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Philip W. Buchen Files
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The original documents are located in Box 1, folder "American Bar Association (1)" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
[1974]
OFFICE PRESIDENT STATE a O UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
Date: August 24
TO: Phil Buchen
FROM: General Counsel
It's not as if you don't have
enough material to read, let alone
to worry about! But if you can
spare a few moments, you will find
this of interest -- paticularly
as it relates to the critical sub-
ject of economics and Executive
control.
AZ
Stan Ebner
FORD is LIBRARY CERALD
JUSTITA COMPANY PAID SEQUITURE USOP OF MASSACHUSETTS
Department of Justice
Presentation of
Robert G. Dixon, Jr.
Assistant Attorney General
Office of Legal Counsel
on
The Independent Commissions
and
Political Responsibility
Before the
Administrative Law Section
American Bar Association Annual Meeting
Honolulu
Wednesday, August 14, 1974 at 9:30 a.m.
Sheraton Waikiki Hotel
Do not release before delivery date
FORD LIBRARY
THE INDEPENDENT COMMISSIONS
AND
POLITICAL RESPONSIBILITY
Robert G. Dixon, Jr.
I. The Anomaly of Independence in Our Constitutional
and Political System
Despite the fact that the Interstate Commerce Commission,
the granddaddy of the independent regulatory commission movement,
will observe its 100th anniversary 13 years hence, it is
axiomatic from the perspective of a constitutional purist that
there is no place in our separation of powers system for the
so-called "headless fourth branch of government" of which the
ICC was the first component. Apart from constitutionalism,
democratic theory forbids placing either execution of laws or
policy-making beyond the effective reach of the political
process. Because the life of the law is not logic but
experience, we have learned to live with exceptions and
accommodations.
Adjudicative policy-making has always been an exception
to simplistic democratic and separation of powers theory,
once we abandon the fiction that judges merely discover or
apply law. And what is adjudication anyway? Is a class-action
lawsuit a species of rulemaking? Is formal rulemaking under the
Administrative Procedure Act a species of adjudication?
Granted that our separation of powers system is complex,
it is well on occasion to revert to fundamentals, to pose
basic questions about where the independent agency movement
fits into our overall system, and in particular the relation
of the regulatory commissions to the Executive. Despite
Madison's comment that the essence of separation theory was
that the "whole power" of one branch not be exercised by
1/
another branch, it is doubtful that the Framers ever
envisioned "whole agencies" that would not be under direct
legislative, executive, or judicial branch control. The
very terms of the Constitution divide federal governmental
powers into "legislative powers," "executive powers,' and
"judicial power. 2/
Thus, in addition to being "headless," the fourth
branch is "rootless" in constitutional concept. Justice
Jackson candidly acknowledged the problem in these terms:
Courts have differed in assigning a place to
these seemingly necessary bodies in our con-
stitutional system. Administrative agencies
have been called quasi-legislative, quasi-
executive or quasi-judicial, as the occasion
required, in order to validate their function
within the separation-of-powers scheme of the
- 2 -
Constitution. The mere retreat to the qualifying
"quasi" is implicit with confession that all
recognized classifications have broken down, and
"quasi" is a smooth cover which we draw over our
confusion as we might use a counterpane to conceal
a disordered bed. FTC V. Ruberoid, 343 U.S. 470,
487 (1952). See also United States V. Klein,
13 Wall (80 U.S.) 128, 147 (1872).
As a matter both of constitutional and democratic
principle, I would suggest that it is especially questionable
to place outside of executive control the power to execute
the laws. Every proposal at the Constitutional Convention
placed this in the Chief Executive.
The President is
under a mandate to "take care that the laws be faithfully
executed," and the people expect it. The Constitution
makes no exception for laws administered by independent
regulatory agencies.
The courts have consistently reaffirmed the proposition
that the authority to enforce the laws is an executive
4/
function.
As phrased by the Supreme Court in the Myers
removal case:
[A]rticle II grants to the President the executive
power of the Government, i.e., the general admin-
istrative control of those executing the laws,
including the power of appointment and removal of
executive officers- conclusion confirmed by his
obligation to take care that the laws be faith-
fully executed;
Myers V. United States, 272
U.S. 52 (1926)
- 3 -
/
Of course, we also have the Humphrey's case where
the President's removal power was restricted in respect
to the Federal Trade Commission, because the Commission's
functions were primarily quasi-legislative and quasi-
judicial. But what of the limited executive functions of
the Commission? Did the court in effect treat them as
being in the nature of "harmless error" in the constitutional
sense? At this stage of our history, the constitutional status
of independent regulatory commissions rests more on
practice than on logic.
The democratic principles underlying the Constitution
require that government be immediately responsive to the
people, at least in matters concerning the making and
execution of the laws. Independent regulatory commissions,
at least in theory, are independent of executive control. It
grossly overstates the possibilities for effective congres-
sional oversight and control to call them "arms of Congress."
Congress has no single head, but is bicamerally divided into
a committee structure, thereby enhancing its essential
representative function but diffusing responsibility in a
way inconsistent with a continuous administrative leadership
function.
- 4 -
The President is held responsible by the people for
what goes on in the federal government--notwithstanding the
legal independence that an agency may have. A former SEC
Chairman, William Cary, has noted that even though the
ordinary operations of a regulatory agency have little
political effect "the White House can be very seriously
hurt if there is any trouble. " Cary never saw President
Kennedy officially, but a White House assistant told him:
"You would have heard from us if there was anything wrong
The ways in which an agency may hear from the White
House may, rightly or wrongly, create its own problems.
There is little solid guidance on Executive duties in this
area. The Executive branch has had a tendency to reach
toward the administrative agencies and try to rationalize
their activities as part of an overall plan. This does not
mean that the President must administer the laws himself.
It does mean that he must see that the agencies are doing
their jobs. When he reports to Congress on the State of
the Union, as required by the Constitution, and recommends
necessary measures, he cannot cast a blind eye in the
direction of the regulatory agencies. Of course, what may
seem to some to be merely good administration may smack of
- 5 -
of improper influence to others who believe the problem
begins and ends with the word "independence."
In practice, the independent agencies do make policy
substantially free from the immediate reach of the popular
political process. The Federal Reserve Board, for example,
makes decisions that vitally effect interest rates and the
general rate of inflation--two concerns foremost in the
minds of the American people--free from the immediate check
of the popular will. The Interstate Commerce Commission
recently issued an order that gives railroads 60 days to
show why the agency should not require them to purchase
70,000 new freight cars and repair 18,000 out-of-service cars
within two years.
That proposed order will affect the
railroads, shippers and consumers alike in significant ways
yet was issued by an independent agency. Examples of other
important decisions made by independent agencies are
numerous.
The point I am trying to make is not that these
decisions are bad but that, at least in democratic theory,
they ought to be made by officials dependent upon the
10/
popular will.
Independence has its highest claim where
adjudicatory functions are involved and procedures are
- 6 -
formal; its lowest claim where policy-making is involved
and procedures are informal.
There also has been disaffection with the operation
of independent regulatory commissions on practical grounds.
Study commissions have charged them with lethargy, narrowness
of view, with being captives of the industries they regulate.
Senator Proxmire recently introduced a bill, S. 3604, to
abolish the ICC.
II. Limitations on the Actual Degree of "Independence"
of the Independent Commissions from the Executive
Branch
Apart from the normative question of how independent
the independent regulatory commissions should be, as a
matter of plain fact and as a practical response to the
need for political integration, there exist many significant
limitations on the agencies' actual freedom from Presidential
influence and general guidance. Many of these limitations
find their basis in congressional authorization or sanction.
I should note, however, that many of them would terminate under
the provisions of S. 704, The Regulatory Agencies Independence
Act now pending in the Senate Government Operations Committee,
10a/
but not yet brought to the hearing stage.
Let me review
11/
some of the major limitations at present.
(1) First, there is executive control of the agencies'
- 7 -
budget submissions, as authorized by the Budget and
Accounting Act of 1921. 31 U.S.C. 1 et seq. The Act
forbids independent agencies to submit their own proposed
budgets to Congress (31 U.S.C. 2, 15). It also specifies that
the President can make detailed studies of the independent
regulatory commissions to determine what changes should be made
in the interest of efficiency and economy. 31 U.S.C. 18. Some
observers have suggested that the President and his staff have
used the Budget and Accounting Act in ways not anticipated by
12/
Congress in order to gain control over the independent agencies.
In my view, however, the Act is really no more than an imple-
menting tool to carry out the President's responsibility and
duty to see that the laws are faithfully executed.
Congress recently created an exception to the rule that
agencies were not to make submissions to Congress on budget
matters without going through OMB. The new Consumer Product
Safety Commission is required to submit copies of budget and
also legislative recommendations to Congress at the time that
it sends them to OMB. 15 U.S.C. 2076(k) (Supp. II, 1972).
To be sure, Congress, in the last analysis, decides on
appropriations. Under the Budget and Accounting Act, Congress
has statutory authority to request individual agency
recommendations. 31 U.S.C. 15. However, a requirement that
all agency requests go to Congress without prior executive
- 8 -
approval raises a major policy question.
The President noted at the time that he signed the Act
establishing the Commission that this provision "will tend
to weaken budget control * * * and should not be regarded
13/
as precedent for future legislation. " It touches that
grey area of separation of powers where the Executive can
argue that effective control of administration and law
execution requires full control of priorities in budget
submissions, and Congress can argue that its function of
setting national policy goals requires awareness of all
expenditure alternatives. Whether the special provision
in the Consumer Product Safety Commission legislation will,
in fact, become a precedent is something Congress is now
considering in deliberating on the proposed Consumer
Protection Agency. OMB Director Ash has made the Administra-
14/
tion objection clear.
(2) A second issue has been control of litigation.
The Department of Justice and OMB have favored centralization
of litigation in the Attorney General. This insures con-
sistency of government positions on similar issues and pro-
vides a pool of experienced litigators. Thus Congress has,
in Title 28, placed litigation for the United States under
- 9 -
the control of the Attorney General except as otherwise
15/
authorized by law. 28 U.S.C. 516-518. Of course, there
always have been a certain number of agencies authorized to
litigate certain matters on their own, but normally not in
16/
the Supreme Court, and others who would like to do so.
A vivid recent example is the Alaska Pipeline bill
which gives the FTC independence in instituting suits to
17/
enforce its subpoenas (thus reversing the Guignon case
which placed enforcement in the Department of Justice), and
to seek preliminary injunctions against unfair competitive
18/
practices.
