The President of the United States can commandeer every U.S. Flag ship instantly in event of war or emergency. This kind of an operation can't be all bound up with railroads, public roads, air lines, truck lines and all the other extraneous activities in the Commerce and Transportation Departments.

The American Merchant Marine will never carry its "domestic water-borne commerce" with MARAD in another Department. The intercoastal and coastwise ships have practically disappeared. How anybody can expect them to come back when MARAD is a poor little orphan in DOT, dominated by the railroads with their phoney loss-leader rates on water competitive routes, I'll never know. The railroads are just to big, and when you add the trucks, there isn't a man on earth who could be the Secretary of DOT and keep them from eliminating the few intercoastal and coastwise ships that are left, if the whole ball of wax were in one department.

The biggest reason is yet to come. Now, we don't trust Mr. Boyd as a man to have anything to do with maritime, and know very well what would happen after he got foreign building established, and a few other things he has in his bag of tricks. But even if he were a great champion of Merchant Marine and U.S. shipyards, it just isn't in the cards to put MARAD in any department under any man. Why? For the simple reason that history has shown that it isn't safe. The Congress enacted the Merchant Marine Act of 1936. The Congress passed the 50-50 law. The Congress stopped MARAD from going into DOT. Members of the Congress introduced over 100 bills to keep MARAD separate. It will be the Congress that will prevent foreign building of American Flag ships. It was the Congress that blew the whistle on building our Navy ships in foreign countries. The Maritime Policy of the United States of America must be enacted by the Congress and must be administered by a body responsible to the Congress, so that the policy will be carried out. Anybody who doesn't believe this only has to look at the record. Keep the maritime policy out of the hands of the politicians. This is the only safe way. Another way of saying it is that our maritime policy must be permanent and enduring, and not bend and break with each change in the administration or in some cabinet post.

As to Mr. Boyd. Before going into this gentleman's record, I want to say that our position is that whether the DOT Secretary would be Mr. Boyd or Admiral Jerry Land, MARAD should still be independent. But, Mr. Boyd's record just makes it all the worse, it makes an impossible situation an unspeakable one. He wants to build ships foreign, holding out the "bait" of 30 ships per year in U.S. shipyards, which he says is double what we're doing now.

He says that one of his inflexible points is the "level of support" of maritime. Here is the greatest proof you could get that he's not the man, and should step aside and stop holding up the wheels of progress. If he can't see any further beyond the end of his nose than 30 ships per year, he just doesn't believe we should have a Merchant Marine of the size that our job in this world demands. He's small bore, low key and negative when it comes to what the job of the maritime industry of the United States is.

He wants to fool around with the 50-50 law, although he backs away a little from his previous position on this-but just for now. Don't be fooled by this. He wants that repealed finally.

He has appeared before this Committee and the Senate Merchant Marine Committee and said, "This is it, take it or leave it. It will be my program or none at all."

This sounds very much like a man burning down his own house. Here he is before the Congress of the United States trying to sell a program. Here he is with an assignment by the President of the United States to put a maritime program together. Here he is, just another man, and a rather indistinguished man who has never been noted for his accomplishments, telling off the Congress of the United States.

It was three months ago when he told the Senate Committee that it's the Boyd program or none at all. When I heard that I was so flabbergasted I had a cartoon put in our newspaper, Labor Review, a few copies of which I have passed around here. I was quoted in that paper at that time as saying, “I'm no student of Shakespeare, but there's one that goes something like, 'What kind of meat does our Caesar eat?" Well, I got it a little wrong, because when the cartoon came out it gave it right, which is "Upon what meat doth our Caesar feed, that he is grown so great?", which just proves what I said, I'm no Shakespearean expert.

But I remembered enough of it to get the point across, and honestly, this is the only way I could say it. I'm still flabbergasted at the man, because he's still saying it. He repeated it before this Committee just a couple of weeks ago.

