Presidential Authority to Require the Resignations of Members of the Civil Rights Commission ( 1972 )

Presidential Authority to Require the Resignations
of Members of the Civil Rights Commission
Members of the Civil Rights Commission serve at the pleasure of the President. The President may
therefore require their resignations.
November 20, 1972
MEMORANDUM OPINION FOR THE SPECIAL CONSULTANT
TO THE PRESIDENT*
This is in response to your request for our opinion whether the President is
authorized to require the resignations of members of the United States Commis-
sion on Civil Rights. Stated another way, the question is whether these officials
serve at the pleasure of the President. For the reasons detailed below, we conclude
that Civil Rights Commission members do serve at the pleasure of the President.
I.
The basic rule governing presidentially-appointed officials was stated by James
Madison during the first session of the first Congress: “[T]he power of removal
result[s] by a natural implication from the power of appoint[ing].” 1 Annals of
Cong. 496 (1789). The principal problems in this area concern whether and to
what extent Congress may limit the power of removal which flows from the power
of appointment. Myers v. United States established that Congress may not limit the
power of the President to remove purely executive officers appointed with the
advice and consent of the Senate, such as cabinet officers. 272 U.S. 52 (1926). On
the other hand, Congress can, for example, limit the President’s power to remove
members of independent regulatory commissions and specially constituted
tribunals. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v.
United States, 357 U.S. 349 (1958). The principal theory underlying this congres-
sional authority is that such bodies may need to function independently of
executive control in their legislative and adjudicative capacities. The Civil Rights
Commission, primarily an investigative and advisory body, does not fall clearly
into either of these categories. For purposes of this discussion, however, we will
*
Editor’s Note: The memorandum was addressed to “the Honorable Leonard Garment, Special
Consultant to the President.” The reference to Mr. Garment as “Special Consultant,” not “Special
Counsel,” appears to have been accurate and deliberate. Mr. Garment was described in multiple news
articles at the time as a “special consultant” to the President on civil rights and cultural issues. See, e.g.,
Ex-Law Partner to Join Nixon, Wash. Post, June 7, 1969, at A4; Carroll Kilpatrick, Leonard Garment
Is Bright, Musical, a Known New York Liberal and a Man Close to Richard Nixon, Wash. Post, June 7,
1970, at 17. In 1973, Mr. Garment succeeded John Dean as Counsel to the President. Lawrence Meyer,
New Counsel Had Obscure Role at Top, Wash. Post, May 1, 1973, at A8.
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assume that Congress could have insulated its members from removal at the
pleasure of the President. The question, then, is whether it has done so.
The statutory descriptions governing the appointment and duties of commis-
sioners are the starting point of analysis. 42 U.S.C. § 1975 (1970). With respect to
appointment, commissioners do not serve for a fixed term, and there is no statutory
provision governing removal. By contrast, members of independent regulatory
bodies usually serve for a fixed term of years, and some may only be removed for
“cause” or other specified reason. While neither of these factors is dispositive,
absent other strong reasons pointing toward independent tenure, the natural
implication to be drawn is that Civil Rights Commission members serve at the
President’s pleasure.
Perhaps the strongest case for limiting the President’s removal power is pre-
sented by a body created to adjudicate the rights of private parties. The Civil
Rights Commission has no such authority, and this has been established by
Supreme Court decision. In Hannah v. Larche, certain state officials sought to
enjoin a Civil Rights Commission hearing in Louisiana concerning discriminatory
voter registration practices on the ground that, as prospective witnesses, they were
entitled to a panoply of procedural protections denied by the Commission’s rules,
including the right to confront and cross-examine other witnesses. 363 U.S. 420
(1960). The Court sustained the Commission’s rules, saying that
As is apparent from this brief sketch of the statutory duties imposed
upon the Commission, its function is purely investigative and fact-
finding. It does not adjudicate. It does not hold trials or determine
anyone’s civil or criminal liability. It does not issue orders. Nor does
it indict, punish, or impose any legal sanctions. It does not make
determinations depriving anyone of his life, liberty, or property. In
short, the Commission does not and cannot take any affirmative
action which will affect an individual’s legal rights. The only pur-
pose of its existence is to find facts which may subsequently be used
as the basis for legislative or executive action.
Id. at 440–41.
There are other indicia of executive control over the Commission. The statute
establishes it “in the executive branch of the Government.” 42 U.S.C. § 1975(a).
Although, standing alone, this phrase has no special significance, it is significant
that many of the regulatory commissions whose members clearly do not serve at
the President’s pleasure—for example, the Federal Trade Commission, the
Securities and Exchange Commission, and the Federal Communications Commis-
sion—are not similarly established “in the executive branch.” The President
designates the Chairman and the Vice Chairman. 42 U.S.C. § 1975(c). Employees
of the federal government, including, presumably, employees clearly subject to the
President’s control, are eligible to serve as members. 42 U.S.C. § 1975b(b) (1970).
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The staff director, a full-time employee responsible for day-to-day operations, is
appointed by the President following consultation with the Commission, and
subject to Senate confirmation. 42 U.S.C. § 1975d(a) (1970). The Commission’s
budget requests are subject to OMB approval.
The legislative history of the Civil Rights Act of 1957, Pub. L. No. 85-315, 71
Stat. 634, which originally established the Commission, does not speak directly to
the matter of the President’s removal power. However, an amendment offered by
Senator Kefauver in floor debate, and defeated, lends some support to our
conclusion. The Kefauver amendment would have established the Commission as
an arm of Congress, with most of its members appointed by Congress. 103 Cong.
