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Supreme Court - General
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4520910
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Supreme Court - General
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Supreme Court of the United States. (02/02/1790 - )
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The original documents are located in Box 62, folder "Supreme Court - General" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
Digitized from Box 62 of the Philip Buchen Files
at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
9.19.74
TO: Phil Buchen
For Your Information:
V
For Appropriate Handling:
4
Eva- d this
RDC.
Robert D. Linder
we Can file.
J.
Supreme Court of the United States
Mashington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
September 16, 1974
RL
My dear Mr. President:
I have the honor to inform you that this Court
will open the October 1974 Term on October 7, 1974,
at 10:00 a. m., as provided by law, and will continue,
pursuant to our present calendar, until all matters
before the Court, ready for argument, have been decided.
Respectfully,
bren Burger
The President
The White House
Washington, D.C. 20500
Supreme Court of the United States
POSTAGE AND FEES PAID
U. S. SUPREME COURT
Mashington, D. 4. 20543
The President
The White House
Washington, D.C. 20500
CHAMBERS OF
THE CHIEF JUSTICE
Supreme
Count
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.
SERIAL 1. FORD LIBRARY
Supreme
Court
TELEPHONE: 377-1086
JOHN C. BENNETT
2245 CHAMBWOOD DRIVE
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. , mailbaging 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 winhington 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 sirles 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), Myck 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(a). 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
K. FOAD LIBRARY
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.
TELEPHONE: 377-1086
2245 CHAMBWOOD DRIVE
JOHN C. BENNETT
P. O. BOX 9082
CERTIFIED PUBLIC ACCOUNTANT
CHARLOTTE, NORTH BERAL CAROLINA 28205
LIBRARY
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 MKXX 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 whatever agency is determined to have juris-
diction, and would be aprivileged, 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 acktanney 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 comminications, about
which lawyers and judges have a mutual interest and should be allook 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 it 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 WATH
they get a better case.
All I did was to make recommendations to my shat 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 am neutral on the side
of due process.
I mention a grant under the National Science Foundation--that is only
one possibility. There are undoubtedly other passbilix possibilities within
your jurisdiction.
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.
GERAL R. FORD LIBRARY
Bennett,
John
THE WHITE HOUSE
WASHINGTON
2/13/75
Refer This to Leon VLmcus
at Justic- - G phone call to him,
gining him - D.C. member.
202-739-2051
Era,
O/D
Irefered m Benett
to Justine.
Namey
SEAL R. FORD LIBRARY
Tuesday 2/11/75 Bannett
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 deilitating--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. WI 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.
SEALE FORD LIBRARY
-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.
SEAL R. FORD LIBRARY
Si
THE WHITE HOUSE
WASHINGTON
November 16, 1976
Nell,
Mr. Buchen would like the attached
letter from Justice Burger given
to the President.
Thanks.
Shirley Key
Supreme Court of the United States
Mashington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
November 9, 1976
Dear Mr. President:
The events of November 2 brought back vividly to our minds your
call to me in the early morning hours of August 9, 1974, while Vera and
I were in Holland, having just arrived there for a rest. On that precipi-
tous return trip we reflected on the state of the nation and the unparalleled
circumstances in which you were to assume the responsibilities of the
Presidency. I confess that, as we flew back to Washington, it was clear
that no American, since Lincoln, had ever been called upon to take such
enormous burdens under such melancholy conditions. Mr. Johnson had
the advantage of a unity forged out of a common tragedy, as did Mr.
Truman. You were confronted with massive problems and a country
divided, disillusioned, and confused.
In the two short years since then you accomplished what seemed
at the outset almost impossible. Faith and trust in government have been
restored due to confidence in your own integrity. You achieved that while
extricating us from Vietnam, bringing inflation under manageable control,
reducing unemployment, cooling off tensions in this troubled world, and
maintaining peace.
Success in less than all of these would have earned you a high
place, and in the perspective of history this will be universally acknowl-
edged. As it is, nearly 39 million Americans attested this on November 2.
As we recalled the anxiety we felt flying back to Washington that
night in August 1974, we realized the debt we and all Americans owe you
for your calm, steadfast, and courageous leadership in one of the dark
periods of American history. For this Vera and I, joined by Wade and
Margaret, record our thanks to you, to Betty, and to your family, for
you have borne the brunt and brought the nation to a condition that paves
the way for your successor.
We wish you all the best in the years ahead.
Respectfully and sincerely,
BERALD R. FORD LIBRARY
bancer G-Burger
The President
The White House
Supreme Court of the United States
Washington, D. Cf. 20543
For filing
CHAMBERS OF
THE CHIEF JUSTICE
October 4, 1976
Dear Phil:
Many thanks for the photographs from the
President's dinner for Queen Elizabeth.
They will indeed be a valuable addition to
the "collection." "
Cordially,
bane
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D.C.
THE WHITE HOUSE
Buiger Namen (Hm
WASHINGTON
September 29, 1976
Dear Warren:
The White House Photographer's Office
has passed on to me three delightful
photographs taken of you. I assume
that the occasion was the State
dinner in honor of Queen Elizabeth.
I know your collection of memorabilia
must be growing exceedingly large, but
I hope you will find the enclosures
worthy additions to your collection.
Sincerely,
This
Philip W. Buchen
Counsel to the President
The Honorable Warren E. Burger
Chief Justice
The Supreme Court of the
United States
1 First Street, N. E.
Washington, D. C. 20543
Enclosures
SEAL k. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 14, 1976
MEMO FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Attachment
The Chief Justice's Office advises me that
these letters are routinely provided to
the President, the Vice President, the
President Pro Tempore and Speaker as a
courtesy. Normally, responses are not
in order.
The Letter can be forwarded to Central Files.
Attachment
Sherley
OK.
P.
FORD & LIBRARY giveze
Supreme Court of the United States
Washington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
September 7, 1976
RL
Dear Mr. President:
I have the honor to inform you that this Court
will open the October 1976 Term on October 4, 1976,
at 10:00 a. m., as provided by law, and will continue,
pursuant to our present calendar, until all matters
before the Court, ready for argument, have been
disposed of or decided.
Until recent years, on opening day, i.e.,
October 4, 1976, the Court formally convened but
immediately adjourned for one week, prior to hearing
arguments, for a week of conferences to pass on the
petitions and jurisdictional statements filed during
July, August and September. However, with the
increased workload it became necessary to assemble
one week prior to the official opening, i.e., September 27,
for daily conferences, thereby enabling us to begin hearing
arguments on October 4, the official opening of the Term.
Respectfully, Comm { Burger
The President
The White House
Washington, D.C. 20500
FORD OF LIBRARY
Supreme Court of the United States
Suprese
Mashington, D. q. 20543
CHAMBERS OF
THE CHIEF JUSTICE
August 16, 1976
Dear Phil:
Thank you for your note of August 6
enclosing the two photographs.
They are going in my photograph library.
Each is an outstanding reminder of two memorable
evenings.
WEB
Cordially,
The Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
FORD 1 LIBRARY
Supreme Court
August 18, 1976
Dear Mary:
Enclosed are the tickets for
Jackie and Gary Maloney for the
White House Tour at 8:45 a.m.
on Tuesday, September 14.
I hope you will come over and
visit us --- and see your "old
haunts" again!
Sincerely,
Eva Daughtrey
Mrs. Mary Burns
United States Supreme Court
1 First Street, N. E.
Washington, D. C. 20543
FORD in LIBRARY SERVICE
NON TRANSFERABLE
(PLEASE DO NOT DETACH)
Jackie NAME OF VISITOR Malory
NAME OF VISITOR Jackie maloray
REQUESTED BY:
DATE 9/14/76
REQUESTED BY:
9/14/76
DATE
MICHAEL J. FARRELL
TIME 8:45am
MICHAEL J. FARRELL
NO. 496
NO. 496
Gerall R. Ford
PRESIDENT OF THE UNITED STATES
EAST GATE
NON TRANSFERABLE
(PLEASE DO NOT DETACH)
Gary NAME OF VISITOR Maloney 9/14/96
REQUESTED NAME OF VISITOR BY: Dary Maloney
DATE 9/14/76
REQUESTED BY:
MICHAEL J. FARRELL
DATE
MICHAEL J. FARRELL
TIME 8:45am
EAST GATE
NO. 497
NO. 497
Gerall R. Ford
PRESIDENT OF THE UNITED STATES
GENAU FORD LIBERNET
Supreme
Court
THE WHITE HOUSE
WASHINGTON
August 6, 1976
Dear Warren:
Enclosed is a photograph of some
exceedingly joyful men taken by the
White House photographer. Only the
Englishman seems a bit dour.
I hope you'll find it to be a delight-
ful reminder of your evening at the
British Embassy.
Also, I enclose another photo taken
at the President's dinner in honor
of the Judiciary.
Sincerely,
Thilg Philip W. Buchen
Counsel to the President
The Honorable Warren E. Burger
Chief Justice
United States Supreme Court
1 First Street, NE.
Washington, D.C. 20543
Enclosures
UNITED FORD LIBRARY
RICARDO THOMAS
Official Photograph
The White House
9JY 76 Bp599-31A
FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
Bar feling
June 24, 1976
MEMORANDUM FOR:
PHIL BUCHEN
ED SCHMULTS
PAUL O'NEILL
DAVID LISSY
Brune
FROM:
BOBBIE KILBERG
Attached is a very short summary of the Supreme Court decision
today in National League of Cities V. Usery. We will have copies
of the decision tomorrow.
Attachment
FORD of LIBRARY
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
STATES
JUN 24 1976
MEMORANDUM TO THE SECRETARY
UNDER SECRETARY
SOLICITOR OF LABOR
ASSISTANT SECRETARY FOR ESA
ADMINISTRATOR OF THE WAGE-HOUR
DIVISION
Re: National League of Cities vs. Usery
The Supreme Court held today that the Fair Labor Standards
Act cannot constitutionally be applied to those State and
local government activities which provide integral parts
of the government services which the States and their
political subdivisions have traditionally afforded. The
Court expressly found that the following activities were
among those to which the Act cannot validly apply:
schools, hospitals, fire prevention, police protection,
sanitation, public health, parks and recreation. It
indicated, however, that the Act could apply to the
State's operation of a railroad.
The Department of Labor is currently studying the Court's
decision to determine what additional activities may
still be subject to the minimum wage and overtime require-
ments of the Act. For example, the opinion does not
specifically discuss such activities as State liquor
stores and utility companies. In addition, the decision
makes no express reference to the Age Discrimination in
Employment Act (which was extended to State and local
government employees by the 1974 Amendments to the Fair
Labor Standards Act), the Equal Pay Act (which is part
of the Fair Labor Standards Act) and the child labor
provisions of the Fair Labor Standards Act. The Depart-
ment is studying the decision to determine its implications
with respect to these fields of federal regulation.
