The Constitutional Separation of Powers Between the President and Congress

The Constitutional Separation of Powers Between the President
and Congress
T h is m em o ran d u m provides an overview o f the constitutional issues th at periodically arise concerning
the relatio n sh ip betw een the executive and legislative branches o f the federal governm ent. Although
th at relatio n sh ip is shaped in part by th e policy and political concerns o f the P resident and C ongress
o f the day , the political interaction betw een the P resident an d C ongress takes place w ithin an
en d u rin g con stitu tio nal fram ew ork that confers p ow ers and responsibilities on both elected
b ran ch es. In this m em orandum w e d iscu ss the general principles underlying separation o f pow ers
an aly sis, and w e ad d ress certain specific questions th at have arisen in the past. A ny set o f exam ples
is n ecessarily illu strative rather than exhaustive, h ow ever, and th e O ffice o f Legal Counsel is al­
w ay s av ailab le to assist in reviewing legislation or o th e r congressional action for potential separa­
tion o f p o w ers is s u e s .'
May 7, 1996
M em orandum O p in io n f o r t h e G en e r a l C o u n sels
of th e Federal G o v ern m en t
Table o f Contents
I. General Principles 125
A. Express Procedures: The Bicameralism and Presentment Requirements
and the Appointments Clause 129
B. The Anti-Aggrandizement Principle 131
C. The General Separation of Powers Principle 133
II. Common Separation o f Powers Issues 135
A. Bicameralism/Presentment Questions 135
B. Appointments Clause and Related Questions 139
1. W ho is Required to Be an Officer of the United States? 139
a. Employment by the Government: The Distinction between
Appointees and Independent Contractors 140
b. The Exercise of Significant Authority 143
c. Appointment to a Position o f Employment within the Federal
Government 145
d. Summary 148
2. W ho May Be an Inferior Officer? 149
3. W ho May Appoint Inferior Officers? 151
* This m emorandum supersedes a 1989 memorandum that the Office o f Legal Counsel provided to the General
C ounsels’ C onsultative Group. See Common Legislative Encroachments on Executive Branch Authority, 13 Op.
O .L.C. 248 (1989). W hile we agree with m any o f the conclusions o f that document, we have determined that subse­
quent decisions by the Supreme Coun and certain differences in approach to the issues make it appropriate to revisit
and update the O ffice’s general advice on separation o f powers issues.
Editor’s Note: TTiis memorandum was issued in 1996 but is being formally published in 2002. We caution that
intervening Suprem e Court decisions and “ certain differences in approach to the issues” discussed herein may render
portions o f this memorandum inadequate as an expression o f the O ffice's advice on separation o f powers. Rather
than drafting a superseding memorandum on separation o f powers, divorced from a specific context, the Office
will provide advice on separation o f powers as questions are presented to it.
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The Constitutional Separation o f Powers Between the President and Congress
4. Legislation Lengthening the Tenure of an Officer 153
5. Legislation Imposing Additional Duties on an Officer 157
6. The Ineligibility and Incompatibility Clauses 159
7. The Recess Appointments Clause 161
8. Acting and Interim Appointments 161
9. Other Issues of Combined, Collective, and Interbranch Authority and
the Appointments Clause 164
C. Removal Power Issues 166
1. The Executive’s Removal Power 166
2. Congressional Removal Power 170
D. Issues Involving the Boundaries of the Legislative Sphere 171
1. The Paradox o f Congressional Agencies 172
2. Reporting Requirements 173
3. Congressional Agents in Non-Legislative Contexts 175
E. The General Separation of Powers Principle 176
F. Statutory Construction 178
III. Constitutional Requirements and Policy Concerns 180
I. General Principles
The Constitution reflects a fundamental conviction that governmental “ power
is of an encroaching nature, and that it ought to be effectually restrained from
passing the limits assigned to it.” The Federalist No. 48, at 332 (James Madison)
(Jacob E. Cooke ed., 1961), quoted in M etropolitan Washington A irports Auth.
v. Citizens fo r the Abatem ent o f Aircraft Noise, Inc., 501 U.S. 252, 273 (1991)
(“ MWAA ” ). The founders, not content to rely on paper definitions of the rights
secured to the people, “ viewed the principle of separation of powers as a vital
check against tyranny.” Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam).
In order to safeguard liberty, therefore, the Constitution creates three distinct
branches of government— Congress, the President, and the federal judiciary —
and assigns to them differing roles in the exercise of the government’s powers.
The resulting division of governmental authority is not a mere set of housekeeping
rules indicating which branch presumptively performs which functions; it is, rath­
er, a fundamental means by which the Constitution attempts to ensure free, respon­
sible, and democratic government. See MWAA, 501 U.S. at 272 (“ The ultimate
purpose of this separation of powers is to protect the liberty and security of the
governed.” ). The constitutional separation of powers advances this central purpose
by “ assur[ing] full, vigorous, and open debate on the great issues affecting the
people” ; 1 by “ placing both substantive and procedural limitations on each
1Bowsher v. Synar. 478 U.S. 714, 722 (1986).
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[branch]” ; 2 and by maintaining a “ system of . . . checks and balances” among
the three branches.3
Although the structure of the Constitution is designed to obviate the danger
to liberty posed by each of the branches,4 the founders were particularly con­
cerned with the Congress’s potential for improvident or overreaching action: “ the
tendency of republican governments is to an aggrandizement of the legislature]
at the expense of the other departments.” The F ederalist No. 49, at 315-16 (James
Madison) (Clinton Rossiter ed., 1961), cited in U nited States v. Brown, 381 U.S.
437, 444 n.17 (1965). Many specific aspects of the Constitution’s separation of
governmental powers embody the founders’ “ profound conviction . . . that the
powers conferred on Congress were the powers to be most carefully cir­
cumscribed” and the founders’ recognition of the particular “ ‘propensity’ ” of
the legislative branch “ ‘to invade the rights of the Executive.’ ” INS v. Chadha,
462 U.S. 919, 947 (1983) (quoting The F ederalist No. 73, at 442 (Alexander Ham­
ilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a constitu­
tional obligation, one grounded not in parochial institutional interests but in our
fundamental duty to safeguard the liberty of the people, to assert and maintain
the legitimate powers and privileges of the President against inadvertent or inten­
tional congressional intrusion. As Attorney General William Mitchell put it long
ago:
Since the organization of the Government, Presidents have felt
bound to insist upon the maintenance of the Executive functions
u n im p aired by legislative encroachment, just as the legislative
branch has felt bound to resist interferences with its power by the
Executive. To acquiesce in legislation having a tendency to en­
croach upon the executive authority results in establishing dan­
gerous precedents.
Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y
Gen. 56, 64 (1933).5
The Constitution, however, “ by no means contemplates total separation of each
of these three essential branches of Government.” Buckley, 424 U.S. at 121. In­
stead, “ ‘[w]hile the Constitution diffuses power the better to secure liberty, it
2 MWAA, 501 U.S. at 272.
3Morrison v. Olson, 487 U.S. 654, 693 (1988). James Madison described the “ policy'* lying behind “ distributions
o f power** — “ the constant aim is to divide and arrange the several offices in such a manner as that each may
be a check on the other.*’ The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961), quoted
in Buckley, 424 U.S. at 122-23.
ASee INS v. Chadha, 462 U.S. 919, 951 (1983) (the C onstitution's separation o f powers is designed to counteract
the “ hydraulic pressure inherent within each o f the separate Branches to exceed the outer limits o f its pow er” ).
3 The A ttorney General noted that “ [t]he first presidential defense o f the integrity o f the powers o f the Executive
under the C onstitution was made by W ashington himself’’ and that “ [f]rom that day to this the Presidents, with
very few exceptions, have felt the necessity for refusing to overlook encroachments upon the executive pow er.”
37 Op. A tt’y Gen. at 64.
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The Constitutional Separation o f Powers Between the President and Congress
also contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence, auton­
omy but reciprocity.’ ” M istretta v. United States, 488 U.S. 361, 381 (1989)
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring)). The Constitution thus guards against “ the accumulation
of excessive authority in a single Branch” not by providing mutually exclusive
lists of executive, legislative, and judicial powers, but by imposing on each of
the three branches “ a degree of overlapping responsibility, a duty of interdepend­
ence as well as independence.” Id. at 381.6 The constitutional boundaries between
the powers of the branches must be determined “ according to common sense and
the inherent necessities of the governmental co-ordination.” J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 406 (1928).
Some general observations on the sources and methodology we employ in ana­
lyzing separation of powers questions are appropriate. We believe that the con­
stitutional structure obligates the executive branch to adhere to settled judicial
doctrine that limits executive and legislative power. While the Supreme Court’s
decisions interpreting the Constitution cannot simply be equated with the Constitu­
tion, we are mindful of the special role of the courts in the interpretation of the
law of the Constitution. “ It is emphatically the province and duty of the judicial
department to say what the law is.” M arbury v. M adison, 5 U.S. (1 Cranch) 137,
177 (1803).
The Supreme Court’s decisions interpreting the constitutional separation of pow­
ers among Congress, the President, and the courts recognize the founders’ basic
concern over the “ encroaching nature” of power, as well as their specific belief
that Congress is potentially the most dangerous branch. “ It is this concern of
encroachment and aggrandizement that has animated our separation-of-powers ju­
risprudence and aroused our vigilance against the ‘hydraulic pressure inherent
within each of the separate Branches to exceed the outer limits of its power.’ ”
Mistretta, 488 U.S. at 382 (quoting Chadha, 462 U.S. at 951). The Court’s deci­
sions have employed three distinct principles in resolving separation of powers
disputes. First, where “ [e]xplicit and unambiguous provisions of the Constitution
prescribe and define . . . just how [governmental] powers are to be exercised,”
Chadha, 462 U.S. at 945, the constitutional procedures must be followed with
precision. Second, 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. MWAA, 501 U.S. at 274 (quoting Hampton, 276 U.S.
6 The Supreme Court repeatedly has rejected the “ ‘archaic view o f the separation of powers as requiring three
airtight departments o f government.’ ” Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977) (quoting
Nixon v. Administrator o f Gen. Servs., 408 F. Supp. 321, 342 (D.D.C. 1976)). In doing so, the Court has noted
that such a view is “ inconsistent with the origins o f thfe] doctrine” as well as with “ the contemporary reaJities
o f our political system.” Id. at 441; see abo id. at 442 & n.5 (noting that James Madison in The Federalist No.
47 and Justice Joseph Story in his famous treatise on the Constitution rejected the claim that the Constitution requires
an absolute separation).
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at 406).7 Finally, legislation that affects the functioning of one of the other
branches may be unconstitutional if it prevents the affected branch “ from accom­
plishing its constitutionally assigned functions.” Nixon v. Administrator o f Gen.
Servs., 433 U.S. at 443 (legislation affecting the executive branch); accord CFTC
v. Schor, 478 U.S. 833, 851, 856-57 (1986) (legislation affecting the judiciary).8
Our analyses are guided and, where there is a decision of the Court on point,
governed by the Supreme Court’s decisions on separation of powers. At the same
time, the executive branch has an independent constitutional obligation to interpret
and apply the Constitution.9 That obligation is of particular importance in the
area of separation of powers, where the issues often do not give rise to cases
or controversies that can be resolved by the courts. This is due in part to the
limits of jurisdiction and justiciability that Article III places on the courts. In addi­
tion, there may be legislation that violates one of the three principles outlined
above and yet is unlikely to reach the courts in a form or context in which the
judiciary will be able to identify or remedy the constitutional problem.10 The
Attorneys General and this Office have a long tradition of carrying out this con­
stitutional responsibility, one that dates back to Attorney General Edmund Ran­
dolph’s 1791 opinions on the constitutionality of a national bank. See The Con­
stitutionality o f the Bank Bill (1994) (reprinting, with commentary, the bank opin­
ions), reprinted in H. Jefferson Powell, The Constitution and the Attorneys Gen­
eral 3 (1999).11 We believe therefore that it is important in addressing separation
of powers matters to give careful consideration to the views of our predecessors
and to what seems to us to be the import of the Constitution’s text, history, and
structure.12
To be sure, respect for the legislative branch of the government requires a de­
gree of deference to legislative judgments.13 However, it is also the President’s
7 W e shall refer to this theme in the Supreme C ourt’s separation o f powers jurisprudence as “ the anti-aggrandize-
m ent principle.”
8 W e refer to this line o f reasoning as “ the general separation o f powers principle.”
9 Indeed, Article II specifically requires th e President to take an oath or affirmation “ to preserve, protect and
defend the C onstitution.” U.S. Const, art. n , § I, cl. 8.
10 A n exam ple o f such legislation, would b e an enactment that does not, when viewed in isolation, violate the
constitutional principles we have identified, b u t as to which constitutional difficulties arise when the statute is exam­
ined in conjunction with other similar enactments. Because, absent a refusal by the executive to enforce any of
these cumulative enactments, the courts m ay not have an opportunity to review the statute in its full context, it
is incum bent upon the executive to object to such legislation before it becom es law. Burdensome reporting require­
m ents may illustrate this problem. Even if no single reporting requirement violates the general separation o f powers
principle, see Administrator o f Gen. Servs., 4 3 3 U.S. at 443, the cumulative effect of many such requirements might
prevent the executive from acting with the dispatch and efficiency that the Constitution intends and that, indeed.
Congress expects.
11 Persuaded by Secretary o f the Treasury H am ilton’s opinion defending the validity o f the legislation, President
W ashington declined to accept the Attorney G eneral’s arguments that the bank bill was unconstitutional and signed
it into law. The Supreme Court upheld the President’s conclusion that Congress could charter a national bank in
M ’Culloch v. Maryland, 17 U.S. (4 Wheat.) 3 1 6 (1819).
12 For an exam ple o f an opinion that is, in our view, an exemplary model of the approach this O ffice should
take in interpreting the Constitution. See Article II, Section 2, Clause 3 — Recess Appointments— Compensation (5
U.S.C. §5503), 3 Op. O.L.C. 314 (1979).
13 From the beginning o f the Republic, the executive branch has interpreted the Constitution with a due regard
for the constitutional views o f Congress. See, e.g., Thomas Jefferson, The Constitutionality o f the Bill for Establishing
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The Constitutional Separation o f Powers Between the President and Congress
“ duty to pass the executive authority on to his successor, unimpaired by the adop­
tion of dangerous precedents.” P roposed Legislation Affecting Tax Refunds, 37
Op. Att’y Gen. at 6 5 .14 Our constitutional analyses are informed by both of these
concerns.15
A. Express Procedures: The Bicameralism and Presentment Requirements
and the Appointments Clause
While the expression “ separation of powers” does not appear in the Constitu­
tion, the Constitution does require both separation and interdependence on some
matters by specifying, expressly and precisely, the procedures that must be fol­
lowed. Where the constitutional text is unequivocal as to the manner in which
the branches are to relate, any attempt to vary from the text’s prescriptions is
invalid.16 The Court has identified two such express procedures relating to the
separation of executive and legislative powers: the bicameralism and presentment
requirements for legislation, and the Appointments Clause.
Congress’s broad authority to take action that has “ the purpose and effect of
altering the legal rights, duties, and relations of persons . . . outside the Legisla­
tive Branch,” INS v. Chadha, 462 U.S. at 952, is limited by the procedural re­
quirements of-Article I. With a few express exceptions found or rooted in the
constitutional text, see MWAA, 501 U.S. at 276 n.21,17 Article I requires that
a National Bank (Feb. 15, 1791) (Opinion o f the Secretary o f State), in 5 Writings o f Thomas Jefferson 284, 289
(Paul L. Ford ed., 1895) (arguing that the President should not veto a bill on constitutional grounds, “ if the pro
and the con hang so even as to balance his judgm ent,” out o f “ a just respect for the wisdom o f the legislature” ).
Respect for Congress also demands that the Executive, like the judiciaiy, construe statutes so as to avoid constitutional
problems. See, e.g.. Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980)
( “ It is our practice to interpret statutes in ways that avoid constitutional infirmities, whenever possible.” ).
l4Thus, for exam ple, in declining to comply with a request from the House of Representatives that he deem ed
an intrusion on the treaty power, President Washington explained that “ as it is essential to the due administration
of the government, that the boundaries fixed by the [C onstitution between the different departments should be pre­
served: A just regard to the Constitution and to the duty o f my Office . . . forbids a c o m p lia n c e with your request.”
Message to the House o f Representatives (Mar. 30, 1796), reprinted in 35 Writings o f George Washington 5 (John
C. Fitzpatrick ed., 1940).
15 The correct resolution o f separation o f powers questions demands that due respect be given to two distinct
constitutional axioms. The fust axiom is that the Constitution's creation o f a vigorous Executive and an independent
judiciary must not be undermined by legislative encroachment. The second axiom is that the Constitution delegates
to Congress broad pow er “ [t]o make all Laws which shall be necessary and proper for carrying into Execution
(he foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government o f the
United States, or in any department or officer thereof.” U.S. Const, art. I, § 8, cl. 18 (emphasis added). The Necessary
and Proper Clause thereby authorizes Congress not only to choose any appropriate means of exercising the legislative
powers it has been delegated, but also “ to exercise its best judgment in the selection of measures to cany into
execution the constitutional powers o f the government” as a whole, M’Culloch v. Maryland, 17 U.S. at 420, including
the powers vested in the President. In our analyses, we fully acknowledge the broad sweep of Congress’s powers
while insisting, as we must, that those powers cannot be legitimately employed so as to undermine the constitutional
authority of the executive branch.
16 In such circumstances “ the balance” between the branches “ already has been struck by the Constitution its e lf ’
in the text. Public Citizen v. United States Dep’t o f Justice, 491 U.S. 440, 486 (1989) (Kennedy, J., concurring).
17 The House o f Representatives has the power to impeach any civil officer of the United States, see U.S. Const,
art. I, §2, cl. 5; id. art. II, § 4 , and the Senate has the pow er to try and, if convinced that the officer is guilty
of “ high Crimes and M isdemeanors,” to remove him or her from office. Id. art. I, §3 , els. 5, 6; id. art. II, §4 .
Continued
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Congress take such action “ in accord with a single, finely wrought and exhaus­
tively considered, procedure’’ — bicameral passage and presentation to the Presi­
dent followed by presidential signature, or bicameral repassage by a two-thirds
majority. Chadha, 462 U.S. at 951; see U.S. Const, art. I, §§1, 7. The classic
and often-repeated violation of this express textual requirement is the “ legislative
veto” mechanism invalidated in Chadha . 18
The Supreme Court has applied a similar analysis to the Appointments Clause
of Article II, Section 2. In Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (per
curiam), the Court concluded that “ Congress’ power under [the Necessary and
Proper] Clause is inevitably bounded by the express language of Art. II, §2, cl.
2,” and that consequently Congress cannot provide for the appointment of “ Offi­
cers of the United States,” except through a procedure that “ comports with”
the Appointments Clause.19 Pursuant to the language of the Clause, principal offi­
cers must be appointed by the President with the advice and consent of the Senate,
while Congress is limited in providing alternative means for the appointment of
inferior officers to the “ possible repositories for the appointment power.” Freytag
v. Com m issioner, 501 U.S. 868, 884 (1991). Those repositories are “ the President
alone, . . . the Courts of Law, or . . . the Heads of Departments.” U.S. Const,
art. II, §2, cl. 2.
The rules of law derived from the requirements of bicameralism/presentment
and the Appointments Clause have the clear and powerful effect of invalidating
any inconsistent congressional action. Congress may not employ any mode of ex­
ercising legislative power other than through bicameralism and presentment. The
Appointments Clause’s list of those who may appoint officers is exclusive, and
Congress cannot authorize anyone else to appoint officers of the United States.
The major difficulty in applying the bicameralism/presentment and Appointments
Clause requirements lies in determining whether a particular action falls within
the scope of the prescribed procedures. In section II of this memorandum, we
discuss questions that have arisen concerning the scope of both requirements.
The Senate also acts on its ow n in exercising its advice and consent powers with respect to treaties and the appoint­
ment o f officers. Congress and congressional committees, furthermore, may take certain actions in aid o f Congress’s
legislative tasks that have legal consequences for specific persons outside the legislative branch; a congressional
com m ittee, for exam ple, may issue a subpoena to a witness. See Lear Siegler, Inc. Energy Prods. Div. v. Lehman,
842 F.2d 1102, 1108 (9th Cir. 1988), modified as to attorney fees, 893 F.2d 205 (9th Cir. 1989) (en banc). We
disagree w ith the Lear Siegler court’s application of this principle to the question before it.
,8 The statute at issue in Chadha provided for a one-house “ veto” o f certain decisions by the Attorney General.
A two-house “ v eto ’* satisfies bicameralism but is inconsistent with the requirement o f presentment, and soon after
Chadha the C ourt sum m arily invalidated a statute employing this mechanism. See United States Senate v. FTC,
463 U.S. 1216 (1983) (mem.). These Supreme Court decisions vindicated the executive branch’s long-held objections
to any form o f legislative “ veto .” See Memorandum for the Attorney General from President Franklin D. Roosevelt
(Apr. 7, 1941), reprinted in Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357-58
(1953) (concurrent resolution); Proposed Legislation Affecting Tax Refunds, 37 Op. A tt’y Gen. at 60-62 (joint con­
gressional com m ittee); Constitutional Issues Raised by Inter-American Convention on International Commercial Arbi­
tration, 4B Op. O.L.C. 509, 5 12-13 (1980) (one-house veto o f “ private” action).
l9BuckIey vindicated the long-standing constitutional view o f the executive branch. See, e.g., Constitutionality
o f Resolution Establishing United Stales New York World's Fair Commission, 39 Op. A tt’y Gen. 61 (1937).
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B. The Anti-Aggrandizement Principle
Although the founders were concerned about the concentration of governmental
power in any of the three branches, their primary fears were directed toward con­
gressional self-aggrandizement,20 and the Supreme Court’s decisions call for care­
ful scrutiny of legislation that has the purpose or effect of extending Congress’s
authority beyond the legislative process. Just as the textual requirement of bi­
cameralism and presentment limits the means by which Congress may legislate,
so the anti-aggrandizement principle limits the means by which Congress may
influence the execution (or adjudication) of the laws.21 The Constitution affords
Congress great latitude in making policy choices through the process of bicameral
passage and presentment. However, “ once Congress makes its choice in enacting
legislation, its participation ends,” and “ Congress can thereafter control the exe­
cution of its enactment only indirectly— by passing new legislation.” B owsher
v. Synar, 478 U.S. at 733-34. While Congress may inform itself of how legislation
is being implemented through the ordinary means of legislative oversight and in­
vestigation, the anti-aggrandizement principle forbids Congress, directly or
through an agent subject to removal by Congress,22 from intervening in the deci­
sion making necessary to execute the law. See id. at 733-34; FEC v. NRA Political
Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88
(1994).«
In Bowsher, the Court held that a provision of the Gramm-Rudman Deficit Re­
duction Act was unconstitutional because it vested in the Comptroller General
(an official “ removable only at the initiative of Congress,” 478 U.S. at 728) the
power to make post-enactment decisions about how the executive branch should
implement budget reduction legislation. The Court rejected the argument that self-
aggrandizing legislation can be upheld when it is as a practical matter harmless
or de minimis and dismissed as beside the point Justice White’s vigorous argument
20See Mistretta, 488 U.S. at 411 n.35 (distinguishing Bowsher, as resting on "‘the special danger recognized by
the Founders o f congressional usurpation o f Executive Branch functions").
