervene. As one court has properly ob-
served: "this argument misses the point.
The Secretary (of Transportation) is not
so omnipotent that he must be presumed
to possess the power to act as he chooses
unless there is some law prohibiting him
from so acting. He possesses only 'the
power which Congress has given him,
and'the scope of that power is defined by
Congress." Named Individual Members
of the San Antonio Conservation Society
I suggest that administrative experience is
10 3e 023,.n 18y5th Cir. 1971), F. 2d
of weight In judicial review only to this Mr. point-it Is a persuasive reason for deference President, I do not pretend to be-
to the Commission in the exercise of its dis- lieve that the courts will ever wholly
cretionary powers under and within the law. succeed in enforcing the will of Con-
It cannot be invoked to support action out- gress precisely as we would wish, in
e:de the law. And what action Is, and what overruling. those exercises of administra-
is not, within the law must be determined tive power that truly go beyond the legis-
by courts, when authorized to review no Iative m
d t
APPENDIX: ADDITIONAL RECENT CASES ~TN THE
LOWER bDER.w COURTS Arrra ?I:'0 mix
RULE THAT AGENCY AcrroN Is PRESUMED
VALID
SECOND CIRCIIrrinterstat'
TNT Tarr Agents, Inc; v. e Com-
merce Comm'n, 525 F. 2d 1088, 1093 (2d Mr.
1975
"
) :
At the outset, we note the presump-
tion of validity accorded to administrative
bodies acting within their sphere of exper-
tise."
BO-rd of Education v. United States De-
partment of Health, Education and Welfare,
384 F. Supp. 816, 82Q (S.D.N.Y. 1974): "Fur-
ther, a plaintiir alleging improper govern-
ment action is faced with the presumption
that the administration's action is valid."
Chieppo Bus Co. v. United States, 383 P.
Supp. 1192, 1197 (D. Conn. 1974) : "Although
we do not attach a presumption of correct-
ness to the decisions of administrative agen-
cies on questions of law, deference to the
experience and expertise of such adjudica-
tive bodies requires that the agency be given
wide latitude in finding the facts and ap-
plying to them the appropriate legal stand-
ard."
FOURTH CmCQrr
Campaign Clean Water, Inc. V. Train, 489
F. 2d 492, 501 (4th Cir. 1973) : "After all,
there is.a presumption of legality that at-
taches ordinarily to an administrator's ac-
tion and the burden of establishing Im-
propriety rests on him who challenges."
FIM'rH CIRCUIT
Gables by the Sea, Inc. v. Lee, 365 F. Supp.
826. 831 (S.D.. Fia. 1973) : "In order to up-
set the final agency decision, there must be
a clear showing that- such decision was im-
proper. The burden of proving that the ac-
tion was Improper is on the party challeng-
ing the decision. It is well settled that there
is a definite presumption of regularity in
favor of the administrative decision,-
Opelika. Nursing Home, Inc. v. Richard-
3,0.,n.,1356 F. Supp. 1338, 1341-43 (M.D. Ala.
 S416
Approved For R &`Y P tQN C - P b30001002~f'uanj 2.3r 1979.j
? cies charged with the administration of a when the Senate voted on the conference
new federal statute." report, it voted for broad, far-reaching
American Nursing Home Ass'n v. Cost of changes never considerd either in the
Living Council, 497 F.2d 909, 914 (T.l;.CA. Finance Committee nor on the floor of
1974) : "In general the burden is on the al- the Senate. This lack of consideration
lenger of agency regulations to demonstrate is pparent.
that they are arbitrary and capricious." 'aa _
sions so that they will only apply to prop-
(1975) : "The simpla4 answer to plaintiff's
argument is that the agency delegated au- erty acquired from decedents dying after
thorny for promulgating and interpreting December 31, 1979. Congress must still
the JTRs (Joint Travel Regulations) is pre- decide whether carryover basis is the
sumed to have carried out such responsibili.
ties properly."
Mountain States Tel. & Tel. Co. v. United
States. 499 F.2d 611. 615 (Ct. 01. 1974) : "Fur-
ther, there Is a presumption of the regularity
of administrative action. This presumption
is not rebutted by the mere fact that an
agency's .particular course of action is unique
as compared to either the private sector or
to the remainder of Government."
By Mr. DOLE :
S. 112. A bill to repeal the carryover
basis provisions added by the. Tax Re-
form Act of 1976; to the Committee on
Finance.
REPEAL OF THE CARRYOVER BASIS PROVISIONS
signed to initial active duty for trainin
on June 30, 1976.
