(Slip Opinion)
Administration of the John F. Kennedy
Centennial Commission
To avoid the separation of powers concerns posed by inclusion of six members of Con-
gress on the eleven-member John F. Kennedy Centennial Commission, the Commis-
sion should create an executive committee, composed of its five presidentially ap-
pointed members, which would be legally responsible for discharging the purely
executive functions of the Commission.
The six congressional members could participate in nearly all of the Commission’s
remaining activities, including in ceremonial functions.
January 10, 2017
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This memorandum provides our views on how the John F. Kennedy
Centennial Commission (“JFK Commission”) can be organized and
administered so as to avoid the constitutional concerns raised by the
statute that created the Commission. See John F. Kennedy Centennial
Commission Act, Pub. L. No. 114-215,
130 Stat. 830 (2016) (“JFK Com-
mission Act”). The same constitutional concerns prompted the President
to issue a signing statement upon the enactment of the Ronald Reagan
Centennial Commission Act, Pub. L. No. 111-25,
123 Stat. 1767 (2009)
(“Reagan Commission Act”). Given the similarities between the two
statutes, we recommend that the JFK Commission carry out its functions
in keeping with the structure used to carry out the functions of the Ronald
Reagan Centennial Commission.
The JFK Commission Act created an eleven-member commission with,
among other duties, responsibility to “plan, develop, and carry out such
activities as the Commission considers fitting and proper to honor John F.
Kennedy on the occasion of the 100th anniversary of his birth.” Pub. L.
No. 114-215, § 3(1). Six of the eleven commissioners are members of
Congress, appointed by congressional leadership. Id. § 4(a). Four com-
missioners are appointed by the President, and the remaining ex officio
commissioner is also a presidential appointee—the Secretary of the Inte-
rior. Id.
The JFK Commission Act is functionally identical to the Reagan
Commission Act. As we explained in a prior memorandum concerning the
constitutionality of the Reagan Commission Act, the inclusion of mem-
1
Opinions of the Office of Legal Counsel in Volume 41
bers of Congress on a commission like the Reagan Commission raises
significant constitutional concerns, because the commission is called upon
to engage in functions that constitute the execution of the laws. The
Appointments Clause and the Ineligibility Clause of the Constitution,
especially in light of the anti-aggrandizement principle underlying the
constitutional separation of powers, prohibit congressional appointees
from exercising such power. 1 See Constitutionality of the Ronald Reagan
Centennial Commission Act of 2009, 33 Op. O.L.C. __ (Apr. 21, 2009).
When President Obama signed the Reagan Commission Act into law, he
stated that “members of Congress ‘w[ould] be able to participate only in
ceremonial or advisory functions of [the] Commission, and not in mat-
ters involving the administration of the act.’” Daily Comp. Pres. Doc. No.
200900424 (June 2, 2009) (quoting Statement on Signing the Bill Estab-
lishing a Commission on the Bicentennial of the United States Consti-
tution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald Reagan 1390
(1983)).
Consistent with advice we gave regarding how the Reagan Commission
could be lawfully structured—and advice this Office gave in 1984 regard-
ing how the similarly designed Commission on the Bicentennial of the
Constitution could be lawfully structured—we recommend that the JFK
Commission create an “executive committee,” composed of its five presi-
dentially appointed members, which “would be legally responsible for
discharging the purely executive functions of the Commission.” Appoint-
ments to the Commission on the Bicentennial of the Constitution,
8 Op.
O.L.C. 200, 207 (1984) (“Bicentennial Commission”) (recommending a
similar approach to structuring the Commission on the Bicentennial of
the Constitution); see Memorandum for Robert F. Bauer, Counsel to the
President, from Martin S. Lederman, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Administration of the Ronald Reagan Cen-
1 The anti-aggrandizement principle provides that “where the effect of legislation is to
vest Congress itself, its members, or its agents with ‘either executive power or judicial
power,’ the statute is unconstitutional.” The Constitutional Separation of Powers Between
the President and Congress,
20 Op. O.L.C. 124, 127–28 (1996) (quoting Metro. Wash.
Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,
501 U.S. 252, 274
(1991)); see
id. at 131–32; Bowsher v. Synar,
478 U.S. 714, 733–34 (1986) (explaining
that “once Congress makes its choice in enacting legislation, its participation ends,” and
“Congress can thereafter control the execution of its enactment only indirectly—by
passing new legislation”).
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Administration of the John F. Kennedy Centennial Commission
tennial Commission (May 7, 2010). These functions would include deter-
mining which activities would be “fitting and proper to honor John F.
Kennedy on the occasion of the 100th anniversary of his birth” and “plan-
[ning], develop[ing], and carry[ing] out” such activities. Pub. L. No. 114-
215, § 3(1). Indeed, in order to avoid serious constitutional questions, we
would construe the Act itself to limit the exercise of “the purely executive
functions of the Commission,” Bicentennial Commission, 8 Op. O.L.C. at
207, to the five presidentially appointed commissioners.
Under this approach, the six congressional members could participate
in nearly all of the Commission’s remaining activities, including in cere-
monial functions, and they could advise the executive committee on “the
formulation of programs that would be technically approved and executed
by non-congressional members.” Bicentennial Commission, 8 Op. O.L.C.
at 207. The entire Commission, including the congressionally appointed
members, could also “provide advice and assistance to Federal, State, and
local governmental agencies, as well as civic groups to carry out activities
to honor John F. Kennedy on the occasion of the 100th anniversary of his
birth,” as section 3(2) of the Act contemplates. These functions, which are
not purely executive in nature, do not raise the constitutional problems we
have identified.
We believe the approach described above would allow the JFK Com-
mission to constitute itself consistent with the requirements of the Act,
while also alleviating the separation of powers concerns that would oth-
erwise be implicated.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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