THE DUPLICATION OF FUNCTIONS. One of the peculiarities of American national government is the conflict between the constitutional separation of powers and the constitutional separation of functions. The Framers made Congress and the President independent of each other, drawing authority from separate clauses of the Constitution and acquiring power and influence from separate constituencies through different systems of election. These separate sources of power have been further enhanced by the “differential access of interest groups” to Congress and the President: some interests are better able to achieve their ends by working through the President, others by working through Congress. The independence of Congress and President from each other and from any other higher institutional authority means that both share in the ultimate power to govern. Inevitably, the result is continuous rivalry and friction. The Constitution, however, also provides for a separation of functions. In the broadest terms, Congress has the legislative function and the President the executive function, although the Constitution does assign some executive duties to Congress and some legislative duties to the President. In actual practice, however, the constitutional separation of powers undermines the constitutional separation of functions. The constant rivalry between Congress and President leads each to invade the constitutional realm of the other in any major substantive area of governmental activity. In pursuing their ends, neither the President nor congressional leaders recognize theoretical, legal distinctions between legislative and executive functions. Congress investigates, calls administrative officials to account, doles out funds in limited quantities and for specific purposes, and in many ways penetrates far deeper into the administrative process than does the President. The Chief Executive, on the other hand, formulates major policies, initiates the legislative program for each session, implements sweeping grants of authority through executive orders and regulations, and in reality determines the over-all direction of government policy. Under the separation of powers, Congress and the President must both administer and legislate. That is the iron law of institutional survival. The power to govern cannot be restricted or divided. If each branch is to share in it, each branch must exercise it at every opportunity. The separation of powers thus leads inevitably to the duplication of functions.
The collapse of the separation of functions before the separation of powers is normally lamented by reactionaries who attack the President for usurping the policy-making functions of Congress and by academics who criticize Congress for busying itself with administrative detail. In reality, however, the widespread distribution of power rather than the efficient allocation of function is the central value of the American constitutional pantheon. Divided power results in continuous overlapping and conflicting jurisdictions between the national government and the states, among the three branches of the national government, among executive bureaus and agencies, and between rival congressional committees. Many people do the work of others, and the legal profession and the courts acquire exceptional importance because of the constant need to adjudicate rival powers and claims. Other results of the dispersion of power, however, are the need to secure the agreement of virtually all interested parties (Calhoun’s concurrent majority) before taking action, the democratic multiplication of the avenues of access to government, and the mutual restraint which all groups and governmental bodies exercise on each other and which prevents the arbitrary and dictatorial use of power. In moving in on each other’s functional preserves, Congress and the President exemplify the basic genius of American government.
THE POLICY AND ADMINISTRATIVE ROLES OF CONGRESSIONAL COMMITTEES. Congress discharges its responsibilities for policy and administration through its committees, a majority of which become involved in one way or another with military affairs.2 Its principal instrumentalities with respect to military policy and military administration in the postwar decade were, however, six in number.* The House and Senate Armed Services Committees were preeminent, combining extensive interests in both policy and administration. The House military appropriations subcommittees used the budgetary process for the detailed probing of military administration. The Senate military appropriations subcommittee attempted a more general consideration of military policy. The House Government Operations Committee went deeply into military administration. The Senate Foreign Relations Committee dealt with the important issues of military policy raised by treaties and the annual mutual assistance acts.
Virtually all bills dealing directly with the military establishment, except military appropriations and reorganization plans, were considered by the House Armed Services Committee. In the Eightieth through the Eighty-second Congresses it held extensive hearings upon measures dealing with officer promotion policy, universal military training, selective service, Army organization, the uniform code of military justice, the National Security Act Amendments of 1949, military pay scales, Air Force organization, and the armed forces reserve bill. In addition, its investigation of “Unification and Strategy” in 1949 occasioned the most thorough probing of postwar national military policy prior to the MacArthur hearings. Its chairmen and members maintained a constant interest in the actions of the appropriations committees with respect to the size and composition of the armed forces. The House Committee also went deeply into essentially administrative matters. No aspect of the military establishment was held to be outside its legitimate area of concern. The investigations of the Committee probed into conditions at various military posts and stations, the administration of the military medical services, Air Force safety procedures and air hitchhikers, procurement methods, the operation of ordnance facilities. The extent of the Committee’s administrative involvement was reflected in the requirement that each military department secure the approval of the House and Senate Armed Services Committees before it acquired or disposed of any real estate valued at more than $25,000. The House Naval Affairs Committee first achieved this power with respect to the Navy Department in 1944. At the beginning of the Eighty-first Congress in 1949, Carl Vinson, the new Democratic chairman of the Armed Services Committee and former chairman of the House Naval Affairs Committee, announced the appointment of a special subcommittee to exercise the Committee’s responsibilities with respect to Navy real estate transactions. In a colloquy which strikingly illustrated the tendency of the constitutional separation of functions to become a nullity, he then went on to say:
THE CHAIRMAN. Now, in that connection, while this subject is up, I think it highly important that we have our staff prepare a bill covering the Army and Air Force with reference to all acquisitions and disposals of land and that we should have the same jurisdiction over those two Departments as well as over the Navy Department . . .