.It was subsequently discovered that
married with one child but legally sep
conducted by the Marine Corps re-
REPEAL CARRYOVER Fleming informed the recruiter of his a
The Senator from Kansas believes that marital status and was improperly ads
carryover basis is an unmitigated com- ,wised by the recruiter not to Indicate thee
,
plicated. and unwarranted provision. existence of the child- in order to sav g
There is no question that the current law time and paperwork. Mr. Fleming agree
i, riddled with complexities that defy but later requested that the recruiter
a u. i"lem-&,
still remains many difficulties with carry- ing's case were carefully reviewed at
over basis. First of all, it is often difficult headquarters, marine Corps, and it was-;
to prove basis. The record-keeping re- determined that, since his enlistment inr
onerous and ill-conceived carryover 'the asset. - him; and that it was necessary to release;
b
asis provisions adoptedtf th TAX BURE hi filit
as par oeDNmrom mary control as expedi.=~_
tiously as possible
Tax Reform Act of 1976. The legislation Carryover basis also increases the rel
On October 22 1976
.
,_
a-
;;
which I am introducing today will re- tive tax burden. The impact of carryover - Maxine Corps Headquarters directed the
PRIOR LAW
Mr. President, under the law prior to
the Tax Reform Act of 1976, the basis
of inherited property was generally
stepped up or down to its value on the
date of the decedent's death. Under the
carryover basis rules, the beneficiaries
of an estate take the basis in the property
that was the same as the basis in the
property held by the decedent. The carry-
over basis provisions unfortunately
vitiated many of the other estate tax re-
forms passed during the Tax Reform
Act of 1976. The carryover basis rules
have severely complicated estate tax cal-
culations and has in many cases caused
an economic hardship.
Mr. President, I might say that I am
introducing the bill today, and I know
of many Members of this body who have
a great interest in this problem, but I do
not know of. any who has demonstrated
his interest more, his concern more, than
has the distinguished senior Senator from
Virginia, Senator HARRY F. BYRD, JR.,
and I certainly appreciate his efforts in
s
trying to comp to some onli d
he
o wit
Lieasury Department to work out the know of , ' ".n state tsar Association
many problems created by the carryover today the legislation being introduced
basis amendments of the 1976 Tax Re- think nk that the Senator from Kansas. I
form Act. at group will find great interest
-?-n-- DEFERRAL has peen determined that Mr. Fleming-,
Nrr. President, the Senate in I thank the Senator from Kansas.. was not properly enlisted; that his con-f
paY!;ing Mr. DOLE. I thank the Senator. tract was void from the beginning in ac
the estate tax reforms in the 1976 'Cox
Reform Act did not adequat
cordance with the ruli
l
f
e
ng o
y cons
the Court of r'
C Military Appeals in U.S. V. Russo, 23a=
e, the changes made by carryover i r S. 113By Mr. . A bill for the O 1Nieef of H
, G
s
When the Sen
t
enry
a
e
voted for fil
USCMA 511 50 CMR 6
.na pacepge Fleming III; to the Committee on Armed,51 (1975). Asa
on the tax legislation in August 147/{ Services consequence, his status as a civilian was..
thorn .. e,.e ,...,.. _ ~_. -
in th e
e ,e u,". The senate conIDr,,,,H leased from military control, and all pay:
accepted, as substitute for its vrrc{" ~{ Mr. THURMOND? Mr. President, Mr. withheld from Mr. Fleming was properly-'
sweeping changes initiated by the Il,,,{flr, Henry C. Fleming III, of Greenwood, withheld in consonance with applicable-
Ways and Means Committee. llr, S.C., enlisted in the Marine Corps Re- policies, procedures, and laws governing=
nee, serve on Febr
3
uary
1976 He was aidtt
,.s- vo conracs.
Approved For Release 2004/04/15 : CIA-RDP83-00156R000300010021-1
pay the estate tax. The cumulative effect lease him from military control immedi-;*
and Federal and State income taxes im- military control on October 27, 1976, of-'-
___ tar performin
nosed u
o
t
_
hi
.b
._ - ,_ . -:!.i..
p
es
ate
ft
g
s
oot
money to pay death taxes is unwar- charged from an enlistment contract, avi
resident, the enactment of carry- mike ivlr. r?lemrng?s enlistment was void -
over basis was a mistake. Congress should from its inception
it was impossibl
t
,
e
oz
- take the appropriate action to eliminate discharge him. The period of time which:.
miner ro . I would urge the Senate Fi- he spent with the Marine Corps was notN
Mr. HARRY F. BYRD, JR. Mr. Presi- of " "I=mmediately ?v
Defense to suspend i pay pay-