A-49686, JULY 8, 1933, 13 COMP. GEN. 4

A-49686: Jul 8, 1933

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IS AUTHORIZED TO FILL THE POSITION OF COMMISSIONER OF IMMIGRATION AND NATURALIZATION CREATED BY SECTION 14 OF THE EXECUTIVE ORDER OF JUNE 10. THE RATE OF COMPENSATION OF SUCH POSITION IS FOR FIXING IN ACCORDANCE WITH THE TERMS OF THE CLASSIFICATION ACT OF 1923. ARE SEPARATED FROM THE SERVICE. OR MUST THE POSITION BE FILLED BY THE APPOINTMENT OF THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE? (2) WHAT IS THE ANNUAL SALARY PAYABLE TO THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION? (3) ARE THOSE PERSONS WHO HAVE BEEN APPOINTED TO POSITIONS IN THE EXISTING BUREAU OF IMMIGRATION BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE. OR ABOLITION OF ANY EXECUTIVE AGENCY OR AGENCIES AND/OR FUNCTIONS THEREOF IS NECESSARY TO ACCOMPLISH ANY OF THE PURPOSES SET FORTH IN SECTION 401 OF THIS TITLE.

A-49686, JULY 8, 1933, 13 COMP. GEN. 4

ECONOMY ACT, AMENDED - REORGANIZATION - IMMIGRATION AND NATURALIZATION THE SECRETARY OF LABOR, WITH THE APPROVAL OF THE PRESIDENT, IS AUTHORIZED TO FILL THE POSITION OF COMMISSIONER OF IMMIGRATION AND NATURALIZATION CREATED BY SECTION 14 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, ISSUED UNDER AUTHORITY OF THE ECONOMY ACT, AS AMENDED, WHICH CONSOLIDATES THE BUREAU OF IMMIGRATION AND NATURALIZATION INTO THE IMMIGRATION AND NATURALIZATION SERVICE, AND THE RATE OF COMPENSATION OF SUCH POSITION IS FOR FIXING IN ACCORDANCE WITH THE TERMS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE APPLICABLE DECISIONS OF THE COMPTROLLER GENERAL WITH REFERENCE THERETO. UNDER SECTION 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF AN ABOLISHED AGENCY OR FUNCTION DISPOSED OF, INCLUDING PRESIDENTIAL APPOINTEES, ARE SEPARATED FROM THE SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 8, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 26, 1933, AS FOLLOWS:

I RESPECTIVELY REQUEST YOUR OPINION UPON THE FOLLOWING QUESTIONS RELATING TO THE INTERPRETATION OF THE EXECUTIVE ORDER ON THE "ORGANIZATION OF EXECUTIVE AGENCIES" SUBMITTED ON JUNE 10, 1933, TO THE CONGRESS PURSUANT TO SECTION 407 OF THE ACT OF JUNE 30, 1932, AS AMENDED BY SECTION 16 OF THE ACT OF MARCH 3, 1933, AND SECTION 1, TITLE 3, OF THE ACT OF MARCH 20, 1933.

(1) CAN THE POSITION OF COMMISSIONER OF IMMIGRATION AND NATURALIZATION CREATED BY SECTION 14 OF THE EXECUTIVE ORDER BE EFFECTIVELY FILLED BY AN APPOINTMENT OF THE SECRETARY OF LABOR, OR MUST THE POSITION BE FILLED BY THE APPOINTMENT OF THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE?

(2) WHAT IS THE ANNUAL SALARY PAYABLE TO THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION?

(3) ARE THOSE PERSONS WHO HAVE BEEN APPOINTED TO POSITIONS IN THE EXISTING BUREAU OF IMMIGRATION BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE, SUCH AS THE COMMISSIONERS OF IMMIGRATION AT THE SEVERAL PORTS (ACT OF AUGUST 18, 1894, AS AMENDED; 8 U.S.C. SEC. 107), SUBJECT TO THE FOURTH PARAGRAPH OF SECTION 19 OF THE EXECUTIVE ORDER, WHICH PROVIDES THAT (WITH CERTAIN EXCEPTIONS) "ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF AN ABOLISHED AGENCY * * * SHALL BE SEPARATED FROM THE SERVICE OF THE UNITED STATES * * *? "

I AM ENCLOSING FOR SUCH USE AS YOU CARE TO MAKE OF IT A MEMORANDUM RELATING TO THESE QUESTIONS PREPARED BY THE SOLICITOR OF THE DEPARTMENT OF LABOR.

SECTIONS 403 AND 404 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1518, PROVIDE IN PART AS FOLLOWS:

SEC. 403. WHENEVER THE PRESIDENT, AFTER INVESTIGATION, SHALL FIND AND DECLARE THAT ANY REGROUPING, CONSOLIDATION, TRANSFER, OR ABOLITION OF ANY EXECUTIVE AGENCY OR AGENCIES AND/OR FUNCTIONS THEREOF IS NECESSARY TO ACCOMPLISH ANY OF THE PURPOSES SET FORTH IN SECTION 401 OF THIS TITLE, HE MAY BY EXECUTIVE ORDER:

(A) TRANSFER THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF TO THE JURISDICTION AND CONTROL OF ANY OTHER EXECUTIVE AGENCY;

(B) CONSOLIDATE THE FUNCTIONS VESTED IN ANY EXECUTIVE AGENCY; OR

(C) ABOLISH THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF; AND

(D) DESIGNATE AND FIX THE NAME AND FUNCTIONS OF ANY CONSOLIDATED ACTIVITY OR EXECUTIVE AGENCY AND THE TITLE, POWERS, AND DUTIES OF ITS EXECUTIVE HEAD; EXCEPT THAT THE PRESIDENT SHALL NOT HAVE AUTHORITY UNDER THIS TITLE TO ABOLISH OR TRANSFER AN EXECUTIVE DEPARTMENT AND/OR ALL THE FUNCTIONS THEREOF.

