Term of a Member of the Mississippi River Commission ( 1999 )

Term of a Member of the Mississippi River Commission
T he term o f a m em ber o f the M ississippi River C om m ission is set by the statute governing his office,
and the term dictated by the statute applies even though the language used in his nom ination,
confirm ation, and com m ission calls for a different term.
May 27, 1999
M e m o r a n d u m O p in io n f o r t h e E x e c u t iv e C l e r k
You have asked for our opinion whether the term of a member of the Mis­
sissippi River Commission is set by the language of his nomination, confirmation,
and commission, even though the statute governing his office calls for a different
term. We conclude that the term dictated by the statute applies.
The Mississippi River Commission consists of seven members, appointed by
the President with the advice and consent of the Senate. 33 U.S.C. §§641-642(1994). Three of the members are from the Engineer Corps of the Army, one
from the National Ocean Survey, and three from “ civil life.” Id. §642. Each
commissioner from civil life “ shall be appointed for a term of nine years.” Id.
Ordinarily, when a statute provides for an appointee to serve a term of years,
the specified time of service begins with the appointment. Case o f Chief Con­
structor Easby, 16 Op. Att’y Gen. 656 (1880). A different rule generally applies
to commissions whose members have staggered terms. There, to preserve the stag­
gering required by statute, each member may serve only until the passage of the
specified number of years calculated from the expiration of his predecessor’s term,
even if the member’s confirmation and appointment take place after that prior
term has expired. Memorandum for Tim Saunders, Acting Executive Clerk, Execu­
tive Clerk’s Office, from Dawn Johnsen, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: When the Statutory Term o f a General Trustee o f
the John F. Kennedy Center for the Performing Arts Begins (Sept. 14, 1994);
Memorandum for Nelson Lund, Associate Counsel to the President, from John
O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Starting Date fo r Terms o f Members of the United States Sentencing Commission
(May 10, 1990).
Because the Mississippi River Commission’s members do not serve staggered
terms, its members’ terms, as we understand the practice, have previously been
calculated from appointment, rather than from the expiration of the predecessors’
terms. In the case that prompts your question, however, this rule was not followed
in the nomination, confirmation, and commission of the member. The prede­
cessor’s term expired October 21, 1996. See 133 Cong. Rec. 28,444 (1987) (Senate
confirmation). The President’s nomination of the successor was “ for a term
expiring October 21, 2005,” 144 Cong. Rec. S10,943 (daily ed. Sept. 24, 1998) —
nine years after the previous term expired — rather than for a term of nine years
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to begin upon appointment. Cf. 133 Cong. Rec. 1929 (1987) (predecessor’s
nomination was “ for a term of 9 years” ). The Senate likewise gave its advice
and consent to the nomination incorporating the wrong term. 144 Cong. Rec.
S12,963 (daily ed. Oct. 21, 1998). We understand that, in accordance with the
nomination and confirmation, the commission also specified a term expiring
October 21, 2005.
The language of a nomination, confirmation, and commission cannot alter a
statutory term. The opinion of Solicitor General Phillips in Case of Chief Con­
structor Easby, which Attorney General Devens approved, stands for this prin­
ciple. Easby had received a recess appointment as Chief of the Bureau of
Construction and Repair in the Navy Department. The wording of his later
nomination, confirmation, and commission for the office, which had a statutory
four-year term, rested on a calculation running from the date of the recess appoint­
ment, rather than the appointment with the Senate’s advice and consent.1 Solicitor
General Phillips concluded that “ [t]he law of the term of the office, of course,
controls special language in the nomination and confirmation,” and because “ [t]he
term during which Mr. Easby served under the temporary appointment was, by
law, a different term from that which commenced” upon his appointment with
the Senate’s advice and consent, “ his term of office begins at the date of his
appointment by and with the consent of the Senate, and not at the date of his
previous temporary appointment by the President, notwithstanding the special
wording of his nomination to the Senate, and of his commission.” 16 Op. Att’y
Gen. at 656, 657.
This principle squares with a pronouncement of the Supreme Court (although
it may only have been dictum), Quackenbush v. United States, 177 U.S. 20, 27
(1900) (“ the terms of the commission cannot change the effect of the appointment
as defined by the statute” ), and has been followed by our Office, Impact of
Panama Canal Zone Treaty on the Filling o f the Vacancy in the Office of the
District Judge fo r the United States District Court fo r the District of the Canal
Zone, 1 Op. O.L.C. 236, 237 n.4 (1977); Memorandum for John W. Dean III,
Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Presidential Commissions at 5 (Dec. 1, 1971).2
Consequently, the term in this case ends nine years after the appointment, rather
than on October 21, 2005. The “ special language in the nomination and confirma­
tion,” as well as the language of a commission that “ conform[s] to the . . .
1 The recess appointment took place on A pril 30, 1877 For reasons that are unclear, the nomination, confirmation,
and com m ission were all “ from Apnl 28, 1877.” 16 Op A tt’y Gen at 656 Also, the entire period from the beginning
o f the recess appointment had been subtracted from Easby’s four-year term, even though the recess appointment
expired before Easby was confirmed and appointed Id. at 656
2A ttom ey General C um m ings’ opinion Term o f Office o f Major General Patterson as Surgeon General — Recess
Appointm ent, 37 Op. A tt’y Gen. 282, 287 (1933), did not reach a contrary conclusion about the principle, but held
that, in view o f long practice under a specific statute, the four-year term in that case included prior service under
a recess appointment
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Term o f a Member o f the Mississippi River Commission
wording of that nomination and confirmation,” cannot detract from the statutory
specification of the term. 16 Op. Att’y Gen. at 656, 657.
DANIEL KOFFSKY
Acting Deputy Assistant Attorney General
Office of Legal Counsel
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