GENALE R. FORD LIBRARY
-2-
The Court's decision was written by Justice Rehnquist who was
joined by Chief Justice Berger, and by Justices Stewart and
Powell. Justice Blackmun provided the fifth vote necessary
for a majority, His separate concurring opinion was based
on his understanding that the Court's opinion "does not outlaw
federal power in areas such as environmental protection" where
the federal interest is demonstrably greater and where state
compliance is essential to the protection of the federal
interest.
Justice Brennan wrote a dissenting opinion in which Justices
White and Marshall joined. Justice Stevens wrote a separate
dissenting opinion.
Carm ann Claim
Carin Ann Clauss
Associate Solicitor
SEAL R. FORD LIBRARY
Aup. ct.
THE WHITE HOUSE
WASHINGTON
June 16, 1976
MEMORANDUM FOR: DOUG BENNETT
FROM:
PHIL BUCHEN
T.
SUBJECT:
Executive, Legislative &
Judicial Salaries Commission
The Chief Justice advises me that his appointees
to this Commission will be Chesterfield Smith
of Florida, who is the former President of the
ABA, and Charles Duncan, who is Dean of the
Howard Law School.
I concur in having the President select for his
three appointees the following:
Peter G. Peterson, to be chairman
Lane Kirkland
Marina Whitman
The Chief Justice would like to coordinate the
announcement he makes of his appointees with the
announcement made of the President's appointees.
He would be glad to make his announcement just
after that of the President or just before, depend-
ing on the President's wishes.
I hope we can conclude this matter quickly.
CC: Jim Lynn
SERVICE it. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
June 16, 1976
Dear Warren:
As promised, I am enclosing a copy of the President's
schedule covering significant public events from
July 1 through July 5. Other events not on the schedule
are being considered.
I am sure that the President would welcome coordination
between your plans and his so that, between the two of
you, additional events could be covered. I have talked
to Mr. Milton Mitler, who is in charge of the bicentennial
arrangements for the White House, and he would welcome
any inquiries or suggestions you may have. His phone
number is 456-2800.
Sincerely,
This
Philip W. Buchen
Counsel to the President
The Honorable Warren E. Burger
Chief Justice
United States Supreme Court
1 First Street, N. E.
Washington, D. C. 20543
Enclosure
BERAU R. FORD LIBRARY
July 1, Thursday
11:00 a.m.
Dedicate the National Air & Space Museum.
The muscum is located on the Mall along
Independence Avenue between 4th & 7th Streets.
July 2, Friday
9:00 p.m.
Deliver address at the National Archives at
a ceremony in honor of the Declaration of
Independence.
July 3, Saturday
8:30 p.m.
Honor America program at the Kennedy Center.
July 4, Sunday
7:30 a.m.
Attend early church service at either St. John's
on Lafayette Square of Christ Church in
Alexandria.
8:00 a.m.
Depart for Valley Forge, Pennsylvania.
9:00 a.m.
Greet wagonmasters at Wagon Train Encampment at
Valley Forge Park and accept Pledges of Rededica-
tion which were signed by hundreds of thousands
of Americans and collected by the wagon trains
enroute to Valley Forge.
9:40 a.m.
Depart for Philadelphia.
10:00 a.m.
Special bicentennial program at Independence
Hall in Philadelphia.
12:15 p.m.
Depart for New York City.
2:00 p.m.
Review Operation Sail 1976 and the International
Naval Review.
9:30 p.m.
of
FORD View Happy Birthday, USA fireworks program from
03
the Truman Balcony of the White House.
RARY
July 5, Monday
10:00 a.m.
Depart for Charlottesville, Virginia.
11:00 a.m.
Speak following naturalization coremonics on the
steps of Monticello, the home of President
Jefferson.
Sup C.A.
THE WHITE HOUSE
WASHINGTON
June 11, 1976
MEMORANDUM FOR:
JIM CANNON
FROM:
PHIL BUCHEN
P.
You suggested that I examine the recent Supreme Court
decision issued June 7, 1976, in the case of
Washington V. Davis. This case involved the validity
of certain testing procedures used by the District of
Columbia in selecting applicants to take the District's
training course for positions in the police department.
The evidence showed that a disproportionately high
number of negro applicants were kept from the training
program because of failure to achieve the necessary
minimum scores on the tests.
One of the issues before the Supreme Court was whether
the Circuit Court of Appeals had properly reversed the
trial court in its finding that there had been no viola-
tion of the equal protection rights of petitioners under
the Fifth Amendment because there had been no evidence
that the test was a purposely discriminatory device.
The Supreme Court reversed the Court of Appeals, saying
in part at pages 8 and 9 as follows:
"The central purpose of the Equal
Protection Clause of the Fourteenth Amendment
is the prevention of official conduct
discriminating on the basis of race. It is
also true that the Due Process Clause of the
Fifth Amendment contains an equal protection
component prohibiting the United States from
invidiously discriminating between individuals
or groups. Bolling V. Sharpe, 347 U.S. 497
(1954) But our cases have not embraced the
proposition that a law or other official act,
without regard to whether it reflects a racially
discriminatory purpose, is unconstitutional
solely because it has a racially disproportionate
impact."
*
*
*
*
SERVICE FORD LIBRARY
2
"The school desegration cases have
also adhered to the basic equal protection
principle that the invidious quality of a
law claimed to be racially discriminatory
must ultimately be traced to a racially
discriminatory purpose. That there are
both predominantly black and predominantly
white schools in a community is not alone
violative of the Equal Protection Clause.
The essential element of de jure segregation
is 'a current condition of segregation
resulting from intentional state action
the differentiating factor between de jure
segregation and so-called de facto segregation
is purpose or intent to segregate. Keyes
V. School District No. 1, 413 U. S. 189, 205,
208 (1973) "
Although this language has no bearing on the extent of
the remedy in cases where unconstitutional acts are
found, it does suggest that any remedy which goes
beyond overcoming the present effects of prior pur-
poseful discrimination is not constitutionally mandated.
This would support our view that the legislation which
we propose to have enacted would not run into consti-
tutional problems. However, as is made clear from the
separate concurring opinion of Justice Stevens, a
racially discriminatory purpose may validly be inferred
from evidence of a discriminatory impact. In his
opinion, he writes on page 2, as follows:
"My point
is to suggest that the
line between discriminatory purpose and dis-
criminatory impact is not nearly as bright,
and perhaps not quite as critical, as the reader
of the Court's opinion might assume. I agree,
of course, that a constitutional issue does not
arise every time some disproportionate impact
is shown. On the other hand, when the dis-
proportion impact is as dramatic as in Gomillion
or Yick Wo, it really does not matter whether
the standard is phrased in terms of purpose or
effect."
STATE FORD LIBRARY
CC: Ed Schmults
Dick Parsons
Bobbie Kilberg
2/25/76
Katie brought
this by for
mr. Bto
check
its ok
the originals
asseting retained
in - Central diles
THE WHITE HOUSE
WASHINGTON
Dear Mr. Chief Justice:
Your letter of January 28 with which you forwarded
Judge Griffin B. Bell's letter of resignation has
been received. I share your concern over the loss
of proficient members of the Federal Judiciary. It
is with special regret, therefore, that I am accepting
Judge Bell's resignation, to be effective at twelve
noon, March 1, 1976, as he requested.
Sincerely,
The Honorable Warren E. Burger
The Chief Justice
of the United States
Washington, D. C. 20543
GREAT R. FORD LIBRARY
Thursday 1/29/76
10:10 Mary Burns in the Chief Justice's office wanted
to get this to you right away.
The announcement is to be made in Georgia this morning.
SEAL R. FORD LIBRARY
Supreme Court of the United States
Mashington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
January 28, 1976
Dear Phil:
Shortly after you left, Judge Bell's clerk
reached here and delivered his letter of resignation
addressed to the President and I hand it to you for
delivery.
I appreciate your taking the time to visit
on the problem that is so crucial to the judiciary as
manifested, among other things, by Judge Bell's
resignation.
Cordially,
beoz
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
By Hand
STATE R. FORD LIBRARY
Supreme Court of the United States
Mashington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
THE PRESIDENT HAS SEEN
January 28, 1976
Dear Mr. President:
I regret to be the bearer of bad news in the form
of delivering to you the letter of resignation of Judge Griffin
B. Bell of the United States Court of Appeals, Fifth Judicial
Circuit, effective March 1, 1976. Judge Bell follows an
old tradition of asking the Chief Justice to deliver his resig-
nation to the President.
Judge Bell informed me of his plans a few days
ago and I wish I had been able to dissuade him. He did not
want to articulate obligations to his family as a reason for
his resignation but that is essentially the basis of his deci-
sion. He was undoubtedly one of the outstanding men
appointed by President Kennedy and has fulfilled everything
that was expect ed of him on the basis of his career as a
lawyer. I venture to say it will not be easy to find a man
of his quality even in a state like Georgia which has a
splendid bar.
Wana Sincerely 5 Bunger
The President
The White House
1. FORD
THE WHITE HOUSE
WASHINGTON
Dear Judge Bell:
I have your letter of January 28, and it is with deep
regret that I accept your resignation as United States
Circuit Judge for the Fifth Circuit, effective, as you
requested, at twelve noon on March 1, 1976.
In doing so, I want to express my appreciation for
your distinguished contributions to the well-being of
our fellow citizens as a member of the Federal
Judiciary since 1962. You have served our Nation
with skill and dedication, and I hope you will always
look back with pride on your achievements.
You have my best wishes for every success and
happiness in your return to private life.
Sincerely,
The Honorable Griffin B. Bell
Judge
United States Court of Appeals
for the Fifth Circuit
Post Office Box 845
Atlanta, Georgia 30301
SEALS R. FORD LIBRARY
UNITED STATES COURT OF APPEALS
FIFTH JUDICIAL CIRCUIT
January 28, 1976
THE PRESIDENT HAS SEEN
GRIFFIN B. BELL
#
CIRCUIT JUDGE
P. O. BOX 845
ATLANTA, GEORGIA 30301
Dear Mr. President:
I hereby resign as a United States Circuit
Judge and as a member of the United States Court of
Appeals for the Fifth Circuit, effective at twelve
noon on March 1, 1976.
I have served since October 6, 1961. The
intervening years were filled with challenges for the
federal courts; indeed with challenges to and changes
in government on all levels. A revolution over social
change was accommodated in law and in no small measure
in the federal courts. We have moved now to a period
when the law is in a process of necessary adjustment
and stabilization.
I have an abiding faith in our federal courts
and particular pride in the court on which I have been
privileged to serve. I leave with the satisfaction
and reward which one gains from being able to render
needful public service.
Although returning to the private sector and
to full citizenship, you may be assured that I will have
a continuing interest in the administration of justice.
Yours sincerely,
B. Beee
The President
The White House
Washington, D. C.