2‘ The fact that the anti-aggrandizement principle does not rest on a particular provision o f the Constitution does
not make it any less important and legitimate a feature o f the law o f separation of powers than those features
such as bicameralism and presentment that do have specific textual loci:
The Framers regarded the checks and balances they had built into the tripartite Federal Government as
a self-executing safeguard against the encroachment or aggrandizement o f one branch at the expense of
the other. . . . This Court has not hesitated to enforce the principle o f separation embodied in the C onstitu­
tion when its application has proved necessary for the decisions o f cases or controversies properly before
it.
Buckley v. Valeo, 424 U.S. at 122-23.
22 “ The structure o f the Constitution does not permit Congress to execute the laws; it follows that Congress cannot
grant to an officer under its control what it does not possess.” Bowsher, 478 U.S. at 726. A n officer subject to
removal by Congress is subordinate to Congress as a matter o f constitutional law and must be viewed as an agent
of Congress for separation o f powers purposes. Id. at 730. The Constitution expressly prescribes the only means
by which the houses o f Congress may participate in the removal from an ongoing office of a non-legislative official —
impeachment by the House and trial by the Senate. Id. at 723.
23Bowsher upheld the view o f the Constitution long maintained by the executive branch. See, e.g., Constitutionality
o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 56 (1933) (unconstitutional for Congress
to give a joint committee o f Congress authonty “ to approve or disapprove executive acts” ).
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that “ [r]ealistic consideration of the nature of the Comptroller General’s relation
to Congress . . . reveals that the threat to separation of powers . . . is wholly
chimerical.” 478 U.S. at 774 (White, J., dissenting); see also MWAA, 501 U.S.
at 269 n.15 (finding that “ the likelihood that Congress” actually would exercise
its authority to remove the members of the review board under consideration in
MWAA was “ irrelevant for separation-of-powers purposes” ). In contrast, the
Court upheld the validity of the laws challenged in Morrison v. Olson (inde­
pendent counsel provisions of Ethics in Government Act of 1978) and CFTC v.
Schor, 478 U.S. 833 (1986) (regulations implementing section of the Commodity
Exchange Act), in part because the Court saw no reason to view those laws as
examples of legislative aggrandizement.24
Like the express requirements of the bicameralism/presentment process and the
Appointments Clause, the anti-aggrandizement principle puts a powerful constraint
on congressional power: legislative action that falls within the scope of the prin­
ciple is unconstitutional.25 The complementary limit on the principle is that, as
the Court understands it, the principle applies only to congressional action that
amounts to fo rm a l o r direct self-aggrandizement— for example, the placement
of congressional agents on a body with prosecutorial or law enforcement pow­
ers — no matter how limited the power thereby seized by Congress. See NRA P o­
litical Victory Fund, 6 F.3d at 826-27. The Court reviews legislation that arguably
increases Congress’s power indirectly by weakening the Executive politically
under the less stringent general separation of powers principle. See M orrison, 487
U.S. at 694. A significant difficulty in applying the anti-aggrandizement principle
arises from the uncertain line between minor (but unconstitutional) aggrandize­
ments and (constitutional) exercises of Congress’s broad investigative and over­
sight powers.26 In section II, we discuss some of the questions that have arisen.
24 Morrison, 487 U.S. at 694 ( “ We observe first that this case does not involve an attempt by Congress to increase
its ow n powers at the expense o f the Executive Branch.” ); Schor, 478 U.S. at 856 ( “ Unlike Bowsher, this case
raises no question o f the aggrandizement of congressional power at the expense o f a coordinate branch.” ).
25 The bicameralism/presentment and anti-aggrandizement requirements converge when Congress attempts to vest
in itself o r its agents the pow er to take action with legal effects outside the legislative branch by some means
other than the textually prescribed procedure o f bicameral passage o f a bill and presentation to the President. Such
an attempt is unconstitutional regardless o f w hether one views the attempt as a violation o f the bicameralism/present­
m ent requirement for legislation o r as a self-aggrandizing intrusion into the sphere o f activity o f another branch.
See MWAA, 501 U.S. at 274-77. However, the tw o requirements do not always work in tandem. A statute providing
that the President can exercise additional authority over some issue with the approval o f a single house o f Congress
w ould not amount to congressional self-aggrandizement but would violate the bicameralism requirement. Similarly,
it is difficult to view the designation by statute o f agents o f C ongress to be non-voting members o f an extra-legislative
decision-m aking body as leading to the exercise o f legislative authority in violation o f Chadha, but such designation
may well run afoul o f the anti-aggrandizement principle. See, e.g., NRA Political Victory Fund, 6 F.3d at 826-
27.
26 Compare NRA Political Victory Fund, 6 F.3d at 826-27 (unconstitutional for Congress to place agents within
an entity exercising final decision-making authority) with McGrain v. Daugherty, 273 U.S. 135 (1927) (constitutional
for C ongress to issue subpoenas).
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The Constitutional Separation o f Powers Between the President and Congress
C. The General Separation of Powers Principle
Legislation that affects the constitutional separation of powers but is consistent
with the requirements of bicameralism/presentment, the Appointments Clause, and
the anti-aggrandizement principle is subject to less searching scrutiny.27 While
some older judicial opinions used language suggesting that any overlap between
the powers wielded by the different branches is illegitimate,28 the modem Su­
preme Court interprets the general principle of separation of powers in light of
Madison’s assertion that the separation necessary to free government is violated
only “ ‘where the whole power of one department is exercised by the same hands
which possess the whole power of another department.’ ” Nixon v. Administrator
o f Gen. Servs., 433 U.S. at 442 n.5 (quoting The Federalist No. 47, at 325-26
(James Madison) (Jacob E. Cooke ed., 1961)).29 Therefore, “ in determining
whether [an] Act disrupts the proper balance between the coordinate branches,
the proper inquiry focuses on the extent to which it prevents the Executive Branch
from accomplishing its constitutionally assigned functions.” Id. at 443; cf. CFTC
v. Schor, 478 U.S. at 856-57 (“ [T]he separation of powers question presented
in this litigation is whether Congress impermissibly undermined . . . the role of
the Judicial Branch.” ). An affirmative answer to the question of whether Congress
has prevented the Executive or Judiciary from accomplishing its functions, further­
more, would not lead inexorably to the judicial invalidation of the statute: in that
case, the Court has stated, it would proceed to “ determine whether that impact
is justified by an overriding need to promote objectives within the constitutional
authority of Congress.” Adm inistrator o f Gen. Servs., 433 U.S. at 443.30
27 Legislation impinging on the President’s responsibilities in the areas o f foreign affairs and national defense
poses unique issues in the application o f the general principle o f separation o f powers, requiring a more searching
examination o f the validity o f congressional action.
28 See, e.g., Springer v. Philippine Islands, 277 U.S. 189, 201 (1928) (discussing the “ exclusive character of
the powers conferred upon each o f the three departments” ). On the present Court, Justice Scalia adheres to a version
o f this view. See, e.g., Morrison, 487 U.S. at 7 0 3 -0 4 (Scalia, J., dissenting) (criticizing the Court for focusing
on “ such relatively technical details as the Appointments Clause and the removal pow er” rather than on “ the prin­
ciple o f separation o f pow ers” ).
29 M adison’s language about “ the whole power o f [a] department” should not be construed in a woodenly literal-
istic manner. As the Supreme C ourt’s decisions indicate, the point is that the principle of separation o f powers
safeguards the overall constitutional role and function o f the affected branch. Indeed, this would seem to have been
M adison’s view as well: during the great debate in the First Congress over the President's authority to remove
executive branch officers, Madison argued against congressional power to limit the President’s authority on the
ground that such limitations would distort the constitutionally ordained role o f the Executive. See Myers v. United
States, 272 U.S. 52, 131 (1926) (quoting Madison).
30 Although most o f the C ourt’s decisions applying the general separation o f powers principle have concerned
legislation arguably interfering with the executive o r judiciary, the C ourt’s approach is applicable in other cir­
cumstances as well. For example, United Stales v. Nixon, 418 U.S. 683 (1974), addressed the argument that a sub­
poena duces tecum addressed to the President in the course o f a criminal proceeding was a judicial encroachment
on the Executive’s autonomy. The Court rejected the argument, holding in the circumstances o f the case that the
President's “ generalized interest in confidentiality” w as outweighed by “ the demonstrated, specific need [of the
courts and the accused] for evidence in a pending criminal trial.” Id. at 713. The threat to the President's constitu­
tionally based interest posed by compelled disclosure in such (presumably rare) circumstances was slight, the Court
concluded, while “ the allowance o f the privilege to withhold evidence . . . would . . . gravely impair the basic
function o f the courts.” Id. at 712. The Court built on its reasoning in United States v. Nixon in formulating the
Continued
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The Court’s current understanding of the general principle of separation of pow­
ers is illustrated by Morrison v. O lson . 31 There the Court concluded that the re­
strictions in the independent counsel statute on the Executive’s supervisory and
removal powers did not violate the principle. While the Court acknowledged that
the statute rendered the independent counsel “ free from Executive supervision
to a greater extent than other federal prosecutors,” it was unpersuaded that the
limitations placed on that supervision meant that the President would not be able
“ to perform his constitutionally assigned duties.” 487 U.S. at 696.32 In light of
the narrow range of the independent counsel’s jurisdiction, her essential insulation
from any significant policy-making role, and the well-established principle that
Congress can limit the removal authority of a head of department when granting
that officer the power to appoint subordinates, the Court concluded that the inde­
pendent counsel statute did not fundamentally undermine the Executive’s constitu­
tional authority.
The Supreme Court’s basic formulation of the general principle of separation
of powers is consistent with the approach taken by most Attorneys General in
the past, and it accords with what we find to be the most persuasive scholarship
on the original understanding and early practice of the separation of powers under
the United States Constitution.33 However, given the very emphasis the general
principle places on evaluating constitutional questions in light of the overall struc­
ture and functioning of the federal government, the principle’s application to spe­
test set out a few years later in Administrator o f General Services, under w hich it examined the impact o f an adverse
decision on the constitutional functions of the executive and judicial branches.
31 See also Mistretta . Mistretta upheld the validity o f C ongress’s decision to create the Sentencing Commission
as an independent entity within the judicial branch composed, in part, o f Article in judges against the claim that
the Com m ission violated the general separation o f powers principle. 488 U.S. at 383. As in Morrison , the Court
looked to the im pact o f the challenged legislation on the ability o f the affected branch to fulfill its duties and con­
cluded that the legislation posed no real threat to the integrity o r authority o f the judiciary. 488 U.S. at 384.
32The C ourt also addressed the statute's imposition o f a for-cause requirement on the Attorney G eneral's power
to rem ove an independent counsel, arguably a violation o f the rule o f Myers v. United States, 272 U.S. 52 (1926)
(holding unconstitutional a statute requiring Senate advice and consent to the presidential removal o f certain post­
masters). Morrison distinguished Myers as based on what we have called the anti-aggrandizement principle, 487
U.S. at 686 (like Bowsher v. Synar , Myers involved "C o n g ress’ attempt to involve itself in the removal o f an
executive o fficial” ), and rejected the argument that the constitutionality o f a for-cause removal requirement depends
on w hether an official is classified as “ purely executive,” id. at 689. The proper inquiry, the Court concluded,
was the com patibility o f the restriction on the Executive’s removal pow er with the general separation o f powers
principle that Congress cannot legislate in such a way that the President cannot carry out his constitutional functions.
U ltim ately, the Court was “ simply [unable to] see how the President’s need to control the [counsel's] exercise
o f . . . discretion is so central to the functioning o f the Executive Branch as to require as a matter o f constitutional
law that the counsel be terminable at will by the President.” Id. at 691-92.
33 W hile we do not rest any conclusions on the potentially shifting ground of scholarly consensus, we note the
existence o f a num ber o f impressive studies arguing that the principle o f separation was originally understood to
be flexible, open-ended, and consistent with a variety o f actual institutional relationships among the three branches.
Furtherm ore, it seem s undeniable that early practice under the Constitution reflected a loose rather than strict under­
standing o f the required separation. See, e.g., Susan Low Bloch, The Early Role o f the Attorney General in our
Constitutional Scheme: In the Beginning There was Pragmatism, 1989 D uke L.J. 561; Gerhard Casper, An Essay
in Separation o f Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211 (1989); William B.
Gw yn, The Indeterminacy o f the Separation o f Powers and the Federal Courts , 57 Geo. Wash. L. Rev. 474 (1989);
Law rence Lessig & Cass R. Sunstein, The President and the Administration, 93 Colum. L. Rev. 1 (1994); Peter
M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev.
596(1989 ).
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The Constitutional Separation o f Powers Between the President and Congress
cific questions is unavoidably difficult, and the answers we or the courts reach
ordinarily should be viewed as quite specific to context.34 Furthermore, although
the general principle marks the boundary of the law of separation of powers, it
is inappropriate for the Executive to regard this as defining the outer limit of
proper separation of powers policy objections to legislation.35 The Constitution’s
very structure suggests the importance of maintaining the hallmarks of “ executive
administration essential to effective action” 36 as well as the accountability to the
public that stems from vesting ultimate authority in a single, politically responsible
officer.37 Several quite common types of legislation threaten the structural values
protected by the general separation of powers principle even if the courts are un­
likely to invalidate them. Examples of such legislation may include burdensome
reporting requirements, attempts to dictate the processes of executive deliberation,
and legislation that has the purpose or would have the effect of “ micromanaging”
executive action. Executive branch agencies should be careful to object to any
legislation that unduly reduces the accountability of officials or agencies to the
President, or that unnecessarily interferes with the flexibility and efficiency of
executive decision making and action. Such legislation undercuts the constitutional
purpose of creating an energetic and responsible executive branch.
IT. Common Separation of Powers Issues
A. Bicameralism/Presentment Questions
The Supreme Court’s holding in INS v. Chadha was emphatic: Congress can
exercise “ the legislative power of the Federal Government” only “ in accord with
a single, finely wrought and exhaustively considered, procedure” — passage by
34 Once again, we note that the areas o f foreign relations and national defense present unique considerations,
in light of the President's much greater constitutional authority to act in those areas.
35 In analyzing the validity o f congressional action, we are mindful o f the respect it is appropriate for the executive
branch to pay to an equal and coordinate branch o f the government. However, the executive branch is not bound
by precisely the same rules o f deference that guide the courts in exercising their power of judicial review. Judicial
deference to the legislative choices embodied in statutes is one o f the means by which the courts themselves avoid
interfering improperly with the constitutional powers o f the politically responsible branches. (In the case o f most
statutes, judicial review involves scrutinizing the legal and policy judgm ents o f the President who signed the legisla­
tion into law as well as those o f the Congress that enacted it.) The courts, it should be remembered, are also deferen­
tial to purely executive branch decisions, and for the same basic reason: the constitutional structure makes the Presi­
dent, like Congress, politically responsible. See Chevron U.SJi., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 865 (1984) ( “ While agencies are not directly accountable to the people, the C hief Executive is,
and it is entirely appropriate for this political branch o f the Government to make . . . policy choices.").
36 Myers, 272 U.S. at 134.
37 Rejecting the argument that it was unsafe to delegate the executive power to a single official, Alexander Hamilton
wrote that 4'one o f the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults,
and destroy responsibility." The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), cited
in In re Sealed Case, 838 F.2d 476, 527 n.27 (D.C. Cir.) (Ginsburg, R.B., J., dissenting), rev’d., Morrison v. Olson,
487 U.S. 654 (1988). Then-Judge Ginsburg explained that “ [t]he unity o f the executive branch was intended to
serve the ends o f responsibility and accountability." Id.
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both houses and presentment to the President.38 462 U.S. at 951. Applying that
rule, the Court struck down a statutory mechanism in the Immigration and Nation­
ality Act by which a single house of Congress could override decisions of the
Attorney General. The effect of the Court’s decision was to invalidate the similar
“ legislative veto” provisions found in many other statutes.39 In addition to the
classic legislative veto mechanism invalidated by Chadha, we think that the re­
quirement of bicameralism and presentment is infringed whenever a single house,
committee, or agent of Congress attempts to direct the execution of the laws,
to determine the “ final disposition of the rights of persons outside the legislative
branch,” or to promulgate rules or standards intended to bind the actions of execu­
tive or administrative officials that have not been approved by both houses and
presented to the President. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v.
Lehman, 842 F.2d 1102, 1108 (9th Cir. 1988), m odified as to attorney fees, 893
F.2d 205 (1989) (en banc);40 cf. M istretta v. United States, 488 U.S. at 396 (dis­
tinguishing Sentencing Guidelines from political policy making on the grounds
that “ they do not bind or regulate the primary conduct of the public” ).
For many decades, the congressional Joint Committee on Printing (“ JCP” ) has
attempted to exercise the legislative authority to promulgate rules and procedures
binding on the executive branch’s activities relating to printing, publication, and
(more recently) data storage. In 1920, President Wilson vetoed an appropriations
bill because it purported to confer on the JCP the power to promulgate regulations
governing printing by executive officials or agencies: Congress has no power,
he explained, to “ endo[w] a committee of either House or a joint committee of
both Houses with power to prescribe ‘regulations’ under which executive depart­
ments may operate.” Veto Message on Legislative, Executive and Judicial Appro­
priation Bill, H.R. No. 764, 66th Cong., 2d Sess. 2 (1920), reprinted in 59 Cong.
Rec. 7026 (1920); see Constitutionality o f P roposed Legislation Affecting Tax Re­
funds, 37 Op. Att’y Gen. 56, 62-63, 65 (1933) (quoting and endorsing President
Wilson’s reasoning). In 1984, we concluded that legislation granting the JCP au­
thority to promulgate regulations that “ would require executive departments to
38 As a m atter o f practical reality, much o f the federal governm ent’s legislative activity is undertaken by officers
and agencies outside the legislative branch (in the form of regulations), but as a rule such entities act under statutory
delegation ftom Congress. The delegating legislation is, for Chadha purposes, the congressional exercise o f legislative
power. See Chadha, 462 U.S. at 953 n. 16,
39 A statutory provision conditioning the E xecutive’s ability to take action on approval by one or both houses
of C ongress o r by a congressional committee is as invalid as a provision enabling one o f these bodies to “ veto”
executive action, and for the sam e reason: it is a legislative attempt to exercise authority beyond the legislative
sphere in a mode not conform ing to the requirements o f bicameralism and presentment. See, e.g., American Fed’n
o f Gov't Employees v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982).
40 W e agree w ith the court o f appeals in Lear Siegler that many separation o f powers issues can properly be
analyzed under either the Chadha rule (forbidding Congress to exercise legislative power except by bicameralism
and presentm ent) o r the anti-aggrandizement principle (forbidding Congress to exercise executive power). Attempts
to resolve constitutional issues by categorizing an exercise o f authority as “ in its essence, ‘legislative’ or "execu­
tive’, ” can be confusing and, in any event, m iss the point that under either analysis, “ the critical issue is whether
C ongress o r its agent seeks to control . . . the execution o f its enactments without respect to the Article I legislative
process.” 842 F.2d at 1108. In MWAA, the Suprem e Court concluded that it was unnecessary to resolve the cat­
egorization issue because the exercise of authority was unconstitutional how ever it was viewed. 501 U.S. at 276.
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The Constitutional Separation o f Powers Between the President and Congress
submit annual plans outlining their intended activities and to seek advance ap­
proval of all projected goals, policies, strategies, purchases, publications, and
means of distribution” with respect to printing, word processing, and data storage
and retrieval was unconstitutional. Constitutionality o f Proposed Regulations o f
Joint Committee on Printing, 8 Op. O.L.C. 42, 42 (1984). The proposed regula­
tions would have established general rules binding upon the conduct of executive
officials without those rules being approved by both houses of Congress and pre­
sented to the President, in plain violation of Article I’s procedural requirements.41
We have also advised that the statutory provision authorizing the JCP “ unilaterally
to create exceptions to the [statutory] rule that all printing must be accomplished
through the GPO [Government Printing Office]” has no lawful force under
Chadha. Id. at 51 & n. 14; see also Constitutionality o f Proposed Legislation Af­
fecting Tax Refunds, 37 Op. Att’y Gen. at 58-60 (bill subjecting Treasury Depart­
ment decisions on tax refunds to review and disallowance by congressional joint
committee would be unconstitutional).
The requirement of bicameralism and presentment also can be violated in more
convoluted ways. Section 431 of the General Education Provisions Act, for exam­
ple, subjected final regulations of the Department of Education to a forty-five
day report-and-wait provision 42 and provided that the final regulation would not
become effective if Congress “ by concurrent resolution, findfs] that the final regu­
lation is inconsistent with the Act . . . and disapprove^] such final regulation.”
20 U.S.C. § 1232(d) (Supp. IV 1980). Concurrent resolutions are not legislation
within the meaning of the Constitution, see U.S. Const, art. I, §7, cl. 3, because
they are not presented to the President. Accordingly, Attorney General Civiletti
advised the Secretary of Education that the subjection of the Education Depart­
ment’s delegated lawmaking authority to congressional control and revision by
means other than those required by Article I was unconstitutional. “ [0]nce a func­
tion has been delegated to the executive branch, it must be performed there, and
cannot be subjected to continuing congressional control except through the con­
stitutional process of enacting new legislation.” Constitutionality o f Congress’
Disapproval o f Agency Regulations by Resolutions N ot Presented to the President,
4A Op. O.L.C. 21, 27 (1980) (opinion of the Attorney General).
Similarly, while Congress has near-plenary authority in deciding to grant, limit
or withhold appropriations, the Department of Justice has long contended that the
appropriations power may not be used to circumvent the restrictions the Constitu­
tion places on the modes of legislative action. See, e.g., Authority o f Congressional
Committees to D isapprove Action o f Executive Branch, 41 Op. Att’y Gen. 230
(1955) (opining that legislation authorizing congressional committees to dis­
41 We also determined that the proposed regulations were not authorized by any of the statutes concerning the
JCP. See 8 Op. O .L .C at 43-46. That point was not relevant to the constitutional analysis, however, since Congress
cannot circumvent the bicameralism and presentment requirement by delegating legislative authority to a part or
agent o f itself even by means o f a statute itself duly passed and presented.
42 In themselves report-and-wait mechanisms usually are valid, as we discuss more fully later in this memorandum.
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approve Defense Department contracts is unconstitutional). Several years before
Chadha, for example, this Office advised that Congress could not validly provide
for the indirect implementation of a legislative “ veto” by an appropriations rider
that would prospectively deny funding for the implementation of any regulation
disapproved in the future by such a “ veto.” See Appropriations Limitation fo r
Rules V etoed b y Congress, 4B Op. O.L.C. 731 (1980). Our reasoning in that opin­
ion is equally applicable to appropriations provisions that attempt to cut off fund­
ing that would otherwise be available on the basis of any future expression of
disapproval by Congress that does not take the form of new legislation. The same
analysis would apply, as well, to a provision prohibiting the expenditure of funds
for some purpose, but allowing a future expression of approval by committee ac­
tion to remove the prohibition.
