provisions conclusively shows that none of the predecessor statutes applied to such proceedings as the Commission's subpoena enforcement cases, and that by adopting the codifications the Congress did not intend to effect any changes in preexisting law. As a matter of fact, Congress expressly disavowed such a purpose..70 It is clear, therefore, that the legislative history of Section 9 of the Federal Trade Commission Act, long-established practice, the legislative history of the codifications of Title 28, and applicable legal precedent 71 did not intend the result the skill of persons learned in the law necessary to enable other officers in the Departments, to discharge their respective duties; and shall, on behalf of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested. ... The phrase "except as otherwise authorized by law" was not contained in R.S. 361. Nor did it contain "or agency" because it was enacted prior to the establishment of a major permanent independent agency. Furthermore, it did not apply to litigation in the district courts and referred to Executive Departments exclusively. If the revisors of former 28 USC Judicial Code 507 had intended to make so great a change in preexisting law as to repeal the Commission's authority to go to court without the aid or consent of the Attorney General, it would seem that their notes would have so advised the enacting Congress. No hint of such intention appears either in those notes or in the committee reports, and, accordingly, an intention to amend Section 9 of the Federal Trade Commission Act in this respect cannot be inferred. An equal lack of any such indication is shown by the history of the enactment of present 28 USC 516 and 519. As to the provisions in Section 519, the committee reports not only show no nitention that the recodification should amend the Commission's authority under Section 9, but also affirmatively show a determination to make no change in the existing law. H. Rept. 901, 89th Cong., 1st Sess. on H.R. 10104, which codified and revised Title 5 and enacted it into positive law. Like any other recent codifications undertaken as part of the program of the Committee on the Judiciary of the House of Representatives to enact into law all 50 titles of United States Code, there are no substantive changes made by this bill enacting Title 5 into law. It is sometimes feared that mere changes in terminology and style will result in changes in substance or impair the precedent value of earlier judicial decisions and other interpretations. This fear might have some weight if this were the usual kind of amendatory legislation where it can be inferred that a change of language is intended to change substance. In a codification statute, however, the courts uphold the contrary presumption: the statute is intended to remain substantively unchanged. [p. 3.] With respect to present 28 USC 519, the report states that it was derived from former 28 USC 507 (b) and that "The words 'Except as otherwise authorized by law' are added to provide for existing and future exceptions . . . (p. 187.) 70 Supra note 69. 71 Cf. F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966). In that case, with respect to the issue whether the Commission had authority to seek a pendente lite injunction, the Supreme Court stated: There is no explicit statutory authority for the Commission to appear in judicial review proceedings, but no one has contended it cannot appear achieved by the court. Now, however, the Commission must apply to the Attorney General for enforcement of subpoenas, which is inconsistent with congressional intent on regulatory independence. One of the most important aspects of the Commission's functions and duties is its ability to investigate independently, and the subpoena power, along with enforcement authority, is a very necessary part of its investigatory tools. Frequently its existence alone will obviate the need for its use. Under present conditions, however, the Commission's ability to investigate has been seriously curtailed. The Guignon decision also brings into sharp focus the problems presented by the inability of the Commission to request the Supreme Court to grant writs of certiorari. In order to seek certiorari it must obtain the support of the Solicitor General, which in this case was not achieved. G. Humphrey's Executor The precise limits of regulatory independence have not been crystallized and judicial expressions on the point have been scant. Some guidelines, however, have been established. When Franklin Delano Roosevelt assumed the duties of his office in 1933, he desired to establish his own economic policy. Roosevelt felt that in the execution of this policy he needed control of the Federal Trade Commission. This he intended to accomplish by removing one commissioner openly opposed to Roosevelt's economic policy-Commissioner Humphrey. Roosevelt at first asked Humphrey to resign, on the ground "that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection." 72 When this request was ignored, Roosevelt, on August 31, 1933, and after some intervening correspondence, wrote to Humphrey the following: You will, I know, realize that I do not feel that your mind and my mind go along together on either of the policies or the administering of the Federal Trade Commission and, frankly, I think it is best for the people of this country that I should have a full confidence. in the courts of appeals to defend its orders. Nor has it ever been asserted that the Commission could not bring contempt actions in the appropriate court of appeals when the courts enforcement orders were violated, though it has no statutory authority in this respect. Such ancillary powers have always been treated as essential to the effective discharge of the Commission's responsibilities. [p. 607.] In a recent subpoena enforcement suit before the United States District Court for the Northern District of Georgia, Civil Actions 12,430, 12,431, 12,432, in a decision dated April 2, 1969, the court, although the issue had not been raised, went out of its way to state: Unlike other orders a subpoena issued by the Commission need not be When Humphrey again refused to resign, Roosevelt, on October 7, 1933, wrote him that "effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission. In this attempt to remove a commissioner of an independent agency solely on the basis of incompatibility of views rather than for the reasons spelled out in the statute, Roosevelt relied on the Supreme Court decision in Myers v. United States.73 There the Court held that Congress could not constitutionally restrict the President's power to remove an executive official who had been appointed by the President either alone or with the advice and consent of the Senate. In a dictum the Court further indicated that the President had the unlimited right to remove members of quasi-legislative and quasi-judicial bodies. After reviewing the legislative history of the Federal Trade Commission Act and the debates in both Houses, the Court stated