'Federal Register' Marks 70th Anniversary
DEBBIE ELLIOTT, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Debbie Elliott.
Here's a birthday I bet you missed. The Federal Register turned 70 this month. That's the place to look for U.S. rules, regulations and executive orders on everything from meat packing to the importation of exotic pets. We were wondering how bureaucrats and citizens got through life before there was a Federal Register to consult.
Mr. RAY MOSLEY (Director, Office of the Federal Register, National Archives and Records Administration): We were confused. We weren't sure what the regulations were that were in effect.
ELLIOTT: That's Ray Mosley, director of the Federal Register. I asked him how the Federal Register was born.
Mr. MOSLEY: In 1934 there was a famous case called the Hot Oil Case in which the government confused the oil companies as to what its rules were that were in effect and ended up prosecuting some of the oil companies, and they came to find out that the provision under which they were prosecuting them for was not in effect. And this case ultimately ended up in the Supreme Court and the Supreme Court threw it out and that became the impetus for the Federal Register.
ELLIOTT: So inside the government at that time, nobody really knew what was going on? The left hand and the right hand were doing completely different things?
Mr. MOSLEY: It certainly appears that way today. I think that since there was no central body that was compiling these rules or keeping track of them, it was easy for the Secretary in Interior to issue something and then for the President in an executive order to also issue something, and the two were uncoordinated, and that's basically what got us to this hot oil case.
ELLIOTT: When this got to the Supreme Court I understand that Justice Louis Brandeis was very irritated by the whole thing.
Mr. MOSLEY: Indeed he was, and I think he was something of a mastermind behind this, because he had been advocating the creation of a publication like the Federal Register for many years.
He had already foreseen the problems that the public faced and I think he made it a point when the case was argued before him to question the Justice Department quite closely and quite explicitly such that the Justice Department attorney who was representing the case before the Supreme Court did not have enough time to argue the merits of the case. He ended up talking for about an hour just answering questions as to why the rule that was in effect, or was not in effect, could not be found.
ELLIOTT: Now at the time this was the New Deal and there were lots of new government regulations that were coming out. How did President Roosevelt react to the idea that there should be a Federal Register?
Mr. MOSLEY: Well, he didn't like the idea initially. He was opposed. He thought that there was no need. One of the early briefings that was provided to him suggested to him that this would be a government newspaper and would simply be extolling the virtues of the government, and he did not like that idea at all.
He eventually was brought around to accepting the idea of the Federal Register because Brandeis contacted his friend, Felix Frankfurter, later also a Supreme Court Justice and then a professor at Harvard. Frankfurter contacted FDR and said he needed to come in and explain to him the concept of the Federal Register...
ELLIOTT: And wasn't there a Harvard law review article about the need for this at the time?
Mr. MOSLEY: Indeed there was. The other great mind at play here was that of Irwin Griswold, who at that time was a young lawyer in the Solicitor General's office. He was also an associate of Brandeis and an associate of Frankfurter. Brandeis got Frankfurter to get Griswold to write this article and Brandeis manipulated the process such that the article was published the exact same day that the hot oil case was argued before the Supreme Court.
ELLIOTT: So there was political pressure mounting in a way.
Mr. MOSLEY: Indeed there was.
ELLIOTT: So describe for me what this document looked like back in 1936. What was in it?
Mr. MOSLEY: In 1936 it was quite small compared with what we have today. The first rule actually was issued by F.D.R. and it dealt with migratory birds in South Carolina.
ELLIOTT: Ray Mosley is director of the Federal Register. Thanks for coming in.
Mr. MOSLEY: My pleasure. Thank you.
ELLIOTT: Happy birthday.
Mr. MOSLEY: Thank you.
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