Now, I think that the American Labor movement has a lot of votes in the Congress. I think the American Legion has. So has the Army and the Navy. So has industry, and so has education and the professions, and others. But, honestly, and for the life of me, in all the years of my coming back here and testifying, I've never heard a man stand up to the Congress and tell it off, unless he was some nut who took the 5th Amendment just for national publicity. Nobody in Labor, Industry, Education, Army, Navy, Air Force or what have you would dare tell the Congress off like this, and Mr. Boyd can't hold a candle to lots of people who appear in these Committee Rooms. This outfit's been going for over 170 years, and a lot of members have been around for 25 years or more. And this Johnny-come-lately with only a few month behind him as a Cabinet Officer comes in here and says, "take it or leave it."

One final comment on Mr. Boyd. Let's go back a little bit. He was in CAB, and all of a sudden he's not there anymore, he's the Assistant Secretary of Commerce for Transportation, always a nothing job in years gone by. The Maritime Administrator always went around this man direct to the Secretary of Commerce, as the Members of this Committee well know. Then what happens? The Interagency Maritime Task Force Report starts cooking. And who was the chief cook on that one? Mr. Boyd got top billing, but Mr. Nicholas Johnson was the man who put it together, and he was apeing the computer boys in Mr. McNamara's department when he did it. He's a McNamara discipleeverybody knows it. The computer is his God, and MARAD will be another 10 years recovering from the mistakes he made. It was whispered rather openly in the industry before Mr. Boyd was promised the DOT job that he cursed the day he met Nick Johnson, because that man led him down the primrose path on foreign building and the rest of his sophomore stuff. But then Mr. Boyd got the big promise, and then he got courage, and now he's a big fighter for all of these phoney things that are hatched in DOD by Mr. McNamara. I know Mr. McNamara is billed as the second strongest man in the United States, but somebody has to speak out, or he'll ruin the Merchant Marine and make the U.S. a sitting duck for the Russians. The steamship operators kiss his feet because half their cargoes are military. Well, I don't owe him anything, and I know he's not a good man in his job. He may have been the highest paid accountant in the world but he does not have the balance for the job of Secretary of Defense. There have been a few rumbles lately about Mr. McNamara that Mr. Boyd might well check out. It might be time for him to set the stage for another switch in his policies, particularly if we get a Secretary of Defense who's strong on maritime.

So much for personalities. I'm a peaceful man and don't particularly like to deal in personalities. But Mr. Boyd is the one who put it on a personal basis when he set himself up as a Caesar.

There's another aspect of this that I think should be mentioned. I've been around in this shipyard and general maritime industry a long time and haven't got too long to go. I can say what I think--what I know-without fear of reprisal from anybody. And I will say this and would make a good bet that before too long we'll find out that Mr. Boyd does not speak for the President in this program of his. We're in a battle and I've been in lots of them. Sometimes it looked so black we never thought we could win. Sometimes we quit too soon, and then we got licked real good. Sometimes we kept on fighting and most of the time we won, not because of us, but because we were right. We're right in this thing. Every man who put in one of these 100 bills on MARAD is right. Sure, it might look a little black now. After all DOT is a big department. After all, Maritime is a transportation agency in one sense of the word but in a much bigger sense it's something else. It looked black last year when we were getting ready for the fight on the floor of the House on the DOT bill. We had the word "straight from the leadership" that MARAD would go into DOT, and what happened? The House voted almost 3 to 1 to keep it out. Then we had it straight from the horse's mouth that the Senate would put it back in, and they didn't. This "package deal" stuff and this "take it or leave it" stuff is just so much horse feathers. It's bluff. Mr. Boyd doesn't make the policy of the Administration, the President does, and he told Mr. Boyd to go out and do a job and Mr. Boyd has failed.

