Constitutionality of Bill Restricting President's Authority to Remove the Director of the Office of Personnel Management ( 1978 )

August 16, 1978
78-95 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Civil Service Reform Act (5 U.S.C. § 1101 et seq.)—
Director of Office of Personnel Management
This responds to your request for this O ffice’s opinion on the constitu­
tionality of § 1102(a) (2) of the Senate Committee on Governmental A ffairs’
version of S. 2640, the Civil Service Reform bill. Section 1102(a) (2) states
that the Director o f the Office of Personnel Management (OPM) “ may be
removed by the President only for inefficiency, neglect of duty or malfeasance
in office.” * This provision raises a question that we have frequently addressed
in a number of different contexts. The question, stated simply, is whether an
official within the Executive branch who is charged with carrying out functions
of the type assigned to the Director of OPM may be in any significant way
insulated from the President’s direction and control.
The question here is squarely controlled by the Supreme C ourt's decision in
M yers v. U nited States, 272 U.S. 52 (1926). That case stands for the
proposition that officials within the Executive branch who perform primarily
executive functions must be removable at the will of the President if the
President is to perform his constitutional function “ faithfully to execute the
law s.” While it is true that officials who perform quasi-legislative or
quasi-judicial functions may properly be insulated from removal (see, Humphrey’s
E x e cu to rs. U nited States, 295 U.S. 602 (1935); W iener v. U nited States, 357
U.S. 349 (1958)), the President’s removal power must not be constricted where
he is dealing with those who are assigned clearly executive functions. The
catalogue o f responsibilities o f the OPM Director set forth in § 1103 o f the bill
constitutes a rather complete description of functions which may only be
characterized as executive in nature. Among his responsibilities, for instance,
is the duty to aid the President in preparing rules for the civil service and in
providing him with advice on “ actions which may be taken to promote an
*See S. Rep. No. 95-969, at 25. It should be noted that the language does not appear in the bill as
enacted. See Pub. L. No. 95-454, 92 Stat. 1119, 5 U .S .C . § 1102.
413
efficient civil service.” In § 1103(a) (1) he is also directly charged with
‘‘executing, administering, and enforcing” civil service rules and regulations.
By their terms, these functions can only be regarded as executive in nature. As
the Court made clear in its recent decision in Buckley v. Valeo. 422 U.S. 1, 138
(1976), the enforcement of the laws is a function vested in the President. Given
the case law, we think there is no satisfactory basis on which to contend that the
President’s necessary removal power can be circumscribed in the manner
contemplated by § 1102(a) (2) o f this bill.
Larry A. Ham m ond
D eputy A ssistant A ttorney G eneral
Office o f L egal Counsel
414