undesirable that such legislation be enacted because this he said is essentially the function of the State legislature. With this I agree. But I suggest that there was no direct response by Mr. Harris to the question propounded by Chairman Willis as to what should be done in the event the State legislature failed to act. As I understood Mr. Harris' response, it was that there should be no action on this, that if the State legislatures failed to act nothing should be done or that Congress should act.

It should be pointed out here, that my bill might have authorized action by the Congress through one of its committees or through a special committee to take this kind of action. Upon reflection I thought it was better in order to avoid political pressures or vicissitudes which might come through the congressional consideration of the reapportionment of the districts of a State, that it be done by the executive agency which is particularly fitted to carry out this function. The Director of the Census has the job of determining the populations in the respective States. We felt therefore that he is the appropriate person to carry out this task.

It is possible, Mr. Chairman, to have another procedure, too, which would authorize the Director of the Census to recommend an apportionment and report back to the Congress, if this committee thought that such a provision might be appropriate. But there is no question in my mind that the Director of the Census is the appropriate official to consult for advice in the event of congressional action.

With respect to the comment that Mr. Harris made as to what was the spirit of the Constitution in giving it to legislatures-the spirit of the Constitution-he indicated that he thought that the framers of the Constitution intended that the legislatures act. I think this is true. But I think the framers of the Constitution intended that there should be no at-large representation if the States fail to act.

I asked the American Law Division of the Library of Congress for an opinion as to the constitutionality of the bill that has been filed. I have their opinion. I have already given it to the chairman of the full committee, Mr. Celler, and with the permission of the Chair I would like to attach it to my statement.

Mr. WILLIS. It will be included as a part of the gentleman's statement.

(The document referred to is as follows:)

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, August 3, 1961.

To: Hon. Sidney Yates.
From: American Law Division.

Subject: Constitutionality of H.R. 8075, 87th Congress, a bill providing for redistricting of any of the several States for the election of Representatives in Congress, under certain conditions, in a specified manner.

SUMMARY OF THE BILL

The bill, H.R. 8075, 87th Congress, amends the present Apportionment Act (2 U.S.C. 2a (e)) so that if, after an apportionment, there is a decrease in the number of Representatives to which a State is entitled, and the number of districts in such State exceeds such decreased number of Representatives, and if such State has not redistricted according to its own laws so that its redistricting will be effective by January 1 of the year in which the election of such decreased number of Representatives occurs, the Director of the Bureau of the Census shall redistrict such State for the purpose of election of Representatives,

in the following manner, to the extent practicable: (a) there shall not be a differential of more than 15 percent in population between the population of a district and the average population for congressional districts in the State; (b) the districts shall be composed of contiguous and compact territory; and (c) where possible existing districts shall be retained. A State may then redistrict in a manner provided by its own laws and such redistricting shall supersede the redistricting by the Director of the Bureau of the Census, but only for the election which will occur in the year following the year in which the State redistricting action becomes effective.

CONSTITUTIONALITY OF THE BILL

In considering the constitutionality of H.R. 8075, two questions must be decided. First, does Congress have the authority to provide for the redistricting of a State? Second, if Congress does have such authority, does the bill provide means which are constitutional, for accomplishing such redistricting?

1. Does Congress have authority to provide for the dedistricting of a State? The power of Congress to control State redistricting stems from article 1, section 4, of the United States Constitution, which provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to Places of Chusing Senators."

The background of this provision of the Constitution is found in the Papers of James Madison, describing the Constitutional Convention. Mr. Mason strongly argued for "election of the larger branch (of the National Legislature) by the people" (Madison Papers (1840) v. 2, p. 754) Mr. Wilson supported this position (id., v. 2, p. 755), and Mr. Madison considered the popular election of one branch "essential to every plan of free government" (id., v. 2, p. 755). Election of the first branch by the people was approved 5 to 3 (Connecticut, Delaware divided) (id., v. 2, p. 757). It soon became apparent that there existed a correlative question of control over the election of this branch in order to insure that Congress represented the people as well as the States. The problem took shape after a plan was adopted whereby the Senate was to be appointed by the State legislature. Mr. Wilson directly raised the question of whether a reciprocal opportunity to defend its rights should not be given to the National Government (id., v. 2, p. 922). Mr. Madison insisted that the legislatures of the States ought not to have the uncontrolled right of regulating the time, places, and manner of holding elections (Documents Illustrative of the Formation of the Union of American States (1927) p. 509). Mr. Sherman stated that it was meant to give the National Legislature the power not only to alter election provisions of the States, but to make regulations in case the States should fail or refuse altogether (id., p. 511).

By August 6 a provision for congressional elections had evolved (Madison Papers, v. 2, p. 1229). The September 11 reading was in the form finally adopted "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but Congress may at any time make or alter such regulations..." (id., v. 3, p. 1546). Thereafter the wording remained unchanged (Monday, September 17) (id, v. 3, p. 1608.)