There's only one thing for the Congress to do in my humble opinion, and that's to grab the ball and run with it. How long can we sit around and wait? Mr. Boyd says he won't even put in what he's got and let the Congress debate it. What kind of talk is this? It sounds like Nero fiddling while Rome is burning. We're out of time to fiddle. We were out of time over a year ago. This Committee has the means to write the legislation. This Committee can write a report, pass it to staff and tell them to write the bills. We don't need Mr. Boyd's bill. If I thought this Committee would consider it, I'd hire the best admiralty lawyer in San Francisco and get the bill written in 30 days and turn it in myself.

Finally, our President is closer to the House and the Senate than he is to the Bureaucrats. He came from here, first the House and then the Senate. He hasn't said take it or leave it, and he has enough respect for this Congress never to say it, and also enough respect to cooperate 100% with what this Congress does in the Maritime field. If we can remember this, and just go ahead and do what is right, we have nothing to fear.

Thank you, and God bless this Committee.

STATEMENT BY ROBERT E. MAYER, PRESIDENT, WESTERN SHIPBUILDING ASSOCIATION

It is a rare privilege to offer testimony before a Committee of the Congress in support of a measure which is proposed by the introduction of more bills than have ever been introduced on a single subject.

In the clamor and heat of debate on the question of whether the administration of our National Maritime Policy under the Merchant Marine Act should be by an agency included in and thus subservient to a governmental department headed by a Cabinet Secretary, or, in the alternative, completely independent of Departmental Secretaries, there has been a conspicuous lack of attention to the origin, nature, and function of the quasi-judicial agency in the fabric of our federal government.

The arguments seem to concentrate on political power of such a body, and its comparative ability to “compete for funds" in the annual appropriations scramble. Concentration on such political aspects at once misses the point, and underscores the need for MARAD to be made an entirely independent agency.

A brief discussion of the historical background of the quasi-judicial agency seems essential.

The quasi-judicial agency came into being with the establishment of the Interstate Commerce Commission in about 1919. In the earlier history of the nation, the Congress enacted laws; the Executive Branch administered them and the Judicial Branch passed upon their constitutionality and made decision in litigation that arose under them.

As population increased, and as the nation became more and more industrialized, our society became more complex. Certain basic needs of human life came to be more and more crucial to the progress of the nation. The Canals of our nation constituted the first major transportation factor in our national development. But they were limited in general to the east. As we spread westward, it was the railroad system that was quickly discerned as the indispensable ingredient to our future national development. Vast areas had to be conquered from the wilderness. Unheard of land distances had to be traversed. And reliable means of transport was the answer. The railrods were the key, and as they developed, competition developed among them, with the inevitable price ware, and resulting demoralization of the service so vital to our continued development. Transportation was linked with the public welfare, and it was determined that under the general "police power" of the state, as it is called in the discussion of the constitutionality of such measures, Congress could pass laws regulating such transportation .Thus came the Interstate Commerce Act, and the ICC.

So much for origins.

Now let us turn to the nature of the responsibilities placed upon the newly created body. Again, the complexity of our society comes into play. It was anticipated in creating the ICC-and correctly so-that:

The Interstate Commerce Act would result in the need for numerous interpretative decision, involving matters so technical as to have the best interests of transportation and the public welfare best served by these decisions being made at least short of the appellate level-by a group of technical experts not necessarily learned in the law; and

The ICC would be required to make so many decisions that it would be an undue burden on the courts, especially in view of their highly technical nature, for all such matters to commence in the courts, rather than the vast majority being disposed of in some preliminary body.

It was therefore determined by the Congress that it should make the ICC a "nearly judicial" body; or, as we term it with hardly a thought as to its real meaning, a quasi-judicial agency, performing a part of the function of the courts.

So as not to abandon entirely the three way check and balance system of our government, it is provided in the Administrative Procedures Act, that-under circumstances and conditions set forth therein-the decisions of such bodies are subject to review by the courts.

The ICC was the first and the Atomic Energy Commission is, I believe, the latest of the quasi-judicial (and quasi-legislative) agencies so created-and there have been a great many in between such as FTC, FCC, SEC, etc., virtually all independent of any Cabinet Department.