In carrying out its legitimate legislative functions, Congress “ enjoys ample
channels to advise, coordinate, and even directly influence an executive agency
[including by] direct communication with the [agency].” FEC v. NRA Political
V ictory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88
(1994). As a practical matter, therefore, congressional committees and individual
members of Congress often are able to sway the decisions of the executive offi­
cials with whom they deal. In addition, congressional committees can exercise
limited but legally coercive authority over persons outside the legislative branch
through the power to issue subpoenas to compel testimony.43 In light of the capac­
ity of Congress to extend its influence beyond the legislative sphere by informal
means that are sometimes troubling although not unlawful, it is imperative that
the executive branch consistently assert the rule of constitutional law that formal
control of executive decisionmaking and administration is subject to the require­
ments of Article I, and especially to the constitutional authority of the President
to participate in the legislative process through the presentment mechanism. The
executive branch has a constitutional obligation not to accede to legislative action
that does not conform to Article I. Advising the Secretary of Education that she
could validly implement departmental regulations despite a legislative “ veto,” At­
torney General Civiletti wrote that “ recognition of these concurrent resolutions
as legally binding would constitute an abdication of the responsibility of the exec­
utive branch, as an equal and coordinate branch of government with the legislative
branch, to preserve the integrity of its functions against constitutional encroach­
ment.” C ongress’ Disapproval o f A gency Regulations, 4A Op. O.L.C. at 29.
43 The Suprem e Court has reasoned that the “ congressional pow er o f inquiry” is necessary to “ ‘enable [Congress]
efficiently to exercise [the] legislative function[s] belonging to it under the Constitution.’ ” Barenblait v. United
States, 360 U.S. 109, 111 (1959) (quoting McGrain v. Daugherty, 273 U.S. 135, 160 (1927)) Like C ongress’s
substantive powers to legislate, the power o f inquiry is “ subject to the limitations placed by the Constitution on
governm ental action,” id. at 112, including the anti-aggrandizement and general separation of powers principles.
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The Constitutional Separation o f Powers Between the President and Congress
B. Appointments Clause and Related Questions
The Appointments Clause provides:
[The President,] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.
U.S. Const, art. II, §2, cl. 2 .44 In Buckley v. Valeo, the Supreme Court held
that the terms of the Appointments Clause set out the only means by which Con­
gress may provide for the appointment of “ Officers of the United States.” 45 424
U.S. at 124-37. Principal officers must be appointed by the President with the
advice and consent of the Senate; inferior officers must be appointed in the same
manner unless Congress by statute provides for their appointment by the President,
the “ Head[] of [a] Department! ],” or the courts. Id. at 132;46 see also Freytag
v. Commissioner, 501 U.S. at 878 (“ [T]he Constitution limits congressional dis­
cretion to vest power to appoint ‘inferior Officers’ to three sources.” ). Despite
the apparent clarity of its language, however, the Appointments Clause has pro­
vided the occasion for many opinions of the Attorneys General and of this Of­
fice. 47
1. Who is Required to Be an “ Officer of the United States” ? Not everyone
who performs duties for the federal government is an “ officer” within the mean­
ing of the Appointments Clause. From the early days of the Republic, this term
has been understood to embrace the ideas of “ tenure, duration, emolument, and
duties.” U nited States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). Because
44 As the language o f the Appointments Clause suggests, offices in the constitutional sense “ are onJy those estab­
lished or recognized by the Constitution or by act o f C ongress." Inventions International Exposition, 18 Op. A tt’y
Gen. 171, 171 (1885); see also id. ( “ [T]he President cannot create an office.").
45 The officers at issue in Buckley were the six voting members o f the Federal Election Commission, four o f
whom were appointed by congressional officials and tw o by the President, subject to the approval of the Senate
and the House o f Representatives. The statutory scheme thus violated the Appointments Clause in tw o distinct ways,
by vesting appointment power in officials not listed in the Clause and by subjecting presidential nominees to con­
firmation by the House. 424 U.S. at 126-27.
46 See Appointment o f Assistant Secretary ofState, 6 Op. A tt’y Gen. 1, 1 (1853) (*‘[W]ithout there be[ing] express
enactment to the contrary . . . the appointment o f any officer o f the United States belongs to the President, by
and with the advice and consent o f the Senate.").
47 We do not state anything novel in observing that the Appointments Clause sometimes presents difficult questions
o f interpretation. Attorney General Legare remarked in an 1843 opinion that 44[n]o points of our fundamental law
are more difficult than those involved in this whole subject o f appointm ents." Appointment and Removal o f Inspectors
o f Customs, 4 0 p . A tt'y Gen. 162, 164(1843).
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Opinions o f the Office o f Legal Counsel in Volume 20
H artwell has long been taken as the leading statement of the constitutional mean­
ing of “ officer,” 48 that statement is worth repeating in full:
An office is a public station, or employment, conferred by the
appointment of government. The term embraces the ideas of tenure,
duration, emolument, and duties.
The employment of the defendant was in the public service of
the United States. He was appointed pursuant to law, and his com­
pensation was fixed by law. Vacating the office of his superior
would not have affected the tenure of his place. His duties were
continuing and permanent, not occasional or temporary. They were
to be such as his superior in office should prescribe. A government
office is different from a government contract. The latter from its
nature is necessarily limited in its duration and specific in its ob­
jects. The terms agreed upon define the rights and obligations of
both parties, and neither may depart from them without the assent
of the other.
Id. at 393.
H artw ell and the cases following it specify a number of criteria for identifying
constitutional officers, and in some cases it is not entirely clear which criteria
the Court considered essential to its decision. Nevertheless, we believe that from
the earliest reported decisions onward, the constitutional definition of officer has
involved at least three necessary conditions.
a. Employment by the Government: The Distinction between Appointees and
Independent Contractors. An officer’s duties are permanent, continuing, and
based upon responsibilities created through a chain of command rather than by
contract. Underlying an officer is an “ office,” to which the officer must be ap­
pointed. As Chief Justice Marshall, sitting as circuit justice, wrote: “ Although
an office is ‘an employment,’ it does not follow that every employment is an
office. A man may certainly be employed under a contract, express or implied,
to do an act, or perform a service, without becoming an officer.” United States
v. M aurice , 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747). Chief Justice
Marshall speaks here of being “ employed under a contract” ; in modem termi­
nology the type of non-officer status he is describing is usually referred to as
48 In an opinion discussing an Appointments Clause issue. Attorney General Kennedy referred to Hartwell as
providing the “ classical definition pertaining to an officer.*’ Communications Satellite Corporation, 42 Op. A tt’y
G en. 165, 169 (1962). Hartwell itself cited several earlier opinions, mcluding United States v. Maurice, 26 F. Cas.
1211 (C.C.D. Va. 1823) (No. 15,747) (M arshall, Circuit Justice), see 73 U.S. at 393 n .f, and in turn has been
cited by numerous subsequent Supreme C ourt decisions, including United States v. Germaine, 99 U.S. 508, 511—
12 (1879), and Auffmordt v. Hedden, 137 U .S. 310, 327 (1890). These latter tw o decisions were cited with approval
by the Court in Buckley v. Valeo, 424 U.S. at 125-26 & n. 162.
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The Constitutional Separation o f Powers Between the President and Congress
that of independent contractor. In H artwell, this distinction shows up in the opin­
ion’s attention to the characteristics of the defendant’s employment being “ con­
tinuing and permanent, not occasional or temporary,” as well as the opinion’s
suggestion that with respect to an officer, a superior can fix and then change
the specific set of duties, rather than having those duties fixed by a contract. 73
U.S. at 393.
The distinction between employees and persons whose relationship to the gov­
ernment takes some other form also appears in later decisions.49 The question
in United States v. Germaine, 99 U.S. 508 (1879), concerned whether a surgeon
appointed by the Commissioner of Pensions “ to examine applicants for pension,
where [the Commissioner] shall deem an examination . . . necessary,” id. at 508
(quoting Rev. Stat. §4777), was an officer within the meaning of the Appoint­
ments Clause. The surgeon in question was “ only to act when called on by the
Commissioner of Pensions in some special case” ; furthermore, his only compensa­
tion from the government was a fee for each examination that he did in fact per­
form. Id. at 512. The Court stated that the Appointments Clause applies to “ all
persons who can be said to hold an office under the government” and, applying
Hartwell, concluded that “ the [surgeon’s] duties are not continuing and permanent
and they are occasional and intermittent.” Id. The surgeon, therefore, was not
an officer of the United States.50
The Court employed the same reasoning in Auffmordt v. Hedden, 137 U.S. 310
(1890). Pursuant to statute, an importer dissatisfied with the government’s valu­
ation of dutiable goods was entitled to demand a reappraisement jointly conducted
by a general appraiser (a government employee) and a “ merchant appraiser” ap­
pointed by the collector of customs for the specific case. Despite the fact that
the reappraisement decision was final and binding on both the government and
the importer, id. at 329, the Court rejected the argument that the merchant ap­
praiser was an “ inferior Officer” whose appointment did not accord with the
requirements of the Appointments Clause.
He is an expert, selected as such. . . . He is selected for the special
case. He has no general functions, nor any employment which has
any duration as to time, or which extends over any case further
than as he is selected to act in that particular case. . . . He has
no claim or right to be designated, or to act except as he may be
designated. . . . His position is without tenure, duration, con­
49In this memorandum, the term “ officer” will be used to refer exclusively to “ Officers o f the United States”
in the constitutional sense; other full-time government servants will be called “ employees.”
50Germaine clearly was discussing the concept o f “ officer” in the constitutional, and not simply a generic, sense:
the alternative basis for the holding was that the surgeon was not an officer because he was appointed by the C om m is­
sioner who, as the head o f a bureau within the Interior Department, could not be a “ Head of Department” with
the authority to appoint officers. Id. at 510-11.
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tinuing emolument, or continuous duties . . . . Therefore, he is not
an ‘officer,’ within the meaning of the clause.
Id. at 326-27.
We believe that under its best reading, Buckley v. Valeo, 424 U.S. 1 (1976)
(per curiam), reflects and endorses this distinction, and that suggestions to the
contrary misread the opinion. First, Buckley cites both Germaine and Auffmordt
approvingly. See id. at 125-26 & n.162. Second, in several of its statements of
the definition of “ officers,” Buckley, sometimes citing Germaine explicitly, says
that the term applies to appointees or appointed officials who exercise significant
authority under federal law, thus recognizing the possibility that non-appointees
might sometimes exercise authority under federal law. See, e.g., id. at 131 (“ Offi­
cers” are “ all appointed officials exercising responsibility under the public
laws.” ). It is true that at other points in its opinion, the Buckley Court used lan­
guage that, taken in isolation, might suggest that the Appointments Clause applies
to persons who, although they do not hold positions in the public service of the
United States, exercise significant authority pursuant to federal law. See id. at
141. However, we think such a reading of Buckley is unwarranted. So understood,
Buckley must be taken to have overruled, sub silentio, Germaine and Auffmordt —
cases upon which it expressly relies in its analysis, see id. at 125-26 & n.162 —
and its repeated quotation of the G erm aine definition of “ officer” as “ all persons
who can be said to hold an office under the government” would make no sense.
The apparently unlimited language of some passages has a simpler explanation:
there was no question that the officials at issue in Buckley held “ employments],”
M aurice, 26 F. Cas. at 1214, under the federal government, and thus the question
of the inapplicability of the Appointments Clause to persons not employed by
the federal government was not before the Court.51 The Supreme Court’s decision
in Buckley, we conclude, did not modify the long-settled principle that a person
who is not an officer under H artw ell need not be appointed pursuant to the Ap­
pointments Clause.52
51 The post-Buckley Supreme Court has often assessed the validity o f statutes that would starkly pose Appointments
Clause issues if, in fact, the Court had adopted the position that wielding significant authority pursuant to the laws
o f the U nited States, without more, requires appointment in conformity with that Clause. In none of these cases
has the C ourt even hinted at the existence o f an Appointments Clause issue. See, e.g., Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568 (1985) (upholding statutory requirement that registrants under a federal regulatory
schem e subm it to binding arbitration conducted by a panel o f arbitrators who are private individuals not appointed
by one o f the methods specified in the Appointments Clause and are subject only to limited judicial review); FERC
v. Mississippi, 456 U.S. 742 (1982) (upholding requirement that states enforce federal regulatory scheme relating
to utilities); Lake Carriers’ Ass'n v. Kelley, 4 5 6 U.S. 985 (1982) (mem.) (upholding statute that granted states author­
ity to ban sew age emissions from all vessels), a ffg 527 F. Supp. 1114 (E.D. Mich. 1981) (three-judge panel); Train
v. National Resources Defense Council, Inc., 421 U.S. 60 (1975) (construing provision o f Clean Air Act that gave
states authority to devise and enforce plans for achieving congressionally defined national air quality standards).
52 Some recent opinions o f this Office have read Buckley more broadly as repudiating the historical understanding
o f the Appointm ents Clause and endorsing the proposition we reject h ere— that is, that all persons exercising signifi­
cant federal authority, by virtue o f that fact alone, must be appointed pursuant to the Appointments Clause. We
are aware o f four opinions in which our disagreement with this understanding o f Buckley would cause us to reach
a different conclusion on the Appointments Clause question presented. See Constitutionality o f Subsection 4117(b)
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The Constitutional Separation o f Powers Between the President and Congress
b. The Exercise of Significant Authority. Chief Justice Marshall’s observation
that “ [although an office is ‘an employment,’ it does not follow that every em­
ployment is an office,” United States v. M aurice, 26 F. Cas. at 1214 points to
a second distinction as well — although not one that was at issue in Maurice itself.
An officer is distinguished from other full-time employees of the federal govern­
ment by the extent of authority he or she can properly exercise. As the Court
expressed this in Buckley:
We think that the term “ Officers of the United States” as used
in Art. II, defined to include “ all persons who can be said to hold
an office under the government” in United States v. Germaine,
[means] that any appointee exercising significant authority pursuant
to the laws of the United States . . . must . . . be appointed in
the manner prescribed by [the Appointments Clause].
424 U.S. at 125-26 (emphasis added).53 In contrast, “ [e]mployees are lesser func­
tionaries subordinate to officers of the United States.” Id. at 126 n.162.
The distinction between constitutional officers and other employees is a long­
standing one. See, e.g., Burnap v. United States, 252 U.S. 512, 516-19 (1920)
(landscape architect in the Office of Public Buildings and Grounds was an em­
ployee, not an officer); Second D eputy Com ptroller o f the Currency — A ppoint­
ment, 26 Op. Att’y Gen. at 628 (Deputy Comptroller of the Currency was “ mani­
festly an officer of the United States” rather than an employee). At an early point,
the Court noted the importance of this distinction for Appointments Clause anal­
ysis. See Germaine, 99 U.S. at 509.54
o f Enrolled Bill H.R. 5835, the “Omnibus Budget Reconciliation Act o f 1990," 14 Op. O.L.C. 154, 155-56 (1990)
(statutory scheme under which congressional delegations and physicians* organizations of certain states exercise **sig-
nificant authority” violates Appointments Clause); Constitutionality o f the Qui Tam Provisions o f the False Claims
Act, 13 Op. O.L.C. 207, 2 21-24 (1989) (provisions o f False Claims Act authorizing qui tam suits by private parties
violate Appointments Clause because qui tam relators exercise “ significant governmental pow er” ); Representation
o f the United States Sentencing Commission in Litigation, 12 Op. O.L.C. 18, 26 (1988) (private party acting as
counsel for United States agency must be appointed pursuant to Appointments Clause); Proposed Legislation to
Establish the National Indian Gaming Commission, 11 Op. O.L.C. 73, 74 (1987) (Appointments Clause problems
raised where state and local officials given authority to waive federal statute). O ur conclusion that the more limited
historical understanding o f the Appointments Clause is correct requires us to disavow the Appointments Clause
holdings o f those opinions. To the extent that our current reading o f Buckley is inconsistent with the Appointments
Clause reasoning o f other opinions o f this office, that reasoning is superseded. See Common Legislative Encroach­
ments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989).
33 See Appointments in the Department o f Commerce and Labor, 29 Op. A tt’y Gen. 116, 118-19, 122-23 (1911)
(official authorized to perform all the duties o f the Commissioner o f Fisheries, who was appointed by the President
and confirmed by the Senate, was an officer, scientists, technicians, and superintendent of mechanical plant in the
Bureau o f Standards were employees rather than officers); Second Deputy Comptroller o f the Currency— Appoint­
ment, 26 Op. A tt’y Gen. 627, 628 (1908) ( “ The officer is distinguished from the employee in the greater importance,
dignity, and independence o f his position” ; official authorized to exercise powers o f the Comptroller of the Currency
in the absence o f the Comptroller was clearly an officer.).
54The status o f certain officials traditionally appointed in modes identical to those designated by the Appointments
Clause is somewhat anomalous. For instance, low-grade military officers have always been appointed by the President
and confirmed by the Senate and understood to be “ Officers o f the United States” in the constitutional sense.
In Weiss v. United States, 510 U.S. 163, 170 (1994), the Supreme Court recently indicated its agreement with that
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The Supreme Court relied on the officer/employee distinction in its recent deci­
sion in Freytag v. Commissioner, 501 U.S. 868 (1991). In Freytag, the Court
rejected the argument that special trial judges of the Tax Court are employees
rather than officers because “ they lack authority to enter a final decision” and
thus arguably are mere subordinates of the regular Tax Court judges.55 Id. at
881. The Court put some weight on the fact that the position of special trial judge,
as well as its duties, salary, and mode of appointment, are specifically established
by statute;56 the Court also emphasized that special trial judges “ exercise signifi­
cant discretion” in carrying out various important functions relating to litigation
in the Tax Court. Id. at 881-82.
Applying the same understanding of the distinction between officers and em­
ployees, this Office has concluded that the members of a commission that has
purely advisory functions “ need not be officers of the United States” because
they “ possess no enforcement authority or power to bind the Government.” Pro­
p o sed Com m ission on Deregulation o f International Ocean Shipping, 7 Op. O.L.C.
202, 202-03 (1983). For that reason, the creation by Congress of presidential advi­
sory committees composed, in whole or in part, of congressional nominees or
even of members of Congress does not raise Appointments Clause concerns.
Since employees do not wield independent discretion and act only at the direc­
tion of officers, they do not in their own right “ exercis[e] responsibility under
the public laws of the Nation,” Buckley, 424 U.S. at 131.57 As a constitutional
understanding. It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is
so limited and subordinate that their analogues in the civil sphere clearly would be employees. There are at least
three possible explanations. (1) Congress may make anyone in public service an officer simply by requiring appoint­
ment in one o f the modes designated by the Appointments Clause. The Clause, on this view, mandates officer
status for officials w ith significant governmental authority but does not restrict the status to such officials. This
apparently was the nineteenth-century view. See, e.g., United States v. Perkins, 116 U.S. 483, 484 (1886) (Cadet
engineer at the Naval A cademy was an officer because “ Congress has by express enactment vested the appointment
o f cadet-engineers in the Secretary o f the Navy and when thus appointed they become officers and not employees.").
W hile recognizing that C ongress may make anyone in the public service an officer, Attorney General Kennedy
rejected the argum ent that C ongress evinces and effectuates such an intention merely by providing for the public
servant to be appointed by a method that coincidentally conforms with the Appointments Clause. See Communications
Satellite Corporation , 42 Op. A tt’y Gen. 165, 167 (1962) ( “ [I]t does not follow ” from the Constitution that “ every
appointment authorized by law which is preceded by nomination and confirmation necessarily renders the appointee
an officer.” ). (2) Certain officials are constitutional officers because in the early Republic their positions were of
greater relative significance in the federal governm ent than they are today. Cf. Buckley, 424 U.S. at 126 (postmasters
first class and clerks o f district courts are officers). (3) Even the lowest ranking military or naval officer is a potential
com m ander o f U nited States armed forces in com bat— and, indeed, is in theory a commander o f large military
or naval units by presidential direction or in the event o f catastrophic casualties among his or her superiors.
55 In fact, as the C ourt pointed out, the ch ief judge of the Tax Court can assign special trial judges to render
final decisions in certain types o f cases, a pow er that the government conceded rendered them, in those circumstances,
“ inferior officers w ho exercise independent authority.” The Court rejected the argument that special trial judges
could be deem ed inferior officers for some purposes and employees for others. Freytag , 501 U.S. at 882.
56The text o f the A ppointm ents Clause implies that offices in the sense o f the Clause must be established in
the Constitution o r by statute. See U.S. C onst, art. II, §2, cl. 2 (specifying certain officers and then referring to
“ all other O fficers o f the U nited States, w hose Appointments are not herein otherwise provided for, and which
shall be established by L aw ” ).
57 That an em ployee may not exercise independent discretion does not, o f course, mean that his or her duties
may not encom pass responsibilities requiring the exercise o f judgment and discretion under the ultimate control
and supervision o f an officer. In Steele v. United States (No. 2), 267 U .S. 505, 508 (1925), the Supreme Court
noted that a “ deputy marshal is not in the constitutional sense an officer of the U nited States,” yet “ is called
upon to exercise great responsibility and discretion” in “ the enforcement o f the peace o f the United States, as
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The Constitutional Separation o f Powers Between the President and Congress
matter, therefore, an employee may be selected in whatever manner Congress di­
rects. Conversely, “ any appointee” in federal service who “ exercis[es] significant
authority pursuant to the laws of the United States” must be an officer in the
constitutional sense and must be appointed in a manner consistent with the Ap­
pointments Clause.58 Buckley, 424 U.S. at 126. Congress and the President may
not avoid the strictures of the Clause by vesting federal employees with the inde­
pendent or discretionary responsibility to perform any “ significant governmental
duty.” Id. at 141.59
c. Appointment to a Position of Employment within the Federal Government.
Finally, United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868), and the other
major decisions defining “ Officers of the United States” all reflect the historical
understanding that a constitutional officer is an individual who is appointed to
his or her office by the federal government. The Appointments Clause simply
is not implicated when significant authority is devolved upon non-federal actors.60
In H artwell the Court stated, “ [a]n office is a public station, or employment,
conferred by the appointment of government. . . . The employment of the defend­
ant was in the public service of the United States.” 73 U.S. at 393; see also
United States v. Germaine, 99 U.S. 508, 510 (1879) (founders intended appoint­
ment pursuant to the Appointments Clause only for “ persons who can be said
to hold an office under the government about to be established under the Constitu­
tion” ). It is a conceptual confusion to argue that federal laws delegating authority
to state officials create federal “ offices,” which are then filled by (improperly
appointed) state officials. Rather, the “ public station, or employment” has been
created by state law; the federal statute simply adds federal authority to a pre­
existing state office. Accordingly, the substantiality of the delegated authority is
immaterial to the Appointments Clause conclusion.61 An analogous point applies
that is embraced in the enforcement o f federal law ." But deputy marshals act at the direction o f “ the United States
marshal under whom they serve,” id., who is an officer in the constitutional sense.
58See Appointment and Removal o f Inspectors o f Customs, 4 Op. A tt’y Gen. 162, 164 (1843) (Congress may
not provide for the appointment o f “ any employe(e], coming fairly within the definition of an inferior officer of
the government,” except by a mode consistent with the Appointments Clause).
39Buckley illustrates this last point. The FEC commissioners appointed by congressional officials were undoubtedly
employees o f the federal government but they could not constitutionally exercise the enforcement powers the statute
attempted to grant them because their mode o f appointment precluded them from being officers. 424 U.S. at 137-
41.