However, we do not feel that the new law
should be interpreted to permit such independence incases
before the Supreme Court.
The Department of Justice has been sensitive to agency
complaints on the handling of their cases. We hope to
provide special handling--including greater resources and
expedited action--on cases which the agency General Counsels
think have special significance.
(3) Third, there is central clearance, through the
Office of Management and Budget (formerly the Bureau of the
Budget) of all agency proposals for new legislation, and of
agency comments on congressional proposals. This practice
- 10 -
dates from the 1930s and the presidency of Franklin D.
19/
Roosevelt.
(4) Fourth, there is the augmentation of Presidential
control over the chairmanship of most of the Commissions,
and of the Chairman's control over the administration and
staffing of the Commission. As a result of the Hoover
Commission Report of 1949 and the Landis Report of 1960, and
the implementing Reorganization Plans, the President gained
the power to designate the Chairman of the major regulatory
20/
commissions.
In these instances, although the Chairman
as a member cannot be removed from the Commission at will,
he serves as Chairman at the pleasure of the President.
The Chairman in turn is given substantial authority,
independent of the other Commissioners, to run the agency,
control workload and priorities, direct the use of agency
funds, and the like.
(5) A fifth means of Presidential influence, stemming
from the Federal Reports Act of 1942, was recently modified
by another rider to the Alaska Pipeline Act of 1973. OMB
has had the power since 1942 to approve requests for infor-
mation sent to multiple recipients. 44 U.S.C. 3501 et seq.
The main purpose of the Reports Act was to cut down on
- 11 -
duplicative and unnecessary requests directed to the public.
It had been argued, however, that the Act could be used as
a device by which investigative activities of the agencies
21/
might be hampered.
The Pipeline Act has now placed the
"independent Federal regulatory agencies" under the
Comptroller General, traditionally viewed as an arm of
Congress, for the purposes of the Reports Act. P.L. 93-153,
§ 409. However, the Comptroller General is given only an
advisory role and the final decision is made by the agency.
87 Stat. 593.
(6) Sixth, there may be formal, public intervention
by Executive departments in agency adjudicative proceedings.
The Antitrust Division of the Justice Department has appeared
in SEC hearings on whether brokerage commission rates should
be fixed, and before the FCC on licence renewals.
(7) Seventh, the agencies are subject, by congressional
direction to the personnel policies of the Civil Service
22/
Commission,
which arguably provides at least some form
of executive control. The President may prescribe regulations
for the admission of individuals into the Civil Service, and
23/
to ascertain the fitness of applicants. 5 U.S.C. 3301.
- 12 -
Part of the executive power over personnel is found in
the federal employee security program which applies to
all departments and agencies, including the regulatory
24/
commissions.
The extent of control over the personnel of independent
agencies has been contested recently by the Consumer Product
Safety Commission which opposes the customary White House
practice of approving non-career appointments at the
Commission. It has now stated that it is willing to submit
25/
to such clearance "under protest. "
(8) Eighth, a more controversial area, illuminated by
practice if not yet by court ruling, concerns the applica-
bility of the doctrine of Executive privilege to the
independent commissions in those aspects of their work
which can be denominated executive or administrative, rather
than quasi-legislative or quasi-judicial. This matter was
aired at some length during the Eisenhower Administration in
connection with the nomination of J. Sinclair Armstrong to
be Assistant Secretary of the Navy, through the inquiry into
his prior testimony on the Dixon-Yates contract when he was
chairman of the Securities and Exchange Commission.
- 13 -
Attorney General Brownell took the position that the
President's policy statement of 1954 regarding the privileged
and confidential nature of certain communications within the
Executive branch applied as well to the SEC, except for
adjudicatory matters. Thus, he said, SEC officials were
not obligated to disclose intra-SEC communications, nor
communications between the SEC and others in the Executive
26/
branch in respect to administrative matters.
The issue has been joined again in a proposed amendment
to the Freedom of Information Act (H.R. 12462) which would
deny the right to independent regulatory agencies to invoke
Executive privilege. .Rep. No. 93-990, p. 16 (April 11, 1974).
The Department of Justice has noted the constitutional
27/
problems.
(9) Ninth, even those provisions applicable to certain
of the Commissions stating that the President may remove
their members only for "inefficiency, neglect of duty, or
28/
malfeasance in office," confer a power on the President of
sorts. Should it become politically feasible for a President
to remove a Commissioner by citing an authorized cause, it
is still unclear whether the President is required to prove
29/
the charge in a factual hearing and what evidence is needed.
- 14 -
The final outcome of the current suit challenging the
removal by Acting Attorney General Bork of Special
30/
Prosecutor Cox may illuminate this question indirectly.
(10) Tenth, delegation to independent agencies has
recently been a subject of contention. As the members
of this panel from the FCC and the FPC are no doubt aware,
Presidents have made delegations to independent commissions
without explicit statutory authority. The FPC is authorized
by Executive order to issue permits for the construction of
gas and electric transmission facilities at the borders of
the United States. E.O. 10485 of September 3, 1958. The
President has delegated to the FCC his power to issue
licenses to land submarine cables in this country.
E.O. 10530 of May 10, 1954.
More recently the increased interest in separation of
powers produced a debate in a highly comparable situation.
In 1971 the President issued an Executive order delegating
authority to the Subversive Activities Control Board to
hold hearings on whether certain groups should be designated
as subversive in connection with the Government's personnel
program. A court test attacking the delegation was thrown
out on a procedural point. However, the court in dictum
- 15 -
LIBRARY GERALD ? FORD
cast doubt on the validity of the delegation, noting
that there was "no precedent for a President delegating
to an independent, quasi-judicial body far-reaching
responsibilities." American Servicemen's Union V.
Mitchell, 54 F.R.D. 14 (D.D.C. 1972).
Debate also took place in Congress involving the
validity of this delegation and Senator Ervin held
hearings on the matter before his Separation of Powers
Subcommittee. A proposal by Senator Ervin to deny funds
to the Board to carry out the President's delegation
was enacted in 1972. P.L. 92-544, § 706.
- 16 -
III. Critique of Various Executive "Levers" on
the Independent Commissions.
From the foregoing partial list of recognized and fre-
quently congressionally-authorized Executive levers on the
independent commissions - and the list is by no means
exhaustive--certain observations can be drawn. The first is
pragmatic. As Professor Davis has noted, the growth of the
administrative process from the ICC onward was a response of
31/
practical men to practical problems.
They were not
concerned about democratic theory, or niceties of separation
of powers.
Similarly, the various means worked out whereby the
Executive may exercise some oversight and policy guidance
in respect to the independent commissions is a practical
response to the practical problems which would be posed by a
totally headless fourth branch of government. There is no
need to repeat here all of the arguments of the Hoover
Commission, 32/ the Landis Report, 33/ the Redford Report, 34/
the Ash Report, 35/ on the deficiencies of independent commis-
sions. A central theme is the need to balance independence
in strictly adjudicative matters with a coordinated policy
control, politically responsive to public needs in the admin-
- 17 -
BERALD R. FORD LIBRARY
istration of what we now might call the public service state.
It is not at all clear to me that the conceded quasi-
legislative functions of some of the independent commissions
warrant either their substantial independence from the
Executive or their simplistic labelling as "arms of Congress.'
Many broad quasi-legislative powers are vested within the
Executive branch, and there seems to be no manageable criteria
for determining when to place some outside the Executive
branch. Within the Executive branch these powers actually
are more directly subject to responsible political direction,
and hence less prone to influence by an alert and carefully
nurtured industry clientele, than if they had been placed in
independent commissions.
Congressional oversight is not an adequate substitute.
Congress is not a managerial instrument. Its genius lies in
distilling consensus, not in refining programs into detailed
rules. Indeed, it could be argued, although I have no
empirical proof, that Congressional oversight may be more
effective over agencies within the Executive branch than those
outside the control ofthe Executive branch. Because of cen-
tralized executive control in the President, and the many
-18 -
things the President wants from Congress and the Congress from
him, each has chips to play and Congressional oversight can
have teeth. In respect to the independent agencies, however,
the Congress cannot even threaten to fire the commissioners
because it lacks both appointment and removal power, the
budget cannot be cut without hurting the clientele, and unless
the agency has a major legislative program to sell there are
few chips for Congress to play with.
In short, directly contrary to the simplistic lore about
independent commissions being "arms of Congress," and impliedly
subject to close control, the truth may be that Congress has
placed some of the commissions beyond effective Executive
control, while providing no substitute short of the oversight
which may come from an activist judiciary.
As an aside, I should note here that the analysis I am
making may find less receptivity in the era of Watergate,
than in times when the Executive is serene and popular,
indictment of high-placed figures unthinkable, and impeach-
ment an unknown word. But because of the times it is all the
more important to present this analysis. We must not confuse
the foibles of men, the correctable foibles of men, with the
- 19 -
vital pyramid of power and values in the institutions they
serve and temporarily manage.
In speaking a moment ago of the propriety of independence
in strictly adjudicative matters, I used the word "strictly"
advisedly. I am concerned lest the public service state
become a lawyer's state, with everything judicialized, and
thereby undemocratized, if I can coin a term. The Administra-
tive Procedure Act separates rulemaking from adjudication only
with difficulty, and there is an increasing tendency to drape
rulemaking with all of the hearing formality of adjudication.
The long-term beneficiaries of this process can be only the
courts, and those interests which the courts at the moment
tend to favor. This may be a prescription for a philosopher-
king state, but it does little for the democratic process,
and converts the taxpayer into a spectator, unless he can
afford to become a litigator as well. This latter problem
of over-judicialization may affect regulatory bodies within
the Executive branch as well as without; however, I think the
latter poses the greater danger because of the lessened
counter-pressures from the Executive.
A strong counter-thrust, running against all I have been
saying and perhaps strengthened by Watergate, is the distrust
- 20 -
of politics, politicians, democracy itself, which is so deeply
engrained in the most democratic of all people, the American
citizen. The common lore that only that is good which is
taken out of politics has long been nurtured by high school
history and civics teachers and some journalists. This is
the trump card of the independent commission movement.
There presently are bills in Congress for establishing
36/
a commission on an independent permanent prosecutor,
an
37/
independent Department of Justice, an independent Federal
Elections Commission, 38/ an independent commission to review
39/
classified material decisions,
an independent Consumer
40/
Protection Agency with a far-reaching power to intervene
in the business of every other governmental agency. The
General Accounting Office recently was given authority to
enforce certain election laws under the Presidential Election
41/
Campaign Fund Act of 1971.
