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Published online by Cambridge University Press: 02 September 2013
Varied tasks throughout the vast field of activities of the executive branch of the federal government can be performed only by persons with training in one of more branches of law. The tasks run all the way from the administration of locally established rules and regulations of the several government agencies to the argument of fundamentally important constitutional questions before the Supreme Court. Down through the years of American history there has been conflict of opinion as to the proper mode of organizing the legal work of the government. It is contended, on the one hand, that functions of a highly specialized and highly professionalized character such as those of law ought, in the interest of symmetry and efficiency, to be integrated under centralized management. To a limited extent, such integration has been brought about in the Department of Justice. On the other hand, it is contended that the work of lawyers merely aids in the performance of more fundamental classifications of work done by the government, and that organization should be in terms of such topics as finance, foreign affairs, commerce, agriculture, and labor, with legal tasks grouped in subordinate categories and subject to control only by the respective heads of the major organizations. In line with this contention, all major departments and most other agencies have staffs of lawyers not directly connected with the Department of Justice.
1 President's Message on Consolidation of Government Agencies, Hearings on the President's Message, Dec. 9, 1932, House Committee on Expenditures in the Executive Departments, 72d Cong., 2d sess., pp. 1–2. See also Hyneman, Charles S., “Administrative Reorganization,” Journal of Politics, Feb., 1939.CrossRefGoogle Scholar
2 1 Stat. 92.
3 For an account of developments from 1789 to 1870, see Cummings, Homer and McFarland, Carl, Federal Justice (1937), pp. 142 ff., 188 ff., 218 ff.Google Scholar; Langeluttig, Albert, The Department of Justice (1927), pp. 1–121.Google Scholar Cf. Key, Sewall, “The Legal Work of the Federal Government,” Virginia Law Review, Dec. 1938.CrossRefGoogle Scholar
4 The positions were: Solicitor of the Treasury, Solicitor of Internal Revenue, Judge Advocate General of the Army, Solicitor and Naval Judge Advocate General for the Navy, Auditor for the Post Office Department, and the Examiner of Claims in the State Department. Annual Report of the Attorney-General, 1909, p. 6.
5 16 Stat. 162.
6 The Post Office auditor was not transferred, but certain legal duties conferred upon him were transferred. Likewise the Judge Advocate General of the Army was not transferred, but certain duties not connected directly with military law were taken from him.
7 Sewall Key, op. cit., pp. 184–185.
8 Langeluttig, op. cit., pp. 57–60.
9 24 Stat. 379.
10 See Annual Report of the Attorney-General, 1909, p. 6.
11 House Doc. No. 484, 61st Cong., 2d sess., pp. 5–6.
12 36 Stat. 543.
13 Annual Report of the Attorney-General, 1912, p. 57.
14 Perhaps because of charges that the Attorney-General, for political reasons, would on occasion refuse to prosecute interstate commerce cases, Congress also added to the Wickersham bill a provision that the Interstate Commerce Commission or other interveners might prosecute cases in which the Attorney-General failed to act, and that the Attorney-General might not discontinue a suit or proceeding over the protest of an intervener. In Interstate Commerce Commission v. Oregon-Washington Railroad & Navigation Co., 288 U.S. 14, the Supreme Court recently upheld the right of the Commission to appeal a case to that court even though the Attorney-General should refuse to join in the appeal.
15 Exec. Order No. 2877, May 31, 1918.
16 40 Stat. 556.
17 41 Stat. 456.
18 41 Stat. 492.
19 41 Stat. 989.
20 Sewall Key, op. cit., p. 191.
21 See Sutherland v. International Ins. Co., 43 F. (2d) 919 (1930).
22 Treasury Department, Bureau of Internal Revenue, Department of the Interior, Department of Agriculture, Patent Office, Department of Labor, Interstate Commerce Commission, Veterans' Bureau, and Federal Radio Commission. See Sewall Key op. cit., p. 197.
23 Pp. 343–351.
24 Pp. 1–2. The recommendation was repeated the following year. See Annual Report of the Attorney-General, 1929, p. 1.
25 47 Stat. 413.
26 New York Times, Sept. 14, 1932.
27 Executive Order No. 5967, Dec. 9, 1932.
28 New York Times, Jan. 20, 1933.
29 47 Stat. 1517.
30 Solicitors of the Treasury, Commerce, and Labor Departments. The solicitor of the Interior Department seems never to have been formally transferred from the Department of Justice to that Department (see U.S. Code, Title 5, Sec. 297), but appropriations are now made through the Interior Department, and to all intents and purposes the solicitor is an employee of that department.
31 See Annual Report of the Attorney-General, 1934, pp. 54–55.
32 See ibid., 1935, p. 170.
33 48 Stat. 195, 196.