SEALS E. FORD THEMST
Supreme
THE WHITE HOUSE
WASHINGTON
April 16, 1976
Dear Warren:
You were very thoughtful to call be about
the death of Judge Hastie. As a result,
the enclosed statement was issued by the
President.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
The Honorable Warren E. Burger
Chief Justice
United States Supreme Court
1 First Street, N. E.
Washington, D. C. 20543
FORD LIBRARY
FOR IMMEDIATE RELEASE
APRIL 15, 1976
Office of the White House Press Secretary
THE WHITE HOUSE
STATEMENT BY THE PR ESIDENT
I am deeply saddened to learn of the untimely death of senior Judge William
H. Hastie, former Chief Judge of the U.S. Court of Appeals for the Third
Circuit. His death is a great loss to the Nation, the Judiciary, and the
Judicial Conference Advisory Committee on Appellate Rules, where he served
as Chairman.
Judge Hastie's outstanding abilities have long graced the federal judiciary.
His life in public office as a lawyer, as Dean of Howard University Law School
and as the first black Federal Judge have left an indelible imprint on the
Nation.
#
=#
#
u. YORD 1
fell
6:00 p.m.
Tuesday, February 10, 1976
Chief Justice Burger called and left the following
message:
The enrolled bill H.R. 6184 has been sent
over to OMB. This is a "sleeper" that has
direct bearing on the whole problem of
judicial and related salaries. It is, in
effect, an "end run" around Congressional
and administrative policies. It would in
application increase the salary of bank-
ruptcy judges from $31,500 a year to
$37,800 a year and totally distort the
relationship of these salaries to Federal
Magistrates and all Federal judges.
The Judicial Conference of the U. S.
passed a resolution strongly urging that
this legislation not be passed.
We have now written a letter to the OMB
in response to their request advising
them of the Conference action.
In practical effect, this means that we
are suggesting a veto of the bill, although
this is not directly the function of the
Judicial Conference.
I will be glad to talk to you tomorrow
about this.
The material the Chief Justice gave you about
a week ago -- one on a retiring judge and the
other on a deceased judge -- was incorrect. He
is sending over the corrected material and we
should receive it within a couple of days.
BEALTH FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
previd) ct.
February 3, 1976
MEMORANDUM FOR:
DOUGLAS BENNETT
FROM:
PHIL BUCHEN T.
On Monday, February 2, the President met briefly with
Chief Justice Burger along with Jim Lynn and me. The
Chief Justice brought up the subject of the desirability
to have members of the Commission on Executive, Legisla-
tive and Judicial Salaries appointed promptly. This
Commission was established under Section 225 of the
Postal Revenue and Salaries Act of 1967 (2 U.S.C. Sec.
351 et seq.) and is to be appointed at four year
intervals to make recommendations to the President on
pay rates for Senators, Representatives, federal judges
and certain officers in the Executive branch. The Act
calls for appointment of a reconstituted Commission this
year in time to permit its recommendations to be
considered by the President and included with the
President's budget to be submitted to the Congress in
January 1977. Three members are to be appointed by
the President, two by the Chief Justice, two by the
President of the Senate and two by the Speaker of the
House.
The President expressed his willingness to join with
the other appointing officers in making these appoint-
ments fairly soon so that the Commission would have
ample time for its deliberations.
The Commission must be appointed from persons outside
of Government and it is desirable that they be
distinguished persons who will command the respect
of the public and the confidence of all three branches
of Government.
In order to achieve a balanced Board, it appears
desirable that there be coordination between the
appointing officers before their respective
selections are made and announced.
After the meeting, the Chief Justice handed me
SEALS FORD JUBRARY
information from Who's Who in America which is
- 2 -
attached. The names marked are ones that he
thought should be among the persons to be
officers. considered by one or more of the appointing
Attachment
CC: Richard Cheney
Jim Lynn
GEALA E. FORD LIBRARY
Meeting with
the Chief Justice
1/28/76 -- 1:00 p.m.
EXECUTIVE, LEGISLATIVE, AND JUDICIAL SALARIES CMN of SQUIH CAROLINA 59705/86
EXEC LEGISL JUD SALARIES WAE FA 01 B PATTON ARCH
U DIST OF COL TNA 72/12/11 73/06/30 G1 01 2
EXEC LEGISL JUD SALARIES WAE FA 01 0 FACKARD DAVID
R CALIF ORNIA
72/12/11 73/06/30
G 1 01
a
EXEC LEGISL JUD SALARIES WAE FA 01 0 LYONS JOHN H
ener
U MISSOURI
72/12/11 73/06/30
T1 01
1
THE CONGRESS
§ 352
CHAPTER 11.-COMMISSION ON EXECUTIVE, LEGISLA-
TIVE, AND JUDICIAL SALARIES [NEW]
Stat. 1194.
Hstory. For legislative his-
Sec.
Sec.
Jose of Pub.L. 91-510, see
351. Establishment of Commission.
355. Administrative support services.
Cong. and Adm.News, D.
352. Membership of Commission; ap-
356.
Functions of Commission.
pointment; Chairman; term of
357.
Report to the President.
office; vacancies; compensation;
358.
Recommendations of the President
expenses; allowances.
to Congress.
existing basic pay rates
353. Executive Director; additional per-
359.
Same; effective date.
sonnel; detail of personnel of
360.
Same; effect on existing law and
other agencies.
prior recommendations.
354. Use of United States mails by Com-
361.
Publication of recommendations.
all convert, as of the
mission.
im gross rate, the rate
§ 351. Establishment of Commission
There is hereby established a commission to be known as the Commis-
date, was fixed at a
sion on Executive, Legislative, and Judicial Salaries (hereinafter referred
to as the "Commission").
pay was payable by
Pub.L. 90-206, Title II, § 225 (a), Dec. 16, 1967, 81 Stat. 642.
84 Stat. 1194.
Effective Date. Section effective on
Index to Notes
Dec. 16, 1967, see section 220(a) (1) of
story. For legislative his-
Pub.L. 90-206, set out as a note under
Generally 1
ose of Pub.L. 91-510, see
section 3110 of Title 5, Government Or-
Cong. and Adm.News, p.
ganization and Employees.
Legislative History: For legislative his-
tory and purpose of Pub.L. 90-206. see
1. Generally
1967 U.S.Code Cong. and Adm.News, p.
Taxpayer lacked standing to maintain
action attacking congressional pay raise
basic pay rates
2258.
effected by this chapter. Richardson V.
Kennedy, D.C.Pa.1970, 313 F.Supp. 1282.
Affirmed 91 S.Ct. 868, 401 U.S. 901, 27 L.
position, or class of
Ed.2d 800.
for which is disbursed
or any maximum or
§ 352. Membership of Commission; appointment; Chairman; term
yee, position, or class,
of office; vacancies; compensation; expenses; allowances
louse resólution; and
(1) The Commission shall be composed of nine members who shall
basic rate with respect
be appointed from private life, as follows:
(A) three appointed by the President of the United States, one
emed to refer, in lieu
of whom shall be designated as Chairman by the President;
thich an employee re-
(B) two appointed by the President of the Senate;
effective date of this
(C) two appointed by the Speaker of the House of Representa-
tatutory provision or
tives; and
I after such date.
(D) two appointed by the Chief Justice of the United States.
4 Stat. 1195.
(2) The terms of office of persons first appointed as members of the
story. For legislative his-
Commission shall be for the period of the 1969 fiscal year of the Fed-
se of Pub.L. 91-510, see
eral Government, except that, if any appointment to membership on
Cong. and Adm.News, p.
the Commission is made after the beginning and before the close of
such fiscal year, the term of office based on such appointment shall be
for the remainder of such fiscal year.
trued to-
(3) After the close of the 1969 fiscal year of the Federal Govern-
y for the making of
ment, persons shall be appointed as members of the Commission with
Ing the pay for, any
respect to every fourth fiscal year following the 1969 fiscal year. The
e Clerk of the House
terms of office of persons so appointed shall be for the period of the
fiscal year with respect to which the appointment is made, except that,
f, or reduce the pay
if any appointment is made after the beginning and before the close
e Clerk of the House.
of any such fiscal year, the term of office based on such appointment
Stat. 1195.
shall be for the remainder of such fiscal year.
Section effective imme-
(4) A vacancy in the membership of the Commission shall be filled
moon on Jan. 3, 1971, see
in the manner in which the original appointment was made.
Pub,L. 91-510, set out as
(5) Each member of the Commission shall be paid at the rate of
Ion 72a of this title.
tory. For legislative his-
$100 for each day such member is engaged upon the work of the Com-
18 of Pub.L. 91-510, see
mission and shall be allowed travel expenses, including a per diem
ong. and Adm.News, P.
allowance, in accordance with section 5703 (b) of Title 5, when engaged
in the performance of services for the Commission.
Pub.L. 90-206, Title II, § 225 (b), Dec. 16, 1967, 81 Stat. 642.
Effective Date. Section effective on tion 3110 of Title 5, Government Or-
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
Pub.L. 90-206, set out as a note under sec-
1 U.S.C.A.-17
257
1974 P.P.
2 § 353
THE CONGRESS
§ 353. Executive Director; additional personnel; detail of personnel
of other agencies
Such review
(1) Without regard to the provisions of Title 5, governing appoint-
mining and
ments in the competitive service, and the provisions of chapter 51 and
(i) the
subchapter III of chapter 53 of such title, relating to classification and
among
General Schedule pay rates, and on a temporary basis for periods cover-
and
ing all or part of any fiscal year referred to in section 352 (2) and (3) of
(II)
this title
position
(A) the Commission is authorized to appoint an Executive Direc-
chapter
tor and fix his basic pay at the rate provided for level V of the Ex-
classifh
ecutive Schedule by section 5316 of Title 5; and
Pub.L. 90-201
Pub.L. 91-371
(B) with the approval of the Commission, the Executive Director
References De
is authorized to appoint and fix the basic pay (at respective rates not
44, referred to
in excess of the maximum rate of the General Schedule in section
in the revision
ered by seed
5332 of Title 5) of such additional personnel as may be necessary
Printing and
to carry out the function of the Commission.
The Federal
referred to is
(2) Upon the request of the Commission, the head of any department,
Aug. 14, 1964,
agency, or establishment of any branch of the Federal Government is
and 403 there
867 of Title 105
authorized to detail, on a reimbursable basis, for periods covering all or
tion 7443 of
part of any fiscal year referred to in section 352 352(2) (2) and (3) of this title,
135, 173, 213,
1970 Amend
any of the personnel of such department, agency, or establishment to as-
375 added par.
sist the Commission in carrying out its function.
Effective
Amendment
Pub.L. 90-206, Title II, § 225 (c), Dec. 16, 1967, 81 Stat. 643.
Effective Date. Section effective on section 3110 of Title 5, Government Or-
§ 357.