Following the convention this provision caused spirited debate in the States. In Massachusetts Mr. Parsons argued as follows: "But a State legislature, under the influence of their Senators, who would have their fullest confidence, or under the influence of ambitions or popular characters, or in times of popular commotion and when faction and party spirit run high, would introduce such regulations as would render the rights of the people insecure and of little value. They might make an unequal and partial division of the States into districts for the election of Representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of Senators and Representatives of 12 States, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election. Perhaps it then will be objected, that from the supposed opposition of interest in the Federal Legislature, they may never agree upon any regulations, but regulations necessary for the interests of the people can never be opposed to the interests of either of the branches of the Federal Legislature; because of that

the interests of the people require that the mutual powers of that Legislature should be preserved unimpaired, in order to balance the Government. Indeed, if the Congress could never agree on any regulations, then certainly no objection to the 4th section can remain; for the regulations introduced by the State legislatures will be the governing rule of elections, until Congress can agree upon alterations." (Elliot, Debates (1836), vol. II, p. 27).

In Virginia, Mr. Madison explained the provision this way: "It was thought that the regulation of time, place, and manner of electing the Representatives should be uniform throughout the continent. Some States might regulate the elections on the principles of equality, and others might regulate them otherwise ✶ ✶ ✶ Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government. It was found impossible to fix the time, place, and manner of the election of Representatives, in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity, and prevent its own dissolution ***. Were they (the regulations). exclusively under the control of the State government, the General Government might easily be dissolved. But if they be regulated properly by the State legislatures, the congressional control will very probably never be exercised." (Elliot, Debates (1836) vol. III, p. 367.)

In North Carolina general apprehension was expressed over the possibilities for misuse and abuse of the broad authority granted. Mr. Spencer charged that it looked forward "to a consolidation of the Government of the United States, when the State legislatures may entirely decay away." (Elliot, Debates (1836) vol. IV, p. 76.)

It thus appears clearly to have been the intent of the framers of the Constitution to give Congress the power to district or redistrict the States for election of Representatives.

Congress did not exercise this power until 1842. At that time 17 States were already electing their Representatives by district, the remaining 9 electing all their Representatives at large. Conceiving that the system employed in some States of electing all the Members of the House of Representatives at large gave an undue power to the political party in the majority in the State (Willoughby, Constitutional Law (1920) p. 639), Congress enacted the act of June 25, 1842 (5 Stat. 491 ch. 47) apportioning Representatives among the several States according to the Sixth Census, and providing that "In every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives to which said State may be entitled, no one district electing more than one Representative."

This requirement "was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each State, a due influence in the choice of Representatives, so as not to leave the aggregate minority of the people in a State, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils," 1 Kent, Commentaries (12th ed. 1873, 230–31, (n) (3)).

Similar provisions to that contained in the act of June 25, 1842, were contained in the act of February 2, 1872 (17 Stat. 28 ch. 11, p. 2) with the added requirement that each district contain "as nearly as practicable an equal number of inhabitants"; in the act of February 25, 1882 (22 Stat. 5), the act of February 7, 1891 (26 Stat. 735), and the act of January 16, 1901 (31 Stat. 734, ch. 93, p. 3) which added the requirement that the districts be "compact," so that the law now provided that Representatives "shall be elected by districts composed of contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative." The act of August 8, 1911 (37 Stat. 14, p. 3) reenacted this entire provision, and it remained in force until 1929.

The Reapportionment Act of 1929 (46 Stat. 26, sec. 22) omitted this provision; nor was it reenacted in the Apportionment Act of 1941 (55 Stat. 761, ch. 470), known as the Equal Proportions Act of 1941, which amends the Reapportionment Act of 1929 and which is the law in effect at present.

In 1870 and 1872 Congress passed statutes affirmatively regulating the conduct of congressional elections (14 Stat. 243, ch. 245; 16 Stat. 144, sec. 19-23; 16 Stat. 255, sec. 5). These provisions were contested, the controversy reaching the U.S. Supreme Court in Ex parte Siebold (100 U.S. 371). In that case, Stateappointed judges of elections were arrested for interfering with federally appointed supervisors and deputy marshals. The Court, in holding that the power of Congress over elections was paramount, stated, "There is no declaration that the regulations [under art. I, sec. 4 of the Constitution] shall be made either wholly by the State legislatures or wholly by Congress. If Congress does not interfere, of course they may be made wholly by the State; but if it chooses to interfere, there is nothing in the words to prevent its doing so, either wholly or partially. On the contrary, their necessary implication is that it may do either. It may either make the regulations, or it may alter them. If it only alters, leaving, as manifest convenience requires, the general organization of the polls to the State, there results a necessary cooperation of the two governments in regulating the subject. But no repugnance in the system of regulations can arise thence; for the power of Congress over the subject is paramount. It may be exercised as and when Congress sees fit to exercise it. When exercised, the action of Congress, so far as it extends and conflicts with the regulations of the State, necessarily supersedes them. This is implied in the power to 'make or alter'." (P. 383.)

"The Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility * * *. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress." Colegrove v. Green, 328 U.S. 549, 554 (1946).