60 The delegation to private persons or non-federal government officials of federal-law authority, sometimes incor­
rectly analyzed as raising Appointments Clause questions, can raise genuine questions under other constitutional
doctrines, such as the non-delegation doctrine and the general separation o f powers principle. Compare Confederated
Tribes o f Siletz Indians v. United States, 841 F. Supp. 1479, 1486-89 (D. Or. 1994) (confusing Appointments Clause
with separation o f powers analysis in holding invalid a delegation to a state governor), a ffd on other grounds,
110 F.3d 688 (9th Cir.), cert. denied, 522 U.S. 1027 (1997), with United Slates v. Ferry County, 511 F. Supp.
546, 552 (E.D. Wash. 1981) (correctly dismissing Appointments Clause argument and analyzing delegation to county
commissioners under non-delegation doctrine).
61 See Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786
F.2d 1359, 1365 (9th Cir. 1986) (“ [BJecause the Council members do not serve pursuant to federal law ,” it is
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to delegations made to private individuals: the simple assignment of some duties
under federal law, even significant ones, does not by itself pose an Appointments
Clause problem.62
In our view, therefore, the lower federal courts have been correct in rejecting
Appointments Clause challenges to the exercise of federally derived authority by
state officials,63 the District of Columbia City Council,64 qui tam relators under
the False Claims A ct,65 and plaintiffs under the citizen suit provisions of the
Clean Water A ct.66 The same conclusion should apply to the members of multi­
national or international entities who are not appointed to represent the United
States.67 We believe that the Appointments Clause doubts sometimes voiced about
“ immaterial w hether they exercise some significant executive o r administrative authority over federal activity.” ).
cert, denied , 479 U.S. 1059 (1987).
62 O ne might also view delegations to private individuals as raising the same considerations as suggested by the
distinction draw n earlier between appointee and independent contractor— so long as the statute does not create such
tenure, duration, emoluments and duties as would be associated with a public office, the individual is not the occupant
of a constitutional office but is, rather, a private party who has assumed or been delegated some federal responsibil­
ities.
63 See, e.g., Seattle Master Builders, 786 F.2d at 1364-66. The particular state officials at issue were serving
on an entity created by an interstate compact established with the consent o f Congress, but that fact is not significant
for Appointments Clause purposes. The crucial point was that “ [t]he appointment, salaries and direction” of the
officials were “ state-derived” : “ the states ultimately empower the [officials] to carry out their duties.” Id. at 1365.
The Supreme C ourt’s recent decision in New York v. United States, 505 U.S. 144 (1992), which held that Congress
cannot “ com m andeer” state officials to serve federal regulatory purposes, reenforces this conclusion. Where state
officials do exercise significant authority under o r with respect to federal law, they do so as state officials, by
the decision and under the ultimate authority o f th e state.
Metropolitan Washington Airports Authority v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252
(1991), does not suggest a different conclusion. The constitutional issue in that case was the validity o f a statutory
provision subjecting the Airports Authority “ to the veto pow er o f ’ a Board of Review composed o f members o f
Congress purportedly “ acting ‘in their individual capacities.’ ” Id. at 270. The Supreme Court held that the Board
in fact acted as an agent o f Congress and that the Board’s veto power therefore represented an unconstitutional
enlargem ent o f congressional authority. Id. at 272-77. Nothing in the C ourt’s opinion suggests that there would
have been any constitutional problem if Congress had delegated the same power to the Authority subject to review
by the executive branch.
64 See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 115-17 (D.D.C. 1986).
63 We believe that United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757-59 (9th Cir. 1993) (rejecting Appoint­
m ents C lause challenge to False Claims A ct), cert, denied, 510 U.S. 1140 (1994), reached the correct result but
through an incorrect line o f analysis. See id. at 758 (Clause not violated because of the relative modesty o f the
authority exercised by the relator). The better analysis, in our view, is that of the court in United States ex rel.
Burch v. Piqua Engineering, Inc., 803 F. Supp. 115 (S.D. O hio 1992), which held that “ because qui tam plaintiffs
are not officers o f the U nited States, the FC A does not violate the Appointments Clause.” Id. at 120. W e now
disapprove the Appointments Clause analysis and conclusion o f an earlier opinion o f this Office, Constitutionality
o f the Qui Tam Provisions o f the False Claims Act, 13 Op. O.L.C. 207 (1989) (arguing that the qui tam provisions
violate the Clause).
66 Here the Court phrased its analysis in term s o f separation o f powers, but the challenge to the statute was,
at its core, based on the Appointments Clause. See Chesapeake Bay Found, v. Bethlehem Steel Corp., 652 F. Supp.
620, 624 (D . Md. 1987) (Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), “ does not stand for the proposition
. . . that private persons may not enforce any federal laws simply because they are not Officers o f the United
States appointed in accordance with Article II o f the C onstitution.” ).
67 At least where these entities are created on an ad hoc o r temporary basis, there is a long historical pedigree
for the argum ent that even the United States representatives need not be appointed in accordance with Article D.
See, e.g., Alexander Hamilton, The Defence N o. 37 (Jan. 6, 1796), reprinted in 20 The Papers o f Alexander Hamilton
13, 20 (H arold C. Syrett ed., 1974):
As to what respects the Commissioners agreed to be appointed [under the Jay Treaty with Great Britain],
they are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in
the Constitutions, both o f the U[nited] States and o f most o f the Individual states, a particular mode of
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The Constitutional Separation o f Powers Between the President and Congress
legislation requiring the concurrence of state or local officials, Indian tribes, or
private persons as a condition precedent to federal action are equally without
merit.68
Determining whether an individual occupies a position of private employment
or federal employment can pose difficult questions. The Supreme Court recently
set forth rules for making this determination in Lebron v. National Railroad P as­
senger Corp., 513 U.S. 374 (1995). There, the Court found itself faced with the
question of whether Amtrak is a private corporation or an agency of the govern­
ment. Amtrak is chartered by Congress and incorporated under the District of
Columbia Business Corporation Act. Id. at 383-85. The organic statute expressly
provides that Amtrak “ shall be operated and managed as a for-profit corporation,
and is not a department, agency, or instrumentality of the United States Govern­
ment.” 49 U.S.C. §24301(a)(2)-(3). The Court ruled that this provision “ is as­
suredly dispositive of Amtrak’s status as a Government entity for purposes of
matters that are within Congress’ control . . . . But it is not for Congress to
make the final determination of Amtrak’s status as a government entity for pur­
poses of determining the constitutional rights of citizens affected by its actions.”
513 U.S. at 392.
However, the Court held that an entity is “ what the Constitution regards as
the Government,” if the entity is government-created and government-controlled.
Id. Because Amtrak was created “ by special law, for the furtherance of govern­
mental objectives,” it is government-created.69 Id. at 400. Because federally ap­
pointed members of Amtrak’s governing board hold “ voting control” and there
is no provision for this government control to sunset, Amtrak is govemment-con-
trolled. See id. at 399-400. The Court contrasted Conrail, which it determined
is not what the Constitution regards as the government. By statute the federal
government appoints a voting majority of Conrail’s board of directors. Neverthe­
less, the Court held that Conrail is not part of the government, because the govern­
ment’s voting control will shift to the private shareholders if Conrail’s debt to
the federal government falls below half of its total indebtedness and because
“ ‘[t]he responsibilities of the federal directors are not different from those of
the other directors — to operate Conrail at a profit for the benefit of its share­
holders’— which contrasts with the public-interest ‘goals’ set forth in Amtrak’s
appointing officers is designated, yet in practice it has not been deemed a violation of the provision to
appoint Commissioners or special Agents for special purposes in a different mode.
The traditional view o f the Attorneys General has been that the members of international commissions hold “ an
office or employment emanating from the general treaty-making power, and created by it and” the foreign nation(s)
involved and that members are not constitutional officers. Office— Compensation, 22 Op. A tt’y Gen. 184, 186 (1898).
68 Some o f our prior opinions express such concerns. Because that view, we now conclude, cannot be reconciled
with Appointments Clause principles o r caselaw, we expressly disavow it.
69The Court also referred to this as a “ policy-implementing’' role. Id. at 396. This is to distinguish government
agencies and instrumentalities, such as Amtrak, from truly private corporations that, though created pursuant to statu­
tory authority, do not implement any government policy, but instead pursue profit and the policies of their share­
holders.
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charter.” Id. at 399 (quoting Regional R ail Reorganization Act Cases, 419 U.S.
102, 152 (1974)).70
d. Sum m ary. An appointee (1) to a position of employment (2) within the federal
government (3) that carries significant authority pursuant to the laws of the United
States is required to be an “ Officer of the United States.” Each of these three
conditions is independent, and all three must be met in order for the position
to be subject to the requirements o f the Appointments Clause.
We recently applied this principle in determining whether the Appointments
Clause represents a blanket proscription against participation by the federal gov­
ernment in binding arbitration. Typically, arbitrators are private individuals chosen
by the parties to the dispute. In a binding arbitration, the decision of the arbitrators
is mandatory upon the parties, subject only to limited judicial review. The view
that the Appointments Clause prohibits federal government participation in binding
arbitration proceeds from the misinterpretation of Buckley discussed above. We
reasoned that although it is “ beyond dispute that arbitrators exercise significant
authority, at least in the context of binding arbitration involving the federal gov­
ernment,” 71 the standard binding arbitration mechanism does not implicate the
Appointments Clause. Arbitrators
are manifestly private actors who are, at most, independent contrac­
tors to, rather than employees of, the federal government. Arbitra­
tors are retained for a single matter, their service expires at the
resolution of that matter, and they fix their own compensation.
70 In som e passages, the Court spoke in terms o f the First A mendment and individual rights, for instance:
W e hold that where, as here, the Government creates a corporation by special law, for the furtherance
o f governm ental objectives, and retains fo r itself permanent authority to appoint a majority of the directors
o f that corporation, the corporation is part o f the G overnment for purposes o f the First Amendment.
Id. at 400. We d o not, however, believe that the Court meant to imply that it is within C ongress’s power to exempt
federal instrum entalities from the Constitution’s structural requirements, such as the Appointments Clause and the
separation o f pow ers doctrine, that apply to all other federal agencies. W e believe instead that the references to
individual rights are explained by two considerations. First, the issue in the case was whether Amtrak had violated
the petitioner’s First A mendment rights, and so did not raise any structural issues. Second, the Constitution imposes
certain obligations on ail government entities, state as well as federal. In other words, not all government entities,
w ithin Lebron’s definition, are part of the federal government; many are part of a state or local government or
o f an interstate com pact. See id. at 397 (citing Pennsylvania v. Board o f Directors o f City Trusts, 353 U.S. 230
(1957) (p er curiam)). These latter entities are not subject to the separation o f powers doctrine or the Appointments
Clause. Because the Court was concerned w ith all entities that the Constitution regards as within the government,
not just the federal government, it naturally phrased its opinion in terms o f the obligations that apply to all organs
o f governm ent, not just the organs of the federal government. Ultimately, w e can conceive of no principled basis
for distinguishing between the status of a federal entity vis-a-vis constitutional obligations relating to individual
rights and vis-a-vis the structural obligations that the Constitution imposes on federal entities. See Brief of Appellant
U nited States, Wilkinson v. Legal Servs. Corp., 80 F.3d 535 (D.C. Cir. 1996) (Nos. 95-5144, 91-5174). It therefore
is not surprising that the Court did not consistently limit its language to individual rights. See, e.g., Lebron, 513
U.S. at 397 (“ It surely cannot be that government, state o r federal, is able to evade the most solemn obligations
im posed in the C onstitution by simply resorting to the corporate form.” ). Thus, we do not believe that Congress
m ay evade the “ solem n obligations” of the doctrine o f separation o f powers by resorting to the corporate form
any more than it m ay evade the obligations o f the Bill o f Rights through this artifice.
71 Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208,
2 16(1995 ).
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The Constitutional Separation o f Powers Between the President and Congress
Hence, their service does not bear the hallmarks of a constitutional
office — tenure, duration, emoluments, and continuing duties. Con­
sequently, arbitrators do not occupy a position of employment with­
in the federal government, and it cannot be said that they are offi­
cers of the United States. Because arbitrators are not officers, the
Appointments Clause does not place any requirements or restric­
tions on the manner in which they are chosen.
19 Op. O.L.C. at 216.72 The only case that to our knowledge addresses this ques­
tion agreed with our analysis and conclusion, and held that the Appointments
Clause does not prohibit the federal government from entering into binding arbitra­
tion. See Tenaska Wash. Partners v. United States, 34 F. Cl. 434, 440 (1995)
(“ [T]he OLC Memorandum is a thorough and persuasive analysis.” ).
2. Who May Be an Inferior Officer? Since all officers of the United States
may be appointed by the President with the advice and consent of the Senate,
the only Appointments Clause significance to the distinction between principal
and inferior officers lies in Congress’s ability to provide for the appointment of
inferior officers by one of the alternative means listed in the Clause. The Supreme
Court has observed that “ [t]he line between ‘inferior’ and ‘principal’ officers is
one that is far from clear, and the Framers provided little guidance into where
it should be drawn.” Morrison v. Olson, 487 U.S. 654, 671 (1988). Unfortunately,
the Court’s own decisions provide only modest additional guidance. In Morrison,
the Court declined to “ attempt . . . to decide exactly where the line falls” be­
cause it found that the independent counsel “ clearly falls on the ‘inferior officer’
side of that line.” Id. at 671. The Court advanced several factors that pointed
to that conclusion: (1) The counsel was removable by the Attorney General, thus
making counsel “ to some degree ‘inferior’ in rank and authority.” Id. (2) The
counsel’s duties were limited, particularly with respect to policy making and ad­
ministration. (3) The counsel’s tenure was limited to the particular “ mission that
72 We nevertheless noted that it is possible for a theoretical binding arbitration mechanism to run afoul o f the
Appointments Clause. As indicated, arbitrators whose sole or collective decisions are binding on the government
exercise significant authority. If any such arbitrator were to occupy a position of employment within the federal
government, that arbitrator would be required to be appointed in conformity with the Appointments Clause. See
Freytag v. Commissioner, 501 U.S. 868, 881 (1991). Thus, if a federal agency were to conduct binding arbitrations
and to employ arbitrators with whom it provided all relevant attributes o f an office, all such arbitrators would be
required to be appointed in conformity with the Appointments Clause. See 19 Op. O.L.C. at 216.
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she was appointed for.” Id. at 672.73 The Court’s other recent Appointments
Clause decisions shed little additional light on the subject.74
We agree with the court of appeals in Silver v. United States Postal Service,
951 F.2d 1033 (9th Cir. 1991), that the particular factors Morrison discussed do
not constitute an exhaustive or exclusive list. See id. at 1040 (“ The nature of
each government position must be assessed on its own merits.” ). The Silver court
noted that the official at issue in that case, the Postmaster General, “ performs
many tasks and has many responsibilities,” but determined the office to be an
inferior one because the Postmaster General “ does not have ‘control’ ” and
“ serv[es] at the pleasure of the” Board of Governors of the Postal Service. Id.
This approach is consistent with the one we have taken in the past. For example,
in concluding that United States Attorneys are inferior officers whose appointment
could be vested in the Attorney General, we rejected the argument that the con­
stitutional term “ inferior” means “ ‘petty or unimportant’ ” ; instead, we con­
cluded that the term connotes amenability to supervision by the superior “ in
whom the power of appointment is vested.” United States A ttorneys— Suggested
Appointm ent P ow er o f the Attorney G eneral— Constitutional Law (Article 2, §2,
cl. 2), 2 Op. O.L.C. 58, 58-59 (1978) (quoting Collins v. United States, 14 Ct.
Cl. 568, 574 (1878)); see also D epartm ent o f Housing and Urban D evelopm ent —
D elegations o f A uthority— 42 U.S.C. § 3 533, 3535, 2 Op. O.L.C. 87, 89 (1978)
(deputy assistant secretary, who is subject to direction by an assistant secretary,
is “ unquestionably” an inferior officer). In determining whether an officer may
properly be characterized as inferior, we believe that the most important issues
are the extent of the officer’s discretion to make autonomous policy choices and
the location of the powers to supervise and to remove the officer. While an officer
responsible only to the President for the exercise of significant discretion in deci­
sion making is probably a principal officer, an officer who is subject to control
and removal by an officer other than the President should be deemed presump­
tively inferior.
73 The Court also com pared the independent counsel's status to that o f other officials who had been considered
inferior officers in earlier decisions. See 487 U.S. at 672-73 (discussing cases dealing with vice-consuls, election
supervisors, and U nited States commissioners). The Court also took note o f its “ reference in United States v. Nixon ,
418 U.S. 683, 694, 696 (1974), to the O ffice o f Watergate Special Prosecutor— w hose authority was similar to
that o f [the independent counsel]— as a ‘subordinate officer' ” and concluded that this characterization was “ con­
sistent” with its conclusion that independent counsels are inferior officers. See 487 U.S. at 673.
74Buckley simply asserted that the m embers o f the FEC were “ at the very least” inferior officers. Buckley v.
Valeo, 424 U.S. 1, 126 (1976) (per curiam). In Freytag, no one claimed that the special trial judges at issue were
principal, as opposed to inferior, officers; instead, the case involved the distinction between inferior officers and
employees. Freytag v. Commissioner, 501 U .S. 868, 8 80-82 (1991). The military judges under review in Weiss,
like all com m issioned officers in the armed forces, were appointed with the advice and consent of the Senate. Weiss
v. United States, 510 U.S. 163, 170 (1994). Justice Souter concurred in the Court’s opinion on the understanding
that the military judges at issue there are inferior officers. Id. at 182 (Souter, J., concurring). He reasoned that
there were substantial points to be made o n either side o f the question whether they were principal or inferior
pfficers and concluded that the Court should defer “ to the political branches’ [implicit] judgm ent” that the military
judges were inferior officers. Id. at 194. A lthough Justice Souter’s admonition that “ it is ultimately hard to say
w ith any certainty on w hich side of the lin e ” between principal and inferior status a given officer may fall, id.
at 193, is indubitably correct, the executive branch cannot invoke the principle of judicial deference he properly
used to decide the issue in Weiss.
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The Constitutional Separation o f Powers Between the President and Congress
3. Who May Appoint Inferior Officers? The Appointments Clause does not de­
fine “ Heads of Departments” or “ Courts of Law,” and questions have arisen
about which entities are included by these terms within the “ possible repositories
for the appointment power.” Freytag v. Commissioner, 501 U.S. 868, 884 (1991).
Earlier Attorneys General have accorded these terms a broad construction. See,
e.g., Authority o f Civil Service Commission to Appoint a Chief Examiner, 37 Op.
Att’y Gen. 227 (1933). The same is true of the courts,75 which have held that
the Tax Court,76 a special division of a court of appeals created primarily for
the purpose of appointing independent counsels,77 and the Governors of the Postal
Service (as a collective head of department),78 can be vested with appointments
power. The interpretive difficulties lie in determining exactly how broadly the
term “ Department” should be read.
We think that the “ Departments” to which the Appointments Clause refers are
not limited to those major divisions of the executive branch that are headed by
members of the President’s cabinet.79 In 1933, Acting Attorney General Biggs
opined that Congress could authorize the Civil Service Commission to appoint
an inferior officer. Authority o f Civil Service Commission to A ppoint a C hief Ex­
aminer, 37 Op. Att’y Gen. 227 (1933). His opinion noted that the Commission
“ ha[d] certain independent executive duties to perform,” was “ responsible only
to the Chief Executive,” id. at 229, and was “ not a subordinate Commission
attached to one of the so-called executive departments,” id. at 231. As “ an inde­
pendent division of the Executive Branch,” he concluded, the Commission was
a “ Department” for Appointments Clause purposes and its three commissioners,
collectively, “ the ‘head of a Department’ in the constitutional sense.” Id. The
fact that the commissioners were not members of the Cabinet was not controlling,
75 The exception to this broad reading o f the Clause was Buckley's unsurprising conclusion that “ neither Congress
nor its officers [are] included within the language ‘Heads o f Departments.’ ” Buckley v. Valeo, 424 U.S. 1, 127
(1976) (per curiam).
16Freytag, 501 U.S. at 892. The Court in Freytag concluded that it is constitutional for the chief judge o f the
Tax Court to appoint special trial judges because the Tax Court, though an Article I legislative court, “ exercisefs]
judicial power and perform[s] exclusively judicial functions” and thus is a “ C ourt[] o f Law ” within the meaning
of the Clause. Id. Justice Scalia argued in a concurring opinion that the Tax Court should be treated as a “ Depart­
m ent” and the chief judge as its “ H ead.” Id. at 914-22 (Scalia, J., concurring in part and concurring in the judg­
ment). Justice Souter recently has suggested that the opinion o f the Court in Freytag did not actually resolve the
question o f whether the judges o f the Tax Court, including the chief judge, are principal officers. Weiss v. United
States, 510 U.S. 163, 192 (1994) (Souter, J., concurring).
77Morrison v. Olson, 487 U.S. 654 (1988). In Morrison, the Court indicated that there is some “ constitutional
limitation on ‘incongruous' interbranch appointments,” id. at 677, despite the broad language the Appointments
Clause uses in describing Congress’s discretion on the subject. A statute vesting in a court the power to appoint
officers acting in areas in which judges “ have no special knowledge or expertise,” id. at 676 n.13, for example,
might create tension between the court’s normal functions and “ the performance of [its] duty to appoint.” Id. at
676. We think that this limitation is probably o f little practical significance with respect to presidential appointments
in light of the fact that it is difficult to conceive a plausible argument that vesting the pow er in the Piesident to
appoint any officer (other, perhaps, than some legislative officers) could ever be constitutionally “ incongruous.”
7SSilver v. United States Postal Sen/., 951 F.2d 1033, 1038 (9th Cir. 1991).
79The Appointments Clause thus differs from Section 4 of the Twenty-fifth Amendment, the language and history
o f which confirm that the “ principal officers o f the executive departments” it mentions are the members o f the
Cabinet. U.S. Const, amend. XXV, §4; see Freytag , 501 U.S. at 886-87; id. at 917 (Scalia, J., concurring in part
and concurring in the judgment).
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the Acting Attorney General concluded, because the Cabinet itself is not a creation
of the Constitution. Id . 80 We find this opinion persuasive and note that the Court’s
opinion in F reytag ultimately reserved the question of whether the heads of enti­
ties other than cabinet-level departments can be vested with the power to appoint
inferior officers. See Freytag , 501 U.S. at 887 n.4.81 Cf. United States v.
G erm aine, 99 U.S. 508 (1879) (Commissioner of Pensions, as head of a bureau
within the Interior Department, was not a “ Head of Department” ) .82
We would apply the reasoning of the 1933 opinion in concluding that it is con­
stitutional for Congress to vest the power to appoint inferior officers in the heads
of the so-called independent agencies — those agencies whose heads are not sub­
ject to removal at will by the President and that conventionally are understood
to be substantially free of policy direction by the President. Except for the attenu­
ated nature of the President’s supervisory authority, most of the independent agen­
cies are clearly analogous to major executive agencies. They exercise govern­
mental authority without being subordinated to any broader unit within the execu­
tive branch, and Congress has implicitly characterized them as “ Departments”
for Appointments Clause purposes by permitting their heads to appoint officials
80 “ The Cabinet, as such, was not provided for by the Constitution and it follows therefore that the interpretation
o f the C onstitution cannot depend upon such consideration.” 37 Op. A tt’y Gen. at 231; accord Freytag, 501 U.S.
at 91 6 -1 7 (Scalia, J., concurring in part and concurring in the judgment).
