Reappointment of United States Parole Commissioners ( 1987 )

Reappointment of United States Parole Commissioners
A statute providing for the automatic extension o f the term o f a Presidential appointee unconsti­
tutionally interferes with the President’s authority under the Appointments Clause.
November 2, 1987
M em orandum O p in io n for an A s s o c ia t e D e p u t y A t t o r n e y G e n e r a l
This responds to your request for this Office’s opinion as to whether, under
§ 235(b)(2) of Pub. L. No. 98^173, 98 Stat. 1837,2032 (1984), the terms of the
United States Parole Commissioners who are on duty as of November 1, 1987,
will automatically be extended for a five-year period without the necessity of
new Presidential appointments. More specifically, you inquired as to whether
the term of office for one of the Commissioners which expires at the close of
business November 1, 1987, will automatically extend through November 1,
1992. For the reasons discussed below, we have concluded that § 235(b)(2) is
unconstitutional, but that it is in the President’s discretion to allow the Com­
missioner to continue service as a Commissioner as a holdover appointee.
Section 235(b)(2) of Pub. L. No. 98-473, the Sentencing Reform Act of
1984 (Act), provides that the term of office of a United States Parole Commis­
sioner who is in office on the effective date of the Act is extended to the end of
the five-year period after the effective date. Section 235(b)(2) thus purports to
extend to November 1, 1992 the terms of office for those Commissioners in
office on November 1, 1987.
The President has the sole authority to appoint members of the Parole
Commission. The Appointments Clause of the Constitution, art. II, § 2, cl. 2,
provides that “Officers of the United States” must be appointed by the Presi­
dent by and with the advice and consent of the Senate. The methods of
appointment set forth in the Appointments Clause are exclusive; officers of the
United States therefore cannot be appointed by Congress, or by congressional
officers. Buckley v. Valeo, 424 U.S. 1, 124-41 (1976). Persons who “exercis[e]
significant authority pursuant to the laws of the United States” or who perform
“a significant governmental duty .. . pursuant to the laws of the United States”
are officers of the United States, id. at 126, 141, and therefore must be
appointed pursuant to the Appointments Clause. This Office has consistently
found that the Parole Commissioners are purely Executive officers charged by
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Congress with the exercise o f administrative discretion.1 Accordingly, the
Parole Commissioners must be appointed by the President in accordance with
the Appointments Clause.
We find that § 235(b)(2) is an unconstitutional interference with the
President’s appointment power. By extending the term of office for incumbent
Commissioners appointed by the President for a fixed term, the Congress will
effectively reappoint those Commissioners to new terms. Because the authority
to appoint members of Parole Commissioners lies exclusively in the President,
§ 235(b)(2) is an unconstitutional encroachment by Congress on that authority.
The constitutional problems with § 235(b)(2), however, do not preclude
Commissioner Batjer from continuing to serve past the expiration date of his
current appointment. We note that 18 U.S.C. § 4202 provides that upon the
expiration of a term of office of a Commissioner, the Commissioner shall
continue to act until a successor has been appointed and qualified, except that
no Commissioner may serve in excess of twelve years. Under this provision,
the Commissioner can serve on a holdover basis unless and until the President
appoints a successor who is confirmed by the Senate.2
In sum, we recommend that if the President wishes to have the Commis­
sioner continue to serve as a member of the United States Parole Commission,
the Commissioner should be treated as a holdover appointee. This course of
action will preserve the Executive Branch position on the unconstitutionality of
congressional reappointment provisions such as § 235(b)(2) and, at the same
time, allow the President’s choice for the Commissioner position to continue
serving in that position without renomination.
J o h n O . M c G in n is
Acting D eputy Assistant Attorney General
Office o f Legal Counsel
1 See M em orandum for the Associate A ttorney G eneral from Theodore B. O lson, A ssistant Attorney
G eneral, O ffice o f Legal Counsel (Jan. 13, 1982); M em orandum for the A ssociate Attorney G eneral from
T heodore B. O lson, A ssistant Attorney G eneral, O ffice o f L egal Counsel (Aug. 11, 1981).
2 S ection 2 3 5 (b )(2 ) is operative “[n o tw ith sta n d in g the provisions o f § 4202 o f T itle 18,” the section that
creates the Parole C om m ission and estab lish es its structure, including the holdover m echanism. This lan­
guage is p roperly read to suspend operation o f § 4202 oniy to the extent that such suspension is necessary to
give effe c t to the extended terms o f o ffice fo r incum bent com m issioners. A ccordingly, if § 235(b)(2) is
unco n stitu tio n al, 18 U .S.C . §4202, inclu d in g its holdover provision, w ould rem ain operative. Indeed
§ 235(b)(1)(A ), w hich is clearly severable from § 235(b)(2), expressly extends the operation o f § 4202.
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