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
The Comm
Pub.L. 90-206, set out as a note under
of each rev.
tions within
§ 354. Use of United States Mails by Commission
section 356
The Commission may use the United States mails in the same manner
report shall
and upon the same conditions as other departments and agencies of the
but not later
United States.
which the
Pub.L. 90-206, Title II, § (d), Dec. 16, 1967, 81 Stat. 643.
Pub.L. 90-21
Effective Date. Section effective on section 3110 of Title 5, Government Or-
Effective
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
Pub.L. 90-206, set out as a note under
Dec. 16, 1967
Pub.L. 90-200
§ 355. Administrative support services
§ 358.
The Administrator of General Services shall provide administrative sup-
The Presh
port services for the Commission on a reimbursable basis.
the Congres
Pub.L. 90-206, Title II, § 225 Dec. 16, 1967, 81 Stat. 643.
mendations
mendations
Effective Date. Section effective on Dec. 3110 of Title 5, Government Organization
16, 1967, see section 220(a) (1) of Pub.L. and Employees.
visable, for
90-206, set out as a note under section
graphs (A)
this section
§ 356. Functions of Commission
11 of Title
The Commission shall conduct, in each of the respective fiscal years re-
Pub.L. 90-1
ferred to in section 352 (2) and (3) of this title, a review of the rates of
Effective IV
pay of-
Dec. 16, 1967.3
Pub.L. 90-203
(A) Senators, Members of the House of Representatives, and the
Resident Commissioner from Puerto Rico;
(B) offices and positions in the legislative branch referred to in
Transmitted
sections 136a and 136a-1 of this title, sections 42a and 51a of Title
published In
31, sections 162a and 162b of Title 40, and section 39a of Title 44;
1969, 34 F.R.
Public Law
(C) justices, judges, and other personnel in the judicial branch
16, 1967 Ithie,
Commission
referred to in sections 402 (d) and 403 of the Federal Judicial Sal-
and Judiciali
ary Act of 1964;
is required)
the President
(D) offices and positions under the Executive Schedule in sub-
rates of pay
tives, Federal
chapter II of chapter 53 of Title 5; and
and other
(E) the Governors of the Board of Governors of the United
er officials
and judicial
States Postal Service appointed under section 202 of Title 39.
that the PM
submitted b3
258
port of the
THE CONGRESS
2 § 358
detail of personnel
Such review by the Commission shall be made for the purpose of deter-
governing appoint-
mining and providing-
of chapter 51 and
(i) the appropriate pay levels and relationships between and
0 classification and
among the respective offices and positions covered by such review,
; for periods cover-
and
352 (2) and (3) of
(ii) the appropriate pay relationships between such offices and
positions and the offices and positions subject to the provisions of
chapter 51 and subchapter III of chapter 53 of Title 5, relating to
an Executive Direc-
classification and General Schedule pay rates.
level V of the Ex-
Pub.L. 90-206, Title II, § 225 (f), Dec. 16, 1967, 81 Stat. 643, amended
Pub.L. 91-375, § 6(a), Aug. 12, 1970, 84 Stat. 775.
Executive Director
References in Text. Section 39a of Title
within 1 year after Aug. 12, 1970, on date
respective rates not
44, referred to in par. (B), was repealed
established therefor by the Board of Gov-
Schedule in section
in the revision of Title 44 and is now cov-
ernors of the United States Postal Service
ared by section 303 of Title 44, Public
and published by it in the Federal Regis-
S may be necessary
Printing and Documents.
ter, see section 15(a) of Pub.L. 91-375, set
The Federal Judicial Salary Act of 1964,
out as a note preceding section 101 of Ti-
referred to in par. (C), is Pub.L. 88-426,
tle 39. Postal Service.
of any department,
Aug. 14, 1964, 78 Stat. 400. Sections 402(d)
Effective Date. Section effective on
eral Government is
and 403 thereof are classified to section
Dec. 16, 1967, see section 220(a) (1) of
867 of Title 10. section 68 of Title 11, sec-
Pub.L. 90-206, set out as a note under
iods covering all or
tion 7443 of Title 26, and sections 5, 44,
section 3110 of Title 5, Government Or-
and (3) of this title,
135, 173. 213, 252, 603, and 792 of Title 28.
ganization and Employees.
a 1970 Amendment. Par. (E). Pub.L. 91-
Legislative History. For legislative his-
establishment to as-
375 added par. (E).
tory and purpose of Pub.L. 91-375, see
# Effective Date of 1970 Amendment.
1970 U.S.Code Cong. and News, p.
Amendment by Pub.L. 91-375 effective
3649.
at. 643.
itle 5. Government Or-
§ 357. Report to the President
mployees.
The Commission shall submit to the President a report of the results
of each review conducted by the Commission of the offices and posi-
tions within the purview of subparagraphs (A), (B), (C), and (D) of
section 356 of this title, together with its recommendations. Each such
in the same manner
report shall be submitted on such date as the President may designate
and agencies of the
but not later than January 1 next following the close of the fiscal year in
which the review is conducted by the Commission.
tat. 643.
Pub.L. 90-206, Title II, § 225 (g), Dec. 16, 1967, 81 Stat. 644.
Title 5, Government Or-
Effective Date. Section effective on section 3110 of Title 5, Government Or-
Employees.
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
Pub.L. 90-206, set out as a note under
§ 358. Recommendations of the President to Congress
administrative sup-
The President shall include, in the budget next transmitted by him to
asis.
the Congress after the date of the submission of the report and recom-
81 Stat. 643.
mendations of the Commission under section 357 of this title, his recom-
mendations with respect to the exact rates of pay which he deems ad-
Government Organization
visable, for those offices and positions within the purview of subpara-
graphs (A), (B), (C), and (D) of section 356 of this title. As used in
this section, the term "budget" means the budget referred to in section
11 of Title 31.
ective fiscal years re-
Pub.L. 90-206, Title II, § 225 (h), Dec. 16, 1967, 81 Stat. 644.
review of the rates of
Effective Date. Section effective on section 3110 of Title 5, Governmental Or-
Dec. 16, 1967, see section 220(a) (1) of
ganization and Employees.
Pub.L. 90-206, set out as a note under
resentatives, and the
SALARY RECOMMENDATIONS FOR 1969 INCREASES
branch referred to in
Transmitted to Congress Jan. 15, 1969,
42a and 51a of Title
ommendations with respect to the exact
published in the Federal Register Feb. 15,
1969, 34 F.R. 2241.
rates of pay he deems advisable for
39a of Title 44;
Public Law 90-206, approved December
those offices and positions covered by
the law. The President's recommenda-
the judicial branch
16, 1967 [this chapter], established the
Commission on Executive, Legislative,
tions become effective 30 days following
Federal Judicial Sal-
transmittal of the budget, unless in the
and Judicial Salaries. The Commission
is required to make recommendations to
meantime other rates have been enacted
the President, at 4-year intervals, on the
by law or at least one House of Con-
tive Schedule in sub-
rates of pay for Senators, Representa-
gress has enacted legislation which spe-
lives, Federal judges, Cabinet officers
cifically disapproves of all or part of the
and other agency heads, and certain oth-
recommendations.
rnors of the United
er officials in the executive, legislative,
At the request of the President, the
and judicial branches. The law requires
first report of the Commission was sub-
of Title 39.
that the President, in the budget next
mitted to him in December 1968. The re-
submitted by him after receipt of a re-
port has been considered by the Presi-
port of the Commission, set forth his rec-
dent and, in accordance with section
259
2 § 358
THE CONGRESS
TI
225(h)
of
Public
Law
90-206,
approved
lative. and judicial offices and positions
(B) any prior recome
December 16, 1967, 81 Stat. 614 [this sec-
within the purview of subsection (f) of
tion], the President recommends the fol-
that section:
fect under this chapter.
lowing rates of pay for executive, legis-
Pub.L. 90-206, Title II, § 22
A. Senators. Members of the House of Representatives, and the Resident Com-
missioner from Puerto Rico
$42,500
Effective Date. Section effec
B. For other offices and positions in the legislative branch, as follows:
Dec. 16. 1967, see section 220(a)
Comptroller General of the United States
$42.500
Pub.L. 96-206, set out as a note un
Assistant Comptroller General of the United States
$40,000
tion 3110 of Title 5, Government
General Counsel of the United States General Accounting Office, Li-
zation and Employees.
brarian of Congress. Public Printer, Architect of the Capitol
$38,000
Deputy Librarian of Congress, Deputy Public Printer, Assistant Architect
Index to Notes
of the Capitol
$36,000
Generally 1
C. For justices, judges, and other personnel in the judicial branch, as follows:
Chief Justice of the United States
$62,500
Associate Justices of the Supreme Court
$60,000
Judges, Circuit Court of Appeals; judges, Court of Claims; judges,
§ 361. Publication of rec
Court of Military Appeals; judges, Court of Customs and Patent
Judges, Appeals District Courts; judges, Customs Court: judges, Tax Court of
$42,500
The recommendations of th
the United States; Director of the Administrative Office of the United
ed in the Statutes at Large
States Courts
$40,000
Deputy Director of the Administrative Office of the United States Courts;
be printed in the Federal R
commissioners, Court of Claims; referees in bankrupety, full-time
Regulations.
(maximum)
$36,000
Referees in bankruptcy, part-time (maximum)
$18,000
Pub.L. 90-206, Title II, § 2:
D. For offices and positions under the Executive Schedule in subchapter II of
Effective Date. Section effec
Chapter 53 of title 5, United States Code [sections 5311-5317 of Title 5,
Dec. 16, 1967, see section 220(a)
Government Organization and Employees]:
Pub.L. 90-206, set out as a not
Positions at level I
$60,000
Positions at level II
$42,500
Positions at level III
$40,000
Positions at level IV
$38,000
Positions at level V
$36,000
CHAPTER 12.-C(
§ 359. Same; effective date
Sec.
381. Definitions.
(1) Except as provided in paragraph (2) of this section all or part
382. Notice of contest.
(as the case may be) of the recommendations of the President transmitted
(a) Filing of notice.
(b) Contents and form of
to the Congress in the budget under section 358 of this title shall become
(c) Service of notice; 1
service.
effective at the beginning of the first pay period which begins after the
383. Response of contestee.
thirtieth day following the transmittal of such recommendations in the
(a) Answer.
budget; but only to the extent that, between the date of transmittal of
(b) Defenses by motion
answer.
such recommendations in the budget and the beginning of such first pay
(c) Motion for more defin
ment.
period-
(d) Time for serving ans
(A) there has not been enacted into law a statute which estab-
service of motion.
lishes rates of pay other than those proposed by all or part of such
384. Service and filing of pape
than notice of cont
recommendations,
(a) Modes of service.
(b) Filing of papers with
(B) neither House of the Congress has enacted legislation which
(c) Proof of service.
specifically disapproves all or part of such recommendations, or
385. Default of contestee.
386. Deposition.
(C) both.
(a) Oral examination.