81 W hile the opinion o f the Court in Freytag rejected the argument that “ every part o f the Executive Branch
is a departm ent,” 501 U.S. at 885, we do not think that the C ourt’s reasoning is inconsistent with the 1933 Justice
Department opinion. The C ourt’s chief concern was that part o f the Appointments Clause’s purpose is to prevent
“ the dangers posed by an excessively diffuse appointment pow er.” Id. The Court observed that “ [g]iven the inex­
orable presence o f the administrative state, a holding that every organ in the Executive Branch is a department
would m ultiply indefinitely the number o f actors eligible to appoint.” Id. We do not think that our view that entities
other than cabinet-level agencies can be “ D epartm ents” for the purposes o f the Appointments Clause leads to this
constitutionally troublesome result. We assum e the continuing validity o f United States v. Germaine, 99 U.S. 508
(1879), w hich held that the head o f a bureau within an executive branch department was not the head o f a department.
M ost o f the discrete units o f the executive branch in fact are subordinate to some larger executive agency, and
therefore are not departments under Germaine. The Federal Bureau o f Investigation, for example, wields far-reaching
law enforcem ent authority, but as a component o f the Justice Department it is not itself a “ Department” for purposes
o f the A ppointm ents Clause. Legislation authorizing the appointment o f inferior officers by a subordinate officer
w ithin a departm ent with the approval o f the head o f the department, see United States v. Hartwell, 73 U.S. (6
W all.) 385, 3 9 2 -9 4 (1868); see also Germaine, 99 U.S. at 511 (explaining Hartwell), does not transgress this principle
because for constitutional purposes the appointment should be deemed to be made by the department head. We
also note that the four concurring Justices in Freytag expressly adopted the reading o f the Appointments Clause
set forth in the 1933 Attorney General's opinion: that “ the term ‘Departments’ means all independent executive
establishm ents.” 501 U.S. at 919 (Scalia, O ’Connor, Kennedy, & Souter, JJ., concurring in part and concurring
in the judgm ent).
82 The court o f appeals in Silver found n o constitutional problem with a statute vesting the pow er to appoint
an inferior officer, the Deputy Postmaster G eneral, in an entity consisting o f the Governors of the Postal Service
(principal officers w ho are collectively the “ head o f a D epartm ent” ) and the Postmaster General (an inferior officer
appointed by the Governors). See 951 F.2d at 1036-41. This conclusion might be justified on either o f two rationales.
(1) As Justice Souter recently noted, it remains unresolved w hether “ the Appointments Clause envisions appointment
o f som e inferior officers by other inferior officers,” Weiss v. United States, 510 U.S. 163, 192-93 (1994) (Souter,
J., concurring), and it m ay be that there is no constitutional objection to designating one or more inferior officers
to be the head o f a department with the pow er to make appointments. (2) It might be argued that although as
a general m atter the head o f a department must be a principal officer and a collective head of department must
consist o f exclusively principal officers, the association o f an inferior officer with a collective head of department
in m aking a specific appointment is constitutionally harmless.
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The Constitutional Separation o f Powers Between the President and Congress
who plainly are inferior officers.83 Nothing in the original history of the Clause
suggests any intention to exclude from the scope of the Clause separate establish­
ments that are not subject to plenary presidential control.84 Finally, in reserving
the question of appointments by “ the head of one of the principal agencies,”
the Freytag Court itself included as examples of those agencies the “ independent”
FTC and the SEC as well as the clearly executive CIA, which suggests that the
Court did not perceive a difference between the two types of agencies, at least
in the Appointments Clause context. 501 U.S. at 887 n.4. We see no reason to
exclude the independent regulatory agencies from the class of entities that are
“ Departments” for Appointments Clause purposes.
We note that, even accepting the reasoning of the 1933 Justice Department opin­
ion, some entities may exercise governmental authority in so limited a manner
that they need not be viewed as “ Departments” even though their heads are re­
sponsible only to the President. For example, the Committee for Purchase from
People Who Are Blind or Severely Disabled, the members of which are appointed
by the President alone, 41 U.S.C. § 46(a), appears to exercise significant authority
but is subordinate to no larger executive agency. Id. §§ 46-48c. Given the narrow
scope of the Committee’s powers, however, we do not think that the Committee
necessarily should be analyzed as a collective head of a department for Appoint­
ments Clause purposes.
4. Legislation Lengthening the Tenure of an Officer. As the Court held in Buck­
ley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Appointments Clause by
its terms and its structure prohibits Congress from itself exercising the power to
appoint “ Officers of the United States.” The text and structure of the Clause
reflect a deliberate constitutional choice to deny to the legislature the power to
select the individuals who exercise significant governing authority as non-legisla-
tive officers of the federal government. See id. at 129-31 (reviewing the debates
in the Philadelphia convention).85 This choice to exclude Congress as such from
93 See Freytag, 501 U.S. at 918 (Scalia, J., concurring in part and concurring in the judgment) (noting that most
inferior officers in independent agencies are appointed by neither the President nor a Cabinet official).
84 In late-eighteenth century English, the term “ department” had no specialized governmental or organizational
meaning. For example. Dr. Johnson defined “ department” as “ [sjeparate allotment; province or business assigned
to a particular person,” 1 Samuel Johnson, A Dictionary o f the English Language (1755), to which W ebster added
the gloss “ in which a class o f duties are allotted to a particular person.” 1 Noah Webster, American Dictionary
58 (1828), quoted in Freytag , 501 U.S. at 920 (Scalia, J., concurring in part and concurring in the judgment) (founders
chose “ Department” to connote “ separate organization” ). In its foundational legislation, the First Congress used
the word both for the Departments o f Foreign Affairs (later, State) and W ar and for the Department o f the Treasury,
even though it pointedly did not term Treasury an “ executive departm ent” as it did State and War. Compare Act
of July 27, 1789, ch. 4, 1 Stat. 28, 28-29 (establishing the Department o f Foreign Affairs) and Act o f Aug. 7,
1789, ch. 7, 1 Stat. 49, 49-50 (establishing the Department o f War) with Act o f Sept. 2, 1789, ch. 12, 1 Stal.
65, 65-67 (establishing the Department o f the Treasury). A substantial body o f scholarship views this terminological
choice as reflecting an intention to make Treasury at least partially independent o f the President, although by means
other than limiting the latter’s removal power. See Lessig & Sunstein, supra note 33, at 27-29; Casper, supra note
33, at 240-42; Shane, supra note 33, at 615-16.
85 Buckley noted that the Constitution expressly authorizes the selection o f the Speaker o f the House and the
President pro tempore o f the Senate from among the membership o f those bodies, see U.S. Const, art. I, § 2 , cl.
Continued
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the appointments process can be set at naught by means other than legislation
overtly vesting in Congress the power of appointment. Accordingly, the executive
branch has traditionally viewed statutes that constitute an effective exercise by
Congress of the power to appoint as violations of the Appointments Clause.
This issue sometimes arises in connection with statutes that attempt to extend
the tenure of an officer with a set term, thus potentially denying the President
the power he or she would otherwise have to reappoint the officer or select some­
one else. In 1951, for example, the President requested the Justice Department’s
views on the validity of a statute extending the terms of the members of a commis­
sion. See D isp la ced Persons Com m ission — Terms o f M embers, 41 Op. Att’y Gen.
88 (1951). According to the original legislation creating the commission, the terms
were to expire in June 1951, but prior to that date Congress amended the legisla­
tion to extend the commissioners’ tenure to August 1952. Acting Attorney General
Perlman advised the President that, while he did not think “ there can be any
question as to the power of the Congress to extend the terms of offices which
it has created,” this legislative power is subject “ to the President’s constitutional
power of appointment and removal.” Id. at 90. However, because the legislation
did not attempt to restrict the President’s authority to remove the commissioners
at will, it was constitutionally harmless: the President remained free to exercise
his appointment power simply by removing the incumbents from office at any
time. See id. (“ As so construed, the [extension legislation] presents no constitu­
tional difficulties.” ); see also Pension Agents and Agencies, 14 Op. Att’y Gen.
147, 148-49 (1872) (discussing President’s power to remove officer serving a
term extended by statute).86
We think that the Department’s 1951 opinion adopted the correct approach to
this issue: while the power to lengthen the tenure of an incumbent officer is inci­
dent to Congress’s general power to create, determine the duties of, and abolish
offices,87 that power cannot legitimately be employed to produce a result that
is, practically speaking, a congressional reappointment to office. On this reasoning,
the extension of tenure of officers serving at will raises no Appointments Clause
problem, but lengthening the term of an officer who may be removed only for
5; id. art. I, § 3 , cl. 5, and held that nothing in the Constitution forbids Congress from appointing non-members
as legislative branch officials to “ perform duties . . . in aid o f those functions that Congress may carry out by
itself.” 424 U.S. at 127-28, 139.
86 In this circum stance, Congress’s action in lengthening an officer’s term does not have the effect of usurping
the pow er o f appointment the Constitution vests in the President rather than in Congress. Cf. In re Benny, 812
F.2d 1133, 1142—43 (9th Cir. 1987) (Norris, J., concurring in the judgment):
[T]he Appointments Clause precludes Congress from extending the terms of incumbent officeholders. I
am simply unable to see any principled distinction between congressional extensions o f the terms o f the
incumbents and more traditional forms o f congressional appointments. Both implicate the identical constitu­
tional e v il— congressional selection o f the individuals filling nonlegislative offices.
87 See Crenshaw v. United States, 134 U .S. 99 (1890), Civil Service Retirement Act — Postmasters— Automatic
Separation from the Service, 35 Op. Att’y Gen. 309, 314 (1927) ( “ If, as stated in [Embry v. United States, 100
U.S. 680, 685 (1879),] C ongress may at any time add to or take from compensation fixed, it may also, it would
seem, by analogy, at any time shorten or lengthen a term o f office.” ).
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The Constitutional Separation o f Powers Between the President and Congress
cause would be constitutionally questionable.88 However, this conclusion, which
we think sound in principle, has been rejected by the courts in at least one context.
The Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No.
98-353, 98 Stat. 333 (codified as amended in scattered sections of 28 U.S.C.),
extended the tenure of bankruptcy judges, who can be removed only for cause,
and that provision has been sustained repeatedly against constitutional challenge.
The leading case, In re Benny, 812 F.2d 1133 (9th Cir. 1987), held that a statutory
extension of tenure “ becomes similar to an appointment” only “ when it extends
the office for a very long time.” Id. at 1141; see also In re Investment Bankers,
Inc., 4 F.3d 1556, 1562 (10th Cir. 1993) (agreeing with Benny and noting that
the contrary Appointments Clause argument “ has been rejected by every court
that has considered it” ), cert, denied, 510 U.S. 1114 (1994). We do not find espe­
cially persuasive the reasoning of B enny,89 and it is possible that the doctrine
of Benny is limited to its factual context.90 However, the reasoning set forth in
Benny and the cases that follow it is susceptible to general application, and it
is unclear that the courts could repudiate Benny's conclusion with respect to other
officers without undercutting the legitimacy of those cases.
The relevant precedents contemplate a continuum. At the one end is constitu­
tionally harmless legislation that extends the term of an officer who is subject
to removal at will. At the other end is legislation, constitutionally objectionable
even under Benny, that enacts a lengthy extension to a term of office from which
88 In 1987, this Office issued an opinion that may be read to hold that legislation extending the term o f any
officer, even one serving at the pleasure o f the President, is unconstitutional. See Reappointment o f United States
Parole Commissioners, 11 Op. O.L.C. 13S (1987) At the time it was issued, that opinion was directly contrary
to long-standing executive branch precedent. See, e.g., Displaced Persons Commission— Terms o f Members, 41 Op.
A tt’y Gen. at 90-91. W e recently revisited the question presented in the 1987 opinion and concluded that it was
in error. See Constitutionality o f Legislation Extending the Terms o f Office o f United States Parole Commissioners,
18 Op. O.L.C. 166 (1994). We therefore reaffirmed the traditional view that legislation extending the term o f an
officer subject to removal at will does not violate the Appointments Clause and disavowed our 1987 suggestion
to the contrary.
*9 Benny asserted that Wiener v. United States, 357 U.S. 349 (1958), implicitly rejected any Appointments Clause
argument against term-extension legislation. 812 F.2d at 1141. We think that this overstates Wiener. Wiener dealt
only with the President's removal pow er and did not consider any issue regarding the Appointments Clause. The
date on which the President removed the plaintiff in Wiener from office was in fact within the term of office for
which the plaintiff was originally appointed, although part o f the backpay the plaintiff ultimately recovered was
for a period after his original term would have expired. See 357 U.S. at 350-51 (term should have expired on
March 1, 1954 as the law stood at the time plaintiff was appointed; President removed plaintiff on December 10,
1953; plaintiff recovered backpay for four months after March 1, 1954, because commission’s authorization was
extended after his appointment). The additional Supreme Court cases that Benny and other opinions have cited are
distinguishable. See. e.g., Benny, 812 F.2d at 1141 (citing Shoemaker v. United States, 147 U.S. 282 (1893), which
upheld legislation imposing additional duties on an officer); In re Tom Carter Enters., 44 B.R. 605, 607 (C.D.
Cal. 1984) (citing Shoemaker and cases dealing with issues under the Contracts Clause and the Philippine O rganic
Act). Benny also pointed out that the First Congress twice extended the tenure o f the first Postmaster General.
812 F.2d at 1142. While we agree that this fact supports the argument that Congress generally possesses the power
to extend terms, the original Postmaster General served at the pleasure o f the President, and thus the First Congress's
actions placed no practical limitation on the appointments power.
90The result reached in the Benny line o f cases was as a practical m atter much less troublesome than its reverse,
which would have put in question an enormous number o f decisions within the bankruptcy system. It is therefore
possible to characterize these decisions as a sensible resolution o f a legal quandary, which may have compromised
constitutional logic but did so at no real cost to the ultimate purposes o f the Constitution. However, while this
view of the cases may be quite sensible from a political-science perspective, it leaves the constitutional law on
the subject in some disarray.
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the incumbent may be removed only for cause. Legislation along this continuum
must be addressed with a functional analysis. Such legislation does not represent
a formal appointment by Congress and, absent a usurpation of the President’s
appointing authority, such legislation falls within Congress’s acknowledged au­
thority— incidental to its power to create, define, and abolish offices— to extend
the term of an office. As indicated, constitutional harm follows only from legisla­
tion that has the practical effect of frustrating the President’s appointing authority
or amounts to a congressional appointment.
Our recent opinion on legislation extending the terms of members of the United
States Sentencing Commission is illustrative of this functional approach. After
the Sentencing Commission had been appointed, Congress enacted legislation “ to
provide [that] a member of the United States Sentencing Commission may con­
tinue to serve until a successor is appointed or until the expiration of the next
session of Congress.” Act of Aug. 26, 1992, Pub. L. No. 102-349, 106 Stat.
933. Commissioners may be removed only for cause. 28 U.S.C. §991 (a). We con­
cluded that the statute did not function to violate the President’s appointment
power. See W hether Members o f the Sentencing Commission Who Were Appointed
P rio r to the Enactm ent o f a H oldover Statute M ay Exercise H oldover Rights Pur­
suant to the Statute, 18 Op. O.L.C. 33 (1994). The statute left the President free
to ‘ ‘nominate whomever he wantfed] at precisely the same time as he could before
[the statute was enacted].” Id. at 42. We noted that the effect of the legislation
could actually be to augment the President’s power by giving him “ the option
of retaining the holdover officer until he chooses to nominate a successor.” Id.
We acknowledged the argument that the statute might give Congress the oppor­
tunity to appoint, in effect, an incumbent to a new term because the President’s
removal authority is statutorily restricted and the Senate might refuse to confirm
any presidential nominee in order to retain a congressionally favored incumbent.
Id. But this argument was unavailing for two reasons. First, the argument is unduly
speculative insofar as it hypothesizes contumacious conduct on the part of the
Congress, and whatever danger such a possibility might entail was mitigated by
the limitation on the period for which a holdover may continue to serve. Second,
we noted that the holdover provision is unarguably valid as applied to Sentencing
Commissioners who took office after the statute’s enactment. We concluded that
“ [i]t is simply not persuasive to argue that the President’s appointment power
is effectively frustrated when incumbent commissioners hold over but not when
subsequent commissioners hold over.” Id.
We also found it significant that the holdover statute was neutral in its applica­
tion. We reserved the question of whether a holdover statute “ might amount to
a prohibited congressional designation, even if the holdover period is for a short
time,” if the statute “ would create or repeal holdover provisions for selective
members of the same commission or for classes of members on the same commis­
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The Constitutional Separation o f Powers Between the President and Congress
sion, e.g., those appointed on a certain date or those from a particular political
party.” Id. at 46 n.8.
5. Legislation Imposing Additional Duties on an Officer. The executive branch
has consistently maintained that a statute creating a new office and conferring
it and its duties on the incumbent of an existing office would be unconstitutional
under the Appointments Clause.91 Congress’s recognized authority to alter the
duties and powers of existing offices could be employed to achieve substantially
the same result if the legislature were unconstrained in the duties it could add
to an office.92 The Supreme Court accordingly has interpreted the Constitution
to limit the legislature’s discretion. The leading case, Shoemaker v. United States,
147 U.S. 282 (1893), concerned a statute that created a commission to select the
land for Rock Creek Park in the District of Columbia. Three of the five members
were to be appointed by the President and confirmed by the Senate; the persons
holding two existing federal offices, the chief of engineers of the Army and the
engineer commissioner of the District, were declared members ex officio. The
Court rejected an Appointments Clause challenge to the assignment of the two
engineers to the new commission:
[W]e do not think that, because additional duties, germane to the
offices already held by them, were devolved upon them by the act,
it was necessary that they should be again appointed by the Presi­
dent and confirmed by the Senate. It cannot be doubted, and it has
frequently been the case, that Congress may increase the power and
duties of an existing office without thereby rendering it necessary
that the incumbent should be again nominated and appointed.
Id. at 301. The legislation at issue was valid, the Court concluded, because the
new duties assigned to the engineers “ cannot fairly be said to have been dissimilar
to, or outside of the sphere of,” the engineers’ existing responsibilities. Id.
91 See, e.g.. President Buchanan's signing statement dated June 25, 1860, relating to the Civil Appropriations
Act for fiscal year 1861, in 5 James D. Richardson, Messages and Papers o f the Presidents, 1789-1897, at 5 9 7 -
98 (1897) (construing Act to avoid the constitutional problem).
92The same possibility is not presented by Congress’s power to reduce or limit the duties of an officer. Except
with respect to (certain) constitutional officers. Congress has plenary authority to eliminate offices altogether, subject
to the general separation o f powers principle. The lesser-included power to take away part of an officer’s authority
does not in itself enable Congress to choose which individual will exercise authority and thus does not implicate
the Appointments Clause. Cf. United States v. San Jacinto Tin Co., 125 U.S. 273, 284 (1888) (Congress, as “ the
legislative body which created the office” o f Attorney General, has the authority to put “ restrictions . . . upon
the exercise o f [the Attorney General’s] authority” ).
In Crenshaw v. United States, 134 U.S. 99 (1890), the Supreme Court upheld a statute that affected undergraduates
( “ cadet midshipmen” ) at the Naval Academy by redesignating them as “ naval cadets” and restricting the cir­
cumstances in which they would be commissioned upon graduation. The Court concluded that “ Congress did not
thereby undertake to name the incumbent o f any office. It simply changed the name, and modified the scope of
the duties.” Id. at 109.
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The Shoemaker rule ensures “ that Congress [is] not circumventing the Appoint­
ments Clause by unilaterally appointing an incumbent to a new and distinct of­
fice.” W eiss v. U nited States, 510 U.S. 163, 174 (1994). For the imposition of
new duties on an officer to be valid under Shoemaker, two requirements must
be met. First, as in Shoemaker itself, the legislation must confer new duties on
“ offices, . . . [not] on any particular officer .” Olympic Fed. Sav. & Loan A ss’n
v. D irector, Office o f Thrift Supervision, 732 F. Supp. 1183, 1192 (D.D.C.), appeal
dism issed a s m oot, 903 F.2d 837 (D.C. Cir. 1990). “ Had the Chief of Engineers
of the United States Army or the Engineer Commissioner of the District of Colum­
bia resigned from office after the commission was established, he would no longer
have served on the commission — the new Chief of Engineers or Engineer Com­
missioner would have taken over those duties.” Id. at 1192-93 (discussing facts
in Shoemaker ). The statute at issue in Olympic Federal, in contrast, abolished
certain offices (the three-person Federal Home Loan Bank Board) while simulta­
neously defining the duties of a new office (the Director of Office of Thrift Super­
vision (“ OTS” )) and designating as the first Director the holder of one of the
abolished offices (the chair of the Federal Home Loan Bank Board). See id. at
1186. The O lym pic Federal court correctly determined that by doing so the statute
in effect appointed the particular individual who was chair of the old board to
a new position. Id. at 1193.93
The second facet of the Shoemaker rule is the requirement that the new duties
be “ germane to the offices already held by” the affected officers. 147 U.S. at
301. This inquiry is necessarily case-specific. In Weiss, the Court examined closely
the specific duties of military judges and the general responsibilities of military
and naval officers and concluded that they are so intertwined that the selection
by the Judges Advocate General of certain military and naval officers to serve
for a time as military judges is consistent with the germaneness requirement. 510
U.S. at 174-76. In giving advice on this issue, we also have looked at the reason­
ableness of assigning the new duties “ in terms of efficiency and institutional con­
tinuity,” and we have asked whether “ it could be said that [the officers’] functions
. . . [with the additional duties] were within the contemplation of those who were
in the first place responsible for their appointment and confirmation.” 4B Op.
O.L.C. at 541.
The W eiss decision may have weakened judicial enforcement of Shoemaker's
germaneness requirement by suggesting that some legislation that adds new duties
93 The Olympic Federal court thought the legislation would have been valid if Congress had created a three-
person directorate for the OTS and designated the members o f the former board as the directors. The court reasoned
that the germ aneness requirement of Shoemaker would be satisfied because OTS was absorbing the duties o f the
old board as well as acquiring other, related ones. 732 F. Supp. at 1193. W e reached a similar conclusion in 1980
in opining that Congress could merge the C ourt of Claims and the Court o f Customs and Patent Appeals and designate
the m embers o f those courts to serve as members o f the merged court. See Legislation Authorizing the Transfer
o f Federal Judges from One District to Another , 4B Op. O.L.C. 538, 541 (1980). The “ merger situation . . . involves
the end o f one institution and the continuance o f its major functions in another,” and it was reasonable for Congress
“ to provide in this context for the relocation o f experienced and capable judicial personnel, and for their continuing
to perform the functions o f the office to which they were originally appointed.” Id.
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The Constitutional Separation o f Powers Between the President and Congress
is valid regardless of whether it satisfies the requirement. The opinion of the Court
stressed the fact that “ [i]n Shoemaker, Congress assigned new duties to two exist­
ing offices, each of which was held by a single officer. This no doubt prompted
the [Shoemaker] Court’s description of the argument as being that ‘while Congress
may create an office, it cannot appoint the officer.’ . . . But here the statute au­
thorized an indefinite number of military judges, who could be designated from
among hundreds or perhaps thousands of qualified commissioned officers.” 510
U.S. at 174. For that reason, the Court concluded, there was “ no ground for sus­
picion here that Congress was trying to both create an office and also select a
particular individual to fill the office.” Id. The Court nevertheless went on to
consider the germaneness issue and concluded that the duties of military judges
are adequately related to the duties of the commissioned officers from whom the
judges are selected. Id. at 174-76.
