Evening star., 1937-01-12

do all the purely administrative or
sublegislative work now done by the
commissions-in short all the work
which Is not essentially judicial in
nature. The judicial section would sit
as an impartial, independent body to
make decisions affecting the public
interest and private rights upon the
basis OF the records and findings pre-
sented to 1t by the administrative sec
ton. In certain types Of cases where
the volume Of business Is large and
quick and routine action Is necessary
the administrative section itself
should in the first instance decide the
cases and issue orders, and the judicial
section should sit as an appellate body
to which such decisions could be ap-
pealed on questions Of law.
Plan Has Adaptability
To Various Conditions.
This proposed plan meets squarely
the problems presented by the inde-
pendent commissions. 1t creates eff
fective responsibility for the admins
trative and policy determining aspects
of the regulatory job and. at the same
time, guarantees the complete inde-
pendence and neutrality for that part
of the work which must be performed
after the manner Of a court. 1t IA
cilitates and strengthens administra-
tive management without lessening
! judicial independence.
The plan has, furthermore. the
great advantage Of adaptability to
varying conditions. With the admin
istrative and judicial sections under
the roof of the same department. the
details of their organization could be
worked out experimentally by EXecu-
tive order The precise division of
labor between them could also be
readily modified in the light Of expert
ence, and the shifting of a function
from one section to the other would
| controversies that sometimes result
from proposals to alter the status or
duties of an independent commission.
/ Furthermore, the principle of the
plan does not have to be applied with
exact uniformity to every commission.
The requirement and present prac-
tices of each commission may be taken
into consideration in carrying out this
principle.
There is nothing essentially novel
or startling about the proposed plan.
There are numerous precedents and
analogies which refute the suggestion
that it is revolutionary or dangerous.
In the first place, We should re-
member that for 80 years important
regulatory functions have been car
ried on by the executive departments.
The powers of the Secretary of Agri-
culture under the packers and stock
yards act are essentially the same in
nature and Importance as those of
! the regulatory commissions. And there
are over 20 regulatory laws similarly
administered. BY common consent
the departments have done this work
well. And yet under this arrangement
the judicial phases Of the regulatory
process. involving important rights of
property, are handled by politically
responsible, policy determining Off
cials, system far more open to at
tack than the proposed plan which
carefully places the adjudication Of
private rights In an independent ju-
dicial section.
Process Involves Policy
and Discretion.
In the second place, the idea Of
giving those phases of the administra-
tive process which involve policy and
discretion to a different agency from
that which issues orders or makes
decisions after the manner of court
is very old one We find this prin-
ciple working comfortably in our
legislative courts. such as the Customs
Court and the Court of Claims, or in
that pseudo court, the Board Of Tax
Appeals. These bodies decide cases
originating in the process of admin
istration and presented to them by
administrative officers. 1t Is true that
they are not handling cases which
are precisely the same as those coming
before our regulatory commissions,
but they are established as they are
in order that the functions Of admin
istration need not be imposed upon
the officials who are charged with
the adjudication of private rights and
the public interest. This same segre-
cation Of function lies at the heart
Of the proposed plan.
| A cropping after the same principle
is found in the third place, in those
departments and agencies in which
have been set up appellate bodies.
judicialized in varying degrees. which
sift and review the preliminary de-
cisions and orders of administrative
officers. This device has long been
in operation in the Patent Office, the
immigration and naturalization SER
vice, the Veterans Administration,
the Treasury, and elsewhere. Here
again we recognize the desirability of
separating the task Of ultimate deci-
sions upon private rights from the
preliminary steps in which there is
a larger element Of administrative
discretion.
Finally, a close scrutiny Of the way
In which the more important regula-
tory commissions handle their work
indicates that the division of func-
tions between the proposed admins
trative and judicial sections is merely
a formulating by statutory enactment
of the division Of labor that has
already been set up within the COM
missions themselves. In nearly every
case the commissioners devote the
major part of their time and energy
to the deciding Of cases and the
issuance of orders on the basis of
the records and findings prepared by
the examiners, attorneys, and other
officers making up the commissions
staff. The division of labor is, Of
course, very rough and tentative. and
there is no corresponding division of
responsibility between the commits
stoners and their suhordinates. But
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