(b) Scope of examination
(2) Any part of the recommendations of the President may, in accord-
(c) Order and time of ta
ance with express provisions of such recommendations, be made operative
timony.
(d) Officer before whom t
on a date later than the date on which such recommendations otherwise
may be taken.
are to take effect.
(e) Subpena.
(f) Taking of testimony
Pub.L. 90-206, Title II, § 225 (i), Dec. 16, 1967, 81 Stat. 644.
or his agent.
(g) Conduct of examinal
Effective Date. Section effective on section 3110 of Title 5, Government Or-
cordation of testim
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
tation of objection
Pub.L. 90-206, set out as a note under
rogatories.
(h) Examination of depo
witness; signature
§ 360. Same; effect on existing law and prior recommendations
ness or officer; use
sition.
387. Notice of depositions.
The recommendations of the President transmitted to the Congress im-
(a) Time for service; for
mediately following a review conducted by the Commission in one of the
(b) Testimony by stipul
(c) Testimony by affida
fiscal years referred to in section (2) and (3) of this title shall be held
for filing.
and considered to modify, supersede, or render inapplicable, as the case
may be, to the extent inconsistent therewith-
§ 381. Definitions
(A) all provisions of law enacted prior to the effective date or
For purposes of this chaj
dates of all or part (as the case may be) of such recommendations
(a) The term "election"
(other than any provision of law enacted in the period specified
to choose a Representative
in paragraph (1) of subsection (i) of this section with respect to
of the United States, but do
such recommendations), and
or convention of a political
260
ESS
THE CONGRESS
2 § 381
and judicial offices and positions
(B) any prior recommendations of the President which take ef-
n the purview of subsection (f) of
section:
fect under this chapter.
Pub.L. 90-206, Title II, § 225 Dec. 16, 1967, 81 Stat. 644.
atives, and the Resident Com-
$42,500
Effective Date. Section effective on 1. Generally
ive branch, as follows:
Dec. 16. 1967, see section 220(a) (1) of
Taxpayer lacked standing to maintain
$42,500
Pub.L. 90-206, set out as a note under sec-
action attacking congressional pay raise
new States
$40,000
tion 3110 of Title 5, Government Organi-
effected by this chapter. Richardson V.
neral Accounting Office, Li-
zation and Employees.
Kennedy, D.C.Pa.1970, 313 F.Supp. 1282.
Steet of the Capitol
$38,000
Ne Printer, Assistant Architect
Index to Notes
Affirmed 91 S.Ct. 868, 401 U.S. 901, 27 L.
Ed.2d 800.
$36,000
Generally 1
he judicial branch, as follows:
$62,500
$60,000
S. Court of Claims; judges,
§ 361. Publication of recommendations
nirt of Customs and Patent
$42,500
Court: judges, Tax Court of
The recommendations of the President which take effect shall be print-
istrative Office of the United
ed in the Statutes at Large in the same volume as public laws and shall
$40,000
e of the United States Courts;
be printed in the Federal Register and included in the Code of Federal
in bankrupety, full-time
Regulations.
$36,000
711)
$18,000
Pub.L. 90-206, Title II, § 225 (k), Dec. 16, 1967, 81 Stat. 644.
Schedule in subchapter II of
Effective Date. Section effective on section 3110 of Title 5, Government Or-
[sections 5311-5317 of Title 5,
Dec. 16, 1967, see section 220(a) (1) of ganization and Employees.
Pub.L. 90-206, set out as a note under
$60,000
$42,500
$40,000
$38,000
$36,000
CHAPTER 12.-CONTESTED ELECTIONS [NEW]
Sec.
Sec.
381. Definitions.
388. Subpena for attendance at deposi-
(2) of this section all or part
382. Notice of contest.
tion.
ons of the President transmitted
(a) Filing of notice.
(a) Issuance.
(b) Contents and form of notice.
(b) Time, method and proof of
n 358 of this title shall become
(c) Service of notice; proof of
service.
period which begins after the
service.
(c) Place of examination.
383. Response of contestee.
(d) Form.
such recommendations in the
(a) Answer.
(e) Production of documents.
veen the date of transmittal of
(b) Defenses by motion prior to
389.
Officer and witness fees.
answer.
390. Penalty for failure to appear, tes-
the beginning of such first pay
(c) Motion for more definite state-
tify or produce documents.
ment.
391. Certification and filing of deposi-
(d) Time for serving answer after
tions.
Into law a statute which estab-
service of motion.
(a) Sealing of papers; deposit
proposed by all or part of such
384. Service and filing of papers other
with Clerk.
than notice of contest.
(b) Notification of filing.
(a) Modes of service.
(c) Copy of deposition to parties
(b) Filing of papers with clerk.
or deponents.
SS has enacted legislation which
(c) Proof of service.
392. Record.
such recommendations, or
385. Default of contestee.
(a) Hearing on papers, depositions
386. Deposition.
and exhibits.
(a) Oral examination.
(b) Appendix to contestant's
(b) Scope of examination.
brief.
of the President may, in accord-
(c) Order and time of taking tes-
(c) Appendix to contestee's brief.
mmendations, be made operative
timony.
(d) Contestant's brief; service on
(d) Officer before whom testimony
contestee.
uch recommendations otherwise
may be taken.
(e) Contestee's brief; service on
(e) Subpena.
contestant.
(f) Taking of testimony by party
(f) Reply brief of contestant.
1967, 81 Stat. 644.
or his agent.
(g) Form of briefs; number of
(g) Conduct of examination; re-
copies served and filed.
on 3110 of Title 5, Government Or-
cordation of testimony; no-
393. Filing of pleadings, motions, deposi-
tation and Employees.
tation of objections; inter-
tions, appendixes, briefs and
rogatories.
other papers.
(h) Examination of deposition by
394. Computation of time.
witness; signature of wit-
(a) Method of computing time.
and prior recommendations
ness or officer; use of depo-
(b) Service by mail.
sition.
(c) Enlargement of time.
387. Notice of depositions.
395. Death of contestant.
transmitted to the Congress im-
(a) Time for service; form.
396. Allowance of party's expenses.
y the Commission in one of the
(b) Testimony by stipulation.
(c) Testimony by affidavit; time
and (3) of this title shall be held
for filing.
render inapplicable, as the case
th-
§ 381. Definitions
prior to the effective date or
For purposes of this chapter—
y be) of such recommendations
(a) The term "election" means an official general or special election
enacted in the period specified
to choose a Representative in or Resident Commissioner to the Congress
of this section with respect to
of the United States, but does not include a primary election, or a caucus
or convention of a political party.
261
788
TEMPORARY STUDY COMMISSIONS-Continued
TRUST FUNDS-Continued
APPENDIX TO THE BUDGET FOR FISCAL YEAR 1977
COOPERATIVE FUNDS-continued
Program and Financing (in thousands of dollars)
Section 17(a) (9) (A) of the Alaska Native Claims Settle-
Identification code 33-12-2800-0-1-805
1975
act.
1976
est.
TQ
est.
1977
est
ment Act limits the Federal share of the expenses of the
Program by activities:
Joint Federal-State Land Use Planning Commission for
Administrative expenses (program costs,
Alaska to 50%. The State of Alaska provides for the
funded)
2
Change in selected resources (undelivered
100
remaining 50% of Commission expenses. In years prior, a
orders)
-2
portion of the State's support has been provided in-kind
10
Total obligations
through assignment of State employees and lease of office
Financing:
space. All State support in 1977 will be in cash.
40 Budget authority (appropriation)
100
Object Classification (in thousands of dollars)
Relation of obligations to outlays:
71 Obligations incurred, net
74 Obligated balance, end of period
100
Identification code 33-11-8061-0-7-452
1975 act.
1976 est.
TQ
est.
1977
est.
77 Adjustments in expired accounts
-5
2
90
Outlays
Personnel compensation:
2
95
11. 1
Permanent positions
130
176
37
28
11.3
Positions other than permanent
24
61
10
2
11.5
Other personnel compensation
4
The Commission was established under section 225 of
Total personnel compensation
154
241
47
30
the Postal Revenue and Federal Salary Act of 1967
12.1
Personnel benefits: Civilian
66
75
19
11
21.0
Travel and transportation of persons
11
49
11
2
to review and recommend to the President at 4-year
22.0
Transportation of things
7
5
23.0
Rent, communications, and utilities
49
14
7
8
intervals the appropriate pay levels for upper-level
24.0
Printing and reproduction
43
4
positions in the executive, legislative, and judicial branches
25.0
Other services
285
280
7
3
26.0
Supplies and materials
3
8
2
1
of the Federal Government.
31.0
Equipment
1
1
Object Classification (in thousands of dollars)
99.0
Total obligations
569
711
104
60
Identification code 33-12-2800-0-1-805
1975
act.
1976
est.
TQ
est.
1977
est.
Personnel Summary
Personnel compensation:
Total number of permanent positions
7
9
0
11.1
Permanent positions
11.3
58
Full-time equivalent of other positions
1
2
0
Positions other than permanent
5
Average paid employment
8
11
1
Average GS grade
10.86
10.94
Total personnel compensation
Average GS salary
12.1
63
$20,333
$20,756
Personnel benefits: Civilian
4
21.0
Travel and transportation of persons
4
23.0 Rent, communications, and utilities
15
24.0
Printing and reproduction
3
25.0
Other services
9
26.0
COMMISSION ON AMERICAN SHIPBUILDING
Supplies and materials
2
99.0
Total obligations
100
Federal Funds
Personnel Summary
General and special funds:
Total number of permanent positions
6
SALARIES AND EXPENSES
Average paid employment
4
Average GS grade
9.00
Program and Financing (in thousands of dollars)
Average GS salary
$17,923
Identification code 33-12-0052-0-1-406
1975 act.
1976
est.
TQ
est.
1977
est.
Program by activities:
COMMISSION ON FEDERAL PAPERWORK
Study and review American shipbuilding
industry (program costs, funded)
4
Federal Funds
Change in selected resources (undelivered
orders)
-4
General and special funds:
10
Total obligations
Financing:
SALARIES AND EXPENSES
17 Recovery of prior period obligations
-6
25 Unobligated balance lapsing
6
[For expenses necessary to carry out the provisions of the Act of
December 27, 1974, Public Law 93-556, $100,000.]
Budget authority
[For an additional amount for "Salaries and expenses", $4,000,-
Relation of obligations to outlays:
000.]
71 Obligations incurred, net
-6
[For "Salaries and expenses" for the period July 1, 1976, through
72 Obligated balance, start of period
10
September 30, 1976, $2,000,000, to remain available until ex-
90
Outlays
4
pended.] (Treasury, Postal Service, and General Government Ap-
propriation Act, 1976; Supplemental Appropriations Act, 1976.)
The Commission submitted its findings to the President
Program and Financing (in thousands of dollars)
and the Congress on October 19, 1973, and 60 days there-
after ceased to exist.