In a separate opinion, Justice Scalia argued that “ ‘germaneness’ is relevant
whenever Congress gives power to confer new duties to anyone other than the
few potential recipients of the appointment power specified in the Appointments
Clause,” because “ taking on . . . nongermane duties . . . would amount to as­
suming a new ‘Offic[e]’ within the meaning of Article II, and the appointment
to that office would have to comply with the strictures of Article II.” Id. at 196
(Scalia, J., concurring in part and concurring in the judgment). We find Justice
Scalia’s reasoning persuasive and believe that in an appropriate setting the execu­
tive branch should urge the Court expressly to accept it. In light of the Weiss
Court’s detailed examination of the germaneness issue, this may not require the
Court in fact to modify the doctrine of that case because it is unclear to us that
the Court actually intended to hold germaneness constitutionally irrelevant in
Wms-type circumstances. The Court may instead simply have been emphasizing
the fact that assignment of new and nongermane duties to a few specific officers
not only violates the Appointments Clause per se, but also fails under the more
general anti-aggrandizement principle of its decisions. We believe that it is appro­
priate, therefore, to review proposed new-duties legislation for germaneness even
where the new duties are assigned to large or indefinite groups.
6. The Ineligibility and Incompatibility Clauses. The Constitution places two
important restrictions on the universe of persons who may be appointed to serve
as officers of the United States. U.S. Const, art. I, §6, cl. 2 .94 The Ineligibility
Clause states that ‘‘[n]o Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority of the United
94 One possible restriction is notable for its absence from the Constitution: although Articles I and II and the
Twelfth Amendment establish citizenship and age requirements for serving as a member of Congress, the President,
or the Vice President (and also set varying minimum age requirements), see U.S. Const, art. I, §2, cJ. 2 (Representa­
tives); id. art. I, §3, cl. 3 (Senators); id art. II, § 1 , cl. 4 (the President); id. amend. XII (V ice President), the
Constitution places no such limitations on anyone who becomes an officer through one of the processes prescribed
by the Appointments Clause.
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Opinions o f the Office o f Legal Counsel in Volume 20
States, which shall have been created, or the Emoluments whereof shall have been
increased during such time.” Id. The Clause “ restricts the President’s power to
appoint Members of Congress,” and “ [i]t has long been settled within the execu­
tive branch that the President, in exercising his powers of appointment under Arti­
cle II, §2, cl. 2, will not make an appointment in violation of the . . . clause.”
M em bers o f Congress Holding Reserve Commissions, 1 Op. O.L.C. 242, 244
(1977). The most common problem under the Ineligibility Clause arises from leg­
islation that creates a commission or other entity and simultaneously requires that
certain of its members be Representatives or Senators, either ex officio or by selec­
tion or nomination by the congressional leadership. Unless the congressional mem­
bers participate only in advisory or ceremonial roles, or the commission itself
is advisory or ceremonial, the appointment of members of Congress to the com­
mission would violate the Ineligibility Clause.95
The Incompatibility Clause provides that “ no Person holding any Office under
the United States, shall be a Member of either House during his continuance in
Office.” U.S. Const, art. I, §6, cl. 2. The Clause is primarily a restriction on
Congress and its members: the Incompatibility Clause “ disqualifies individuals
who have already been appointed from assuming or retaining seats in Congress.”
R eserve Commissions, 1 Op. O.L.C. at 244; cf. Members o f Congress Serving
in the A rm ed Forces, 40 Op. A tt’y Gen. 301 (1943).96 However, the President’s
duty to take care that the law of the Incompatibility Clause is observed requires
him or her to ensure that appointments97 and legislation creating governmental
positions are consistent with the Clause. See, e.g., C ase o f the Collectorship o f
N ew O rleans, 12 Op. Att’y Gen. 449, 451 (1868) (“ in view of the” Incompati­
bility Clause, an executive officer’s acceptance of a seat in Congress “ must be
considered as having the legal character of a resignation of the office” ); Appoint­
m ents to the Commission on the Bicentennial o f the Constitution, 8 Op. O.L.C.
200, 207-08 (1984) (providing advice about “ various structural arrangements
within the Commission that might be designed to respect the Incompatibility
Clause” ) .98
93 A fter FEC v. NRA Political Victory Fund , 6 F.3d 821 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 (1994),
it appears that designating a member o f Congress to serve on a commission with any executive functions, even
in w hat was expressly labeled a ceremonial o r advisory role, may render the delegation o f significant governmental
authority to the commission unconstitutional as a violation o f the anti-aggrandizement principle. See id. at 826-
27.
96The Incompatibility Clause does not prohibit members o f Congress from serving in positions that are not offices
in the constitutional sense. See, e.g., Proposed Commission on Deregulation o f international Ocean Shipping, 1
O p. O .L.C. 202, 2 02-03 (1983) (members o f Congress may serve as members o f a “ purely advisory” commission
because the members need not be officers).
97 Cf. Deputizjation o f Members o f Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125, 125 n .l (1994)
(recognizing Incompatibility Clause requirement but finding it unnecessary to reach that issue).
98The suggestion in this O ffice’s 1977 opinion on the Clause that “ exclusive responsibility for interpreting and
enforcing the Incompatibility Clause rests w ith C ongress,” Reserve Commissions, 1 Op. O.L.C. at 242, thus was
an overstatement.
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The Constitutional Separation o f Powers Between the President and Congress
7. The Recess Appointments Clause. With respect to officers of the United
States, the Constitution vests the President with the “ Power to fill up all Vacancies
that may happen during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.” U.S. Const, art. II, §2, cl. 3. “ A
long line of opinions of the Attorneys General, going back to 1823, and which
have been judicially approved, has firmly established that . . . [t]he President’s
power to make recess appointments . . . extends to all vacancies existing during
the recess regardless of the time when they arose.” Recess Appointments — Com ­
pensation, 3 Op. O.L.C. 314, 314 (1979) (citations omitted); accord Executive
Authority to Fill Vacancies, 1 Op. Att’y Gen. 631 (1823)." Although there was
some early uncertainty about the President’s power to make appointments under
the Recess Appointments Clause during intrasession recesses, that question was
settled within the executive .branch by an often-cited opinion of Attorney General
Daugherty concluding that the President is so authorized. Executive P ow er — R e­
cess Appointments, 33 Op. Att’y Gen. 20 (1921). The most difficult problem of
interpretation under the Clause today is determining how substantial an
intrasession recess must be to give rise to the President’s power.100 Attorney Gen­
eral Daugherty concluded that a twenty-eight-day recess was sufficient, but cau­
tioned that “ the term ‘recess’ must be given a practical construction.” Id. at 24-
25. We agree with his view that the President has discretion to make a good-
faith determination of whether a given recess is adequate to bring the Clause into
play.101 Giving advice on how the President may properly exercise that discretion
has proven a difficult task. See Recess Appointments During an Intrasession R e­
cess, 16 Op. O.L.C. 15 (1992) (eighteen-day recess a sufficient period, particularly
in light of the fact that except for a brief formal session on January 3, the Senate
would actually be absent for fifty-four days); Recess Appointments, 3 Op. O.L.C.
at 316 (President may make recess appointments “ during a summer recess of
the Senate of a month’s duration” ).
8. Acting and Interim Appointments. Early Attorneys General repeatedly opined
that the President enjoyed a constitutional power of appointment empowering the
President to make temporary or a d interim appointments to offices in cases of
" T h e most thorough judicial treatment o f the issue, which quotes extensively from Attorney Genera) W irt’s 1823
opinion, is United States v. Allocco, 200 F. Supp. 868 (S.D.N.Y. 1961), affd, 305 F.2d 704 (2d Cir. 1962), cert,
denied , 371 U.S. 964 (1963).
100 There must be a vacancy in order for the President to exercise the authority granted by the Recess Appointments
Clause. See Recess Appointments, 3 Op. O.L.C. at 317 (the power to make a “ recess appointment presupposes
the existence o f a vacancy,” and an appointment cannot in itself remove an incumbent so as to create a vacancy).
In many situations, whether a vacancy exists will depend on the correct interpretation of a holdover provision in
the statute creating the office. The scanty case law on this issue — which is a matter o f statutory construction rather
than o f constitutional law — is not easily reconciled. Compare Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979),
with Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, Nos. 93-5287 & 93-5289, 1994 WL
163761 (D .C Cir. Mar. 9, 1994).
101 “ In this connection I think the President is necessarily vested with a large, although not unlimited, discretion
to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent
o f the Senate. . . . But there is a point, necessarily hard o f definition, where palpable abuse o f discretion might
subject his appointment to review.” 33 Op. A tt’y Gen. at 25.
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need without conforming to the requirements of the Appointments or Recess Ap­
pointments Clause.102 Their initial reaction to congressional legislation on the sub­
ject of vacancies was therefore to view it as having neither the purpose nor the
effect of supplanting the President’s preexisting constitutional authority. See Office
and D uties o f A ttorney General, 6 Op. Att’y Gen. 326, 352 (1854) (“ Perhaps
the truer view of the question is to consider the . . . statutes as declaratory only,
and to assume that the power to make such temporary appointment is a constitu­
tional one.” ). After the enactment of the Vacancies Act of 1868, ch. 227, 15
Stat. 168, however, the Attorneys General treated the Act as providing the exclu­
sive means of making temporary appointments to those offices covered by the
statute. See, e.g., Appointments A d Interim, 17 Op. Att’y Gen. 530 (1883); A p­
pointm ents A d Interim, 16 Op. Att’y Gen. 596, 596-97 (1880) (authority to fill
vacancy in the office of Navy Secretary is “ a statutory power,” and when the
power is exhausted, “ the President is remitted to his constitutional power of ap­
pointment” ). A 1904 opinion attempted to synthesize the older and the more re­
cent views, treating as reasonable and legitimate Congress’s wish to cabin presi­
dential discretion to make interim appointments while the Senate is in session,
but describing as a “ fundamental right as Chief Executive” the President’s author­
ity “ to make such a temporary appointment, designation, or assignment of one
officer to perform the duties of another whenever the administration of the Gov­
ernment requires it.” Temporary Recess Appointments, 25 Op. Att’y Gen. 258,
261 (1904); see also Promotion o f M arine Officer, 41 Op. Att’y Gen. 291, 294
(1956) (President has the constitutional authority to appoint “ key military per­
sonnel to positions of high responsibility” without following statutory procedures).
There is little modem case law on the President’s power to make temporary
appointments to offices requiring Senate confirmation.103 The “ leading” judicial
decision is a brief per curiam court of appeals opinion denying a motion for a
stay of the district court’s mandate pending appeal, Williams v. Phillips, 482 F.2d
669 (D.C. Cir. 1973) (per curiam).104 Because of its procedural posture, Williams
l02See, e.g., Appointment o f Acting Purser, 6 Op. A tt’y Gen. 357, 365 (1854) (executive power o f “ filling up
a vacancy by an appointment o f one to act ad interim, and for a particular exigency, in a distant service’’ could
be exercised to make temporary appointment o f acting purser despite statutory prohibition on anyone acting as purser
prior to Senate confirm ation); Executive Power o f Appointment, 4 Op. A tt’y Gen. 248, 248 (1843) (appointment
pow er is derived from the President’s Take C are Clause duty, “ an obligation imposed by the constitution, and from
the authority o f which no m ere act of legislation can operate a dispensation,’’ although President could not pay
interim appointees without an appropriation).
103 Indeed, at least one court has indicated a judicial willingness to defer to the views of the Attorney General
on the President’s authority to make temporary appointments. See Olympic Federal Sav. & Loan Ass'n v. Director,
Office o f Thrift Supervision, 732 F. Supp. 1183, 1197-98 (D.D.C.) (“ The Attorney General is charged with responsi­
bility for ensuring that only lawfully appointed officials act on behalf o f the United States, and consequently his
interpretation o f law on this subject is entitled to great deference.” ), appeal dismissed as moot, 903 F.2d 837 (D.C.
Cir. 1990).
104 Williams was a challenge to the legality of actions taken by the acting director o f the Office of Economic
O pportunity on the ground that the President lacked authority to appoint an acting director of that office and to
continue the interim appointment for over four months without submitting to the Senate any nomination to the position
o f director. The district court declared the President’s action unlawful. The court o f appeals refused to grant a stay
o f the district co u rt's order because in its judgm ent the acting director had failed to show the requisite likelihood
o f success on the merits The brief discussion in Williams o f the merits emphasized that Article II “ unequivocally
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The Constitutional Separation o f Powers Between the President and Congress
did not actually resolve the constitutional issue, but it suggested somewhat ob­
liquely that what non-statutory power the President possesses to make interim
appointments to offices requiring Senate confirmation can be employed only for
a “ reasonable time required by the President to select persons for nomination.”
Id. at 671. Looking to the thirty-day period that was, at the time, permitted tem­
porary appointments under the Vacancies Act for an indication of what a reason­
able period would be, Williams concluded that even if the implied power existed,
a four-and-a-half-month period without any nomination was unreasonable. Id. at
670-71.105 Since Williams was decided, the Vacancies Act has been amended
to provide for an initial appointment period of 120 days. Up to two extensions,
each lasting 120 days, may be made depending on the specific circumstances of
the vacancy. Moreover, the Vacancies Act also tolls the running of these periods
when particular conditions obtain. See 5 U.S.C. § 3348. * Thus, the Vacancies Act
allows temporary appointments, in appropriate circumstances, of durations well
in excess of even one year. Accordingly, we would not currently view a four-
and-a-half-month temporary appointment as necessarily exceeding a reasonable
duration, provided that a nomination is submitted to the Senate.
On the assumption that Williams can be read to indicate that “ [t]o keep the
Government running calls for the designation of acting officials to fill vacancies
in the absence of express statutory authority,” Departm ent o f Energy — Vacancies,
2 Op. O.L.C. 113, 117 (1978) (citing Williams), we have argued that the reason­
ableness of a given interim appointment should be measured not by a per se rule
but by a variety of pragmatic factors. Those factors include “ the difficulty of
finding suitable candidates,” id. at 118, “ the specific functions being performed
by the [interim officer]; the manner in which the vacancy was created (death,
long-planned resignation) . . . and particular factors affecting the President’s
choice [such as] a desire to appraise the work of [the interim officer] or the Presi­
dent’s ability to devote attention to the matter.” Status o f the Acting D irector,
Office o f M anagem ent and Budget, 1 Op. O.L.C. 287, 290 (1977). However, given
the ambiguity of the Williams opinion, we have urged caution, even when the
relevant department head has statutory authority to designate another official to
serve in an acting capacity. See Acting Officers, 6 Op. O.L.C. 119, 121-22 (1982).
We recently revisited the vacancies question in relation to the United States
Commission on Civil Rights. The Commission is headed by an eight-member
requires an officer o f (he United States to be confirmed by the Senate unless different provision is made.** The
court nevertheless observed that “ [i]t could be argued” that the President has 4ian implied power, in the absence
o f limiting legislation . . . to appoint an acting director for a reasonable period o f tim e before submitting the nom ina­
tion of a new director to the Senate” 482 F.2d at 670.
>05 O ur opinions have struggled with the meaning o f Williams. See, e.g.. Power o f the President to Designate
Acting Member o f the Federal Home Loan Bank Board , 1 Op. O.L.C. 150, 151-52 (1977) (court o f appeals* opinion
in Williams “ can perhaps be read as disagreeing with” the argument that the President has no non-statutory authority
or “ as perhaps agreeing” that he does have such authority, “ in the absence o f a limiting statute,” subject, o f
course, to the condition that he must submit a nomination within a reasonable time).
’ Editor's Note: The Vacancies Act has been amended by the Federal Vacancies Reform Act o f 1998, Pub. L.
No. 105-277, Div. C, tit. I, § 151(a), 112 Stat. 2681.
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Opinions o f the Office o f Legal Counsel in Volume 20
committee that works on a part-time basis, while its day-to-day functioning is
administered by a staff director. The statute creating the position of staff director
vests the authority to appoint the staff director in the President, subject to the
concurrence of a majority of the members of the Commission. In keeping with
the Department of Justice’s long-standing position, we concluded that, when con­
fronted with a vacancy in the position of staff director, the President has constitu­
tional authority to appoint an acting staff director, unless Congress had statutorily
limited this authority. We stated:
The President’s take care authority to make temporary appointments
rests in the twilight area where the President may act so long as
Congress is silent, but may not act in the face of congressional
prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring). Thus, the Vacancies Act,
5 U.S.C. §§3345-3348, constitutes a restriction on the President’s
authority, as opposed to a source of power. If it applies to a given
position, the Vacancies Act constitutes the sole means by which
a temporary appointment to that position may be made.
Memorandum for Neil Eggleston, Associate Counsel to the President, from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Appointment
o f an Acting Staff D irector o f th e United States Commission on Civil Rights at
3 (Jan. 13, 1994).
We concluded that Congress had not limited the President’s constitutional au­
thority with respect to the appointment of an acting staff director of the Civil
Rights Commission. The Vacancies Act does not apply to the position of staff
director.106 In addition, the statute creating the position is silent on the subject
of temporarily filling a vacancy in that position. Consequently, we concluded that
the President was free to exercise his constitutional authority to appoint an acting
staff director.107
9. O ther Issues of Combined, Collective, and Intertoranch Authority and the
Appomtmemts Clause. The Appointments Clause prohibits Congress or the Presi­
dent from obscuring the lines of authority and responsibility within the federal
l06The Vacancies Act only applies to tem porary appointments “ [w]hen an office[]” is vacant. 5 U.S.C. §3346
(emphasis added). Because the staff director for the Commission on C ivil Rights is not a constitutional officer,
the Vacancies A ct does not apply. See Olympic Fed. Sav. & Loan Ass'n v. Director, Office o f Thrift Supervision,
732 F. Supp. 1183, 1195 (D .D .C .) (finding that “ officer” as used in the Vacancies Act, 5 U.S.C. §3346, means
“ constitutional officer” ), appeal dismissed as moot, 903 F.2d 837 (D.C. Cir. 1990). Indeed, since the Commission
is an exclusively investigatory and advisory body, see Hannah v. Larche, 363 U.S. 420, 441 (1960), none of the
positions at the C om m ission are constitutional offices. See Statement on Signing the United States Commission on
Civil Rights Act o f 1983, 2 Pub. Papers o f R onald Reagan 1634, 1635 (Nov. 30, 1983) (statement by the Department
o f Justice). A ccordingly, the Vacancies Act d o es not apply to the Commission at all.
107 A federal district court ruled to the contrary, but its decision has been vacated. See George v. Ishimaru, 849
F. Supp. 68 (D.D.C. 1994), vacated as moot. No. 94-5111, 1994 W L 517746 (D.C. Cir. Aug. 25, 1994).
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The Constitutional Separation o f Powers Between the President and Congress
government: the political branches cannot vest the power to perform “ a significant
governmental duty” of an executive, administrative, or adjudicative nature in any
federal official who is not appointed in a manner consistent with the Clause. Buck­
ley v. Valeo, 424 U.S. 1, 141 (1976) (per curiam). The Clause, however, does
not prohibit creative combinations of officers and authorities as long as a person
or body with legitimate appointing authority under the Clause has appointed —
and therefore is accountable for— all federal officials with such power. Cf. Weiss
v. United States, 510 U.S. 163, 191-92 (1994) (Souter, J., concurring); Silver v.
United States Postal Serv., 951 F.2d 1033, 1040-41 (9th Cir. 1991).
The Appointments Clause therefore does not forbid the exercise of authority
by a decision-making body with a collective head that consists of principal officers
and an inferior officer removable by them. See Silver, 951 F.2d at 1040-41. Nor
is the Clause offended by the delegation of concurrent authority to a Senate-con­
firmed officer and her deputy when the latter is appointed by a head of department.
See Departm ent o f Housing and Urban D evelopm ent— D elegations o f Authority,
2 Op. O.L.C. 87, 89-91 (1978). In both cases all of the officials performing sig­
nificant governmental duties are validly appointed officers.
The exercise of authority by a group of principal officers, some of whom serve
at the President’s pleasure while others are removable by the President only for
cause, presents no Appointments Clause issue: once again, the Clause’s procedures
for appointing federal officials so that they may wield “ significant authority”
have been met. The Clause’s strictures are likewise satisfied by arrangements in
which a head of department, pursuant to a statute, designates a subordinate to
sit in his or her stead on a commission or board: if the designation by the head
were authorized by statute, then it would itself be an appointment in conformity
with the Clause, and even if it were not, the designee would be acting for or
on behalf of the head of department, whose actions, for constitutional purposes,
are the head’s.
Finally, the Appointments Clause does not invalidate commissions composed
of members or appointees from more than one branch of the government. M istretta
v. United States, 488 U.S. 361, 412 (1989), upheld the constitutionality of the
Sentencing Commission, which includes at least three federal judges and the Attor­
ney General as an ex officio non-voting member, while Buckley concluded that
a commission consisting of a mixture of presidential appointees and members of
Congress selected by the Speaker and President p ro tempore can validly exercise
“ powers . . . essentially of an investigative and informative nature,” 424 U.S.
at 137. Interbranch entities are subject to constitutional review on other grounds,
including the anti-aggrandizement and general separation of powers principles, but
their interbranch nature does not in itself raise any Appointments Clause question.
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C. Removal Power Issues
1. The Executive’s Removal Power. The first great constitutional debate in the
First Congress concerned the power to remove officers of the United States. A
wide range of views was expressed over the respective roles— or lack thereof—
of the President and Congress in removal m atters,108 but ultimately, as the Su­
preme Court has interpreted the “ Decision of 1789,” Congress rejected a legisla­
tive role in removal in favor of recognizing plenary presidential power over offi­
cers appointed by the President with the advice and consent of the Senate. See
Bow sher v. Synar, 478 U.S. 714, 723-24 (1986); see also M yers v. United States,
272 U.S. 52, 111-44 (1926) (discussing debates and subsequent acquiescence in
the legislative decision).
The nineteenth-century Justices interpreted the First Congress’s actions as illus­
trative of a more general principle that “ the power of removal [is] incident to
the power of appointment.” Ex p a rte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).
Thus, it was determined that inferior officers appointed by a department head
were not removable by the President (absent statutory authorization to do so) but
by the secretary who appointed them and that a new appointment by the proper
officer amounted to a removal of the previous incumbent by operation of law.
Id. at 260-61; accord The P resident and Accounting Offices, 1 Op. Att’y Gen.
624 (1823). In U nited States v. Perkins, 116 U.S. 483 (1886), the Court held
that “ when Congress, by law, vests the appointment of inferior officers in the
heads of departments, it may limit and restrict the power of removal as it deems
best for the public interest.” Id. at 485. Although the Court did not address any
questions about presidential removal powers, its reasoning about Congress’s au­
thority to limit department heads’ removal power could logically be applied to
the President with respect to inferior officers whose appointment is vested by stat­
ute in the President alone.109 The power to suspend an officer, finally, was held
to be “ an incident of the power of removal.” B um ap v. United States, 252 U.S.
512, 515 (1920) (relying primarily on nineteenth-century precedents). The Court’s
conclusions in Hennen, Perkins, and B um ap remain good law .110
108 Professor G erhard C asper has identified seven “ major positions [in the First Congress] on the question of
the location o f the removal pow er," ranging from the view that the President has illimitable authority to remove
any non-judicial officer to the argument that Congress has plenary discretion over removal issues under the Necessary
and Proper Clause. See Casper, supra note 33, at 234-35.