MR. KILDAY. May I suggest, Mr. Chairman, that we put that in some other legislation to avoid the possibility of veto?
THE CHAIRMAN. Well, that might be a good idea. But it is sufficient to stand on its own merits. It is clearly within the authority of Congress to have a voice in disposals.
Now, there may be some doubt as to the constitutionality of acquisitions, but there is not any question as to disposals . . . Now, of course, the weakness of our position is that it is not Congress but it is the committee. That might raise a question. But we will cross that bridge when we get to it. So, Mr. Smart, fix up a bill and we will have that to consider . . .
Now, we will designate Mr. Brown, of the professional staff, to carry on this work [on Navy transactions] as he did under Mr. Bates. I want to compliment you on your work and I hope your records are all up to date. I have not checked on it but I am trusting it is all right, so that we will all know what is going on . . .
Well, I think it is a fine control. I want this committee to have something to do with running the departments instead of the departments just telling the committee what they are going to do.
The next matter is the appointment of the special committee to handle the disposal of special properties by the Department of the Navy.
You see, gentlemen, a
great many of these things relate specifically to the Navy because when we were guiding the destinies of the Navy we felt that the committee should have a hand in a great many things.
I feel that same way with reference to all the armed services.3
Despite Mr. Kilday’s warnings, Chairman Vinson attempted to secure his authority in a separate piece of legislation. The President vetoed it. Mr. Vinson then wrote these provisions into the Military and Naval Construction Act of 1951, which, perforce, Mr. Truman had no choice but to sign. The Committee has not infrequently used this power to veto military real estate transactions or to force changes in the terms of the contract.
The Senate Armed Services Committee normally devoted a larger proportion of its effort to major pieces of legislation than did its House counterpart. Unlike the latter, it participated in the consideration of military assistance legislation with the foreign affairs committees, and it maintained close ties with the Senate military appropriations subcommittee. In 1951 it joined with the Foreign Relations Committee in the two major investigations of national military policy concerning the relief of General MacArthur and the assignment of additional American forces to Europe. Investigations were normally carried out by special subcommittees. Most significant in the period under discussion was the Preparedness Subcommittee under the leadership of Senator Lyndon Johnson which during the Korean War investigated a wide variety of subjects in military policy and administration including military tables of organization, the rate of build-up of the Air Forces, the shortage of tungsten, the administration of the Munitions Board, the construction of the North African air bases, the operation of military induction centers, the Army’s procurement of paint, and the comparative firepower of American and Russian divisions. In the Eighty-third Congress two special preparedness subcommittees carried out investigations of the shortage of ammunition in Korea and the procurement of aircraft. The Senate Committee also shared with the House Armed Services Committee responsibility for authorizing the detailed public works expenditures and for approving military real estate transactions. At the beginning of the Eighty-third Congress, the Committee called a halt to the spending of fifty to sixty million dollars on overseas air base construction until a study could be made of the military construction program. The Senate Committee had the additional important power of acting upon all promotions in the armed services and the appointment of the Chiefs of Staff and top-level civilian officials of the Department of Defense. Occasionally the Committee refused to approve the promotion of officers who had been publicly criticized for misperformance of duty. On the other hand, the Committee was also able to secure the promotion of officers who apparently had been neglected or discriminated against by the executive branch.*
The National Security Act of 1947 and the reorganization of the Defense Department in 1953 were both considered in the House by its Committee on Government Operations (formerly the Committee on Expenditures in the Executive Departments). Aside from these major issues of organizational policy, the military interest of the Government Operations Committee was almost entirely in administration, management, supply, and procurement. Its Subcommittee on Government Operations in 1951 and 1952, under the chairmanship of Porter Hardy, carried out extensive inquiries into irregularities in Army procurement and the techniques and procedures of military construction. The Intergovernmental Relations Subcommittee, under Representative Herbert C. Bonner, during the same period investigated military property disposal and military supply management. Other subcommittees went into the military aspects of the federal catalog program and the publicity operations of the War Department with respect to universal military training. In 1953 and 1954 the Riehlman Military Operations Subcommittee continued the interest of its Democratic predecessors in procurement, supply management, and surplus property disposal. In addition it carried out an extensive probe of the organization and administration of military research and development. The operations of the subcommittees frequently involved them in most detailed questions of administration and management in the armed services.4