Identification code 33-12-1200-0-1-804
1975 act.
1976
est.
TQ est.
1977 est.
Program by activities:
10 Investigation and recommendations-Federal
COMMISSION ON EXECUTIVE, LEGISLATIVE, AND JUDICIAL SALARIES
FERD
paperwork policies and practices
100
1,800
200
Financing:
Federal Funds
21 Unobligated balance available, start of period.
-200
24 Unobligated balance, end of period
200
General and special funds:
40
Budget authority (appropriation)
100
2,000
SALARIES AND EXPENSES
Relation of obligations to outlays:
71 Obligations incurred, net
For necessary expenses of the Commission on Executive, Legislative,
4,100
1,800
200
72 Obligated balance, start of period
200
and Judicial Salaries, authorized by section 225 of the Postal Revenue
74 Obligated balance, end of period
-200
and Federal Salary Act of 1967 (81 Stat. 642-645), $100,000, to remain
90
available until expended.
Outlays
3,500
2,000
200
new
VOL. X=.480
Records
PV (ECP)
PV (RO)
Handbook
Gen, Index
OPERTSSTON OFF EVENTITYE, UNISIATIVE MR STUDITAL SALARTER
Independent
AUTHORITY: 81 Stat. 242,
P.L. 50-206, Sec. 225, approved December 16, 1967.
METHOD:
(Sce below.)
MEMBERS:
NINE members appointed from private life, as follows:
THREE appointed by the President,
TWO appointed by the President of the Senate,
TWO appointed by the Speaker of the House of Representatives,
TWO appointed by the Chief Justice of the United States.
in
SERALD
SHOP
LIBRANT
CHAIRMAN:
Designated by the President from one of his appointees.
TERM:
Initial appointees shall serve for the term of fiscal your 1939.
(Term would expire June 30, 1970.) Every feurth fiscal your
thereafter, 1973, 1977, 1981 .manborsshall be appointed for 2 term expiring at
the cless of that particular fiscal year.
SALARY:
$100.00 per day.
PURPOSE:
Review the rates of pay of Members of Congress, the Judiciary and
persons in the Imentive Pay Schedule to determine this appropriate
salary levels. The Connission would submit its deport and
recommendations to the President no later than January 1 following
the fiscal year in which its review was conducted.
THE ATTORNEY GENERAL
VINITED UNITED PRO inb DE SEQUITUR DEPA JUSTICE OF STATE
march 21.
Philip Buchen
mr. B her
3/24/75 copy Jones
If stoffing
OF
Office of the Attorney General
FRO
SEQUITUR
Washington, D. C. 20530
JUSTITIA
March 21, 1975
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
At the meeting on proposed increases in judicial (and possibly
executive and legislative) salaries, the question arose as to
what effect such action might have on the eligibility of
members of Congress for appointment to judgeships or executive
branch positions. There was an implicit question about the
application of the Ineligibility Clause of the Constitution to
such salary increases if such increases were tied to a cost of
living formula.
The Ineligibility Clause of the Constitution, Art. I, §6, cl.
2, provides that "No Senator or Representative shall, during the
Time for which he was elected, be appointed to any civil Office
under the Authority of the United States
the Emoluments
whereof shall have been increased during such time." One can
imagine a variety of hypothetical situations involving applica-
tion of the Clause, but in general, a member of Congress would
be disqualified from appointment only for the remainder of the
electoral term that he was presently serving when the legisla-
tion authorizing the salary increase was enacted. When the
legislative authorization takes place in one electoral term
but provides that the actual increase is to occur in a succeed-
ing term, a member would be disqualified from appointment only
for the remainder of the prior electoral term.
Thus, under a legislative plan authorizing automatic salary in-
creases based on the cost of living index, the constitutional
disqualification would apply only during the electoral term in
which the legislation was enacted and not in any succeeding term
when additional automatic increases may occur. If, however,
the legislative plan requires an important further step of
Congress in a succeeding term to make the increase effective,
such as congressional acquiescence in the increase by failure
to exercise a veto power, it seems likely the constitutional
disqualification would apply during the remainder of this later
electoral term, and not during the prior term when the under-
lying legislation was enacted.
Page 2
The President
There was some suggestion that a legal analysis of the appli-
cation of the constitutional provision might be helpful.
This note summarizes the main conclusions; I attach a support-
ing memorandum. As the memorandum notes, with one possible
exception, the Senate probably would be the final arbiter of
the interpretation of the clause. An exception would be, if
by some device or order, an objection from the executive or
legislative branch were interposed to prevent the payment of
the salary.
Respectfully,
Edward H. Levi
Attorney General
Enclosure
MEMORANDUM
Legislation Increasing Judicial Salaries
This memorandum addresses two issues: (a) the
authority under existing legislation to increase the
salaries of federal judges, and (b) the relationship
between various forms of legislation increasing such
salaries and the prohibition imposed by the Ineligibility
Clause of the United States Constitution.
A. Existing Legislation
The only existing authority for increasing the
salaries of federal judges is conferred by the Federal
Salary Act of 1967, 81 Stat. 642, 2 U.S.C. § 351 et seq.
The Act establishes the Commission on Executive, Legislative
and Judicial Salaries, which is empowered to make recommenda-
tions to the President, at four-year intervals, 1/ on pay
rates for Senators, Representatives, federal judges, and
certain officers in the executive branch. The Act further
authorizes the President, in the next federal budget sub-
mitted after the receipt of the Commission's report, to set
1/ Under the Act, the first Commission was to be appointed
in fiscal 1969 (ending June 31, 1969) and then in every
fourth fiscal year thereafter. The Commission expires at
the end of the fiscal year for which it was appointed.
- 2 -
forth his recommendations with respect to the pay rates
he deems advisable for the positions covered by the Act.
The President's recommendations are to become effective
thirty days following transmittal of the budget to Con-
gress, unless during the interim Congress has enacted
other pay rates or unless at least one House of Congress
has enacted legislation which specifically disapproves all
or part of the recommendations.
The first Commission was appointed in 1968 and made
its recommendations to the President in December 1968. The
President forwarded these recommendations to Congress in
January 1969, and they became effective in March of that
year. Under the Act, the next Commission was to be ap-
pointed during fiscal 1973 (ending June 31, 1973), and
was required to submit its recommendations to the President
no later than January 1, 1974. The Commission apparently
made its recommendations to the President, who later for-
warded them with minor revisions to Congress. The Senate,
however, rejected the proposed pay increases in March 1974
and thereby rendered them ineffective.
The next Commission is to be appointed during fis-
cal 1977 (ending June 31, 1977) and must make its recommenda-
- 3 -
tions to the Congress shortly thereafter with the budget
for fiscal 1978. 2/ Thus, if the procedures established
by the Federal Salary Act are followed, the earliest possi-
ble date by which judicial salaries could be increased is
March 1977.
The Commission appointed for fiscal 1973 expired
in July 1973. The Act makes no provision for further
recommendations by either the Commission or the President
until fiscal 1977. Thus, only by special legislation could
judicial salaries be increased prior to that date.
2/ Section 357 provides that the Commission's report
"shall be submitted on such date as the President may desig-
nate but not later than January 1 next following the close
of the fiscal year in which the review is conducted by the
Commission." 2 U.S.C. § 357. Section 358 provides that
the "President shall include, in the budget next transmitted
by him to the Congress after the date of the submission of
the report and recommendations of the Commission.
his
recommendations with respect to the exact rates of pay which
he deems advisable.
2 U.S.C. § 358.
Thus, if so directed by the President, the Commission
appointed for fiscal 1977 (beginning July 1, 1976 and ending
June 31, 1977) could make its report prior to January 1977,
but in no event later than January 1978. Under Section 358,
the President could then submit his recommendations with
the fiscal 1978 budget later in January 1977, and these
recommendations would become effective in March 1977 unless
disapproved by either House of Congress. Alternatively, the
Commission would not report until later in 1977, and the
President would not forward his recommendations to Congress
until January 1978.
SEAL FORD LIBRARY
- 4 -
B. The Ineligibility Clause
Legislation increasing judicial salaries could
pose a variety of problems with respect to the eligibility
of members of Congress for appointment to the federal bench.
The possible applications of the Ineligibility Clause are
almost endless and depend on both the form of the legis-
lation and the date of the appointment. For present pur-
poses, it may prove useful to review at least the central
features of the clause and its application to the forms
of legislation most likely to be enacted by Congress.
The Ineligibility Clause of the United States Con-
stitution, art. I, § 6, cl. 2, provides:
No Senator or Representative shall,
during the Time for which he was elected,
be appointed to any civil Office under the
Authority of the United States, which shall
have been created, or the Emoluments whereof
shall have been increased during such time,
and no Person holding any Office under the
United States, shall be a Member of either
House during his continuance in Office.
The Ineligibility Clause was apparently intended to pre-
vent considerations of personal interest from affecting a
representative's vote on legislation creating federal civil
offices or increasing the financial benefits of such offices.
Despite its broad purpose, the clause is drafted narrowly
and includes within its ambit only a limited range of
- 5 -
situations. As presently relevant, the clause applies
where three prerequisites are satisfied: (a) an increase
in the emoluments or salary of a judicial office, (b) the
appointment of a Senator or Representative to that office,
and (c) both (a) and (b) occur during the same electoral
term which the Senator or Representative was then serving.
The clearest application of the clause would occur
where Congress authorizes an increase in the salary of a
judicial office, and that increase actually takes effect,
during the same electoral term of the Representative nomi-
nated for the judicial office. Such would be the case,
for example, if Congress had approved an immediate increase
a.
SEALS
SHOUL
in judicial salaries in 1974. Two possible factual
LIQUARY
3/ It should be noted that, as a practical matter, the Senate
will usually be the sole and final arbiter of the meaning of
the clause. In Ex parte Levitt, 302 U.S. 633 (1937), the
Court held that a citizen lacks standing to challenge a
judicial appointment allegedly in violation of the Ineligibility
Clause. Levitt was recently discussed with approval and ex-
pressly reaffirmed in Schlesinger V. Reservists Committee to
Stop the War, U.S. , 94 S.Ct. 3295 (1974) and United
States V. Richardson,
U.S.
, 94 S.Ct. 2940 (1974). It
is thus difficult to perceive how a private individual, suing
as a citizen or a taxpayer, could show the direct injury re-
quired under the standing doctrine to invoke the jurisdiction
of the federal courts. A problem could arise, however, if the
General Accounting Office or another federal department were to
refuse to deliver the appointee's commission or to pay his salary.
Such action might precipate a suit by the appointee which could
well bring the constitutional question before the courts. See
Marbury V. Madison, 1 Cranch. 137 (1803).
4/ The Ineligibility Clause plainly refers to the electoral term
of the representative, rather than to Congresses or sessions of
Congress. Thus, electoral term covered by the clause would be
two years for a member of the House and six years for a Senator.