Such a proliferation of independent agencies removed
from immediate popular political control is not the solution
to corruption in government. The cure for human error is not
radical institutional surgery. As Theodore C. Sorenson put
it, in opposing the proposal to place the Department of
Justice outside the Executive Branch:
- 21 -
"All the rotten apples should be thrown out. But save the
barrel. 42/
Let us suppose that the independent commission movement
had come into full flower before 1932. What could the "New
Deal" administration have done if, when it arrived, all major
areas--labor, securities regulation, communications regulat-
tion, power regulation, etc.--were wrapped up in independent
commissions already, with the membership protected and tilting
against the new President? Indeed, because the Federal Trade
Commission was wrapped up, the attempt of the President to
gain control by removing Commissioner Humphrey led to the
43/
famous Humphrey case and a Supreme Court exegesis on the
permissible independence of "quasi-legislative" and "quasi-
judicial" bodies.
It is also worth noting that there was nothing non-
partisan or apolitical in the activities during the first
years of the new commissions created during the New Deal
period, the National Labor Relations Board being a particu-
larly good example. They were just as mission-oriented, as
cause-oriented as any Executive agency directly inspired by
the President.
- 22 -
Another observation thus arises. So far as the first
years are concerned, it does not matter whether a regulatory
agency is set up inside the Executive branch or as an inde-
pendent commission, at least in times when politics are
normal. It will pursue with vigor the ideals of the appoint-
ing authority. It is only in successor administrations that
the independence problem arises. From this standpoint, the
independent commission is a device whereby the agitated
partisans of the present--and they may be very good partisans
with very contemporary ideas--may put shackles on the agi-
tated partisans of the future who will face different problems
and have different priorities.
Conclusion
Watergate has focused new attention on problems of
separation of powers. But I fear that what is developing is
an essentially disorganized series of skirmishes over indi-
vidual issues with relatively little thought as to whether
it is truly appropriate that a particular power should reside
in a particular place. To be sure, much of our administra-
tive structure has grown as a result of ad hoc improvisation,
- 23 -
validated by the judicial willingness as Justice Jackson put
it, to draw "a counterpane over a disordered bed," but this
does not relieve us of the duty of seeking optimum solutions.
It is one thing to suggest, as I have, that both constitutional
precepts and democratic accountability values point toward a
presumption against using the independent commission model
except in very special circumstances; it is another to devise
a set of detailed principles for a better system. What is
needed is a broadly focused Separation of Powers Commission
to look at these questions systematically for the first time
since 1787 and to make recommendations to harmonize our
present system with what the Framers intended, democratic
theory expects, and the times require.
- 24 -
FOOTNOTES
1/ The Federalist, No. 47.
2/ Article 1, § 1, Article 2, § 1, Article 3, § 1.
3/ See 1 M. Farrand, The Records of the Federal Convention of
1787 (1937 Ed.), 21, 63, 65-66, 226, 244, 292; 2 Farrand at
23, 116, 185, 404-405, 597.
4/ Springer V. Philippine Islands, 277 U.S. 189, 202 (1922).
5/ The principle that the Executive has exclusive power to
enforce the criminal law has been reiterated by the courts
on many occasions. See e.g., Ponzi V. Fessenden, 258 U.S. 254,
262 (1922); Weisberg V. Department of Justice, No. 71-1026,
decided on rehearing en banc October 24, 1973 ("Functions in
this area [prosecutorial discretion] belong to the Executive
under the Constitution, Article II, Sections 1 and 3
");
United States V. Cox, 342 F.2d 167, cert. den., 381 U.S. 935
(1965); Parker V. Kennedy, 212 F. Supp. 594, 595 (D.C.C. 1963)
(Determinations whether prosecutions should be commenced are
within the ambit of the Attorney General's executive discre-
tionary power) ; Pugach V. Klein, 193 F. Supp. 630 (D.D.C. 1961)
("The prerogative of enforcing the criminal law was vested by
the Constitution, not in the Courts, nor in private citizens,
but squarely in the executive arm of the government.") See
also Nader V. Kleindienst, Civ. No. 243-72 (D.D.C. 1973); and
Moses V. Kennedy, 219 F. Supp. 762 (D.D.C. 1963).
6/ Humphrey's Executor V. United States, 295 U.S. 602 (1935).
7/ The dangers of relying on simple dogma are very real. In
Humphrey's the Court also said that an agency like the FTC
cannot "in any proper sense be characterized as an arm or an
eye of the executive." And yet, at the time that the opinion
was written, the President was specifically authorized by
statute to direct the Commission to investigate and report
- i -
facts relating to antitrust violations. 15 U.S.C. 46(d). In
a later statute Congress authorized the Attorney General to
make a similar request of the FTC. 50 U.S.C. App. 2158(e).
In carrying out such functions, the FTC would clearly be acting
as "an arm or eye of the executive" notwithstanding the Court's
assertions.
8/w. Cary, Politics and the Regulatory Agencies, 7-9 (McGraw-Hill, 1967).
9/39 Fed. Reg. 23325 (June 27, 1974).
10/
Insofar as independent agencies exercise quasi-judicial power
subject to review in the courts, they do not act contrary to the
democratic spirit of the Constitution which recognizes the desira-
bility of judicial decisions made free from the influence of
popular passions.
10a/on July 24, 1974 the Department of Justice wrote to the Senate
Government Operations Committee voicing its objection to S. 704.
The bill, which is quite lengthy, deals with the independence of
regulatory agencies in such areas as submission of budget estimates
to Congress, legislative recommendations, clearance for obtaining
information, control of litigation, and appointment and tenure of
agency chairmen and vice chairmen.
11/See E. MacIntyre, "Regulatory Independence: Factual or Fanciful,"
115 Cong. Rec. 1835 (1969).
12/
Ibid.
13/ R. Nixon, Public Papers of the Presidents, 1050 (1972);
Regulatory Agencies: Congress Taking a Fresh Look, 3447, 3450
Congressional Quarterly, December 29, 1973.
14/R. E. Cohen, Protection Agency Bill Reaches Crucial Voting
Stage, National Journal Reports, June 15, 1974, p. 900.
15/ Cf. 3 L. Loss, Securities Regulation, 1881 (2d Ed. 1961).
16/ Under existing statutes, some independent regulatory agencies
have been granted limited litigation authority. For example,
the SEC and the FPC, in addition to possessing subpoena enforce-
ment power, are empowered to bring an action in any federal
district court to enjoin practices in violation of its governing
- ii -
statutes or any of its rules or regulations, 15 U.S.C. 77t (b),
79r; 16 U.S.C. 825m, 825f(c). In the cases of the NLRB and
the FHLBB, the litigation authority is couched in much broader
terms. NLRB attorneys are authorized to represent the Board
"in any case in court", 15 U.S.C. 154, while the FHLBB is
authorized "to act in its own name and through its own attorneys"
when enforcing its statutes or the rules and regulations promul-
gated thereunder, 12 U.S.C. 1464(d)(1). Other agencies have
generally been granted litigation authority only for use in
special, limited situations, e.g., the FTC under 15 U.S.C. 53
may institute proceedings to enjoin the dissemination of
false advertising, and the EPA and the CPSC are empowered to
bring emergency proceedings to abate imminent hazards to the
public health, 42 U.S.C. 1857h-1 (EPA); 15 U.S.C. 2061 (CPSC).
On the other hand, Supreme Court litigation is concen-
trated in the Solicitor General. One exception is the auth-
ority given to the Comptroller General to enforce the
Presidential Election Campaign Fund Act of 1971, including
review in the Supreme Court. 21 U.S.C. 9010(d). Also,
although the statutory basis is not altogether clear, (see
28 U.S.C. 2323), as a matter of practice, the ICC has since
1913 represented itself before the Supreme Court.
17/ F.T.C. V. Guignon, 261 F.Supp. 215 (E.D. Mo. 1967), aff'd,
390 F.2d 323 (8th Cir., 1968).
18/ P.L. 93-153, $ 408, 87 Stat. 591.
19/ See MacIntyre, supra, at 115 Cong. Rec. 1836; 3 Loss, supra,
at 1880 note 16. The new Consumer Product Safety Commission,
however, is required whenever it submits a budget request or
a legislative recommendation, testimony or comments to the
President or OMB to transmit concurrently a copy of that
request or information to Congress, 15 U.S.C. 2076(k).
20/ Designation of Chairman by the President--ICC, 49 U.S.C. 11
and 1969 Reorgan. Plan No. 1, 83 Stat. 859; CAB, 49 U.S.C.
1321(a); FCC, 47 U.S.C. 154(a); FMC, 1961 Reorgan. Plan No. 7
- iii -
75 Stat. 840; FTC, 15 U.S.C. 41; SEC, 15 U.S.C. 78d (a) and
§ 3 of 1950 Reorgan. Plan No. 10, 64 Stat. 1265; Bd. of Gov-
ernors of Federal Reserve System, 12 U.S.C. 241, 242; FPC
16 U.S.C. 792; NLRB, 29 U.S.C. 153 (a); AEC, 42 U.S.C. 2031,
2032; FHLBB, 12 U.S.C. 1437 (b) and § 3 of 1947 Reorgan. Plan
No. 3, 61 Stat. 1954; Consumer Product Safety Commission, 15
U.S.C. 2053 (a) Supp. II, 1972).
As a general proposition, no durational or other condi-
tions are attached to such designations. The only exceptions
are in the cases of the Federal Power Commission and the
Consumer Product Safety Commission in which the designated
"chairman shall act as such until the expiration of his term
of office," 16 U.S.C. 792, 15 U.S.C. 2053 (a) (Supp. II 1972)
and the Civil Aeronautics Board where the President designates
one of the Board members annually to serve as chairman, 49
U.S.C. 1321 (a).
21/ See E. MacIntyre, supra, at 115 Cong. 1836.
22/
Title 5, which codifies the Civil Service laws, defines
Executive agencies to include independent establishments. 5
U.S.C. 105.
23/
The President appoints members of the Commission and desig-
nates the Chairman and Vice Chairman. 5 U.S.C. 1101 and 1103.
24/
E.g., E.O. No. 10450, § 1; see Cushman, The Independent
Regulatory Commissions, 465.
25/
C. Shifrin, "Agency Quits Fight Over Hiring of Staff,"
Washington Post, June 22, 1974, p. A2; Regulatory Agencies:
Congress Taking a Fresh Look, Congressional Quarterly,
December 29, 1973, p. 3450.
