400 NEW YORK UNIVERSITY LAW REVIEW 3. Selection of Judges [Vol. 50:366 Justice Department officials may also, on occasion, assist the President in selecting federal judges.2 236 This advice function is clearly an executive one, since the Department merely aids the President in the exercise of his constitutional power to appoint Supreme Court Justices and other statutorily created superior offi237 such as lower court judges. 238 cers, 4. Testimony Before Congress and Preparation of Legislation Justice officials also appear before Congress to discuss matters within the Department's own jurisdiction and, according to one commentator, to discuss other matters involving constitutional and other legal questions. 239 The former type of testimony would seem to be an exercise of delegated executive authority derived from the President's responsibility to "from time to time give the Congress Information of the State of the Union. "240 Through these Justice officials, the President is accountable to Congress. The second type of testimony, which has rarely (if ever) been given, might be viewed as either executive or strictly voluntary. In fact, giving such advisory testimony to Congress may violate the Attorney General's statutory authorization: several early Attorneys General who took a narrow view of the Judiciary Act considered rendering legal opinions to Congress to be beyond the scope of their power, 241 A similar function is performed by the Department's Office of Legislative Affairs. That office acts as a liaison between the Department and Congress, handling the Justice legislative program and responding to congressional inquiries and legislative proposals. 242 Undeniably, the executive branch now initiates most legislation, 243 despite the Constitution's vesting of legislative power in Congress. Sponsoring legislation, however, does not amount to usurping a congressional prerogative: the Constitution specifically sanctions the President's role as an initiator of legislation.244 By implement 236 New York Bar Report, supra note 213, at 491. 937 U.S. CONST. art II. § 2. cl. 2. 238 28 U.S.C. §§ 44. 133 (1970). 150 New York Bar Report, supra note 213, at 491. 240 US. CONST. art. II. § 3. 141 See. 15 OP. ATTY GEN. 475, 476 (1878) (C. Devens), 10 OP. ATT'Y GEN. 164, 165 (1861) (E. Bates); 1 OP. ATT'Y GEN. 335, 336-37 (1820) (W. Wart). 242 See GOVERNMENT MANUAL, supra note 19, at 290 243 Sec. e.g., Black, The Working Balance of the American Political Departments. 1 HASTINGS CONST. L.Q. 13, 16 (1974) 244 The Constitution authorizes the President to "recommend to [Congress's! Consideration such Measures as he shall judge necessary and expedient." U.S. CONST. art. II, § 3. May 1975] REFORMING JUSTICE 401 ing this role, the Office of Legislative Affairs carries out a delegated executive function. 5. Administrative Divisions Within Justice The Department's numerous administrative responsibilities are more difficult to categorize. First, there are the duties of the FBI, which include investigation, intelligence gathering and arrest. 245 Other lesser known bureaus within Justice engage in similar tasks. 246 Assuming arguendo that investigation is the FBI's principal role, two possible characterizations arise. Under one approach, the FBI and similar divisions might be described as performing legislative functions. In McGrain 247 the Supreme Court upheld Congress's power to investigate.248 More recently, in Soucie v. David,249 a lower court said that “[t]he power of investigation has long been recognized as an incident of legislative power necessary to the enactment and effective enforcement of wise laws. "250 These cases seem to sustain a conclusion that, in investigating, the FBI performs a quasi-legislative function. Yet congressional investigations are undertaken with a view toward law enactment, while FBI investigations are undertaken with a view toward law enforcement. Thus, investigation itself cannot necessarily be labelled quasi-legislative or purely executive but is better characterized as incident to other constitutional powers. Applying an analysis similar to that used to scrutinize the removal power, 251 investigations by the FBI must be viewed as incidental to presidential law enforcement. This conclusion can be supported by drawing upon Chief Judge Bazelon's analogous reasoning in Soucie: a finding that delegated congressional investigatory power exercised by an 252 In independent agency is only "an incident" of legislative power." 245 For a description of the investigatory and other functions of the FBI, see ATTORNEY GENERAL'S FIRST ANNUAL REPort, Federal LAW ENFORCEMENT & CRIMINAL JUSTICE, 196-203 (1972). The Department of Justice Information Center, for example, monitors national activities with civil disturbance potential Government Manual, supra note 19, at 299. The Immigration and Naturalization Service prevents illegal entry of aliens into the United States, investigates, apprehends and deports illegal aliens and also fights illegal drug importation Id. at 303 The Drug Enforcement Administration conducts investigations of illegal drug trafficking in the United States and abroad. Id. at 305 147 273 U.S. 135 (1927), discussed in text accompanying notes 47-49 supra. 24 See id. at 178, quoted in text accompanying note 48 supra; Quinn v. United States, 349 US 155. 160-61 (1955), quoted in text accompanying note 183 supru 249 448 F.2d 1067 ‹D C. Cir 1971). 250 Id at 1075 n 27 25: See text accompanying notes 108-10 supra. 252 448 F.2d at 1075 n.27. 