Senate Confirmation Hearings on the Appointment of Sandra...
00:04:12 - 00:09:06
Senate Judiciary Committee hearings on nomination of Sandra Day O'Connor for Supreme Court justice. MS Senator Strom Thurmond (R-SC), committee's Chairman, announcing, The Judiciary Committee will come to order. Questioning of Judge O'Connor by the members of the committee will continue. Judge O'Connor, I would remind you that you are still under oath.
Judge O'CONNOR. Thank you, Mr. Chairman.
The CHAIRMAN. We will now hear from Senator Laxalt of Nevada.
(TOPIC: PRESIDENTIAL AUTHORITY OVER INDEPENDENT AGENCIES)
Senator LAXALT (Paul Laxalt, R-NV). Judge O'Connor, in 1972 legislation which was sponsored by you was enacted by the Arizona Legislature giving the State attorney general power to approve all regulations proposed by State agencies. Here at the Federal level the experts have debated what inherent authority the President has over Federal agencies, including the so-called independent agencies, due to his constitutional role as Chief Executive. We are in the throes now of attempting to enact and implement administratively as well as up here legislatively substantial regulatory reform. The essence of that problem is jurisdictional in part. I would like to have your views as to what Executive authority
over the so-called independent administrative agencies you believe a President of the United States has.
Judge O'CONNOR. Mr. Chairman, Senator Laxalt, I think it may depend on the legislation in each instance as to what role has been
envisioned for the Executive with respect to some particular agency. I recognize that Congress is dealing today in terms of legislative
review of the relationship that would be appropriate in terms of agency regulation. In fact, I think some consideration is being given-if I am not
mistaken-to even having the legislative body itself involved by some sort of legislative review. These proposals, of course, have not been tested yet; and I cannot speak to the constitutional validity of them, I think; but it involves essentially a question of the essential separation of powers concept and the extent to which, under the separation of powers at the Federal level, it is considered desirable to have some form of oversight of the administrative bodies, whether it be by the executive branch or the legislative branch. To the extent that these administrative agencies are executive agencies or agencies under the executive branch of Government and that the executive branch is given some role of oversight in connection with them, it does not appear to involve a question of separation of powers. To the extent that the concept or vehicle used is one of legislative review of the regulations or the actions, we have different questions at play. In Arizona, as you have indicated, the State adopted a practice in the year that you mentioned of having the attorney general part of the executive branch review the regulations of agencies of the executive branch for legality prior to their adoption by those agencies. That system seems to have served reasonably well.
Senator LAXALT. If I understand you correctly, in the absence of some legislative prohibition there would be no constitutional bar on the grounds of separation of powers or otherwise, restraining a President from exercising direct authority and responsibility over the independent agencies if the legislation in question opened the door for him to do so?
Judge O'CONNOR. Mr. Chairman, Senator Laxalt, it would appear to me-again without attempting to express any legal opinion on a given case-that within the executive branch, provided the legislation allowed for it, the executive branch could be assigned certain roles for review of those executive branch agencies.
Senator LAXALT. AS you indicated, a combination of proper oversight here of those agencies plus general supervision on the part of
the Executive theoretically at least should get the job done?
Judge O'CONNOR. Senator Laxalt, we would hope so.