For purposes of clarity, all factual situations posited above
will refer to members of the House.
- 6 -
situations might ensue. In the first, the Representative
is later sought to be appointed to judicial office in the
same electoral term (i.e., before the commencement of the
next Congress in January 1975.) Here, the Ineligibility
Clause clearly stands as a bar to appointment since the
posited case falls squarely within the clause's literal
provisions. In the second, the Representative is sought
to be appointed in a subsequent electoral term (e.g.,
after January 1975). In this situation, however, it is
apparent that the clause does not apply, since the increase
was authorized in the prior electoral term and the clause
prevents appointment only during that prior term. 5/
More substantial problems arise where the con-
gressional authorization and the actual increase occur in
different electoral terms. Thus, for example, suppose
Congress in 1974 authorized an increase in judicial salaries
to take effect in 1975, and a Representative is thereafter
5/ Accord: 33 Op. Att'y Gen. 88 (1922). As Justice Story
noted:
"The reasons for excluding persons from offices
who have been concerned in creating them, or in-
R.
BERALD
SHOUL
creasing their emoluments, are to take away, as far
as possible, any improper bias in the vote of the
representative, and to secure to the constituents
LIBRARY
some solemn pledge of his disinterestedness. The
actual provision, however, does not go to the extent
of the principle, for his appointment is restricted
only 'during the time for which he was elected,' thus
leaving in full force every influence upon his mind,
if the period of his election is short or the duration
of it is approaching its natural termination."
Story, Constitution of the United States, 4th ed., § 867.
- 7 -
sought to be appointed in 1974. Although the increase
has not actually occurred, it appears consistent with
both the language and purpose of the clause to conclude
that the appointment would be barred. On the other hand,
if the appointment were made later in 1975, the clause
would be inapplicable since the increase was authorized
in the prior electoral term.
The above conclusion turns on an interpretation of
the word "increase" in the clause to mean authorization for
the increase, rather than the increase itself. The reason-
ableness of this view is amply demonstrated by the case
of a Representative who was first elected in 1975 when
the increase took effect. It would obviously serve no
purpose to bar his appointment to a judicial office since
Congress never even considered the issue of a salary in-
crease during any period when he was a Representative.
There is thus no temptation against which the Representa-
tive's impartiality must be guarded, and hence no reason
for invocation of the prohibition imposed by the clause.
On the other hand, ineligibility for appointment does appear
warranted with respect to those members serving in Congress
when the authorization was approved, even though the in-
- 8 -
crease will not occur until after the expiration of their
electoral term. 6/ Here the clause does presumably serve
its intended purpose of preventing the prospect of judicial
appointment from influencing a member's vote on legislation
authorizing increases in judicial salaries. Moreover,
to conclude otherwise would create the anomaly of an in-
crease in judicial salaries having occurred without any
member of Congress being rendered ineligible -- a con-
struction which would substantially strip the clause of
effective meaning.
Closely related is the situation where salary in-
creases are authorized for future electoral terms, but
additional appropriations will be later required to fund
6/ Such members, of course, would be ineligible for appoint-
ment only for the remainder of the electoral term in which
the legislation authorizing the increase was enacted.
7/ An exception is possible where the financial benefit
will not actually be conferred until some point so distant
in the future that the benefit may be regarded as speculative.
Senator Hugo Black, for example, had voted to increase the
retirement benefits of Supreme Court Justices during the same
electoral term in which he was nominated for appointment to
the Court. The Senate confirmed the nomination, perhaps
agreeing with the Attorney General that Senator Black was
nevertheless eligible "inasmuch as Mr. Black was only fifty-
one years old at the time and so would be ineligible for the
increased emolument for nineteen years, it was not as to him
an increased emolument." See Corwin, Annotated Constitution
at 133; N.Y. Times, Aug. 14, 1-37, p. 1, col. 3.
- 9 -
those increases. For example, suppose Congress in 1974
provided that judicial salaries would be increased auto-
matically on a biennial basis beginning in 1975 in accord-
ance with an independent standard such as the cost of living
index. Under the construction outlined above, a Repre-
sentative then serving in 1974 would be barred from a sub-
sequent judicial appointment in 1974, but a Representative
serving thereafter would not be barred even though the actual
increases had occurred, and the appropriations to fund those
increases had been made, during his electoral term. This
is so because the subsequent appropriation measures were
in essence ministerial acts required only to fund increases
previously authorized by Congress. The "increases", within
the meaning of the Ineligibility Clause, actually occurred
in 1974 when the controlling congressional authorization
was enacted. It is the undertaking of the obligation
8/ Nothing turns on the fact that Congress did not specify
exact dollar amounts for the future increases, and indeed, the
result would be the same had Congress in fact specified exact
dollar amounts.
An additional possibility is worth mentioning. Suppose
Congress in 1974 authorized future salary increases commencing
in 1975 based on the cost of living index, but made such in-
creases subject to prior approval by the President, at some
future date (e.g., when the cost of living statistics are re-
ported in 1975 and thereafter). In this situation, since Con-
gress made its determination in 1974 to increase salaries,
a Representative then serving would be barred from appointment
for the remainder of that electoral term. The contingency of
(Cont'd. next page)
in
STATE
State
LIBRARY
- 10 -
to increase salaries that controls, and the "emoluments"
of the judicial office may be deemed to have been in-
creased at that time. 9/
Two final permutations concern the situation in
which Congress authorizes the establishment of a commis-
sion to propose increases in judicial salaries at certain
future periods and specifies that the increases are to be-
come effective unless vetoed by either house of Congress.
10/
Again, suppose such a commission is authorized by Congress
in 1974 and then in 1975 recommends certain increases which
then become effective when Congress fails to disapprove
them through exercise of its veto power. In the case of
a Representative appointed in 1974, it appears reasonable
to conclude that the Ineligibility Clause would not prove
a bar since at that time any salary increase was still con-
tingent on further congressional approval, albeit in the
8/ (Cont'd. from previous page)
future Presidential approval cannot obscure the fact that Con-
gress authorized the salary increases and the clause should
apply. Representatives serving in future terms when the in-
creases actually occur would not, of course, be barred from
appointment.
9/ The possible speculative nature of any future increase in
the cost of living index is not controlling in this situation.
Such an escalator clause is clearly an "emolument" or benefit
within the meaning of the clause.
10/ This was, of course, essentially the scheme imposed by the
Federal Salary Act of 1967, 81 Stat. 642, 2 U.S.C. § 351 et seq.
- 11-
passive form of a failure to exercise a veto power at
some future date. By contrast, the appointment of a
Representative serving in 1975 would present an exceedingly
close case. Although persuasive arguments can be mustered
on either side, it is most probable that the clause would
indeed come into play to prevent the appointment, since
congressional inaction can be deemed to be an implicit
authorization of the salary increase. A contrary inter-
pretation would pose a significant problem, since again an
increase in judicial salaries would have occurred yet no
Representative would be regarded as barred from appointment.
11/
11/ The obvious alternative would be to regard the increase
as having been approved in 1974. For the reasons previously
stated, the contingent nature of the prior congressional action
makes it a comparatively inappropriate point at which to deem
the clause applicable.
The problem created by the appointment of Congressman
Laird as Secretary of Defense is also instructive. See 42
Op. Att'y Gen. 36 (1969). There, the President submitted to
Congress a proposed salary increase for Cabinet members which
under the Federal Salary Act of 1967 would become effective
unless disapproved by either House of Congress within a
specified period. The Opinion of the Attorney General con-
cluded that the Ineligibility Clause would not bar Congress-
man Laird's appointment if the appointment were made before
the expiration of the date by which Congress was required to
act: "[T]he salaries in question will not 'have been increased'
within the meaning of the constitutional prohibition so long as
Congress may still exercise its power of disapproval. The
opinion clearly contemplates, however, that Congressman Laird's
appointment would have been barred had he still been serving
when the absence of a congressional veto allowed the increase
to become effective.
- 12 -
In sum, the clause may most reasonably be con-
strued as applicable only to the electoral term during
which the salary increase is authorized by Congress. Where
the salary increase is not contingent on further congressional
approval, as in the case of automatic future increases based
on the cost of living index, the controlling factor is the
electoral term during which the underlying congressional
authorization was enacted. Where the increase is contingent
on further congressional approval, as in the case of the
hypothetical commission or the Federal Salary Act, the
controlling factor is the electoral term during which the
congressional acquiescence by failure to exercise its veto
power allowed the increase to become effective. 12/
Turning to the instant problem concerning the nature
of the proposed legislation on judicial salaries, it appears
that the hypothetical commission or the present Federal Salary
12/ If, of course, the Representative or Senator were to
resign before the period for congressional action expired, the
clause would not bar his appointment. See n. 10, id. As pre-
viously stated, the prospective appointee must actually have
been serving in Congress at the time the salary increase was
authorized.
The problem might also be avoided by deferring the ap-
pointment until after the expiration of the Representative's
or Senator's electoral term.
FORD in GREATE LIBRARY
- 13 -
Act are the least appealing alternatives since they pose
the problem of continuing application of the Ineligibility
Clause to members of Congress and would probably result
in the greatest number of disqualifications. By contrast,
a predetermined method of increasing judicial salaries,
which was not contingent on further congressional approval,
would result in the least number of disqualifications. Thus,
if future increases in judicial salaries were authorized
in accordance with increases in the cost of living index,
only those members of Congress serving when the legislation
was adopted would be disqualified from appointment, and
even then their disqualification would be only for the re-
mainder of the electoral terms they were presently serving.
BERALD FORD
LIBRANT
it.
Supreme
THE WHITE HOUSE
WASHINGTON
January 23, 1976
Dear Warren:
Many thanks for sending me a copy of your
beautiful YEARBOOK 1976 published by the
Supreme Court Historical Society which
you have so graciously inscribed.
This is a remarkable achievement for a
group that has SO recently begun to
concern itself with the wonderful history
of our highest Court. It offers a promise
of many more fascinating publications to
come.
You are indeed to be commended for encour-
aging the formation and work of this
Society and for its extraordinary success.
I know the President will be most pleased
with the copy you have asked me to deliver
to him.
I send my warmest regards.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
The Honorable Warren E. Burger
Chief Justice
FORD - LIBRARY
Supreme Court of the United States
Washington, D. C. 20543
hand any
THE WHITE HOUSE
WASHINGTON
October 4, 1975
Dear Senator Roth:
We have reviewed with the Justice Department your request
that it file an amicus curiae brief in the Supreme Court in
support of the appellants' Jurisdictional Statement docketing
an appeal in the Wilmington, Delaware case of Evans V. Buchanan.