402 NEW YORK UNIVERSIty law reVIEW [Vol. 50:366 the case of the FBI, investigation is simply an incident of presidential power. Alternatively, the FBI could be characterized as a national police force. As such, the Bureau belongs within the executive's sphere, for control over the police is an executive attribute at every tier of government. Presidential control once again derives its constitutional basis from the faithful execution clause. The Department also administers and enforces the immigration and naturalization laws, a function carried out by the Board of Immigration Appeals and the Immigration and Naturalization Service (INS). In addition to responsibilities comparable to those of the FBI,253 the INS sustains several unique burdens: it inspects aliens to determine, their fitness for admission into the United States, and it examines applicants for citizenship. While these functions implement constitutionally authorized congressional powers, 254 they also seem to qualify as law enforcement-the ambit of the executive. In addition, the INS weighs evidence and rules on aliens' requests for legal benefits. Wiener v. United States 255 and Morgan v. United States, 256 indicate that this role could be called quasi-judicial. Moreover, because the Board of Immigration Appeals hears challenges to certain INS decisions, 257 it has aptly been called "a quasijudicial body created by and operating under . . . the Attorney General. "258 Justice's fourth major administrative division, the Drug Enforcement Administration, performs still different functions. 259 Be 253 GOVERNMENT MANUAL, supra note 19, at 303-04. 154 Congressional power over immigration can be inferred from the Constitution's temporary restriction of that power. "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” U.S. CONST. art. 1, § 9, cl. 1 Congress is expressly empowered "[t]o establish an uniform Rule of Naturalization " Id. § 8, el. 4. 255 357 U.S. 349, 354-55 (1958), discussed in text accompanying notes 117-20 supra 254 298 U.S. 468, 480 (1936). 257 For a description of the functions of the Board, see GOVERNMENT MANUAL, supra note 19. at 306. 25 Id. The fact that the Board exercises nonexecutive power does not pose any constitutional difficulty. Congress can explicitly delegate such functions to executive officers. See Morgan v. United States. 298 U.S. 468, 479-80 (1936). Moreover, where the President has unilaterally assumed such authority Congress can by acquiescence legitimate the exercise of quasi-judicial power by executive officials. IsbrandtsenMoller Co. v. United States, 14 F. Supp. 407, 411-12 (S.D.N.Y. 1936), aff'd, 300 U.S. 139 (1937). Presumably, then, Congress has acquiesced in the Board's exercise of such authority by appropriating funds for it. Accord, id. at 412. 259 GOVERNMENT MANUAL, supra note 19, at 305. May 1975] REFORMING JUSTICE 403 sides carrying out an investigatory role similar to that of the FBI, 260 The Department of Justice also administers the federal correc- The activities of the Law Enforcement Assistance Administra- 200 See note 246 and text accompanying notes 245-46 supra. 261 Professor Corwin argues that regulation is a legislative function which is often 262 See text accompanying notes 101-12 supra 263 GOVERNMENT Manual, supra note 19. at 302 264 Id. at 306. 285 See text accompanying notes 126-28 supru. 266 See ANNUAL REPORT, supra note 15, at 207. 267 The Constitution, provides that the President "shall have Power to grant Re- 268 Act of June 19, 1968, Pub L. No. 90-351, tit. 1, 82 Stat. 197 (1968) (codified at 26 The LEAA is described briefly in GOVERNment Manual, supra note 19. „t The Constitution provides that "Congress shall have Power ... to pay the 404 NEW YORK UNIVERSITY LAW REVIEW [Vol. 50.366 for most grant allotments, some do involve the exercise of agency discretion. 271 To the extent that the LEAA's discretion translates into an active evaluation of programs and of grant proposals, it arguably represents an exercise of the delegated legislative power which founded Chief Judge Bazelon's opinion in Soucie v. David. 272 Nevertheless, the exercise of discretion, in spending as in other areas, is arguably an executive responsibility. Professor Corwin has interpreted the constitutional spending provision as a presidential, rather than congressional, grant of power. In his view, there is an "inherently executive prerogative of planning and directing expenditure, "27" and "the participation of the legislative branch [in this process] is essentially for the purpose simply of setting bounds to executive discretion. "274 This argument, however, is not persuasive. Since the President must administer the laws according to congressional mandates, and since Congress can at any time limit the scope of presidential spending discretion-a point which Professor Corwin admits275-whatever spending discretion the President enjoys must be by delegation of Congress's own power. Indeed, Train v. City of New York,276 the Supreme Court's most recent consideration of the subject, treats the spending discretion of the President as a statutory delegation, not as an inherent executive power.2 277 One final Department component, the Community Relations Service, should be examined. The Service uses mediation and conciliation techniques to resolve civil rights disputes by voluntary action. 278 Such an adjudicatory function qualifies as quasi-judicial under Wiener and Morgan. In sum, the Justice Department cannot be functionally characterized as purely executive. Instead, it performs a variety of roles, some clearly executive, others more easily characterized as quasilegislative or quasi-judicial. The litigation, advice, judicial selection, legislation sponsoring and corrections functions of Justice, as well as the Department's testimonial role before Congress, all fall within the executive sphere. The investigatory role of the FBI and other Justice bureaus have both executive and quasi-legislative at 71 Ingle, supra note 269, at 485. 7 448 F.2d 1067 (D.C. Cir. 1971), discussed in text accompanying notes 249-52 зирта. 273 CORWIN, THE PRESIDENT, supra note 261, at 129. 874 Id. at 127-28. 275 Id. at 129. 276 420 U.S. 35 (1975). 71 See id. at 44-48. 278 GOVERNMENT MANUAL, supra note 19, at 292. |