It would thus appear, that although Congress has not exercised this power, Congress does have the power to redistrict the States to meet changes in appor tionment of Representatives. According to Ex parte Siebold, supra, there is no declaration in the Constitution that this redistricting must be made either wholly by the State legislatures or wholly by Congress, so that when Congress attempts to redistrict only those States which have not redistricted under State law, as is provided in H.R. 8075, 87th Congress, such action would not appear to be unconstitutional.

2. Does the bill, H.R. 8075, provide means which are constitutional, for accomplishing such redistricting?

The point in question is whether Congress can delegate to the Director of the Bureau of the Census its authority to redistrict a State. In other words, can Congress delegate its legislative power to an executive agency?

The maxim of agency "Delegata potestas non potest delegari" which was borrowed by John Locke and formulated as a dogma of political science (Second Treatise on Government, ch. XI, sec. 141 (1691)), has become a constitutional foundation. Locke states it thus: "The Legislative cannot transfer the Power of making laws to any other hands, for it being but a delegated Power from the People, they who have it cannot pass it over to others." (Essay concerning Civil Government, sec. 191.)

Chief Justice Taft explained this idea and its limitations as follows:

*** The Federal Constitution and State Constitutions of this country divide the governmental power into three branches *** in carrying out that constitutional division *** it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not coordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to commonsense and the inherent necessities of the governmental coordination." Hampton Jr. & Co. v. United States (1928), 276 U.S. 394, 405, 406. Under this theory that "the extent and character of that assistance must be fixed according to commonsense and the inherent necessities of the governmental coordination," the Supreme Court has sustained the constitutionality of numerous statutes which granted vast powers to administrative or executive agencies.

These decisions have been based on two theories: (1) that another department may be empowered to "fill up the details" of a statute, Wayman v. Southard (1825), 10 Wheat. 1, 42; and (2) that Congress may legislate contingently, leaving to others the task of ascertaining the facts which bring its declared policy into operation. The Brig Aurora (1813), 7 Cr. 382.

In order that an executive or administrative agency may constitutionally be enabled to "fill up the details," or, in order that there may be a valid delegation of authority, Congress must first set up a clear and intelligible standard to guide the administrative body. Sunshine Anthracite Coal Co. v. Adkins (1940), 310 U.S. 381, 398; United States v. Rock Royal Cooperative (1939), 307 U.S. 533, 574.

H.R. 8075 has done that. It has laid down clear standards by which the Director of the Bureau of the Census must be guided in redistricting a State.

It is not unusual for Congress to appoint an administrative agent to act for it. The Secretary of the Army (previously the Secretary of War) has long been authorized to control the erection of bridges over navigable streams (33 U.S.C. 491), and the U.S. Supreme Court has upheld this as constitutional Miller v. Mayor of New York, 109 U.S. 385, 393; Union Bridge Co. v. U.S., 204 U.S. 364; Hannibal Bridge Co. v. U.S., 221 U.S. 194. Legislative power was held not to have been unconstitutionally delegated to the Secretary of Agriculture by provisions of the Forest Reserves Act (30 Stat. 35) which made criminal the violation of rules and regulations issued by the Secretary. U.S. v. Grimand, 220 U.S. 506.

The Court sustained the authority granted to the Commissioner of Internal Revenue to designate the "marks, brands, and stamps" to be affixed to packages of oleomargarine. Ex parte Kollock, 165 U.S. 526. It upheld an act which directed the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States. Buttfield v. Stranahan, 192 U.S. 470. It approved the delegation of power to prescribe price schedules for the distribution of milk, U.S. v. Rock Royal Cooperative, 307 U.S. 533, 574. This case contains a clear explanation of the theory.

"From the earliest days the Congress has been compelled to leave to the administrative officers of the Government authority to determine facts which were to put legislation into effect and the details of regulations which would implement the more general enactments. It is well settled, therefore, that it is no argument against the constitutionality of an act to say that it delegates broad powers to executives to determine the details of any legislative scheme. This necessary authority has never been denied (Panama Refining Co. v. Ryan, 293 U.S. 388, 421; Schechter Corp. v. United States, 295 U.S. 495, 529; Currin v. Wallace, 306 U.S. 1). In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests the Congress needs specify only so far as is reasonably practicable. The act, we believe, satisfies these tests." It would thus appear from the above cases that the authority to redistrict a State, which H.R. 8075 vests in the Director of the Bureau of the Census is a constitutional delegation of its power by Congress, in that the bill clearly states under what circumstances he shall redistrict and establishes clear standards to guide him in such redistricting.

MOLLIE Z. MARGOLIN,
Legislative Attorney.

Mr. YATES. The above shows the proposed legislation is constitutional. It shows that Congress does have the power to delegate the functions, its functions in this respect for it sets forth appropriate standards, which have been done in this legislation.

In the course of that opinion if the Chair would bear with me, there was a discussion as to what was intended by the framers of our Constitution in such instances where the State failed to act or acted inappropriately, and I quote from the opinion which was taken from the debates surrounding the inclusion of article I, section 4, of the