26/
Hearings before the Subcommittee on Antitrust and Monopoly
of the Senate Judiciary Committee, 84 Cong., 1st Sess., "Power
Policy--Dixon-Yates Contract," pp. 373-379; Kramer and Marcuse,
Executive Privilege--A Study of the Period 1953-1960, 695 ff.
(1961).
- iv -
27/
Id. at 13.
28/
Statutes restrict the President's power of removal to
stated causes for the following commissions: ICC, CAB, FMC,
FTC, NLRB, and the Board of Governors of the Federal Reserve
System, Consumer Product Safety Commission (CPSC). With
the exception of the NLRB, the Board of Governors of the
Federal Reserve System, and the CPSC the President may remove
only for "inefficiency, neglect of duty or malfeasance in
office.' See ICC, 49 U.S.C. 11; CAB, 49 U.S.C. 1321 (a) (2);
FMC, 46 U.S.C. 1111 and 1961 Reorgan. Plan No. 7, 75 Stat. 840;
FTC, 15 U.S.C. 41. In the case of the NLRB and the CPSC,
removal is limited to "neglect of duty or malfeasance in office,"
but with respect to NLRB only after notice andhearing. NLRB,
29 U.S.C. 153 (a); CPSC, 15 U.S.C. 2053(a) (Supp. II, 1972).
Members of the Board of Governors may be removed "for cause."
12 U.S.C. 242. There are no limitations set forth in the
statutes on the President's power to remove members of the
FPC, FCC, SEC, FHLBB and AEC. See: FPC, 16 U.S.C. 792; FCC,
47 U.S.C. 151 et seq.; SEC, 15 U.S.C. 78d(a); FHLBB, 12 U.S.C.
1437 (b) et seq.; AEC, 42 U.S.C. 2031.
29/ The hearing which President Franklin Roosevelt held involv-
ing TVA Commissioner Arthur F. Morgan related to Morgan's
refusal to substantiate certain charges he had made against
the other commissioners. Removal of a Member of the Tennessee
Valley Authority, S.Doc. 155, 75th Cong., 3d Sess., (1938).
Upon his refusal to substantiate the charges he was removed,
and the President's power was upheld. Morgan V. TVA, 115 F.2d
990 (6th Cir. 1940), cert. den., 312 U.S. 701.
In 1958 President Eisenhower indicated at a press con-
ference that he felt a trial of some kind would be
required for the removal of FCC Commissioner Richard A. Mack,
but Mack resigned before removal proceedings could be insti-
tuted. Public Papers of the Presidents, Dwight D. Eisenhower
1958, p. 185.
30/ See Nader V. Bork, 366 F.Supp. 104 (1973), appeal pending.
31/
K.C. Davis, Administrative Law Treatise, Vol. 1, p. 34 (1953).
- V -
GERALD FORD LIBRABY
32/
Commission on Organization of the Executive Branch of the
Government, Task Force Report on Regulatory Commissions (1949).
33/
J.M. Landis, Report on Regulatory Agencies to the President-
Elect, Senate Judiciary Committee Print, 86th Cong., 2d Sess.
(1960).
34/ Summarized at E. Redford, supra, at 306-312.
35/
The President's Advisory Council on Executive Organization,
A New Regulatory Framework: Report on Selected Independent
Regulatory Agencies (1971).
36/s. 2978.
37/s. 2803.
38/s.
3044, passed the Senate on April 11, 1974.
39/s. 3399.
40/H.R. 13163, passed the House on April 3, 1974.
41/ 26 U.S.C. 9010.
42/
T.C. Sorenson, "Justice Department Reform," Washington Post,
June 30, 1974, p. E19, col. 1.
43/
Humphrey's Executor V. United States, 295 U.S. 602 (1935).
- vi -
DO1-1974-07
PROAMBAR ASSOCIATION
COMMUNI ATIONS
STREET @CHICAGO INLINOIS 60687 (312) 493°0530
Phil Smith
CONTACT:
Coc PASA ASE: Postiguet Immediate
312-493-0533
Jim Chatfield
202-659-1330
ABA BOARD ADOPTS POLICY
ON PRESIDENTIAL PARDONS
CHICAGO, Sept. 20 -- The Board of Governors of the American
Bar Association has adopted the following policy position on use
of executive pardon for persons connected with the Watergate
affair:
"The Board of Governors of the American Bar Association
is concerned with the public reaction resulting from the pardon
granted to former President Nixon and from reports indicating
that consideration may be given to additional pardons.
"The Board of Governors recognizes that the constitutional
power of the President to grant pardons is a part of the proce-
dures for the administration of justice and further recognizes
that the pardon of former President Nixon could involve consider-
ations not present in other cases. However, the Board believes
that one of the lessons of Watergate is the need, in Fineral,
for adherence to regular judicial processes.
GERALD LIBRARY
-more-
ABA BOARD - Add One
"The American Bar Association is committed to the fair,
just and impartial application and enforcement of the law. In
order to avoid the possible erosion of public respect for law,
the Board of Governors of the American Bar Association re-
commends that, in the absence of extraordinary circumstances
involving public interests of great magnitude, the pardon
power should not be exercised with respect to any individual
until appropriate judicial processes have been followed."
# # #
american Bar
assoc
September 25, 1974
Dear Mr. Fellers:
Thank you very much for your kind letter of September thirteenth,
endorsing John W. Cummiskey for the position of Chairman of the
Legal Services Corporation.
I sincerely appreciate the fact that you have taken time to fully
set forth his qualifications and abilities. I concur in your high
commendation of him, based on having been a Law School class-
mate of his, commember of the Grand Rapids Bar, and a longtime
friend. It is also kind of you to offer your office and the experience
of the American Bar Association as we undertake the selection
process. Fortunately, we already have recommendations expressed
by ones who have been active in the American Bar legal aid studies
and support.
Sincerely yours,
Philip W. Buchen
Counsel to the President
Mr. James D. Fellers
American Bar Association
American Bar Center
Chicago, Illinois 60637
FORD is LIBRARY
ABA Presidents scheding
10/22/74
11/22/74
Checked with the Scheduling
President will
Office and November 22nd
the President will be in
bein Japan)
Japan -- if plans remain
as they are at present.
(Had talked with Mr. Morgan
and he had assumed this might
be the case; I left word when
I had confirmed the information.)
FORD is LIBRARY QERALD
Tuesday 10/22/74
2:15 When Mr. Morgan was here, he asked about the
letter to you suggesting the President might consider
being the principal speaker at the dinner on
November 22 of the American Bar Association's
50th anniversary.
I had a copy I had pulled for my information -- but
Rustand's office had not received a request for possible
scheduling.
I checked through your box and found
it still there.
(Thought perhaps you glanced and
thought it was an invitation for you to attend.)
Would you like it sent on to Rustand for consideration?
(Or, as suggested in the last paragraph of Mr. Morgan's
letter, would you want them to write a letter directly to
the President.
FORD LIBRARY & QERALD
morgan D. HAMEL
LEE I. PARK
GERALD D. MORGAN
LAW OFFICES
Sould
1881-1970
STANLEY WORTH
EDWARD A. Mc CABE
K. MARTIN WORTHY
BENJ. H. SAUNDERS
FULLER HOLLOWAY
HAMEL, PARK, McCABE & SAUNDERS
1894-1973
ARTHUR PETER, JR.
HENRY ROEMER McPHEE
1776 F STREET,N.W.
GLENN L.ARCHER, JR.
IN CHICAGO, ILLINOIS 60603
WM. H. BRADFORD, JR.
WASHINGTON, D. C. 20006
JOHN W. PETTIT
HAMEL, PARK & SAUNDERS
JOHN P. BANKSON, JR.
TELEPHONE (202) 785-1234
III WEST MONROE STREET
STUART C. WHITE
TELEPHONE (312) 346-3827
JOHN G. DEGOOYER
BERNARD T. RENZY
MARK SULLIVAN III
October 8, 1974
JOHN ENRIETTO (RESIDENT PARTNER)
ANTHONY J. THOMPSON
JOHN H. SPELLMAN
A. FAXON HENDERSON, JR.
MICHAEL C. DURNEY
CHARLES M. BRUCE
STEVEN T. HAMBLIN
LAMBERT H. MILLER
COUNSEL
Philip Buchen, Esq.
The White House
Washington, D. C.
Dear Phil:
On Friday evening, November 22, the Section of Taxation
of the American Bar Association will sponsor a dinner to honor
the Tax Court on that Court's 50th Anniversary. The dinner is
also being held in connection with ceremonies earlier in the day,
sponsored by the Court itself, on the occasion of its moving
into the new Tax Court Building in the judicial center of
Washington.
As you know, the Tax Court is one of the few Federal
courts having Nationwide jurisdiction. It is also the largest
single Federal trial court, if not the largest trial court of
record of any kind in the United States, handling over 10,000
cases per year. Although originally established as a part of
the Executive Branch, it was formally recognized by the Congress
in 1969 as a part of the Judiciary, and over the 50 years of
its existence it has attained increasing stature by reason of
its outstanding work.
Is there any possibility that the President would be
willing to be the principal speaker at the dinner on November 22?
The Chairman of the Section of Taxation of ABA has asked me to
inquire, and to extend the President an invitation.
FORD is LIBRARY 038300
Philip Buchen, Esq.
October 8, 1972
Page 2
The Tax Section anticipates the presence at the dinner
of several hundred lawyers and judges from across the country.
The exact hour has not been fixed, and this can easily be adjusted
to suit the President's convenience. The Tax Section hopes
that the President will do it the honor of accepting the
invitation.
If you can find out if there is any possibility of the
President's doing this, we will write him directly.
Sincerely,
Jerry
Gerald D. Morgan
GDM/bm
LIBRARY
ABA
Thursday 11/7/74
Meeting
11/22/74
11:30 a. m.
3:20 A meeting has been scheduled with the following
people on Friday 11/22 at11:30 a. m.:
659-1330
Mr. Areeda
James Fellers, President
Laurence Walsh, President-Elect
Herbert Hoffman
FORD is LIBRARY 078878
ABA
December 16, 1974
TO:
Paul Theis
FROM: Phil Buchen
I trust the original of this letter has been
sent to you and you have the matter in
hand. However, I send you my duplicate
copy in case the matter has not otherwise
come to your attention.
If you desire any assistance from our office,
please let me know.