The appellants are seeking review of a Three-Judge District
Court ruling announced on March 27, 1975, in which the Court
ordered that alternative desegregation plans be submitted to
it, one plan to limit itself to the present boundaries of the
Wilmington school district and the other plan to incorporate
other areas of New Castle County. This Order was issued
pursuant to the Court's finding: (a) that an historical arrangement
for inter-district segregation existed within New Castle County;
(b) that there was significant governmental involvement in inter-
district discrimination; and (c) that Wilmington was unconstitutionally
excluded from consideration for consolidation by the State Board
of Education. The Court held unconstitutional the Educational
Advancement Act of 1968, which excluded the Wilmington school
district from eligibility for consolidation, and ordered the
submission of the alternative desegregation plans.
Appellants filed their Jurisdictional Statement on May 12, 1975,
and the appellees filed their Motion to Affirm or Dismiss on
July 11, 1975. While the Justice Department does, on occasion,
participate as amicus in the jurisdictional stage of a case in
the Supreme Court, that is not a usual practice. In those cases
where it does so participate, however, it is Justice's policy to
adhere to Supreme Court procedure which provides that an
amicus brief be filed no later than the response by the second
party. The purpose of this rule is to give both appellant and
appellee an adequate chance to respond to the arguments made
in the amicus brief.
In the case of Evans V. Buchanan, the Supreme Court is
FORD LIBRARY
scheduled to consider its Jurisdictional Statement on or about
- 2 -
October 10th, and it is our opinion that Justice Department
participation at this juncture would be inappropriate. Neither
side would have an adequate opportunity to answer Justice's
arguments unless the Court was requested to delay its
consideration of the case. We feel that a request for such
a delay would not be warranted.
If the Supreme Court notes probable jurisdiction and accepts
Evans V. Buchanan for a hearing on its merits, the Justice
Department will consider the filing of an amicus curiae brief
on the merits of the case.
Sincerely,
They Buchen
Philip WC Buchen
Counsel to the President
Honorable William V. Roth, Jr.
United States Senate
Washington, D. C. 20510
SEAL 11. FORD LIBRARY
THE WHITE HOUSE
Hold
WASHINGTON
file
October 3, 1975
MEMORANDUM FOR:
JIM CONNOR
P.
FROM:
PHILIP BUCHEN
Attached is the letter prepared to Chief Justice
Burger for the President's signature as you
requested.
Attachment
FORD & LIBRARY DERALD
THE WHITE HOUSE
WASHINGTON
Dear Warren:
Your thoughtful letter of September 5 has
been received and, under the circumstances,
I most willingly concur in your conclusion
that it would be inappropriate for you to
serve as Co-Chairman of the Combined
Federal Campaign for 1976.
I regret that the upcoming campaign cannot
have the benefit of your leadership in
emphasizing the importance of wide support
among Federal employees for the non-profit
agencies which deliver many needed services
in the Washington area. However, I do
appreciate that your undertaking this
function could lead to criticism, however
unjustified it would be.
Sincerely,
The Honorable Warren E. Burger
Chief Justice of the United States
Washington, D. C. 20543
GERALD k. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 29, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
JIM CONNOR for
Thank you for your memorandum of September 27 concerning
the Chief Justice's inability to serve as Co-Chairman of the 1976
Combined Federal Campaign.
Please prepare an appropriate Presidential response to the
Chief Justice. As requested a copy of the President's letter
of September 17 is attached.
Attachment
THE WHITE HOUSE
WASHINGTON
September 27, 1975
Burgren School)
MEMORANDUM FOR:
JIM CONNOR
FROM:
PHILIP BUCHEN P.W.B.
Attached is the original of a letter from the
Chief Justice to the President written in
response to the President's letter of
September 17.
I have not seen the September 17 letter and it
was not cleared with our office before it was
sent. As you can see from the letter, the
request to have the Chief Justice serve as a
Co-Chairman of the 1976 Combined Federal
Campaign was ill-advised. I suggest that
an appropriate response now be prepared for
the President's signature. If you would like
for me to draft the letter, I would like first
to receive a copy of the September 17 letter.
Attachment
SEAL E. FORD LIBRARY
Supreme Court of the United States
Mashington, B. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
September 25, 1975
Dear Mr. President:
I acknowledge your letter of September 17 which arrived while
I was in Paris as a guest of the Constitutional Council of France on a
series of exchanges which we hope to develop.
The Code of Judicial Conduct drafted by the American Bar
Association largely at my request in 1969, and thereafter to a sub-
stantial extent enacted into law by Congress, contains some very
stringent prohibitions limiting the activities of judges in relation to
fund-raising of all kinds.
Canon 5 of the Code of Judicial Conduct provides in part:
"(2) A judge should not solicit funds for any educational,
religious, charitable, fraternal, or civic organization,
or use or permit the use of the prestige of his office for
that purpose, but he may be listed as an officer, director,
or trustee of such an organization. He should not be a
speaker or the guest of honor at an organization's fund
raising events, but he may attend such events."
(Emphasis added.)
The advisory opinions given by the American Bar Association
and some advisory opinions given by a special committee of the Judicial
Conference which I appointed tend to construe this provision as pro-
hibiting a judge from acting as chairman or in a related capacity. The
only exceptions I am aware of concerning this stricture relate to activi-
ties to improve the law, the legal system, and the administration of
justice. Even though Justiçes of the Supreme Court were not made
SEAL E. FORD LIBRARY
- 2 -
explicitly subject to this Code when it was adopted by the Judicial
Conference, this circumstance was due to the fact that the Judicial
Conference has no jurisdiction over the Supreme Court. The spirit
of the Code, however, plainly applies to all judges without reference
to any technical jurisdiction question.
In these circumstances and given the present atmosphere in
which so many people are eager to seize upon the slightest pretext to
criticise those in public office, I reluctantly conclude that I should
ask you to excuse me from this assignment to serve as one of the Co-
Chairmen for the 1976 Combined Federal Campaign for the National
Capital Area.
Cordially and respectfully,
Wanen { Banger
The President
The White House
FORD & LIBRARY 03
"Cory"
September 17, 1975
Dear Warren:
I am writing to ask you to serve as one of
the Co-Chairmen for the 1976 Combined Federal
Campaign for the National Capital Area.
As you know, the Combined Federal Campaign is
conducted annually to solicit funds to help
meet the needs of over 120 agencies of the
United Way of the National Capital Area, the
National Health Agencies, and the International
Service Agencies.
Because funds raised in this campaign will be
used during our Country's Bicentennial, I feel
it is very important that we encourage every
Federal civilian and military employee to sup-
port the Combined Federal Campaign by voluntarily
contributing to help our neighbors locally, as
well as nationally and internationally.
To spearhead this most important task, I have
asked Frank Zarb, Administrator of the Federal
Energy Administration, to serve as Chairman.
Your active support as a Co-Chairman will be
of great value in making this Bicentennial
Campaign an outstanding success.
Sincerely,
JERRY FORD
The Honorable Warren E. Burger
Chief Justice of the United States
Washington, D.C. 20543
SERIAL FORD LIBRARY
GRF : JAskew : frw
Oney delivered by receipled WHmassengan 9/18/75
Suprement
Thursday9/25/75
10:10 Mark Cannon called on behalf of the Chief Justice.
393-1640
He will be going into a Judicial Conference session
between 11 and 1 o'clock -- and would like to be called
out to talk -- when you're free.
But he definitely needs to talk with you before 1 o'clock.
(We can call through the former Chief Justice Warren's
office)
BERALD R. FORD LIBRARY
Supreme Court of the United States
Washington, B. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
September 8, 1975
My dear Mr. President:
RL
I have the honor to inform you that this Court
will open the October 1975 Term on October 6, 1975,
at 10:00 a.m., as provided by law, and will continue,
pursuant to our present calendar, until all matters
before the Court, ready for argument, have been
decided.
Cam Respectfully, { Barger
The President
The White House
Washington, D.C. 20500
DERALD R. FORD LIBRARY
Pres. schedule
For filing 5/27/75
T. Justice chief
WarenBurg
May 20, 1975
request for
Memorial
chriffustice services for
Dear Mr. Chief Justice:
warren
On behalf of the President, I wish to acknowledge and thank
you for your kind letter to him about the traditional Supreme
Court Bar Memorial Service for Chief Justice Warren, to be
held in the Courtroom on Tuesday afternoon, May 27.
Most regrettably, because of the final preparations for the
European trip which begins on May 28, the President and
Mrs. Ford will be unable to attend this tribute for Chief
Justice Warren.
With the President's kind regard and very best wishes to you.
Sincerely,
s/
Warren S. Rustand
Appointments Secretary to the President
The Honorable Warren E. Burger
The Chief Justice
of the United States
Washington, D. C. 20543
Information copy to:
Mr. Buchen
R. FORD LIBRARY
Pat Likins, Jerry Jones' Office
Scheduling
May 7, 1975
MEMORANDUM FOR:
WARREN RUSTAND
FROM:
PHILIP BUCHEN
SUBJECT:
Supreme Court Bar
Memorial Service
Because neither the President nor any of
his representatives attended the services
at the time of Chief Justice Warren's
death, it would be very appropriate for
the President to appear at this memorial
service in Washington. If time simbly
will not permit, I would think it would
be fitting for the President to request
the Vice President to attend in his
behalf.
SEALE FORD
MEMORANDUM
THE WHITE HOUSE
Into Scheduling
WASHINGTON
memorial
May 5, 1975 services
5/27/75
Chif Justice
MEMORANDUM FOR:
PHILIP BUCHEN
Warren
FROM:
f WARREN RUSTAND WWW
SUB JECT:
Supreme Court Bar Memorial Service
for Chief Justice Warren on May 27
Unless you feel strongly about this, we will regret.
This is the day before the President's departure for Europe.
FORDO 1. LIBRARY
Supreme Cuirt of the United States
Washington, pi. C. 2054g
CHAMBERS OF
THI CHIEF JUSTICE
April 28, 1975
Dear Mr. President:
RY
The traditional Supreme Court Bar Memorial Service
for Chief Justice Warren will be conducted in the Courtroom
at 3:30 p.m. on Tuesday, May 27. Having in mind your ser-
vice with Chief Justice Warren on the Commission of Inquiry
relating to President Kennedy's assassination, I thought you
might like to know of this planned tribute.
The proceedings are being arranged, as usual, under
the Chairmanship of the Solicitor General of the United States
as Leader of the Supreme Court Bar. Invitations are now being
issued by him. It occurred to me, however, to draw this to
your attention informally before any formal invitation is issued.
If your busy schedule permits you and Mrs. Ford to at-
tend, special seating will be reserved in the Distinguished
Visitors' Box with the wives of Justices.
Cordially, SUZungen
The President
The White House
P.S. The formal invitation describes the time as 2:00 p.m.,
but that is a meeting of the Supreme Court Bar Committee to approve
the Resolutions which will be presented to the Court at 3:30 p.m.
{ca. Dec 1976]
milk
DE
46
5
ButtyWells
for Philip Bucher
with approvation for
GERALE TOND LIBRARY
a salued fraudship
Warrent Burger