SEC. 404. THE PRESIDENT'S ORDER DIRECTING ANY TRANSFER, CONSOLIDATION, OR ELIMINATION UNDER THE PROVISIONS OF THIS TITLE SHALL ALSO MAKE PROVISION FOR THE TRANSFER OR OTHER DISPOSITION OF THE RECORDS, PROPERTY, (INCLUDING OFFICE EQUIPMENT), AND PERSONNEL, AFFECTED BY SUCH TRANSFER, CONSOLIDATION, OR ELIMINATION. * * *

SECTIONS 14 AND 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, PROVIDE IN PART AS FOLLOWS:

SECTION 14.--- IMMIGRATION AND NATURALIZATION

THE BUREAUS OF IMMIGRATION AND OF NATURALIZATION OF THE DEPARTMENT OF LABOR ARE CONSOLIDATED AS AN IMMIGRATION AND NATURALIZATION SERVICE OF THE DEPARTMENT OF LABOR AT THE HEAD OF WHICH SHALL BE A COMMISSIONER OF IMMIGRATION AND NATURALIZATION.

SECTION 19.--- GENERAL PROVISIONS

EACH AGENCY, ALL OF THE FUNCTIONS OF WHICH ARE TRANSFERRED TO OR CONSOLIDATED WITH ANOTHER AGENCY, IS ABOLISHED.

ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF AN ABOLISHED AGENCY OR FUNCTION DISPOSED OF SHALL BE SEPARATED FROM THE SERVICE OF THE UNITED STATES, EXCEPT THAT THE HEAD OF ANY SUCCESSOR AGENCY, SUBJECT TO MY APPROVAL, MAY, WITHIN A PERIOD OF FOUR MONTHS AFTER TRANSFER OR CONSOLIDATION, REAPPOINT ANY OF SUCH PERSONNEL REQUIRED FOR THE WORK OF THE SUCCESSOR AGENCY WITHOUT REEXAMINATION OR LOSS OF CIVIL-SERVICE STATUS.

PURSUANT TO THE ABOVE QUOTED STATUTORY PROVISIONS THE PRESIDENT BY THE EXECUTIVE ORDER OF JUNE 10, 1933, HAS ABOLISHED THE BUREAUS OF IMMIGRATION AND NATURALIZATION AND CONSOLIDATED THEIR FUNCTIONS INTO A SINGLE, SERVICE IN THE DEPARTMENT OF LABOR TO BE KNOWN AS THE IMMIGRATION AND NATURALIZATION SERVICE OF THE DEPARTMENT OF LABOR AND HAS DESIGNATED AND FIXED THE TITLE OF THE IMMEDIATE HEAD OF THE CONSOLIDATED AGENCY AS THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION. THIS CONSOLIDATED AGENCY WILL CONSTITUTE A SERVICE OR BUREAU IN THE DEPARTMENT OF LABOR AND, OF COURSE, UNDER THE DIRECTION OF THE SECRETARY OF LABOR. PURSUANT TO THE GENERAL AUTHORITY VESTED IN THE HEAD OF A DEPARTMENT TO APPOINT OR EMPLOY THE PERSONNEL NECESSARY TO PERFORM THE FUNCTIONS IMPOSED BY LAW ON THE DEPARTMENT, AND IN ACCORDANCE WITH THE LAST PARAGRAPH OF SECTION 19 OF THE EXECUTIVE ORDER OF JUNE 10, SUPRA, AND SECTION 203 OF THE ECONOMY ACT OF JUNE 30, 1932, AS CONTINUED BY THE ACT OF MARCH 20, 1933, THE SECRETARY OF LABOR IS AUTHORIZED, WITH THE APPROVAL OF THE PRESIDENT, TO FILL THE POSITION OF COMMISSIONER OF IMMIGRATION AND NATURALIZATION. QUESTION (1) IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION (2) YOU ARE ADVISED THAT THE RATE OF COMPENSATION OF THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION IS FOR FIXING IN ACCORDANCE WITH THE TERMS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE APPLICABLE DECISIONS WITH REFERENCE THERETO.

SECTION 404 OF THE ECONOMY ACT, AS AMENDED BY THE ACT OF MARCH 3, 1933, SUPRA, DIRECTS THE PRESIDENT TO DISPOSE OF THE PERSONNEL OF ANY AGENCY TRANSFERRED, CONSOLIDATED, OR ELIMINATED. THE FIRST PARAGRAPH OF SECTION 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, PROVIDES THAT EACH AGENCY ALL THE FUNCTIONS OF WHICH ARE CONSOLIDATED WITH ANOTHER AGENCY BE ABOLISHED; AND THE LAST PARAGRAPH OF SAID SECTION, WHICH IS THE ONLY PORTION OF THE EXECUTIVE ORDER DISPOSING OF PERSONNEL, DIRECTS THAT ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF AN ABOLISHED AGENCY OR FUNCTION DISPOSED OF SHALL BE SEPARATED FROM THE SERVICE OF THE UNITED STATES, NO EXCEPTION BEING MADE OF PRESIDENTIAL APPOINTEES. ACCORDINGLY, QUESTION (3) IS ANSWERED IN THE AFFIRMATIVE.