Attachment
PWBuchen:ed
FORD is LIBRARY 078838
AMERICAN BAR ASSOCIATION
OFFICE OF THE PRESIDENT
JAMES D. FELLERS
AMERICAN BAR CENTER
CHICAGO, ILLINOIS 60637
TELEPHONE: 312/493-0533
November 15, 1974
Honorable Gerald R. Ford
President of the United States
The White House
Washington, D.C. 20500
Dear Mr. President:
Next year will mark the 18th annual nationwide observance
of
and the beginning of the nation's Bicentennial
celebrations which will extend to the end of December, 1976.
LAW DAY '75 will be directed toward implementation of the
following selected theme:
America's Goal - Justice Through Law
More than 2,000 LAW DAY chairmen, representing some 700 bar
associations, propose to demonstrate, through the presentation
of appropriate programs, how the ideal of equal justice is suc-
ceeding and what needs to be done to strengthen the legal process
In support of their efforts would you please issue the offi-
cial LAW DAY proclamation as requested by Joint Resolution of
Congress adopted in 1966. We ask that the proclamation be put out
during January, 1975, to allow the time necessary for its wide-
spread distribution by this Association very early in the new
year.
A draft of a proposed proclamation is enclosed -- only for
convenience and as a suggestion of the type of proclamation that
has been customary.
Permit me to thank you in advance for your consideration of
this request.
JDF:
Sincerely yours,
Encl.
FORD & LIBRARY GERALD
James D. Fellers
THE WHITE HOUSE
WASHINGTON
TO:
1/10/75
Mr. Buchen
Mr. Areeda
Mr. Lazarus
Mr. Chapman
Mr. French
Mr. Roth
FROM: Bill Casselman
FYI
not BERALD R. FORD LIBRART
District of Columbia Chapter
FEDERAL BAR ASSOCIATION
(202) 63
1815 H STREET, N.W., WASHINGTON, D.C.
1974-1975
January 9, 1975
President
L. Barry Costilo
Federal Trade Commission
Dear Mr. Casselman:
President Elect
The District of Columbia Chapter is embarking upon a
Justin Dingfelder
campaign to acquaint attorneys in the Federal service of the
Federal Trade Commission
advantages of membership in the Federal Bar Association and to
promote their becoming members.
First Vice President
Mark R. Joelson
The benefits inuring to such membership are many. Partici-
Private Practice
pation in FBA activities affords an opportunity to meet attorneys
in other agencies or in private practice and to hear distinguished
Second Vice President
speakers on matters of interest to Federal lawyers. This helps
Eileen C. O'Connor
to stimulate interest in current ideas in the law and to keep us
Department of the Treasury
abreast of modern thinking in the field of jurisprudence. Members
may serve on any of the numerous committees concerned with various
General Secretary
fields of law, as well as take part in programs sponsored by the
Charles M. Farbstein
Association related to community and public service projects. There
Department of Housing and
Urban Development
are also the practical benefits of an excellent group insurance
program, as well as attractive low cost travel arrangements for
FBA groups.
Recording Secretary
Jeanus B. Parks, Jr.
Howard University Law School
We are seeking to enlist your cooperation in this campaign
by asking if you will circulate a memorandum among the members of
Treasurer
your legal staff inviting their attention to the Federal Bar
Association and the benefits to be derived from membership in the
Roscoe E. Long
Federal Communications Commissio
Association. There is enclosed a suggested memorandum to be used
for this purpose.
Delegate to National Council
It is with the view of strengthening the FBA and the position
James Clear
Department of Justice
of the Federal lawyers that we seek your assistance.
Alternate Delegate to
Sincerely yours,
National Council
James Calderwood
Department of Justice
L. Barry Coshlo
L. Barry Costilo
President
Enclosure
GERALD FORD LIBRARY
SUGGESTED MEMORANDUM FOR DISTRIBUTION AMONG
ATTORNEYS IN YOUR AGENCY
DATE
SUBJECT: Membership in the Federal Bar Association
TO: All Attorneys
The District of Columbia Chapter of the Federal Bar
Association is now conducting a campaign to acquaint
attorneys in the Federal service with the advantages
of membership in the Federal Bar Association and to
promote their becoming members. I invite your con-
sideration of the benefits to be derived from such
membership.
The Association is composed of attorneys who are now,
or who have been, in the Federal service. Participation
in FBA activities affords an opportunity to meet
attorneys in other agencies or in private practice and
to hear distinguished speakers on matters of interest
to Federal lawyers, which helps to stimulate interest in
current ideas in the law and to keep us abreast of
modern thinking in the field of jurisprudence. Members
may serve on any of the numerous committees concerned
with various fields of law, as well as take part in
programs sponsored by the Association related to community
and public service projects. There are also the practical
benefits of a group insurance programs, as well as low
cost travel arrangements for FBA groups.
Additional information with respect to membership in the
Federal Bar Association may be obtained by calling the
Association's office at 638-0252 or by contacting the FBA
representative in this agency.
AB
&
FORD
General Counse
GERALD
LIBRARY
ABA
THE WHITE HOUSE
WASHINGTON
February 10, 1975
MEMORANDUM FOR: PHILIP BUCHEN
FROM:
WARREN RUSTAND COSR
SUBJECT:
American Bar Association
Annual Meeting - August 7-14 in Montreal
Regarding the attached letter from American Bar Association
President James Fellers, it is toorlate to schedule the President's
appearance at the ABA Midyear Conferernce in Chicago later this
month.
I would appreciate your comments and recommendations on the
President addressing the 1975 Annual Meeting in Montreal. Also
attached is a copy of a NSC memo on the desirability of the
President addressing a meeting of a U.S. organization on a domestic
issue when that meeting is being held in a foreign country.
Knowing the NSC's feeling about this, would you still recommend
that the President participate in this meeting.
No, for I share
Thank you.
the concerns of
NSC.
T.W.B.
FORD & LIBRARY DERALD
AMERICAN BAR ASSOCIATION
T/D
OFFICE OF THE PRESIDENT
COMPOULE
20,
JAMES D. FELLERS
AMERICAN BAR CENTER
DATE RECEIVED
CHICAGO, ILLINOIS 60637
TELEPHONE: 312/493-0533
FEB 7 1975
February 5, 1975
BUREAU
The President
The White House
Washington, D.C.
Dear Mr. President:
It is my great pleasure and privilege as President of the
American Bar Association to invite you to speak to the members
of the largest voluntary professional association in the world.
Because of the very great pressures on your time and in
accordance with my conversations with your Appointments Secre-
tary since early in December, I wish to make our invitation as
flexible and open as possible. The Association holds two major
meetings each year. Our 1975 Midyear Meeting will be held at
the Palmer House in Chicago from Saturday, February 22 to Tues-
day, February 25. The Midyear Meeting is primarily a business
meeting and will be attended by approximately 1500 representa-
tives of the almost 200, 000 members of the ABA. It generally
receives considerable media and press attention. A special
program has been planned for Sunday afternoon, February 23.
The Chief Justice is scheduled to speak and several thousand
Chicago lawyers have been invited. This might provide the
best forum for you.
The 1975 Annual Meeting will be held in Montreal, Canada,
from August 7 to August 14. Our traditional opening assembly
will take place on Monday morning, August 11. I have extended
an invitation to Prime Minister Trudeau to address us at that
time. If it is consistent with protocol and the objectives of
the administration, we would be most pleased if you would share
the platform with the Prime Minister. Alternatives would include
our business assembly on Wednesday morning, August 13, and major
luncheons to be held on the 11, 12 and 13. In addition, we would,
of course, be pleased to arrange a special assembly for any time
during the week of the Annual Meeting which suited your convenience
The Annual Meeting will be attended by approximately 7500 lawyers,
most of them accompanied by their families.
FORD is LIBRARY 9ERALD
The President
February 5, 1975
Page Two
Although we certainly understood well the necessity of your
cancelling your appearance before our Annual Meeting last year
in Honolulu, we were nonetheless disappointed. We hope that this
year we will have the opportunity and the honor of receiving your
address. We know you appreciate the desirability of formulating
our plans as early as possible.
Sincerely yours,
James Fellers D. nevers
JDF/sco
FORD i LIBRARY DERALD
NATIONAL SECURITY COUNCIL
73
ACTION
T/D
SCHFDULE BD.
DATE RECEIVED
January 8, 1975
'AN 10 1975
MISSAGE
SPEAKERS BUREAU
OTHER
MEMORANDUM FOR:
WARREN RUSTAND
OFFICE
FROM:
Jeanne-W. Davis
ml
SUBJECT:
Presidential Appearances
Abroad Before U.S. Organizations
You have asked for our views on the desirability of the President's
addressing a meeting of a purely U.S. organization on a domestic
issue when that meeting is being heldin a foreign country.
We are aware of no previous oceasion when a President has
travelled outside the U.S. with this as his sole or even primary
purpose. On occasion, when a President has been on an
official visit as Chief of State to a- foreign country, he has agreed
to meet with an American group such as the American Chamber
of Commerce in that country, but these meetings have been
peripheral to the primary purpose of the visit.
It would be difficult for the President to travel abroad in a purely
domestic capacity without some official recognition by the host
government. Even with such a close friend as Canada, and the
fact that he would not be in the capital city, this might prove
awkward. Indeed, a visit, to Montreal, when he has not paid an
official visit to Ottawa, might disconcert the Canadians, given the
issue of French separatism.
Also, the practice of U.S. organizations holding conventions outside
the country has sometimes been criticized as expensive junketeering.
It is possible that some of this criticism might be transferred to
the President, should he decide to travel outside the country for this
purpose.
FORD is LIBRARY GERALD
on Ubscenity; Paul J. McCady, Attorney at Law; Momer C. Young, T.D.I. Ketired.
ABA
(see
THE WHITE HOUSE
WASHINGTON
Personal
March 19, 1975
Judgeohips)
ADMINISTRATIVELY CONFIDENTIAL
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS pl
SUBJECT:
Meskill Nomination
I have reviewed the entire FBI report which was submitted to the
Attorney General in response to the inquiries made by the Senate
Judiciary Committee relative to Governor Meskill's nomination.
In my opinion there is nothing contained in this report which
should preclude the appointment of Meskill to the Second Circuit.
Indeed, on balance, I believe the investigation supports the
testimony of Governor Meskill in those instances where conflicts
arose with the testimony presented by State Senator George
Gunther. There is simply no evidence that Meskill committed
any improprieties relative to the various leases under consideration.
It is my understanding that General Levi intends to forward the
report to Chairman Eastland today without comment. Although
his inclination at this point in time is to attempt to avoid any
comment whatsoever on the investigation, if pressed by the
Committee he will consider the possibility of making a very
limited comment on the report such as that noted above, viz.