THE MILITARY APPROPRIATIONS PROCESS. The military budget is the single most important annual contact between the military and Congress. It affords Congress the opportunity to consider and lay down the broad lines of military policy and to review in exhaustive detail military procedure and administration. A distinguishing aspect of the military budget process in Congress is the relative freedom possessed by the military appropriations subcommittees in dealing with the budget. In most areas of governmental activity, the fundamental policies and programs are set forth in substantive legislation previously considered by the subject-matter legislative committees and approved by the Congress. The Appropriations Committees operate within these boundaries in determining each year how much money is to be spent in implementing the substantive legislation. With respect to military affairs, however, the pattern is considerably different. The role of substantive legislation in furnishing a guide to the Appropriations Committees is less important than in most other fields. The basic legislation authorizing the personnel and organization strength of the armed forces usually only sets a ceiling which is seldom approached in actuality. The same authorizing legislation may serve as the basis for a budget of thirty billion dollars or for one of sixty billion dollars. In 1950, after the outbreak of the Korean War, moreover, the strength authorizations of the armed services were first suspended and then set at such a high level — five million — as to have no practical effect. Consequently, full responsibility for making the congressional decisions on the size of the military establishment and the relative importance of the various types of force devolved upon the appropriations process. The only major aspects of the military program for which there were detailed authorizations were military pay scales, military assistance to foreign countries, and military public works. Thus, in effect, the Armed Services Committees were excluded from the most important yearly decisions on military policy. Efforts to bridge this gap were made in the Senate by overlapping membership between the Appropriations and Armed Services Committees. The House Armed Services Committee, on the other hand, attempted to influence military appropriations through a variety of means. In 1949, for instance, the Committee passed a resolution urging the expansion of the Air Force to seventy groups, the staff of the Committee prepared a comprehensive military budget which the chairman presented to the Appropriations Committee, and the chairman himself played a key role in securing congressional approval of increased Air Force appropriations and in endeavoring to increase naval air funds. In 1955 the House Armed Services Committee introduced and considered legislation authorizing an extensive naval shipbuilding program while the Appropriations Committee was considering funds for this purpose. The Armed Services Committee hearings gave the Navy an opportunity to make a public case for its program, and particularly for the construction of an additional Forrestal-class carrier, at a time when the leadership of the Appropriations Committee was reported to be opposed to further carrier construction. In general, however, the Appropriations Committees have an unusual degree of latitude in determining military appropriations.
The absence of detailed substantive legislation implies that the military appropriations subcommittees should give careful and extensive attention to broad policy issues. The Appropriations Committees have, however, been subject to vigorous and informed criticism for giving too little attention to military policy issues and for concentrating instead upon matters of administrative detail. The implication of this criticism is that Congress in dealing with the military budget should not get involved in the details of military command and administration, and that it does not give adequate attention to major issues of public policy.5 The critics, however, are wrong on both counts. The separation of powers demands that Congress become involved in administrative detail in the budget process as in other areas. In practice, moreover, Congress also gives considered and effective attention to the major issues of military policy involved in the budget. Through a division o
f labor in the military budget process, the House military appropriations subcommittee makes a detailed review of administrative efficiency, waste, and duplication, and the Senate military appropriations subcommittee focuses upon the major issues of military policy. While the implicit rivalry of the two houses tends to lead each into both policy and administration, this division of function between them is nonetheless a reality in practice.
The difference in function of the military appropriations process in the two houses is reflected in differences in organization and procedure. The House appropriations subcommittee normally goes over the military budget first, giving it much longer consideration than it receives in the Senate. As a result, the House is able to analyze proposed and previous expenditures in great detail. Since the House usually does not finish with the military appropriations bill until late spring and since it is desirable to complete action upon it before the end of the fiscal year on June 30, the Senate committee is frequently pressed for time. Hence, it is compelled to focus upon the major issues. Also, the fact that its action follows that of the House gives the Senate an appellate function. The services usually accept the House cuts in less important items and only ask the Senate to restore those which they consider most crucial. The House appropriations subcommittee, moreover, is usually broken down into subsubcommittees on each service while the Senate hearings take place before a single military appropriations subcommittee or before the full Appropriations Committee itself. The hundreds of officials who testify before the House committees are mostly medium level civilian administrators and military officers expert in the fiscal and administrative details of their programs. Testimony before the Senate Committee, on the other hand, is usually monopolized by the Secretaries and the military chiefs, who are concerned with policy rather than administration. In addition, the House hearings are normally secret, although the record is subsequently published, while the Senate hearings since 1947 have usually been public. The former procedure, of course, is more applicable to the probing of administrative detail, while the latter is more appropriate for the broad discussion of public policy. Finally, while the military appropriations subcommittee of the House has relatively few contacts with the House Armed Services Committee, close ties exist between the military appropriations subcommittee of the Senate and the Armed Services Committee in the Senate. In 1953, for instance, four of the fifteen members of the military appropriations subcommittee were also members of the Armed Services Committee. In addition, three other members of the Armed Services Committee participated in appropriation hearings as ex officio representatives of that Committee. This custom, standard practice in the Senate, also tends to make the legislative committee more conscious of the fiscal implications of its actions.
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