Rec. 13,456 (1957). In support of his amendment, Senator Kefauver argued that
such a commission would be more independent than one in the Executive Branch,
and warned against the “dangerous degree of Executive control” he foresaw in the
Commission as it was later established. Id. at 13,458. Senators Javits, Dirksen and
Knowland spoke against the Kefauver amendment, urging establishment of an
“executive commission,” and the amendment was defeated by voice vote. Id. at
13,459.
A further argument in support of the President’s removal power with respect to
members of the Civil Rights Commission rests upon the absence of a stated term
of appointment. While this omission may have had its origin in the temporary
status of the Commission, its tenure has been extended six times by the Congress
and it has had a life of fifteen years. It should not be presumed that Congress
intended that members of the Commission would serve indefinitely without any
possibility—other than death or voluntary resignation—for change in the member-
ship of the Commission. Lifetime appointments are confined to the judiciary in our
political systems and it would be anomalous to view persons exercising purely
advisory functions as having permanent status.
II.
In support of an argument that members of the Commission do not serve at the
President’s pleasure, the following points could be made.
First, among its other statutory duties, the Commission is directed to “appraise
the laws and policies of the Federal Government with respect to denials of equal
protection of the laws.” 42 U.S.C. 1975c(a)(3) (1970). Independent tenure would
tend to promote the discharge of that duty.
Second, the Commission is directed to submit reports to both the President and
Congress. 42 U.S.C. § 1975c(b). This joint accountability feature may be said to
derogate from broad executive control.
Third, unlike most of the independent regulatory commissions in which the
President may name a majority of his own party as vacancies arise, the Commis-
sion is strictly bipartisan—it has six members, and no more than three may be of
the same party. 42 U.S.C. § 1975(b).
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Fourth, the Commission has always been a temporary agency. It was originally
established for two years, Pub. L. No. 85-315, § 104, 71 Stat. at 635, and has since
been extended six times for additional temporary periods, Pub. L. No. 86-383,
tit. IV, 73 Stat. 717, 724 (1959); Pub. L. No. 87-264, tit. IV, 75 Stat. 545, 559
(1961); Pub. L. No. 88-152, § 2, 77 Stat. 271, 271 (1963); Pub. L. No. 88-352,
§ 504(b), 78 Stat. 241, 251 (1964); Pub. L. No. 90-198, § 1, 81 Stat. 582, 582
(1967); Pub. L. No. 92-496, § 4, 86 Stat. 813, 814 (1972). It can be argued, then,
that Congress intended for members to serve for the relatively short life of the
Commission.
Although each of these points is valid, we do not find them persuasive against
the contrary arguments, either singly or in combination. Moreover, most of these
points can be answered to some extent. As to the first, as a matter of history, the
Commission has in fact been a vigorous critic of administration civil rights
policies, Republican and Democratic, through much of its history. As to the
second, the requirement of reporting to Congress was added in Senate floor
discussion without debate or any indication that the requirement affected the
Commission’s status in the Executive Branch. 103 Cong. Rec. 13,456 (1957).
Moreover, executive officers or agencies are quite frequently required by statute to
report to Congress as well as the President. As to the third—bipartisanship—there
is no strong answer, but we consider it a relatively minor point. As to the fourth,
the Commission, as noted above, has become a more or less permanent agency.
Father Theodore M. Hesburgh, for example, served for fifteen years, from the
Commission’s inception. Although this argument may have had force a decade
ago, we do not view it as very substantial now.
Last year, Father Hesburgh wrote an article entitled Integer Vitae: Independ-
ence of the United States Commission on Civil Rights, 46 Notre Dame Law. 445
(1971), in which he discussed, among other things, the President’s removal power
vis-à-vis the Commission. He noted several of the arguments discussed in this
memorandum, concluding that “the legality of a [presidential] demand for
resignation remains in question.” Id. at 454. Reportedly, Father Hesburgh has now
conceded the legality of such a demand. See Spencer Rich, Nixon Confers with
Cabinet Aides on Reorganization, Wash. Post, Nov. 18, 1972, at A15 (“What I did
say was that if I were asked to resign by the reelected President, as is his privilege,
I would. He did, and I did resign.”) (quoting Father Hesburgh). In his article,
Father Hesburgh quotes a 1964 letter to the other commissioners from Solicitor
General Erwin Griswold, then a commissioner, in which Griswold stated that
removal at the pleasure of the President was not, in his view, “either the legal or
factual situation.” 46 Notre Dame Law. at 454. Apparently, however, the Solicitor
General’s expressed view was not accompanied by legal argument.
The Hesburgh article also includes a review of the practice of Civil Rights
Commissioners with regard to submission of resignations to a new or reelected
President. Resignations were tendered in 1961, in November 1963, and again in
1964. Id. at 454. In 1968, four commissioners did not tender their resignations, and
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two did so for personal reasons. Id. On balance, then, the rather brief historical
practice favors the President’s authority to require resignations.
III.
In conclusion, while there are no directly controlling judicial precedents, we
believe that the arguments clearly weigh in favor of the view that members of the
Civil Rights Commission serve at the pleasure of the President.
ROGER C. CRAMTON
Assistant Attorney General
Office of Legal Counsel
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