"There is nothing in the report to preclude the appointment of
Governor Meskill."
It is my opinion that this nomination should not have been made at
the outset. I say this not because the ABA is infallible in its
evaluations of candidates for the bench, but because the current
system which in effect requires ABA endorsement has elevated
the level of the federal judiciary. However, the nomination
having been made, there are two reasons for continuing the
&
FORD
Administration's strong support for Governor Meskill. First,
he has become a pawn in an ABA power play and at this point in
ERALD
time his personal integrity is on the line. Second, if the President
LIMITED
is defeated on this nomination it will become an unfortunate
political item to be used against him in the next election. For
these reasons, I should think that the Attorney General would see
ADMINISTRATIVELY CONFIDENTIAL
- 2 -
fit to comment in a limited way on the outcome of this
investigation. to the extent noted above, Such a comment would
have political utility within the Senate Judiciary Committee
where there is currently a 7-7 split on Meskill with Senator
Mathias as a swing vote. It also might be useful for someone
in the Administration to smooth the feathers of Judge Walsh
by indicating that the President intends to have the ABA play
a substantial role in the selection of nominees to the federal bench.
Although responsible men can disagree over the qualifications of
Governor Meskill, it should be clear that this nomination is not
hinged on substantial questions of impropriety.
ABA
April 26, 1975
John C. Bennett
To:
Dudley Chapman
From: Eva
Attached are copies of previous
exchanges of telephone calls
from John C. Bennett.
His most recent call suggested
this new route by which to
accomplish his purpose -- so I
suggested he write a letter and
we could see to whom we should
refer his information.
GERALD LIBRARY R. FORD
ABA
TELEPHONE: 377-1086
2245 CHAMBWOOD DRIVE
JOHN C. BENNETT
P. O. BOX 9082
CERTIFIED PUBLIC ACCOUNTANT
CHARLOTTE, NORTH CAROLINA 28205
April 24, 1975
Hon. Phillip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Sir: Referring to our recent exchange of calls and correspondence:
The decision of the Justice Department that they have a conflict in their
duties in trying to do justice in this case, confirms my belief that
relief lies in the Executive Department exclusively.
I believe it would be in the government's interest and the public interest
to make a grant through the National Science Foundation or some other similar
agency to finance an independent report on this case. By independent report,
I mean a report along the standards required of corporation financial report
by the S. E. C. , antlingingx outlining without prejudice the position of
the profession of law practice in this country's operation. In 1933 Congress
realized that in order to get the public to support business by mass investment
in private enterprise, it would be necessary to rely on the accounting profession
to simply tell the truth about the financial positions of big companies, and
let the public weigh this information and invest according to their judgment.
The result was a sensational success-the economic history of the United States
since 1933 has been a portrayal of what can be achieved by mass public support
of legitimate business--from withine widows and orphans to amateur speculators
to organized big business in making investments. The key to this success has
been independent reports by C.P.A.'s laying the cards on the table.
What I propose to do is roughly the same thing in law and justice that was
achieved in business and financial sixles circles.
I will mention one specific example which is typical of the case: The Supreme
Court has leaned over backward to guarantee due process of law to a bootlegger
(Lipke vs. Lederer 259-US-557), Myx while leaning the other way to rule that
the need for public revenue justifies suspension of due process in numerous cases
concerning the Sect. 7421 Actually 7421 (a) is unconstitutional prima facie.
This country has a tradition for maintaining due process come hell or high water
(see Milligan and Merryman during Givil War). A very important point to make
in this respect that suspension of due process to make revenue collection
more efficient has exactly the opposite effect, because it gives the legal
profession a foothold to obstruct revenue collection which would otherwise be
made through simple due process of law. That is the main lesson from my case.
On this one point, there are literally billions of dollars in public revenue
at stake every year. Courthouses all over the country at are loaded with
tax liens that have never been collected, but which could be collected, if the
Internal Revenue would proceed with due process of law.
I propose simply that I be awarded a grant of $50,000 to prepare a full length
independent auditor's type report along S.E.C. lines without sentiment or editorial
comments about law practice and the effect on government.
IBRARY
TELEPHONE: 377-1086
2245 CHAMBWOOD DRIVE
JOHN C. BENNETT
P. O. BOX 9082
CERTIFIED PUBLIC ACCOUNTANT
CHARLOTTE, NORTH CAROLINA 28205
Page 2
It would be more or less a continuation of the The Federalist, which as you
know was the combined work of John Jay, James Madison, and Alexander Hamilton.
Those genthement did a good job of selling the constitution to the public in
1787, but they stopped short when they had gotten what they MARR wanted--ratification
of the constitutions. What has long been needed is a report of how it worked
after it was put into operation.
This report would be addressed to whatefer agency is determined to have juris-
diction, and would be sprivileged, subjedt to judgment of the executive officer.
WITHOUT
The subject is so broad and comprehensive that going into details. I will take
up some space at this point to say that it would grossly upfair to single out
any one prospective attorney for me. The other lawyers would hound him
to death so he could not practice law at all. I have to be careful not to be
seen visiting any lawyer's office to spare the lawyer this ordeal; no matter
what the nature of my visit is, other lawyers conclude that the lawyer I visit
or talk to in public is taking my case, and the lawyer is hounded with questions
for days afterward.
The key issue now before the Supreme Court, I believe, is that the
case generates questions of propriety in bar and court communications, about
which lawyers and judges have a mutual interest and should be encouraged
to communicate, they should also communicate with the principal-me, and that
is what the courts have neglected to do.
The Supreme Court will act on # this issue one way of or the other on what is
now before them, and the result cannot be predicted at this time-they may until
they get a better case.
All I did was to make recommendations to my stat clients to observe the letter
of the law, which clashed with bar principles which lawyers
honestly and sincerely believe in, and therein lies the present state of affairs.
I- believe it will be in the public interest to for the government to support
a factual report on the principles involved--there is never any excuse
to suspend due process, and it is more profitable for the taxpayers to maintain
due process come hell or high water.
It would not be incorrect to say that I am prejudiced. However, I am still a
C.P.A. dedicated to reporting the facts. You might say that I am like the
Irish in World War II--(and the U.S. Navy in 1940) -I an neutral on the side
of due process.
I mention a grant under the National Science Foundation--that is
one possibility. There are undoubtedly other possibilities
your jurisdiction.
WEBALD within LIBRARY
I appreciate your consideration.
Sincerely,
John C. Bennett
John C. Bennett
Thursday 3/13/75
4:20 John Bennett called.
I suggested he talk with Dudley Chapman; checked
with Chapman and he said it was a matter for the
Justice Dept.
Mr. Bennett said he had talked at length with Mark Grunwald
in Justice.
He said he could sum up on a page what he felt should
be done. I suggested he do that and send it to
Leon Ulman at Justice, and send a copy to Mr. Buchen.
He plans to do that.
FORD & LIBRARY 03RALD
2nd
Bennett,
John
THE WHITE HOUSE
WASHINGTON
2/13/75
Refer this to Leon VLmcur
at Justice - 4 phone recember. call to him,
gining him - U D.C.
202-739-2051
Era,
O/D
Irefreed m Benett
to Justin
Namey
LIBRARY GERALD B. FORD
to of Tuesday 2/11/75 Bennett John
11:20 John Bennett called from Charlotte, N.C.
(704) 377-1086
He indicates that on the record of the Supreme
Court right now there is a question about Article
3 of the Constitution and the 10th amendment.
He said he expects they will put it on the official
hearing docket whether or not regulation of law practice
belongs under Article 3 or the 10th amendment. On that
subject he has written a January 4 letter probably in
Correspondence somewhere outling the details of this.
It is a broad subject and very important. In order to get
permission to bring this before the Supreme Court officially,
he said he has had to take a lot of punishment.
He said that for the last 200 years all lawyers in practice
are regulated at the state level. According to his position,
he has arrived at after a long punishment which has been
very dellitating--question arises which will be presented
to the Supreme Court in the regular course of business
whether or not the Supreme Court should take jurisdiction
over law practice under article 3. Law practice has been
regulated by the American Bar Association, which is a private
concern -- not official. W/ Question whether any court in the
United States can tell the bar association that you're practicing
law illegally. That question has not been brought up -- they
assume that the Constitutional Convention intended the law
practice to be at the state level. According to the Articles
of Confederation was to centralize control over law. Otherwise
the union wouldn't have any power. You're getting into position
that I can present this position to the Supreme Court.
Said he has had to undergo 25 years of a criminal trial, which
you might say is the longest on record. Whole generation
of lawyers has gone by and the bar association at the national
level and state level consider him their mortal enemy because
they want to keep it at the state level.
FORD i LIBRARY 0ERALD
-2-
He said the Chief Justice has expressed himself that it ought
to be at the national level and should be on the order of the
English standard. Mr. Bennett indicates he has the case
that will give the Chief Justice what will be needed.
He said in taking the punishment, he's had a "hell of a licking."
Would like to talk with someone about this.
FORD & LIBRARY GERALD
April 30, 1975
Letters attaching copies of the President's
proclamation concerning Law Day, USA 1975
were sent to the following:
The Honorable Harold R. Tyler
Deputy Attorney General
The Honorable Edward H. Levi
Attorney General
The Honorable Edward Hutchinson
House of Representatives
The Honorable Peter Rodino, Jr.
House of Representatives
The Ebnorable Roman L. Hruska
United States Senate
The Honorable James O. Eastland
United States Senate
LIBRARY GERALD R. FORD
THE WHITE HOUSE
WASHINGTON
April 30, 1975
Dear Harold:
On behalf of the President, I am sending you a copy of his
proclamation concerning Law Day, U.S.A., 1975.
You will be gratified, I am sure, that the President has taken
this action to encourage recognition of the need for reaffirming
the devotion of the American people to our system of law and
justice.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
The Honorable Harold R. Tyler
Deputy Attorney General
Department of Justice
Washington, D.C. 20530
Enclosure
LIBRARY GERALD ? FORD
amin
THE WHITE HOUSE
based
WASHINGTON
March 31, 1975
MEMORANDUM FOR:
ROD HILLS
BILL CASSELMAN
FROM:
PHILIP BUCHEN
P.W.B.
SUBJECT:
Law Day -- May 1, 1975
The Scheduling Office has asked me whether our office
would propose a luncheon meeting by the President in
recognition of this day to which would be invited the
Chief Justice, President of the American Bar Associa-
tion, and such other jurists and lawyers as we may
propose up to a reasonably small number.