For some perspective on the "why" of the independence of the quasi-judicial agency, we are fortunate in having the language of the decision of the Supreme Court of the United States in the case of Humphrey's Executor vs. the United States (295US602).

The case is doubly good for our purpose, not only because the language of the decision is so germane to our debate, but because the facts are such that the case seems to have been intended for our guidance in this debate.

The deceased Humphrey had been appointed to a several year term on the Federal Trades Commission, an independent quasi-judicial agency. The President who had appointed him had gone out of office, and another man elected in his place. Mr. Humphrey still had some years of his statutory term to serve after the new President was inaugurated, yet the new Chief Executive requested his resignation, stating explicitly in his request that he felt that the country would be best served if men in such posts as his were in line policy-wise with the President, i.e., in tune with his political thinking.

Because this is exactly what we are dealing with in this debate-the elimination of politics; or a national policy subject to constant change by the whim of an individual; or even an ignoring of national policy as laid down by the Congress, it is well to quote some of the language of the President in asking Mr. Humphrey to reliquish his post in favor of a man who would make decisions on that quasijudicial body the way the new President would want them. This is what he said, "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or administration 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".

We've come a long way since then, and certain events occurring in that same period in our history have made this nation supremely conscious of the necessity for men in decision-making positions to be absolutely free from influence, other than the law, and the facts of the case before them.

Despite the President's request, or perhaps because of its tone, Commissioner Humphrey did not resign, and in a few months, the President notified him that he was relieved of his duties, discharged, in other words. The suit was by the Executor of the Commissioner's estate to collect back salary for the period from date of his alleged discharge, to the date of the Commissioner's death. The estate of Mr. Humphrey prevailed, the court upholding his right to hold office until his term expired (since under the statute the appointments were for a definite term, and there was no provision that appointees would serve at the pleasure of the President).

It is essential that this factual background be kept in mind in reading the following excerpts from the court's decision.

From page 625 of the decision:

"The report (of the Congressional Committee involved in the creation of the Federal Trade Commission) declares that one advantage which the Commission possessed over the Bureau of Corporations (an executive subdivision in the Department of Commerce which was abolished by the act) lay in the fact of its independence, and that it was essential that the Commission should not be open to the suspicion of partisan direction. The report quotes (p. 22) a statement to the committee by Senator Newlands, who reported the bill, that the tribunal should be of high character and 'independent of any department of the government... a board or commission of dignity, permanence, and ability, independent of executive authority, except in its selection, and independent in character.'

"The debates in both houses demonstrate that the prevailing view was that the Commission was not to be 'subject to anybody in the government but... only to the people of the United States', free from 'political domination or control' or the 'probability or possibility of such a thing;' to be 'separate and apart from any existing department of the government-not subject to the order of the President.'"

And, from page 628 of the decision:

"The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of 'unfair methods of competition,' that is to say, in filling in and administering the details embodied by that general standard, the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under section 6, in aid of the legislative power, it acts as a legislative agency. Under section 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense, it does so in the discharge and effecuation of its quasilegislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government."

More, from pages 629 and 630:

"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. The authority of Congress, in creating quasi-legislative or quasijudicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

"The fundamental necessity of maintaining each of the three general departments of government entirely free from the control of coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential coequality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the idependence of each department required that its proceedings 'should be free from the remotest influence, direct or indirect, of either of the other two powers.''

We have added the underscorings in the above language for the obvious purpose of directing the reader's especial attention to those words since they related so particularly to the matter under debate.

Again, let me say that the Humphrey case, and the language of the decision seems "ready-made" as the old expression goes, to the debate before us, and the more remarkably so, since one official of our government has stated that there are two non-negotiable items in his program, the submerging of MARAD into DOT, and the building of ships of the American Merchant Marine in foreign shipyards.

In the last two paragraphs above, qouted from the decision, the following pieces of language appear:

". . . it is quite evident that one who holds office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.”

"The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there."

I submit that it has been the policy of this nation for a third of a century that we shall have an American Merchant Marine manned by citizen seamen,