109 “ The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and
regulate the removal by such laws as C ongress may enact in relation to the officers so appointed. The head of
a D epartm ent has no constitutional prerogative o f appointment to offices independently of the legislation o f Congress,
and by such legislation he must be governed, not only in m aking appointments, but in all that is incident th e re to /’
Perkins, 116 U.S. at 485. The President sim ilarly “ has no constitutional prerogative" to make appointments without
senatorial advice and consent “ independently” o f congressional authorization— that is, the President may make
appointm ents without the advice and consent o f the Senate only if Congress authorizes the President to do so. See
M yers, 272 U.S. at 161-62 (noting without deciding the question).
l,0 W e do not read Morrison v. Olson, 487 U.S. 654 (1988), to cast any doubt on the continuing vitality of
these decisions. See id. at 689 n.27, 690 n.29 (im plicitly reaffirming Perkins).
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The seminal twentieth-century cases on removal, Myers and Humphrey’s Execu­
tor v. United States, 295 U.S. 602 (1935), both addressed the power to remove
officers appointed by the President with the advice and consent of the Senate.
Myers held unconstitutional a statute requiring Senate approval of the President’s
decision to remove certain postmasters. The Court based its holding in part on
its interpretation of the “ Decision of 1789” and on its understanding of the Presi­
dent’s constitutional role. “ Made responsible under the Constitution for the effec­
tive enforcement of the law, the President needs as an indispensable aid to meet
it the disciplinary influence upon those who act under him of a reserve power
of removal. . . . Each head of a department is and must be the President’s alter
ego in the matters of that department where the President is required by law to
exercise authority.” 272 U.S. at 132-33. An illimitable removal power, M yers
concluded, is a necessary incident to the President’s power and responsibility to
take care that the laws are faithfully executed. Id. at 163-64.111
Any suggestion in M yers that the Supreme Court would invalidate all limitations
on the President’s power to remove officers appointed with the advice and consent
of the Senate was firmly repudiated less than a decade later by Humphrey’s Execu­
tor. The case concerned the President’s power to remove a member of the Federal
Trade Commission (“ FTC” ) on the grounds of policy differences, despite the
existence of a for-cause removal provision in the statute establishing the Commis­
sion.112 The Court dismissed M yers as inapposite because a postmaster is “ an
executive officer restricted to the performance of executive functions,” and “ the
necessary reach of the decision” only “ goes far enough to include all purely
executive officers [and] no farther.” 295 U.S. at 6 27-28.113 By contrast, the Court
examined the functions of the FTC and concluded that it was “ an administrative
body” exercising “ quasi-legislative or quasi-judicial powers,” rather than an
agency of the executive branch. Id. at 628. The Court reasoned that Congress
possesses the authority in creating such a body “ to require [it] to act in discharge
of [its] duties independently of executive control.” Id. at 629.114 In Wiener v.
111 The Court dismissed the argument that the rationale for giving the President plenary removal authority over
heads of department and other great officers o f state simply did not apply to postmasters with the observation that
Congress could extend civil service tenure protection to the latter simply by vesting their appointment 4>in the head[]
o f de p artm e n t] to which they belong.” 272 U.S. at 174.
n 2 The statute establishing the FTC included a provision stating that a commissioner “ may be removed by the
President for inefficiency, neglect o f duty, or malfeasance in office,” which the Court construed as intended “ to
limit the executive power o f removal to the causes enumerated, the existence o f none of which is claimed h ere.”
Humphrey’s Ex’r , 295 U.S. at 623, 626.
1,3 Humphrey's Executor expressly repudiated the language in Myers suggesting that the President’s general execu­
tive powers and Take Care Clause responsibilities rendered it unconstitutional for Congress to reduce or eliminate
presidential control over the administration o f federal law. “ In the course of the opinion [in Myers], expressions
occur which tend to sustain the government’s contention, but these are beyond the point involved and, therefore,
do not come within the rule o f stare decisis. In so far as they are out o f harmony with the view s here set forth,
these expressions are disapproved.” Humphrey’s Ex’r, 295 U.S. at 626.
114 See also id. at 628:
The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative
policies embodied in the [Federal Trade Commission Act, 15 U.S.C. §§41-42] in accordance with the
Continued
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United States, 357 U.S. 349 (1958), the Court extended the scope of Humphrey’s
Executor by inferring the existence of a for-cause limitation on the President’s
power to remove an officer with quasi-adjudicatory functions, even in the absence
of an express statutory removal restriction.115
The rationale in Humphrey's Executor for upholding Congress’s power “ to for­
bid [the commissioners’] removal except for cause” was in fact identical to that
for recognizing the President’s plenary removal power over “ purely executive of­
ficers.” “ [I]t is quite evident that one who holds his office only during the pleas­
ure of another, cannot be depended upon to maintain an attitude of independence
against the latter’s will.” 295 U.S. at 629. The constitutionality of congressional
limitations on presidential removal authority thus depended under Humphrey’s Ex­
ecutor on the legitimacy of a legislative decision to reduce or eliminate the Presi­
dent’s control over a particular agency or officer, and that in turn depended on
the nature of the functions performed by the agency or officer.116
In M orrison v. Olson, 487 U.S. 654 (1988), the Supreme Court upheld a provi­
sion of the Ethics in Government Act that forbids the removal of an independent
counsel appointed under the Act except for cause. The Court explained that under
“ [t]he analysis contained in our removal cases,” the constitutional question is
whether Congress has “ interfere[d] with the President’s exercise of the ‘executive
power’ and his constitutionally appointed duty to ‘take care that the laws be faith­
fully executed.’ ” Id. at 689-90. Morrison reasoned that the Attorney General
retained adequate control over the independent counsel to safeguard “ the Presi­
dent’s ability to perform his constitutional duty.” Id. at 691.
legislative standard therein prescribed, an d to perform other special duties as a legislative or as a judicial
aid. . . . Tts duties are performed without executive leave and, in the contemplation o f the statute, must
be free from executive control.
115 The rationale o f Wiener, which is essentially that Congress must have implied a for-cause removal restriction
w hen the Court believes that the functions o f th e agency dem and such tenure protection, 357 U.S. at 353-56, seems
questionable. There w ould be nothing illogical in a legislative decision, for example, to protect against review or
revision o f the decisions o f the agency, see id. 354-55, while placing the agency’s decisionmakers within the control
o f the President. Congress has made such decisions from the beginning o f the Republic. To the extent that Wiener
assum es that control is and ought to be a binary matter— either plenary or non-existent— its reasoning is difficult
to reconcile with more recent separation o f pow ers decisions that reject such an either/or approach to presidential
control. See, e.g., Morrison v. Olson, 487 U.S. 6 5 4 (1988). Despite these possible flaws in its logic, however, Wiener's
holding continues to be followed. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (con­
cluding that the mem bers o f the Federal E lection Commission probably are removable only for cause despite the
absence o f an explicit statutory restriction on rem oval), cert, dismissed, 513 U.S. 88 (1994).
1I6C ongress’s decision was considered legitim ate in Humphrey's Executor because the Court viewed the FTC
as “ a body o f experts” ' ‘charged with the enforcement o f no policy except the policy o f the law” and concluded
that “ [s]uch a body cannot in any proper sense be characterized as an arm or an eye o f the executive.” 295 U.S.
at 624, 628. We do not find the Court's reasoning in Humphrey's Executor completely persuasive. The Court’s
assertion about the FT C ’s “ enforcement of n o policy except the policy o f the law ,” id. at 624, does not differentiate
the FTC, except perhaps as a m atter of degree, from the many undoubtedly executive agencies upon which Congress
imposes mandatory duties. The Court also stated that an FTC member is “ an officer who occupies no place in
the executive departm ent,” but the Court m ay only have meant that the FTC is “ an agency of the legislative or
judicial departm ents o f the government,” id. at 628, in which case questions would arise under current constitutional
doctrine as to the legitim acy o f an Article I entity exercising law-making authority without following bicameralism
and presentm ent, see INS v. Chadha, 462 U .S . 919 (1983), o r o f an A rticle in non-judicial entity “ bind[ing] or
regulat[ing] the prim ary conduct o f the pu b lic,” Mistretta v. United States, 488 U.S. 361, 396 (1989). W e do not
think that the “ independent” regulatory agencies could be viewed today as w ithin the legislative or judicial branches.
See id. at 387 n.14 (SEC is “ not located in the Judicial Branch” ).
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The Constitutional Separation o f Powers Between the President and Congress
Morrison's broader significance is defined by the office in question. The re­
moval restriction upheld in Morrison concerned an inferior officer with a sharply
limited and highly unusual function, the investigation of particular allegations
about the conduct of high-ranking executive branch officials. In that context, al­
though it declined to decide “ exactly what is encompassed within the term ‘good
cause,’ ” the Court held that “ because the independent counsel may be terminated
for ‘good cause,’ the Executive . . . retains ample authority to assure that the
counsel is competently performing his or her statutory responsibilities in a manner
that comports with the provisions of the Act.” 487 U.S. at 692. The Morrison
Court thus had no occasion to consider the validity of removal restrictions affect­
ing principal officers, officers with broad statutory responsibilities, or officers in­
volved in executive branch policy formulation.117
The Supreme Court’s removal cases establish a spectrum of potential conclu­
sions about specific removal limitations. At one end of the spectrum, restrictions
on the President’s power to remove officers with broad policy responsibilities in
areas Congress does not or cannot shelter from presidential policy control clearly
should be deemed unconstitutional. We think, for example, that a statute that at­
tempts to limit the President’s authority to discharge the Secretary of Defense
would be plainly unconstitutional and that the courts would so hold.118 As the
Court stated in M orrison, M yers “ was undoubtedly correct . . . in its broader
suggestion that there are some ‘purely executive’ officials who must be removable
by the President at will if he is to be able to accomplish his constitutional role.”
487 U.S. at 69 0 .119 At the other end of the spectrum, we believe that for-cause
and fixed-term limitations on the power to remove officers with adjudicatory du­
ties affecting the rights of private individuals will continue to meet with consistent
judicial approval: the contention that the essential role of the executive branch
would be imperiled by giving a measure of independence to such officials is un­
tenable under both precedent and principle.
,17A much older decision, Shurtleff v. United Stales, 189 U.S. 311 (1903), had held that a for-cause provision
did not oust the President's power, derived from the power o f appointment, to remove an officer at will, but after
Humphrey's Executor, Shurtleff appeared confined to its factual setting (where the official’s tenure had no fixed
termination). See Kalaris v. Donovan, 697 F.2d 376, 395 & n.76 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983).
Bowsher, however, cited Shurtleff in connection with a more general suggestion that “ the enumeration o f certain
specified causes o f rem oval’’ may not 4'exclud[e] the possibility o f removal for other causes.’’ 478 U.S. at 729.
Bowsher and Morrison together suggest that a generous reading o f the President’s (or a department head’s) power
to remove an inferior officer for cause may be essential to the constitutionality o f removal restrictions concerning
even those officers whose functions are narrow.
1,8The Tenure o f Office Act o f 1867, ch. 154, 14 Stat. 430, expressly provided the Secretaries of W ar and the
Navy, among others, with terms longer than that o f the President who appointed them, subject only to presidential
removal with the coi^ent o f the Senate. President Andrew Johnson’s attempt to remove the Secretary of W ar was
the legal basis for his impeachment and near-removal from office. The Act had been passed over President Johnson’s
constitutionally based veto.
119 With respect to an officer serving at the President’s pleasure, the President may remove the incumbent by
direct order o r by appointing his or her successor after receiving the advice and consent o f the Senate. See, e.g.,
Quackenbush v. United States, 177 U.S. 20, 25 (1900); Presidential Appointees— Resignation Subject to the Appoint-
ment and Qualification o f a Successor, 3 Op. O.L.C. 152 (1979).
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Between these two extremes, the arguments are less clear, and it is imperative
that the executive branch carefully examine removal limitations in pending legisla­
tion for their impact on the President’s ability to exercise his or her constitutional
powers and carry out his or her duties. In situations in which Congress does not
enact express removal limitations, we believe that the executive branch should
resist any further application of the Wiener rationale, under which a court may
infer the existence of a for-cause limit on presidential removal, except with respect
to officers whose only functions are adjudicatory.120 In reviewing pending legisla­
tion, furthermore, we should be aware that legislative silence about the President’s
removal power over administrative agency officers invites judicial policy choices
that may be contrary to those the President or Congress intended.
2. Congressional Removal Power. Unless it limits its own discretion by statute,
Congress enjoys plenary authority to remove its own officers, as do the individual
houses of Congress.121 In addition, Congress has the general authority to legislate
in ways that in fact terminate an executive branch officer’s or employee’s tenure
by defunding a position, for example, or by legislating mandatory retirement rules
that apply to incumbents.122 The executive branch, however, has long maintained
that the Constitution does not permit this legislative authority to be deployed abu­
sively as a de facto removal power. See C ivil Service Retirement A c t — Post­
m asters— Autom atic Separation fro m the Service, 35 Op. Att’y Gen. 309, 312-
15 (1927) (deeming mandatory retirement statute constitutional because it could
not fairly be viewed as an encroachment on the President’s removal power). The
Supreme Court’s decisions confirm the executive position. In Myers v. United
States, 272 U.S. 52 (1926), the Court at one point portrayed the issue before it
in terms of congressional aggrandizement, id. at 161, and modem decisions have
redescribed the enduring rationale of M yers in anti-aggrandizement terms. See
M orrison v. Olson, 487 U.S. 654, 686 (1988) (“ [T]he essence of the decision
in M yers was the judgment that the Constitution prevents Congress from
‘draw[ing] to itself . . . the power to remove.’ ” ) (quoting M yers, 272 U.S. at
161); B ow sher v. Synar, 478 U.S. 714, 724-26 (1986). Legislation that can prop­
erly be described as exercising the power of removal is unconstitutional, therefore,
because it amounts to an attempt on Congress’s part “ to gain a role in the removal
of executive officials other than its established powers of impeachment and con­
,20O n the basis o f precedent, and in light o f the understandable tendency of Article 111 judges to value tenure
protection positively, it is safe to assume that courts will continue to apply Wiener with respect to officials whose
prim ary duties involve the adjudication of disputes involving private persons.
121 The tw o houses o f Congress also have complementary roles in the congressional power to impeach and remove
any civil officer o f the United States. See U.S. Const, art. 1, §2, cl. 5; id. art. I, §3 , cl. 6.
122C ongress's authority in this regard is bounded, to be sure, by independent constitutional limitations such as
the Bill o f A ttainder Clause, U.S. Const, art. I, § 9 , cl. 3. See United States v. Lovett, 328 U.S. 303 (1946) (provision
in an appropriations statute prohibiting the paym ent o f compensation to three specified executive branch employees
because o f their political beliefs was an unconstitutional bill o f attainder).
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The Constitutional Separation o f Powers Between the President and Congress
viction.” M orrison, 487 U.S. at 686.123 We think, for example, that “ ripper”
legislation that ostensibly abolished an office while simultaneously proceeding to
recreate it would be a transparent, and unconstitutional, attempt to remove the
officer in question and therefore would violate the anti-aggrandizement principle.
See Constitutionality o f Proposed Legislation Requiring Renomination and Recon­
firm ation o f Executive Branch Officers Upon the Expiration o f a Presidential
Term, 11 Op. O.L.C. 25, 26 (1987).
The executive branch also has resisted attempts by the Senate to “ reconsider”
the nomination of an officer to whose appointment that body has already given
its advice and consent once the President has taken steps to complete the appoint­
ment. In 1931, for example, President Hoover declined to return to the Senate
resolutions notifying him that it had confirmed three nominees to the Federal
Power Commission. The President explained that “ the return of the documents
by me and reconsideration by the Senate would be ineffective to disturb the ap­
pointees in their offices. I cannot admit the power in the Senate to encroach upon
Executive functions by removal of a duly appointed executive officer under the
guise of reconsideration of his nomination.” Message to Senate, January 10, 1931,
quoted in United States v. Smith, 286 U.S. 6, 28 n.3 (1932); see also Smith, 286
U.S. at 37-48 (discussing historical practice). Such senatorial action is both an
unconstitutional attempt to remove the officer and a violation of the anti-aggran­
dizement principle, in that it is a legislative attempt to exercise power after the
constitutionally prescribed role of the legislative body has been completed.124
D. Issues Involving the Boundaries of the Legislative Sphere
The Supreme Court decisions articulating the Court’s anti-aggrandizement prin­
ciple make it plain that Congress’s formal authority is limited to the enactment
of legislation and activities in aid of the legislative process such as investigation
and oversight. The Gramm-Rudman Act’s vesting in a congressional agent of the
power to exercise policy-making control over the post-enactment decisions of ex­
ecutive officials is the paradigmatic example of congressional action in violation
of this limitation. See Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating the
relevant provision of the Act). Respect for Congress’s legitimate and broad author­
ity to legislate is consistent with our duty as officials of the executive branch
123 One could also describe the reasoning directly in terms o f the impeachment and removal powers. See U.S.
Const, art. I, § 2 , cl. 5 (giving House the “ sole Power o f Im peachment” ); id. art. I, §3, cl. 6 (giving Senate the
“ sole Power to try all Impeachments” ); id. art. II, § 4 ("President, Vice President and all civil O fficers” are subject
to impeachment and removal). These powers stem from “ (ejxplicit and unambiguous provisions of the Constitution
[that] prescribe and define” the only means by which Congress may remove officers. INS v. Chadha, 462 U.S.
919. 945 (1983).
124 In Smith the Supreme Court rejected a challenge to the right o f one o f President Hoover’s appointees to sit
on the Federal Power Commission, but based its holding on its construction o f the Senate’s rule permitting reconsider­
ation. The Court thus did not reach the Executive’s constitutional arguments. See 286 U.S. at 34 ( “ [W]e have,
therefore, no occasion to consider the constitutional objection.” ).
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to identify instances in which Congress transgresses the boundaries of its constitu­
tional sphere of operations.
1. The Paradox of Congressional Agencies. From reading the bare text of the
Constitution, one might not expect there to exist any formally separate entities
within the legislative branch other than the two houses themselves. From an early
date, however, Congress has created distinct agencies, under its special super­
vision, for various purposes. Some of these agencies, or the officers who head
them, exercise authority that seems incompatible or at least difficult to reconcile
with the Supreme Court’s anti-aggrandizement decisions. Of special interest are
the Smithsonian Institution (and its subordinate bureaus, such as the John F. Ken­
nedy Center for the Performing Arts (“ J.F.K. Center” )), the Library of Congress,
the General Accounting Office (“ GAO” ) (headed by the Comptroller General),
the Government Printing Office (“ GPO” ), and the Office of the Architect of the
Capitol.125 The head of each of these agencies exercises authority with respect
to executive officials or private persons that could be seen as problematic under
B owsher v. Synar, 478 U.S. 714 (1986), which held unconstitutional the Comp­
troller General’s exercise of controlling authority over executive branch budgeting.
We believe that many of the powers currently exercised by the presently existing
congressional agencies may be deemed constitutionally harmless. Most of the
functions undertaken by the Library of Congress, the basic accounting tasks of
the GAO, and all of the duties of the Architect of the Capitol can comfortably
be described as in aid of the legislative process. See Springer v. Philippine Islands,
277 U.S. 189, 202 (1928). The activities undertaken by the Smithsonian and its
bureaus also seem to fit under a broad construction of that concept, a construction
that is supported by historical practice stretching far back into the antebellum Re­
public. Cf. Springer, 277 U.S. at 211 (Holmes, J., dissenting) (“ Congress long
ago established the Smithsonian Institution, to question which would be to lay
hands on the Ark of the Covenant.” ). The GPO’s involvement in executive branch
printing is also supported by a substantial historical pedigree, see Act of June
23, 1860, 12 Stat. 117, but in the twentieth century the executive branch has re­
peatedly been compelled to resist congressional attempts to empower the GPO
to exercise genuine discretion over executive decisions.126 The review authority
of the Librarian of Congress over the Copyright Arbitration Royalty Panel, see
17 U.S.C. §§801-803, is permissible because the Librarian’s tenure is not pro­
tected by an explicit for-cause removal limitation, and we therefore infer that the
125 The com position o f the Smithsonian’s Board o f Regents and o f the Board of Trustees of the J.F.K. Center
presents a separate problem under Buckley v. Valeo , 424 U.S. 1 (1976) (per curiam), because members o f Congress
serve on these boards through appointment by the Speaker and the President pro tempore. See 20 U.S.C. §42 (Regents
o f Smithsonian); id. §7 6 h (a) (Trustees of J.F.K. Center).
126 U nder the m odem understanding of the separation o f powers, we do not think that Congress vaJidly can em-
pow er the G PO to play any role that is not purely ministerial with respect to the executive branch.
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The Constitutional Separation o f Powers Between the President and Congress
President has at least the formal power to remove the Librarian at w ill.127 We
note that the historical lineage of, and long-standing acquiescence of the Presidents
in, these legislative agencies and most of their activities are important to our con­
clusion that those activities are constitutionally permissible: we think it highly
doubtful that Congress constitutionally could create new legislative agencies with
operational powers, or afford existing agencies novel powers, with respect to exec­
utive officials or private persons.
Our conclusion about the limits on Congress’s authority to create legislative
branch agencies with powers reaching beyond the legislative branch is consistent
with the decision in Hechinger v. Metropolitan Washington A irports Authority,
36 F.3d 97 (D.C. Cir. 1994), cert, denied, 513 U.S. 1126 (1995), where the court
of appeals held unconstitutional Congress’s response to the Supreme Court’s deci­
sion in M etropolitan Washington Airports Authority v. Citizens fo r the Abatement
o f Aircraft Noise, Inc., 501 U.S. 252 (1991) ( “ M WAA"). After MWAA struck
down a congressionally constituted board with the power to review and reverse
the decisions of the Airports Authority, Congress created a similar, congressionally
controlled board of review with the power to delay, but not to control, the
Authority’s implementation of decisions. The court rejected the argument that the
new board’s powers were constitutional because of this distinction: the very pur­
pose of this board was to bring congressional policy views to bear on the decisions
of the Authority by enabling congressional agents to participate directly in the
Authority’s decision-making processes. Under the Supreme Court’s rigorous un­
derstanding of the anti-aggrandizement principle, any such extension of legislative
power beyond the legislative sphere is invalid. We therefore believe that Hech­
inger was correctly decided.
2. Reporting Requirements. Many statutes empower executive branch agencies
to take certain actions only after a specified period following the provision of
notice or of a report to Congress. The Department of Justice has long acknowl­
edged the constitutionality of such report-and-wait provisions, see, e.g., Constitu­
tionality o f P roposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56,
63 (1933) (“ No one would question the power of Congress to provide for delay
in the execution of . . . an administrative order.” ), and the Supreme Court in
INS v. Chadha, 462 U.S. 919 (1983), “ specifically recognized” report-and-wait
requirements “ as a constitutionally acceptable alternative to the legislative veto.”
Implementation o f the B id P rotest Provisions o f the Competition in Contracting
Act, 8 Op. O.L.C. 236, 246 (1984); see Chadha, 462 U.S. at 935 n.9, 955 n.19.
While individual instances of congressional investigation and oversight may be
objectionable on policy grounds, and in certain situations may involve information
127 Formal removal authority is sufficient to render the Librarian subject to the President’s control for constitutional
purposes. See Bowsher v. Synar, 478 U.S. 714, 726-27 (1986). We think that under Bowsher the fact that a President
is highly unlikely to remove a Librarian is legally irrelevant. Id. at 727 n.5.