Please let me have your thoughts and suggestions.
FORD is LIBRARY OF
CHAIRMAN
Ben C. Fisher
AMERICAN BAR ASSOCIATION
1100 Connt ricut Ave. N.W
Washington, DC 20036
CENTER FOR ADMINISTRATIVE
VICE-CHAIRMAN
Louis J Hector
1785 MASSACHUSETTS AVE., N.W. WASHINGTON, D.C. 20036 (202) 797-7050
First National Bank Building
Miami. FL 33131
SECRETARY-
BUDGET OFFICER
Franklin M. Schultz
May 29, 1975
1776 F Street. NW
Washington, DC 20006
DIRECTORS
Frederick Davis
Columbia. MO
Hon Henry J. Friendly
New York. NY
Victor G. Rosenblum
Chicago, IL
Harold L. Russell
Atlanta, GA
Bernard Schwartz
New York, NY
Ashley Sellers
Washington, DC
EX-OFFICIO
Dear Sir:
Robert A. Anthony
Washington, DC
Marion Edwyn Harrison
Washington, DC
Because our first offering of a seminar
Louis H Mayo
on "Legal Drafting Techniques" was so heavily
Washington, DC
oversubscribed and well received, we are
CENTER DIRECTOR
Milton M. Carrow
offering it again this fall, beginning
1785 Massachusetts Ave., N W.
Washington, DC 20036
September 23, 1975.
Enclosed are materials describing the
nature of the course, its faculty, schedule and
admission application form. Also appended is a
syllabus. The faculty will be supplemented by
specialists in the particular area under
consideration. They will be attorneys and law
professors of the highest professional caliber.
Sincerely;
Milton M. Carrow
Enclosures
FORD i LIBRARY GERALD
The Center for Administrative Justice is an activity of the ABA Section of Administrative Law and is affiliated
with The George Washington University. Washington. D.C
ABA
July 24, 1975
I send my warmest greetings to the members of the
American Bar Association as you hold your Ninety-
Eighth Annual Meeting.
As we approach the celebration of our Bicentennial,
you can reflect with pride on the fact that members
of your profession played such a key role in the
Revolutionary Era that led to our Independence and
to the formation of our democratic system of govern-
ment. You can also take great satisfaction from the
important leadership you have provided as an organi-
zation in our national growth and development for
nearly half of our country's history.
Heartened by your inspiring record of public service,
your fellow citizens look to your wisdom and experi-
once in helping to overcome the even more complex
problems presently before our modern state and
Federal legal systems. I am sure that in the course
of these sessions you will have the opportunity to ex-
amine the challenges we face and to propose concrete
ways of dealing with them. I know that the results of
your deliberations will do much to advance the national
goals we share, and that this valuable exchange of ideas
will further enhance the contributions of your profession
to the we of competisty.
Sent to: (Air Mail - Special Delivery)
Mr. James D. Fellers
President
American Bar Association
1155 East 60th Street
Chicago, Illinois 60037
GRF:Hasek:jme
cc: D.E. Downton/R. Nessen/P. Buchen(FYI)/E.Hasek/CF
EVENT: AUGUST 11 (Montreal)
Requested by Organization
FORD is LIBRARY 07V838
THE AMERICAN BAR ASSOCIATION
ANNOUNCES THE REMOVAL OF ITS WASHINGTON OFFICES
TO
1800 M STREET, NORTHWEST
WASHINGTON, D. C. 20036
ON OR ABOUT
AUBUST 1, 1975
(202) 331-2200
FORD i LIBRARY GERALD
ARA
THE WHITE HOUSE
WASHINGTON
August 12, 1975
MEMORANDUM FOR:
JAMES SCHLESINGER
BRENT SCOWCROFT
JIM CONNOR
RODERICK HILLS
JIM WILDEROTTER
FROM:
PHILIP BUCHEN
T.W.B.
Recently I sent you pages 11-18 of an address
prepared by Attorney General Levi to be delivered
before the American Bar Association on August 13.
This is the portion of the address which deals
with warrantless electronic surveillance, but I
neglected to designate the source of the material
I sent you. So that you may have the complete
address, I am attaching a copy of the full text.
Attachment
FORD & LIBRARY GERALD
fice
AMERICAN BAR ASSOCIATION
AB#
OFFICE OF THE PRESIDENT
LAWRENCE E. WALSH
AMERICAN BAR CENTER
CHICAGO, ILLINOIS 60637
September 29, 1975
TELEPHONE: / 947-4042
TO:
Participants in the Common Faith and Common Law Program
FROM:
Lawrence E. Walsh
I thought it might be useful to summarize our plans, as of this
date, with respect to the "Common Faith and Common Law" program which
will be part of the 1976 Annual Meeting of the American Bar Associa-
tion. The meeting will be held in Atlanta, Georgia, from August 7
to August 13, 1976.
In working with a number of individuals in designing the sub-
stantive aspect of the 1976 Annual Meeting, I have directed our
efforts at three basic goals. First, I believe that our meeting
should be of the highest professional quality. The ABA Annual Meet-
ing is one of the principal events in which the legal profession of
the United States, in a collective sense, is thrust into the public
view. It represents an opportunity to reassert our position as a
learned profession, characterized by serious purpose and dignity.
Second, the two hundredth anniversary of the political inde-
pendence of the United States is an appropriate time to reflect on
the contribution of lawyers to the formation of the nation as well
as the traditions we share with our English brothers. Increasingly,
historians are coming to appreciate that although the American
Revolution brought about political separation, the ideological
foundations of our liberty rests in the common law. Our national
independence is closely bound up with our interdependence with the
British peoples and our shared concepts of law and fairness. It
is my hope that the programatic content of the Annual Meeting will
reflect these ideas.
Third, the two themes of our common heritage of beliefs and
of our divergent institutional development through two hundred years
of political separation offer an exceptional opportunity to develop
useful comparative insights into a number of very contemporary prob-
lems which result from the application of law to modern urban soci-
ety. The exploration of this comparative analysis may increase our
capacity to cope with those problems.
To implement these plans, the Association has asked Harry W.
Jones, the Cardozo Professor of Jurisprudence at Columbia University
Law School to direct a program of scholarly research and to edit the
papers so produced. Professor Jones has made considerable progress
in contacting and engaging scholars as well as refining the details
of the entire program.
FORD
GERALD
LIBRARY
Participants in the Common Faith
and Common Law Program
September 29, 1975
Page Two
For convenience, the papers commissioned to examine the histori-
cal aspects of the total study have been designated as Part I papers
while those emphasizing the comparative aspects of contemporary topics
have been labeled Part II papers.
The specific topics and authors of Part I papers are:
The Legal Profession in the United States on the Eve of the
Revolution - Richard B. Morris
The Colonies, Parliament and the Crown - the Constitutional Issue
- Philip B. Kurland
The Declaration of Independence - Julian P. Boyd
The Reception of the Common Law in the United States - Harry W.
Jones
In addition, Professor Jones will provide introductory material
on the rule of law from the British and American point of view.
With the gracious assistance of the Bar Council and the Law
Society, the following have been selected to prepare Part II papers
for the topics indicated:
The Role of the Courts in Contemporary Society
The Honorable Mr. Justice Templeman
The Honorable Roger J. Trayner
The Legal Profession: Organization, Discipline and Professional
Responsibility
Peter Webster, Q.C.
John Bowron, Esquire
The Honorable Erwin N. Griswold
Litigation Today: Cost, Delay and Other Problems
Andrew Leggatt, Q.C.
Max Williams, Esquire
Professor Maurice Rosenberg
The Press and the Law
David Hirat, Q.C.
Lord Goodman
Edward L. Barrett, Jr.
Security, Fairness and Regularity in Administrative Proceedings
John Vinelott, Q.C.
Professor Jerre S. Williams
BERALD FORD LIBRARY
Participants in the Common Faith
and Common Law Program
September 29, 1975
Page Three
Central Problems of Criminal Justice
Richard Du Cann, Q.C.
David Napley, Esquire
Professor Francis A. Allen
The Lord Chief Justice, the Lord Chancellor, the Master of the
Rolls and the Attorney-General have indicated their interest in par-
ticipating in the program. In addition a number of distinguished
barristers and solicitors will also be present and involved.
The largest part of the Annual Meeting programming is under-
taken by the sections of the Association. Several sections have
indicated interest in having the Association's British guests partic-
ipate in their respective programs. The Association will encourage
and support this effort.
While the final schedule is not set, considerable preliminary
thinking has taken place and a tentative schedule has been proposed.
Under the tentative schedule, the first major event in the "Common
Faith and Common Law" program will take place on the afternoon of
Saturday, August 7. The Part I papers will be presented at that
time.
On Sunday morning, August 8, the Association will hold its tra-
ditional Prayer Breakfast. On Sunday afternoon, the principal cere-
monial event will take place. It will be a special cathedral cere-
mony in which it is hoped the leaders of the British Judiciary and
their American counterparts will participate.
The Opening Assembly will be held on Monday morning, August 9.
An Assembly Luncheon will follow at which the Lord Chief Justice is
tentatively scheduled to speak. The first session devoted to Part II
papers will be held on Monday afternoon with additional sessions on
Tuesday morning and afternoon and on Wednesday afternoon. Assembly
luncheons will be held on Tuesday and Wednesday and the Business
Assembly will take place Wednesday morning.
The Annual Dinner of the Association will take place Wednesday
evening. The Lord Chancellor has agreed to speak.
The lawyers of Atlanta through the Atlanta Host Committee have
offered their homes for the accommodation of our British guests. In
addition, on Monday night arrangements are being made for a number of
private dinners which will give our guests and our Atlanta hosts the
opportunity to share an evening.
I am pleased with our progress to date and appreciate the efforts
of all who have contributed to this effort.
LEW/cm
GERALD FORD LIBRARY
ABA
October 1, 1975
Dear Judge Walsh:
Philip Buchen forwarded, together with his own per-
sonal endorsement, your invitation to the President
to appear before the Annual Meeting of the American
Bar Association which will be held in Atlanta,
August 5-11, preferably on August 1.
The President was pleased to have this opportunity
but it is not possible to make a commitment to you
at present due to the many variables in the Presi-
dent's schedule for next year. We will carry it
forward for careful consideration at the final
determination of the August 1976 calendar. In the
meantime, please be assured of the President's deep
appreciation for your thoughtfulness.
