Evening star. [volume] (Washington, D.C.) 1854-1972, 1956-06-24

court had to say about the 1858
executive order 10450 under which
the program is now operating.
Some observers think the decision
held the executive order illegal for
extending to all Federal agencies
the provisions of a 1850 law which
permits summary suspensions and
Unbelievable dismissal of Federal
employees by agency heads for Sc
curity reasons.
But this view does not stand up
in the face of the courts own state
ment that it would assume, for
purposes of this decision, that the
1880 act had been validly ex-
tended to apply to the Department
of Health. Education and Welfare
where Mr.. Cole was employed"
Others think the decision held
the order illegal because it extended
the covering of the 1850 law to
''nonsensitive" as well as sensitive"
positions.
But the order made no such ex-
tension. Prior to the order, that is,
from 1850 to 1858, the act was being
administered in the very same way
it was after the order covering all
positions, sensitive and NONSENSE
tive" Further. nothing in the
Presidents order said that the law
was to cover "nonsensitive" as dis
tinct from sensitive" positions.
The order did just two things: 1t
extended coverage Of the 1850 law
to all Federal agencies and pre-
Scribed uniform standards and pro-
cedures for applying the law.
No Finding Was Made
What the Supreme Court did de-
eide in the Cole case was that the
summary suspension and firing of
Mr.. Cole by the Secretary of Health,
Education and Welfare was illegal
under the 1850 law because Con-
gress had intended that Law to APP
ply to sensitive" positions only, and
the Secretary failed to make any
finding that Mr.. Cole was in a
sensitive" position before dismiss
ing him.
The law says an agency head may
suspend employees when deemed
necessary in the interest of ma
tional security" and terminate the
employment of a suspended en-
ploye whenever he shall determine
such termination necessary or adj
visable in the interest of the ma
tional security"
The court found that by using
the words national security" Con-
gresS intended the law to cover
only those activities of the Gov
eminent directly concerned with
the protection of the Nation from
internal subversion or foreign ag-
gression"-hence, only so-called
sensitive" positions.
Since the court was evaluating
the authority Of the agency head to
suspend and dismiss under the 1850
law. it is important to note some
very significant words in the law
regarding that authority.
The head of each agency covered
by the law is given authority to
suspend any employee ''in his abso-
lutte discretion and when deemed
necessary in the interest of national
security He is authorized to
terminate those he has suspended
whenever he shall determine such
termination necessary or advisable
in the interest of the national Sc
curity of the United States, and
such determination by the agency
head concerned shall be conclusive
and final"
In its opinion, the Court never
dealt with the words absolute"
conclusive" and final" used in
the law to describe the discretion of
the agency head. But it did find
that the authority to suspend and
dismiss was limited to persons in
sensitive" positions because only
then. it thought. could national
security interests be involved. This
finding by the Court appears to be
an exercise of the very discretion
which Congress committed to the
agency heads.
After deciding that only in SEN
sitive' positions could the national
security interest be involved, the
Court turns to find out whether,