Authority of the President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff Director

Authority of the President to Remove the Staff Director
of the Civil Rights Commission and Appoint an
Acting Staff Director
The President has the authority to remove the Staff Director of the United States Commission on Civil
Rights and to appoint an Acting Staff Director.
March 30, 2001
MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT
You have requested our opinion whether the President has the authority to
remove the Staff Director of the United States Commission on Civil Rights
(“Commission”) and to appoint an Acting Staff Director. We conclude that the
President has the authority to undertake both actions.
The Commission consists of eight members, four of whom are appointed by the
President alone and four by Congress. 42 U.S.C. § 1975(b) (1994). The President
may remove a commissioner only for cause. Id. § 1975(e). The statute establishing
the Commission grants the President the authority to appoint the Staff Director,
with the concurrence of a majority of the Commissioners. Id. § 1975b(a)(1)(B). It
withholds from the Commissioners any authority, other than concurrence, with
respect to appointment of the Staff Director. It is silent as to removal of the Staff
Director and appointment of an Acting Staff Director. 1
I.
A fundamental principle of the general law on removal authority is that, absent
a clear indication to the contrary, the power to remove attends the power to
appoint. See, e.g., Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886,
896-97 (1961); Myers v. United States, 272 U.S. 52, 110, 119 (1926); Keim v.
United States, 177 U.S. 290, 293 (1900); Ex parte Hennen, 38 U.S. (13 Pet.) 230,
259 (1839); Memorandum for Neil Eggleston, Associate Counsel to the President,
from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re:
Appointment of an Acting Staff Director of the United States Commission on Civil
Rights at 2 n.2 (Jan. 13, 1994) (“Acting Staff Director”). As the Supreme Court has
noted, this principle states “a rule of constitutional and statutory construction.”
Myers, 272 U.S. at 119.
Here, the statute grants the President the authority to appoint the Staff Director,
and neither the statute nor its legislative history gives any indication that Congress
meant to provide any unusual rules for the Staff Director’s removal. Accordingly,
1
The Commission has the authority to appoint other personnel. 42 U.S.C. § 1975b(a)(2).
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Opinions of the Office of Legal Counsel in Volume 25
a straightforward application of the general principle that the power to remove
attends the power to appoint yields the conclusion that the President has the power
to remove the Staff Director. See Acting Staff Director at 2 n.2 (treating as
straightforward the proposition that the power to remove attends the power to
appoint, and relying in part on the proposition to conclude that the President’s
appointment of an Acting Staff Director had the effect of validly removing the
incumbent Acting Staff Director). That the President’s power to appoint a Staff
Director is conditioned on the concurrence of a majority of the members of the
Commission does not alter this conclusion. In Myers, for example, the Court held
that the President had the exclusive authority to remove certain postmasters, even
though the President had appointed them by and with the advice and consent of the
Senate. See 272 U.S. at 106.
Our conclusion is supported by the additional practical consideration that, for
positions such as the Staff Director, the power to remove must reside somewhere.
Unless someone has the power to remove an appointed official, the official might
serve indefinitely in his position. Such indefinite service is “a status disfavored
under normal understandings of tenure of office in the United States.” Memoran-
dum for Fred F. Fielding, Counsel to the President, from Theodore B. Olson,
Assistant Attorney General, Office of Legal Counsel, Re: The President’s Power
to Remove the Members of the Commission on Civil Rights at 5 (June 21, 1983). If,
as here, a statute contains no express provision for the removal of the official
concerned, the general principle that an appointed official may be removed by the
appointing authority helps to protect against the generally disfavored status of
indefinite service. Id. 2
II.
In 1994, we concluded that the Constitution vests the President with the author-
ity to appoint an Acting Staff Director. See Acting Staff Director. In reaching that
conclusion, we noted that “[t]he Department of Justice has long taken the position
that the President possesses authority to make appointments in order to ‘keep[] the
Government running,’” id. at 2 (quoting Appointment of Interim Officers, 2 Op.
O.L.C. 405, 409-10 (1978)), and that this authority “derives from the President’s
obligation to ‘take Care that the Laws be faithfully executed,’” id. (quoting U.S.
Const. art. II, § 3). Recognizing that “[t]he President’s take care authority to make
temporary appointments rests in the twilight area where the President may act so
2
We note that Congress has declined to enact bills that would have given the Commission the
power to remove the Staff Director. In 1996, for example, the House Committee on the Judiciary
reported favorably a bill providing that “the Staff Director may, at any time, be removed from office by
a majority vote of the Commissioners.” H.R. Rep. No. 104-846, at 14 (1996). It is reasonable to infer
that the members of the House Judiciary Committee understood that, in the absence of the amendment,
the Commission did not have the power to remove the Staff Director.
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Authority of President to Remove Staff Director of Civil Rights Commission
long as Congress is silent, but may not act in the face of congressional prohibi-
tion,” id. at 3, we found that Congress had not divested the President of that
authority with regard to the Staff Director.
After we issued the 1994 Acting Staff Director opinion, the District Court for
the District of Columbia reached a contrary conclusion, holding that the President
does not have the authority to appoint an Acting Staff Director. George v.
Ishimaru, 849 F. Supp. 68 (D.D.C. 1994). That decision was subsequently vacated
as moot by the D.C. Circuit. George v. Ishimaru, 1994 WL 517746 (D.C. Cir.
Aug. 25, 1994) (per curiam). Despite the vacating of this decision, we have studied
the district court’s opinion in George with care. Respectfully, we disagree with it.
The district court stated only that it “reject[ed] the argument that the President has
‘inherent’ appointment authority under the Take Care Clause of Article II of the
Constitution to appoint persons to positions like this one, where Congress has
unlimited authority to vest the appointment power in whomever it chooses,” and
that “[n]o court has ever recognized that the President has such inherent authori-
ty.” George, 849 F. Supp. at 71-72. To be sure, because the Staff Director is not an
“Officer of the United States,” Congress may indeed have broad (although not
unlimited) authority to select the means of appointment. Here, however, Congress
has not addressed the means of designating an Acting Staff Director. We cannot
agree with the district court that the inclusion of the statutory reference to a “Staff
Director” means that the statute is not silent as to an Acting Staff Director. See id.
at 71. Given this silence, the Constitution places in the President the duty, and the
corresponding power, to ensure the continued operation of the government. We
adhere to the conclusion of our 1994 opinion that the President may appoint an
Acting Staff Director. 3
DANIEL L. KOFFSKY
Acting Assistant Attorney General
Office of Legal Counsel
3
We do not believe that the power of the President is any less where his decision to remove the
Staff Director has created the vacancy. Otherwise, the continued operation of the government would
suffer whenever the responsible exercise of the President’s power called on him to remove this official.
Such a circumstance would constitute an undue burden, which should not be inferred, on the
President’s power of removal.
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