Sincerely,
Warren S. Rustand
Appointments Secretary
to the President
The Honorable Lawrence E. Walsh
President
American Bar Association
1155 East 60th
Chicago, Illinois 60637
CC: Phil Buchen
2 cys Nancy Gemmell.
ce d inc. to mary Hidner
FORD is LIBRARY GERALD
WSR:rg
THE WHITE HOUSE
WASHINGTON
February 6, 1976
MEMORANDUM FOR:
WILLIAM NICHOLSON
THROUGH:
PHIL BUCHEN
P.
FROM:
KEN LAZARUS
SUBJECT:
Invitation to the President to address
Federal Bar Association annual
convention September 15-17
This is in response to your memorandum of January 19 forwarding
an invitation to the President to address the annual convention
of the Federal Bar Association on September 15-17 in
Washington.
Within the legal community, the Federal Bar Association is
a third or fourth echelon bar association which would normally
not command the attendance of the President. However, if there
would be some political utility in the President's appearance,
we would have no objection.
FORD is LIBRARY
ABA
THE WHITE HOUSE
WASHINGTON
(see
April 3, 1976
Dear Mr. Piliero:
As you requested, I have finally been able to obtain
from the White House Photographic Office prints of the
photograph taken when you and Mr. Ide were here on
Friday, March 5, to deliver a copy of your Summary
Report on the Volunteer Disaster Assistance Provided
by the Young Lawyers Section of the American Bar
Association.
You and the Section of Young Lawyers are to be
commended on the admirable work you are doing. I
very much appreciated meeting you and receiving the
report on your program.
I wish you much success for the future and send my best
regards.
Sincerely,
Thelip W. Buchen Buchen
Counsel to the President
Mr. Daniel J. Piliero, II
Chairman-Elect
Young Lawyers Section
American Bar Association
500 North Capitol Street
Washington, D. C. 20549
FORD & 076835 LIBRARY
ABA
THE WHITE HOUSE
(see
WASHINGTON
March 30, 1976
Walsh)
Dear Ed:
The President has asked me to express to you, the
Chief Justice, the Chairman of the State Chief Justices
and the American Bar Association his sincere regrets
that he will not be able to attend the Conference on the
Causes of Popular Dissatisfaction With the Administration
of Justice.
I am hopeful that my schedule will permit my attendance
at the Conference. At present, my plans are to be in
St. Paul on April 8 and 9, and I look forward to seeing
you again at that time.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
Mr. Lawrence E. Walsh
President
American Bar Association
One Chase Manhattan Plaza
New York, New York 10005
FORD is LIBRARY
1
see
PWB trip
THE WHITE HOUSE
8/8-10/76
WASHINGTON
+
August 6, 1976
Pres. messages
To you --- Judge Walsh, fellow members of the American
Bar Association, and distinguished guests --- I send
warmest greetings and best wishes on the occasion of
this 1976 Annual Meeting.
The function of the law in our nation depends not only
upon the devotion and skills of lawyers but on the
strength and breadth of belief in the law itself. Our
system of government is based upon belief in the law
as the keeper of domestic tranquility, the guardian
of personal liberties, and the defender of equal
justice for all.
Although the Declaration of Independence has already
been given wide attention during this Bicentennial
year, not enough attention has been given to features
of this historic document that demonstrate how deeply
the founders of our nation felt about the need for a
system of law in which people could have faith.
The system of law that evolved from their debate
was not a departure from the legal traditions of the
nation against which the American colonists were re-
volting. Despite their stinging repudiation of the
British Crown, the framers of the Declaration did not
condemn the English common law or the laws which were
in effect to govern the affairs of the thirteen American
colonies. Rather, they condemned the failures and weak-
nesses of the Crown-appointed judges in America to
administer the common law. They objected to the refusal
of King George III to let legislators and governors of
the colonies adopt additional laws "wholesome and
necessary for the public good.
FORD : OERALD LIBRARY
2
2
Once these imperial obstacles to the administration
of justice and to the orderly process of lawmaking
were removed, the Americans of two centuries ago put
their faith in a legal system that even today has
much in common with English law.
It is most appropriate for the ABA to have chosen
"Common Faith and Common Law" as the theme for this
meeting. The theme speaks of our faith in the Anglo-
American system of law and justice which we have long
shared with our British counterparts.
I commend the American Bar Association for its con-
tinuing efforts to improve the standards and advance
the competence of the legal community. These efforts
serve well to build public trust in the legal profession
and thereby strengthen the common faith in our system
of law and justice.
Herold R. Ford
FORD is LIBRARY OFRALD
M
August 7, 1976
MEMORANDUM FOR: MR. HARTMANN'S OFFICE
FROM:
EVA DAUGHTREY
As we discussed, Mr. Buchen has O.K.'d
the changes made by Mr. Hartmann and
would appreciate it if this could be
finalized and signed by the autopen.
He will be going to Atlanta tomorrow
for the ABA meeting and will plan to
take the President's message with him
to read, so it would be appreciated
if we could have the message returned
to us as soon as possbble.
Thanks so much.
FORD of LIBRARY QERALD
4
DRAFT PRESIDENTIAL STATEMENT TO BE READ AT THE 1976
AMERICAN BAR ASSOCIATION MEETING, AUGUST 9, 1976
To you Judge Walsh, fellow members of the American
Bar Association, and distinguished guests - I send warmest
greetings and best wishes on the occasion of this 1976 Annual
Meeting.
The function of the law in our nation depends not only
upon the devotion and skills of lawyers but on the strength and
breadth of belief in the law itself. Our system of government
belief in
is based upon the law as the keeper of domestic tranquility,
the guardian of personal liberties, and the defender of equal
justice for all.
Although the Declaration of Independence has already
been given wide attention during this Bicentennial year, not
enough attention has been given to features of this historic
document that demonstrate how deeply the founders of our nation
felt about the need for a system of law in which people could
have faith.
that evolved
The system of law was not a departure from the legal
traditions of the nation from which the American colonists
were revolting. Despite their stinging repudiation of the
British Crown, the framers of the Declaration did not condemn
the English common law or the laws which were in effect to
govern the affairs of the thirteen American colonies. Rather,
they condemned the failures and weaknesses of the Crown-
appointed judges in America to administer the common law.
FORD : LIBRARY SERVID
-2-
They objected to the refusal of King George III to let
legislators and governors of the colonies adopt additional
laws "wholesome and necessary for the public good. "
Once these imperial obstacles to the administration
of justice and to the orderly process of law-making were
removed, the Americans of two centuries ago put their faith
in a legal system that even today has much in common with
English law.
It is most appropriate for the ABA to have chosen
"Common Faith and Common Law" as the theme for this meeting.
The theme speaks of our faith in the Anglo-American system of
law and justice which we have long shared with our British
counterparts.
I commend the American Bar Association for its con-
tinuing efforts to improve the standards and advance the
competence of the legal community. These efforts serve well
to build public trust in the legal profession and thereby
strengthen the common faith in our system of law and justice.
Dated August , 1976
orel the
at the White House
Washington, D. C.
LIBRARY GERALD ? FORD
170s fuling
American Bar Assoc.
Monday 7/12/76
August 5-11, 1976
10:15 Concerning the American Bar Association meeting in
Atlanta from August 5 to 11, Mrs. Buchen said you
and she would be going if they want you to go.
Said it wasn't definite whether the President could attend --
whether you were invited to speak -- or whether you were
to deliver a message for the President if he couldn't attend.
Have you discussed this with Rustand and/or Lawrence Walsh?
Suggested you would need to know which day would be best
and would most likely want to go one day and come back the
next.
And could make arrangements to see some
friends who live there -- if you knew when you would possibly
LIBRARY BERALD ? FORD
be going.
7
THE WHITE HOU
WASHINGTON
THE & WELL THE ELICE
HONO
October 1, 1975
OK
Dear Judge Walsh:
Philip Buchen forwarded, together with his own pet
sonal endorsement, your invitation to the President
to appear before the Annual Meeting of the American
Bar Association which will be held in Atlanta,
August 5-11, preferably on August 9.
The President was pleased to have this opportunity
but it is not possible to make a commitment to you
at present due to the many variables in the Presi-
lent's schedule for next year. We will carry it
forward for careful consideration at the final
determination of the August 1976 calendar. In the
meantime, please be assured of the President's deep
appreciation for your thoughtfulness.
Sincerely,
Warren S. Rustand
Appointments Secretary
to the President
The Honorable Lawrence E. Walsh
President
American Bar Association
1155 East 60th
Chicago, Illinois 60637
cc; Phil Buchen
1 caps nancy Genmell
FORD & GERALD LIBRARY
Mary Kidner
THE WHITE HOUSE
WASHINGTON
September 25, 1975
MEMORANDUM FOR:
WARREN RUSTAND
FROM:
PHILIP BUCHEN
T.
Attached is the original of a letter addressed
to the President from Judge Lawrence E. Walsh
inviting the President to the Annual Meeting
of the American Bar Association to be held in
Atlanta on August 5-11, 1976.
The letter was hand-delivered to me by
Judge Walsh. I call attention to the fact
that this event may coincide with the
Republican Convention, but that you should
give the matter careful consideration and
advise Judge Walsh of what the prospects
are and when a final decision could be made.
He tells me that August 9 would be the
preferred date during the course of the meeting.
I would appreciate receiving a copy of your
reply to the Judge.
As you remember, the speech scheduled by
Vice President Ford at the 1974 meeting had
to be cancelled, and he declined the 1975
meeting in Montreal because it involved out-of-
the country problems.
Attachment
FORD i LIBRARY 07V839
9
AMERICAN BAR ASSOCIATION
OFFICE OF THE PRESIDENT
AWRENCE E. WALSH
AMERICAN BAR CENTER
CHICAGO. ILLINOIS 60637
TELEPHONE 312/947-4042
September 24, 1975
The President of the United States
The White House
Washington, D. C. 20500
Dear Mr. President
The Annual Meeting of the American Bar Association will
be held in Atlanta, Georgia, from August 5 to August 11,
1976. It is my privilege and pleasure as President of the
Association to invite you to deliver the principal address
at our Opening Assembly at 9 a.m. on Monday, August 9th.
We anticipate that nine thousand lawyers and members of
their families will attend our Meeting. Our Bicentennial
theme is "Common Faith and Common Law" and the substantive
program will examine and emphasize the shared legal and
ethical tradition underlying the Anglo-American concept of
justice. We will focus on the interdependence of this tradi-
tion. I know that I can speak for all the members of your
profession in expressing the hope that you, as our President
and our most distinguished lawyer, will be able to do this.
Sincerely yours,
Lawrence E. Walsh
LEW/js