34 48 Stat. 31, 38.
35 See Exec. Order No. 6204, July 14, 1933.
36 Hearings on the Department of Justice appropriation bill for 1936, 74th Cong., 1st sess., pp. 121–122. For some evidence of the cartel dispute, see New York Times, March 6 and 9, 1934.
37 New York Times, March 25 and 30, 1934.
38 Washington Post, March 17, 1934.
39 New York Times, May 1, 1934.
40 New Republic, May 23, 1934.
41 United States v. J. W. Smith, 293 U.S. 633 (Oct. 1, 1934).
42 An amicable arrangement was made during the summer of 1934 to terminate the Department of Justice appointments of Petroleum Board attorneys as special assistants. Their duties thereafter in connection with litigation, like those of attorneys in other government agencies, were to aid in the preparation of cases for argument by Department of Justice attorneys.
43 For Huberman's account of the discovery of the error, see Swisher, C. B. (ed.), Selected Papers of Homer Cummings, pp. 127–128.Google Scholar See also Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
44 New York Herald-Tribune, Dec. 12, 1934. The Department of Justice did not appeal the case to the Supreme Court. Since the Department wished a determination of the constitutional issue, however, it did not oppose the granting of certiorari.
45 The criticisms made by the Supreme Court in the opinions in the Panama case, supra, were addressed not so much at the error with respect to the executive order as at the unavailability of copies of administrative rulings having the force of law. The criticisms gave impetus to the movement which resulted in the establishment of the Federal Regisler, and in the codification of administrative orders which is about to be published.
46 Department Circular No. 2441, Aug. 8, 1933.
47 New York Times, March 10, 1934.
48 United States Law Week, April 3, 1934; Washington, News, April 6, 1934Google Scholar.
49 On the same day, Department Circular No. 2538 was sent to the district attorneys, releasing them from the duty of referring N.R.A. complaints to the Department, thus facilitating action.
50 Hart Coal Corporation v. Sparks, 7 F. Supp. 16, May 19, 1934.
51 The case against L. Greif and Company, of Baltimore. See the New York Times, July 24, 1934.
52 New Republic, Oct. 31, 1934.
53 48 Stat. 68.
54 Senate Committee on Banking and Currency Hearings on S. 875, 73d Cong., 1st sess., p. 226. House Committee on Interstate and Foreign Commerce Hearings on H. R. 4314, 73d Cong., 1st sess., pp. 240–241. A copy of the bill appears on pp. 1–9 of each volume.
55 Senator Wheeler, Burton K., 77 Cong. Rec., Pt. III, p. 2983.Google Scholar
56 48 Stat. 86.
57 For the ruling case on the subject, see Securities and Exchange Commission v. Robt. Collier & Co., 76 F. (2d) 939 (1935). See also Securities and Exchange Commission v. Stock Market Finance, 79 F. (2d) 1010 (1935).
58 See section 6 of the bill, Senate Committee on Education and Labor Hearings on S. 2926, 73d Cong., 2d sess., pp. 1–7.
59 49 Stat. 451.
60 For the original bill, see New York Times, May 25, 1937.
61 House Report, No. 1452, 75th Cong., 1st sess., p. 13.
62 52 Stat. 1061.
63 52 Stat. 114.
64 52 Stat. 832.
65 52 Stat. 1017.
66 52 Stat. 1025.
67 52 Stat. 1025.
68 In this field, as in others, there are marginal facts which blur the picture. For instance, in Hines v. Lowrey, decided Nov. 7, 1938, Hines, Administrator of Veterans' Affairs in the Veterans' Administration, was represented before the Supreme Court by his own counsel, who filed a brief which was not submitted by the Department of Justice. Again, the Home Owners' Loan Corporation seems to have appeared independently and without the cooperation of the Department of Justice in Home Owners' Loan Corporation v. Central Market, 302 U.S. 687 (1937).
69 Railroad Commission of California v. Pacific Gas and Electric Co., 302 U.S. 388 (1938)
70 An example of a continuing lack of discipline here and there, however, is found in the action of the Home Owners' Loan Corporation in submitting to the Supreme Court a petition for certiorari in a case in which the record did not show a final judgment. See Home Owners' Loan Corporation v. Central Market, 302 U.S. 687 (1937).
71 This is said to have been the recommendation of Fred A. Ironsides to the National Emergency Council in a Survey of Legal Staffs in the Departments and Independent Establishments.
72 See U.S. Code, Title 45, sec. 6.
73 See U.S. Code, Title 45, sec. 63.
74 Public No. 19, 76th Cong., 1st sess.
75 See Cong. Rec. (daily edition), April 25, 1939, pp. 6576–6581.
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