that [T]he language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service-a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of Government.74 The Court recognized that tenure of office at the will of the President would stultify the intent of Congress, an intent evidenced by the fact that Congress fixed commissioners' terms of office. The Court also pointed out that removal power in the President would nullify the independence of the Commission and stated that "it is quite evident that one who holds his office during the pleasure of another, cannot be depened upon to maintain an attitude of independence against the latter's will." 75 A more succinct explanation of the necessity for the Commission's independence cannot be found. In addition, the Court was influenced considerably by the traditional concepts of separation of powers and therefore gave particular consideration to the relationship between regulatory independence and the quasi-judicial functions of the agency: We are thus confronted with the serious question whether not only the members of these quasi-legislative and quasi-judicial bodies . . . continue in office only at the pleasure of the President. We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.76 73 272 U.S. 52 (1926). 74 Humphrey's Executor v. United States, 295 U.S. 602, 625-26 (1935). 75 Id. at 629. 76 Id. at 607. In a previous case,77 the Court dealt at considerable length with the impact of the separation of powers doctrine upon actions by the Executive affecting the independence of officials acting in a judicial capacity. A reading of both cases suggests that the Court, after having determined the function involved, applied the separation of powers doctrine to the issue of independence from control by the Executive. In theory such a test would be ideal for its simplicity. Unfortunately, in modern practice such a separation would be extremely difficult, if not impossible, as these functions, to varying degrees, coalesce in different governmental endeavors.78 Conclusion These are some of the outstanding developments which demonstrate that regulatory independence is rapidly becoming more fanciful than factual. Congressional intent was clear from the outset that the quasilegislative and quasi-judicial regulatory agencies were to be independent and free from the influence, direction or oversight of the Executive Department. Moreover, the above-noted reasons for this-the quasi-legislative service as an arm of the Congress and continuity in effectuation of public policy as declared in the broad outlines of the law—are as valid today as in 1887, more than 80 years ago. I tend to believe that many of the congressional actions undertaken in the interest of orderly and efficient operation of government, which subsequently adversely affected regulatory independence, were accidental rather than a conscious and deliberate effort to limit such regulatory independence. Academic considerations aside, however, the fact remains that when Congress assigned these regulatory tasks to independent agencies it did so because it expected its mandate as evidenced by the organic acts, to be carried out by a vigorous and effective enforcement policy. This policy was intended to be continuous and irrespective of the changing political fortunes dictating White House occupancy. To the extent we have deviated from this intent the resulting diffusion of control has taken its inevitable toll in regulatory efficiency. For example, this situation has undoubtedly had a deleterious impact on antitrust enforcement activities by the Federal Trade Commission as well as the activities of other agencies. To varying degrees, therefore, erosion of independence has at the same time undermined the agencies' effectiveness. It is ironic that this loss of efficiency should be, at least in part, the result of precisely those statutes deigned to foster the orderly and efficient conduct of government. Perhaps, then, the public interest has and may continue to suffer loss of efficiency instead of capturing that illusive objective if there should be continuing erosion of effective congressional oversight instead of oversight by others. 77 Williams v. United States, 289 U.S. 553 (1933). See also, Lusk v. United States, 173 Ct. Cl. 291 and cases cited therein; Wiener v. United States, 357 U.S. 349 (1958). 78 For example, the quasi-judicial authority conferred upon the Secretary of Agriculture by the Packers and Stockyards Act. JAMES F. BROMLEY, Editor Court Vacates and Remands Commission's Approval of Motor Carrier Rate Revision on Small Shipments The National Small Shipments Traffic Conference, Inc., et al, v. United States of America and Interstate Commerce Commission, U.S. District Court for the Southern District of New York, No. 70 Civil 1169, December 23, 1970. Three-judge district court case before Circuit Judge Friendly and District Judges Murphy and Levet. The unanimous opinion by Judge Friendly is as follows: The National Small Shipments Traffic Conference, Inc., and five other plaintiffs, joined by the Eastern Manufacturing Confectioners Traffic Association and the National Industrial Traffic League as intervenors, here ask us to invalidate an order of the Interstate Commerce Commission served on October 28, 1969, predicated on the Commission's report in Small Shipment Rate Revision-Eastern Central Territory. 335 I.C.C. 547. The United States, nominally a defendant, also attacks the report and order because of alleged adverse effects on small businesses, as does the Small Business Administration which was permitted to intervene. The report and order are supported by the Commission and by Eastern Central Motor Carriers Association, Inc., (ECMCA) which filed the tariff here at issue. We shall refer to the two latter as the defendants and to the other parties as the plaintiffs. I The report and order constitute the latest efforts to deal with what has become known as the small shipments problem. Its general nature was analyzed by the Commission almost 20 years ago in language which we quote in the margin.1 As a result of the conditions there noted, 1 In recent years the problems associated with the transportation of small shipments have become among the most troublesome and difficult of those with which the transport agencies and the Commission have to deal. From the standpoint of cost of service, a small shipment has always presented a special problem. This problem, so far as rates and charges are concerned, derives primarily from cost differences which lie principally in the terminal services. In large part, this situation is due to the fact that much of the cost of picking up, handling, and delivering a small shipment is independent of the weight of the shipment. Certain elements of the pickup and delivery cost, and a substantial part of the general office and terminal clerical cost, being independent of the weight of the shipment, are, therefore, several times as great, per 100 pounds, for a 100-pound shipment as for a 1,000-pound shipment. In |