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with respect to which the President is constitutionally entitled to assert executive
privilege, the conduct of investigation into, and oversight concerning, executive
actions is generally well within the power of Congress. See Buckley v. Valeo,
424 U.S. 1, 137-38 (1976) (per curiam ).128 Report-and-wait provisions generally
are constitutional means of assisting Congress in carrying out these legitimate ac­
tivities. 129
Simple reporting requirements, which again are sometimes objectionable on pol­
icy grounds, are clearly constitutional as a general matter. “ Congress may at all
times call on [the heads of executive departments] for information or explanation
in matters of official duty.” Office and D uties o f Attorney General, 6 Op. Att’y
Gen. 326, 344 (1854); see Chadha, 462 U.S. at 955 n.19; see also Duties o f the
Attorney G eneral, 1 Op. Att’y Gen. 335, 336 (1820) (Congress could, by legisla­
tion, require the Attorney General to prepare a report on claims against the United
States). In the past, this Office has made constitutional objections to so-called
“ concurrent” reporting provisions that require an executive agency to submit a
given report simultaneously to the President and Congress. See Constitutionality
o f Statute Requiring Executive A gency to Report D irectly to Congress, 6 Op.
O.L.C. 632 (1982); Inspector G eneral Legislation, 1 Op. O.L.C. 16, 17 (1977).
The argument is that such provisions interrupt the lines of responsibility within
the executive branch and interfere with a presidential prerogative to control the
presentation of the executive branch’s views to Congress. On the other hand, advo­
cates of such provisions might argue that a concurrent reporting provision does
not, as a formal matter, enlarge congressional powers at the expense of the Execu­
tive, because the power to require information is well within Congress’s legitimate
legislative authority.
We think that concurrent reporting requirements are best analyzed under the
general separation of powers principle. That principle first requires an inquiry into
“ the extent to which” a given reporting provision “ prevents the Executive Branch
from accomplishing its constitutionally assigned functions.” Nixon v. Adminis­
128 The Constitution presupposes that all executive branch action is taken under the legal authority of officers
o f the United States and that it is those officers (and not their subordinates) who are constitutionally responsible
for those actions. See U.S. Const, an. n, § 4 (civil officers may be impeached). It is our view, therefore, that the
executive branch is generally entitled to resist congressional demands that employees be questioned about their actions
and that as a m atter o f constitutional com ity Congress ordinarily is obligated to respect an executive decision to
send a superior officer to present testimony and answer questions about the actions o f a subordinate officer. (This
does not apply to congressional investigations connected with impeachment or with other legitimate investigations
into the actions o f specific officers.). Although the details o f executive responses to congressional demands for infor­
m ation have changed somewhat, the general principle that Congress ought not employ its powers o f investigation
to disrupt the lines o f responsibility and authority within the executive branch is very old. See Thomas Jefferson,
O pinion o f the Cabinet (Apr. 2, 1792), in 1 The Writings o f Thomas Jefferson 304 (Andrew A. Lipscomb ed.,
1903) (advising President Washington “ that neither the committee nor [the] House [of Representatives] had a right
to call on the Head o f a Department, who a n d whose papers were under the President aJone, but that the committee
should instruct their chairman to move the H ouse to address the President").
129 This is not to say that an unconstitutional report-and-wait provision cannot be imagined. A provision that
imposed so lengthy a delay as to in effect nullify the Executive’s pow er to take action substantively authorized
by the Constitution or a statute might be invalid as a violation o f the anti-aggrandizement or general separation
o f powers principle.
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The Constitutional Separation o f Powers Between the President and Congress
trator o f Gen. Servs., 433 U.S. 425, 443 (1977) (citation omitted). Many conceiv­
able concurrent reporting requirements, particularly ones touching on the Presi­
dent’s responsibility for the conduct of foreign affairs and for national defense,
would have a serious negative impact on the President’s performance of his “ con­
stitutionally assigned functions.” A statutory requirement that the Secretary of
State report simultaneously to the President and Congress on the status of United
States relations with a given foreign power, for instance, would fall within that
description.130 Similarly, legislation that attempted to impose concurrent reporting
requirements across a broad spectrum of executive branch activities might well
constitute so serious an interference with the President’s fulfillment of his obliga­
tions under the Take Care Clause, U.S. Const, art. II, §3, that it should be deemed
invalid. The courts, however, might uphold the validity of a concurrent reporting
requirement imposed for a legitimate congressional purpose on a specific agency
with limited, domestic, and purely statutory duties.
As a practical political matter, concurrent reporting requirements clearly weaken
the President’s control over the executive branch and by doing so increase con­
gressional leverage on the President and other officials of the executive branch.
By doing so they impair the Constitution’s “ ‘great principle of unity and responsi­
bility in the Executive department.’ ” M yers v. United States, 272 U.S. 52, 131
(1926) (quoting James Madison in 1 Annals of Congress 499 (Joseph Gales ed.,
1789)). For this reason, we think the presumption should be that the executive
branch will object to any concurrent reporting provision in proposed legislation.
3. Congressional Agents in Non-Legislative Contexts. The Supreme Court’s de­
cisions make it clear that legislation placing members or agents of Congress on
a board or commission that is outside the legislative branch is immediately sus­
pect. The constitutional “ location” of a given entity is not a matter of congres­
sional fiat; Congress cannot define away an anti-aggrandizement problem simply
by declaring that a given entity is within or without the legislative branch.131
The question is, we think, a matter of the relationship between the entity’s func­
tions and the formal powers Congress can assert over and through it. In M etropoli­
tan Washington A irports Authority v. Citizens fo r the Abatement o f A ircraft Noise,
Inc., 501 U.S. 252 (1991), for example, the board at issue was the board of review
of an entity, the Airports Authority, created by a compact between Virginia and
the District of Columbia, and the review board members were appointed by the
130 Moreover, such a provision ought to fail the courts' final test under general separation of powers analysis —
whether (he statute’s impact on the executive “ is justified by an overriding need to promote objectives within the
constitutional authority o f Congress.” Administrator o f Gen. Servs., 433 U.S. at 443. The hypothesized reporting
requirement could seriously impair the President’s ability to formulate foreign policy and conduct negotiations and
addresses an area in which Congress’s constitutional authority is limited.
131 The result in Bowsher v. Synar, 478 U.S. 714 (1986), for example, would not be changed by a statute providing
that the General Accounting Office is an executive branch agency. Through (he Comptroller G eneral, an official
removable by Congress, (he legislature would still be exercising ultimate authority over executive decisions. In fact,
(he Compiroller General does have obligations to the executive branch as well as to Congress. See Bowsher, 478
U.S. at 746 (Stevens, J., concurring in judgment).
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Authority. However, by federal legislative mandate, the Authority was compelled
to appoint a review board made up exclusively of members of Congress selected
from a pool determined by Congress. See id. at 268-69. Congress’s agents on
the board thus were able to exercise ultimate control over important operational
decisions of the Airports Authority, in violation of the Constitution’s constraints
on the exercise of congressional power. Id. at 275-77.
The Court of Appeals for the D.C. Circuit recently came to a similar conclusion
in FEC v. NRA P olitical Victory Fund, 6 F.3d 821 (D.C. Cir. 1993), cert, dis­
m issed, 513 U.S. 88 (1994), in striking down part of a section of the Federal
Election Campaign Act, 2 U.S.C. §437c(a)(l). That section provides that the Sec­
retary of the Senate and Clerk of the House or their designees are to be members
of the Federal Election Commission “ ex officio and without the right to vote.”
The Secretary and the Clerk are self-evidently agents of Congress, but the Com­
mission argued that their presence was constitutionally harmless because their only
formal role was informational and advisory. The court rejected the argument, rea­
soning that the very point of placing the Secretary and Clerk on the Commission
was to influence the Commission’s actions and that
Congress must limit the exercise of its influence, whether in the
form of advice or not, to its legislative role. . . . What the Con­
stitution prohibits Congress from doing, and what Congress does
in this case, is to place its agents “ beyond the legislative sphere”
by naming them to membership on an entity with executive powers.
6 F.3d at 827 (citation omitted). We believe that NRA Political Victory Fund was
correctly decided: however modest the ability of Congress’s agents to influence
the Commission’s actions may have been formally, the statute placed the agents
intended to communicate that influence within the very heart of an agency charged
with enforcing federal law. The anti-aggrandizement principle properly can be in­
terpreted to forbid even modest attempts by Congress to intervene in the enforce­
ment of the laws once “ its participation [in the passage of legislation] ends.”
B ow sher v. Synar, 478 U.S. 714, 733 (1986).
E. The General Separation of Powers Principle
The proper application of the general separation of powers principle is highly
specific to context, and thus few generalizations are possible. For example, in
the past we have expressed concern that legislation delegating federal authority
to state or local officials or private persons could undermine the executive
branch’s ability to carry out its functions and thereby violate the principle. See,
e.g.. Constitutional Limits on “ Contracting Out” Departm ent o f Justice Functions
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The Constitutional Separation o f Powers Between the President and Congress
under OMB Circular A -7 6 , 14 Op. O.L.C. 94, 99-101 (1990).132 We continue
to believe that such delegations can raise questions with respect to the constitu­
tional separation of powers,133 and that in certain circumstances, a congressional
delegation of authority to non-federal officials or to private parties might have
a significant impact on the executive branch’s ability to fulfill its constitutional
functions. If so, the delegation might be invalid under the general separation of
powers principle.134
132 The delegation question actually at issue in our 1990 opinion concerned OMB requirements to contract out
governmental work. Executive branch delegations to non-federal entities, we now think, are properly analyzed as
raising issues about the Executive's statutory authority to delegate.
133 In theory, C ongress’s authority to delegate law-making authority to anyone, including the President, is limited
by the non-delegation doctrine, which prohibits standardless grants o f legislative power. That doctrine is, however,
essentially moribund in the courts. See, e.g., Yakus v. United States, 321 U.S. 414 (1944) (upholding broad delega­
tion). In any event, the problem o f delegation in the separation o f powers context is not, or not primarily, one
o f congressional failure to specify the limits and standards relevant to the delegated authority, but rather the inter­
ference with executive (or judicial) branch functions created by the bestowal o f federal-law authority on non-federal
entities. Cf. Currin v. Wallace, 306 U.S. 1, 15-16 (1939) (upholding statute requiring supermajority vote by partici­
pants in regulated activity before executive branch could take certain action).
134A common form o f “ delegation” — the grant o f authority to state, local, or tribal officials or to private parties
to stop federal action by declining to consent to it — is unlikely to present a constitutional problem. Such legislation
merely sets a condition on the executive branch’s exercise o f authority that the Executive would not possess at
all in the absence o f the legislation. In upholding a statute requiring a supermajority of regulated farmers to agree
before the Secretary o f Agriculture could exercise certain powers, the Supreme Court rejected the argument that
the statute impermissibly delegated legislative power, reasoning that such legislation does not, strictly speaking, in­
volve a delegation o f authority to the farmers at all. See Currin v. Wallace, 306 U.S. 1, 15-16 (1939). By requiring
the Secretary, as one o f the prerequisites to the exercise o f power granted him by statute, to ascertain the agreement
o f a certain percentage o f those who would be affected, the statute at issue in Currin had done nothing but add
another condition to the availability o f the power. Id. at 15 ( “ Congress has merely placed a restriction upon its
own regulation by withholding its operation as to a given market 'unless two-thirds o f the growers voting favor
it.*” ).
A recent district court opinion that reached the opposite conclusion illustrates, in our judgment, the fallacy involved
in attempting to discern a separation o f powers problem in this sort o f legislation. See Confederated Tribes o f Siletz
Indians v. United States, 841 F. Supp. 1479 (D. Or. 1994), a ffd on other grounds, 110 F.3d 688 (9th Cir.), cert,
denied, 522 U.S. 1027 (1997). The statute at issue prohibits the location o f gaming establishments on land acquired
by the Department o f the Interior in trust for the benefit of a Native American tribe when the land in question
is off-reservation. The statute permits the Secretary to grant a waiver o f the prohibition, but requires him or her
to obtain the concurrence o f the relevant state governor before finally approving the waiver. The district court denied
that the act was similar for constitutional purposes to the legislation upheld in Currin or the False Claims Act
provisions sustained in the qui tam cases: “ Instead we have a statute in which Congress delegates to a state official
the power to veto a favorable determination by an official o f the Executive Branch who was legislatively charged
with making that determ ination.” 841 F. Supp. at 1488. Therefore, the court concluded, the provision requiring
the governor’s concurrence violated the Appointments Clause and the general separation o f powers principle. Id.
at 1489. W e think that the district court went wrong in its description o f the legislation it was reviewing: the only
final determination the Secretary is “ legislatively charged with m aking” under 25 U.S.C. § 2 7 l9 (b )(l)(A ) is a deter­
mination that the statutory conditions — inter alia, that the relevant governor concurs in the Secretary’s findings
that granting the w aiver will be beneficial to the tribe and harmless to its neighbors— have been satisfied. The
governor’s concurrence, from the Secretary’s perspective, is as much a fact about the world as the predicted effects
o f the casino (or the concurrence o f the supermajority o f farmers at issue in Currin)', it is one more condition
that must be met before the Secretary can exercise the waiver power Congress has provided, albeit a condition
that the Secretary may be able to satisfy using different methods (persuasion, for example) than those employed
in satisfying other conditions (economic forecasts o f the impact o f a casino, for example).
For somewhat similar reasons, there is no separation o f powers problem with legislation that defines a federal
role of law by reference to state or foreign law. The Supreme Court held in United States v. Sharpnack, 355 U.S.
286 (1958), that the Constitution permits Congress to provide for the application, as bases for federal prosecution,
o f subsequently enacted state criminal laws in federal enclaves. The Court concluded that such a prospective congres­
sional adoption o f “ future state legislative action in connection with the exercise o f federal legislative pow er” does
not involve “ a delegation by Congress o f its legislative authority to the States” at all. Id. at 294. On the basis
Continued
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F. Statutory Construction
Issues involving the constitutional separation of powers between the President
and Congress most often arise in the context of a statute that raises or proposed
legislation that would raise questions under one of the three headings we have
identified. For this reason, it is worth recalling the “ cardinal principle” of statu­
tory interpretation that statutes be construed to avoid raising serious constitutional
questions, where such a construction is reasonably available. See, e.g., Crowell
v. Benson, 285 U.S. 22 (1932).
An important subset of these questions relate to statutes that do not plainly
state that they apply to the President. The Supreme Court and this Office have
adhered to a plain statement rule: statutes that do not expressly apply to the Presi­
dent must be construed as not applying to the President, where applying the statute
to the President would pose a significant question regarding the President’s con­
stitutional prerogatives. See, e.g., Franklin v. M assachusetts, 505 U.S. 788, 800-
01 (1992); A pplication o f 28 U.S.C. § 4 5 8 to Presidential Appointments o f Federal
Judges, 19 Op. O.L.C. 350 (1995). This principle has two sources in the constitu­
tional context within which the Congress drafts statutes. The first is the interpre­
tive canon of avoiding serious constitutional questions. See, e.g., Edward J.
D eB artolo Corp. v. F lorida Gulf C oast Bldg. & Constr. Trades Council, 485 U.S.
568, 575 (1988).
The second source is the constitutional principle of separation of powers. The
purpose of the constitutional separation of powers is to prevent an excessive accu­
mulation of authority in any of the three branches of the federal government.
The plain statement safeguards “ the ‘usual constitutional balance’ ” of power.
W ill v. M ichigan D ept, of S tate Police, 491 U.S. 58, 65 (1989) (quoting
A tascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)); see Franklin, 505
U.S. at 800-01. Given the central position that the separation of powers doctrine
occupies in the Constitution’s design, this rule also serves to “ assure! ] that the
legislature has in fact faced, and intended to bring into issue, the critical matters”
of the balance of power among the three branches of the federal government.
See U nited States v. Bass, 404 U.S. 336, 349 (1971).
This plain statement rule has been applied frequently by the Supreme Court
as well as this Office with respect to statutes that might otherwise be susceptible
of an application that would affect the President’s constitutional prerogatives, were
one to ignore the constitutional context. For instance, in Franklin the Court was
called upon to determine whether the Administrative Procedure Act (“ APA” ),
5 U.S.C §701, authorized “ abuse of discretion” review of final actions by the
o f Sharpnack's reasoning, we think that no special separation o f powers issues are raised by the role o f the states
under such legislation. The courts of appeals have applied the rationale o f Sharpnack to a variety o f federal statutes
that require consideration o f state or foreign laws in determining the application o f federal law. See, e.g.. United
Stales v. Rioseco, 845 F.2d 299, 302 (11th Cir. 1988) ( “ Congress has delegated no power, but has itself set out
its policies and has implemented them.” ).
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The Constitutional Separation o f Powers Between the President and Congress
President. The APA authorizes review of final actions by an “ agency,” which
it defines as “ each authority of the Government of the United States.” 5 U.S.C.
§701(b)(1). From this definition, the APA expressly exempts Congress, the courts,
the territories, and the District of Columbia government.
Even though the statute defined “ agency” in a way that could include the Presi­
dent and did not list the President among the express exceptions to the APA,
Justice O’Connor wrote for the Court,
[t]he President is not explicitly excluded from the APA’s purview,
but he is not explicitly included, either. Out of respect for the sepa­
ration of powers and the unique constitutional position of the Presi­
dent, we find that textual silence is not enough to subject the Presi­
dent to the provisions of the APA. We would require an express
statement by Congress before assuming it intended the President’s
performance of his statutory duties to be reviewed for abuse of dis­
cretion.
505 U.S. at 800-01 (emphasis added). To amplify, she continued, “ [a]s the APA
does not expressly allow review of the President’s actions, we must presume that
his actions are not subject to its requirements.” Id. at 801. Numerous other Su­
preme Court decisions employ this approach. See, e.g.. Public Citizen v. United
States D e p ’t o f Justice, 491 U.S. 440 (1989) (holding that the Federal Advisory
Committee Act does not apply to committees that advise the President on the
discharge of his exclusive constitutional functions because doing so would raise
serious separation of powers questions); Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993) (refusing to give the Refugee Act extraterritorial application
because doing so could conflict with the President’s constitutionally committed
authority); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the President im­
mune from suit because Congress had failed to create a cause of action expressly
against the President of the United States).
In addition to the Supreme Court precedents, this Office has frequently applied
the plain statement rule in the context of the separation of powers between the
executive and legislative branches. For example, we were asked whether the Age
Discrimination in Employment Act (“ ADEA” ), 29 U.S.C. §§621-634, prohibits
the President from considering the age of judicial candidates when determining
whom to nominate for federal judgeships. See Judges — Appointment— Age F ac­
tor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be read
to apply to the presidential appointment of federal judges:
The power to appoint Federal judges, who hold office on good be­
havior, is by tradition and design one of the most significant powers
given by the Constitution to the President. It provides one of the
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Opinions o f the Office o f Legal Counsel in Volume 20
few administrative mechanisms through which the President can
exert a long-term influence over the development and administra­
tion of law in the courts. The President’s present power to exert
that influence to the fullest by preferring candidates for appointment
who are likely to have long, rather than short, careers on the bench
is therefore a matter of constitutional significance. Whether Con­
gress could deny the President that power by requiring him to dis­
regard utterly the age of candidates for appointment has never been
considered by the courts, but because of the gravity of the constitu­
tional questions it raises, we would be most reluctant to construe
any statute as an attempt to regulate the President’s choice in that
way, absent a very clear indication in the [statute].
Id. at 389. >35
HI. Constitutional Requirements and Policy Concerns
The conclusion that a particular provision of proposed legislation probably
would not be held unconstitutional by the courts is not equivalent to a determina­
tion that the legislation is constitutional per se. The judiciary is limited, properly,
in its ability to enforce the Constitution, both by Article Ill’s requirements of
jurisdiction and justiciability and by the obligation to defer to the political
branches in cases of doubt or where Congress or the President has special constitu­
tional responsibility.136 In such situations, the executive branch’s regular obliga­
tion to ensure, to the full extent of its ability, that constitutional requirements
are respected is heightened by the absence or reduced presence of the courts’
ordinary guardianship of the Constitution’s requirements. Furthermore, even where
on any view the letter of the Constitution is satisfied, the Constitution’s intention
to separate the federal government’s powers can appropriately be invoked as a
sound reason for objecting to legislation that undermines or imperils that separa­
135 See also Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges, 19 Op. O.L.C. 350
(1995); Constraints Imposed by 18 U.S.C. §1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-05 (1989); Prosecu­
tion fo r Contempt o f Congress o f an Executive Branch Official Who Has Asserted a Claim o f Executive Privilege,
8 Op. O .L.C. 101 (1984); Memorandum for Richard T. Burress, Office o f the President, from Laurence H. Silberman,
D eputy A ttorney G eneral, Re: Conflict o f Interest Problems Arising out o f the President's Nomination o f Nelson
A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974);
M emorandum for Egil Krogh, Staff Assistant to the Counsel to the President, from William H. Rehnquist, Assistant
Attorney G eneral, Re: Closing o f Government Offices in Memory o f Former President Eisenhower (Apr. 1, 1969).
136This last point is true not only with respect to true “ political questions,” i.e., constitutional issues the resolution
o f which is com m itted by the Constitution to (one of) the political branches, but also as to areas which, although
not absolutely insulated from judicial review, demand extraordinary judicial respect for the decisions o f a coordinate
branch. See, e.g.. United States v. Butenkot 494 R 2 d 593, 603, 605 (3d Cir.) (en banc) (broad presidential power
to order covert surveillance for foreign affairs and national security purposes does not “ justify completely rem oving”
judicial enforcem ent o f the Fourth Amendment; however, the “ strong public interest” in "the efficient operation
o f the E xecutive's foreign policy-making apparatus” should make a court “ wary o f interfering” ), cert, denied, 419
U.S. 881 (1974).
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The Constitutional Separation o f Powers Between the President and Congress
tion. The constitutional separation of powers, to make the point in a different
way, is a political as well as a legal principle.137
The Constitution demands of the executive and legislative branches alike an
“ ethic of institutional responsibility” in defending their respective roles in the
overall constitutional structure.138 For example, legislation that attempts to struc­
ture the very details of executive decision making, or that imposes onerous and
repetitive reporting requirements on executive agencies, is troubling from a separa­
tion of powers standpoint even if the individual statutes could not easily be de­
scribed in themselves as unconstitutional. The overall effects of such micro­
management for the constitutional separation of powers obviously can be tremen­
dous, and yet it is unlikely that judicial intervention can or would preserve the
constitutional balance. The executive branch thus has the primary responsibility
for presenting, in as forceful and principled a way as possible, the separation of
powers problems with all legislation that has such effects. In carrying out this
Office’s various roles in the Executive’s review of existing and proposed legisla­
tion, we intend to bear this obligation in mind, and we are pleased to be of assist­
ance to other components of the executive branch in their efforts to analyze, from
a policy standpoint as well as from a strictly legal perspective, the impact of
legislation on the constitutional separation of congressional and presidential pow­
ers.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
137 Justice Robert Jackson once wrote that “ [i]t is hard to conceive a task more fundamentally political than
to maintain amidst changing conditions the balance between the executive and legislative branches o f our federal
system. ” Robert H. Jackson, The Supreme Court in the American System o f Government 62 (1955).
138 See Richard A. Champagne, Jr., The Separation o f Powers, Institutional Responsibility, and the Problem o f
Representation, 75 Marq. L. Rev. 839, 844 (1992).
181