Administration of the Ronald Reagan Centennial Commission

Administration of the Ronald Reagan
Centennial Commission
The Ronald Reagan Centennial Commission should create an executive committee,
composed of its five presidentially appointed members, to discharge the purely execu-
tive functions of the Commission.
The six congressional members, in turn, could participate in nearly all of the Commis-
sion’s activities, including in ceremonial functions, and could advise the executive
committee on the formulation of programs that would be technically approved and
executed by non-congressional members.
May 7, 2010
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have forwarded to our Office a letter from four of the president-
ially appointed members of the Ronald Reagan Centennial Commission,
in which they request advice on a plan they have developed in order to
avoid the constitutional concerns raised by the composition of the Com-
mission under the Ronald Reagan Centennial Commission Act of 2009,
Pub. L. No. 111-25, 123 Stat. 1767 (the “Act”). See Letter for Robert
Bauer, Counsel to the President, from Peggy Noonan, John F.W. Rogers,
Frederick J. Ryan Jr., and Fred W. Smith, Re: Operation of the Ronald
Reagan Centennial Commission (Mar. 11, 2010) (“March 11 Letter”).
Under this plan, four of the presidentially appointed members of the
Commission, and all six congressional members, would vote to delegate
to the one other presidentially appointed member the responsibility to
exercise the Commission’s duties under section 3(1) of the Act. The
remaining ten members would then be limited to advisory and ceremonial
functions, and the eleventh, designated member would exercise all of
the Commission’s significant executive responsibilities. See Memoran-
dum on Implementation of the Ronald Reagan Centennial Commission
Act (“Implementation Memo”) at 3 (attached to March 11 Letter). You
have asked for our views of this proposal.
The proposal, at least in spirit if not in letter, well addresses the con-
cerns that we previously identified. We believe, however, that the pre-
cise form of the proposed solution requires some refinement in order to
ensure it conforms to the constitutional understandings on which it
appears to be premised and to avoid a potential statutory problem. Thus,
174
Administration of the Ronald Reagan Centennial Commission
we conclude that the Commission should instead follow the recommen-
dation this Office offered in a very similar context in its 1984 opinion
on Appointments to the Commission on the Bicentennial of the Consti-
tution—namely, to create an “executive committee,” composed of the
five presidentially appointed members, which “would be legally respon-
sible for discharging the purely executive functions of the Commission.”
8 Op. O.L.C. 200, 207 (1984) (“Constitution Bicentennial Commission”).
These functions would include determining which activities would be
“fitting and proper to honor Ronald Reagan on the occasion of the 100th
anniversary of his birth” and “plan[ning], develop[ing], and carry[ing]
out” such activities. Pub. L. No. 111-25, § 3(1). The six congressional
members, in turn, could “participate in nearly all of the Commission’s
activities,” including in ceremonial functions, and could advise the execu-
tive committee on “the formulation of programs that would be technically
approved and executed by non-congressional members.” Constitution
Bicentennial Commission, 8 Op. O.L.C. at 207. At the end of this memo-
randum, we briefly explain why this recommendation could be imple-
mented in a manner that would not violate the constitutional holding in
FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993).
I.
The Ronald Reagan Centennial Commission Act created an eleven-
member commission with responsibility to “plan, develop, and carry out
such activities as the Commission considers fitting and proper to honor
Ronald Reagan on the occasion of the 100th anniversary of his birth.”
Pub. L. No. 111-25, § 3(1). Six of the eleven commissioners are mem-
bers of Congress, appointed by congressional leadership. Id. § 4(a). Four
commissioners are appointed by the President, and the remaining com-
missioner is the Secretary of the Interior. Id.
As we explained in a memorandum concerning the constitutionality of
the bill before Congress enacted it, the inclusion of members of Congress
raises significant concerns under the Appointments Clause and the Ineli-
gibility Clause of the Constitution, and in light of the anti-aggrandizement
principle underlying the constitutional separation of powers. See Partici-
pation of Members of Congress in the Ronald Reagan Centennial Com-
mission, 33 Op. O.L.C. 193 (2009) (“Reagan Centennial Commission”).
175
34 Op. O.L.C. 174 (2010)
To ameliorate these concerns, we suggested that the bill be amended to
provide for designation of an executive branch official as the officer
responsible for considering the advice and recommendations of the com-
missioners and then “planning, developing and carrying out” the ceremo-
nial events. Congress did not make any such amendment, however. There-
fore, when he signed the bill into law President Obama stated that, in
order to implement the Act in a constitutional manner, “members of
Congress ‘w[ould] be able to participate only in ceremonial or advisory
functions of [the] Commission, and not in matters involving the admin-
istration of the act.’” Statement on Signing the Ronald Reagan Centennial
Commission Act, 2009 Daily Comp. Pres. Doc. No. 424, at 1 (June 2,
2009) (quoting Statement on Signing the Bill Establishing a Commission
on the Bicentennial of the United States Constitution (Sept. 29, 1983),
2 Pub. Papers of Pres. Ronald Reagan 1390, 1390 (1983)).
Four of the five presidentially appointed commissioners (all except the
Secretary of the Interior) have proposed the following plan to avoid the
constitutional problems we previously identified:
First, all Commissioners save one Presidentially appointed Commis-
sioner would elect—subject to their statutory rights—not to exercise
the powers set forth in § 3(1) of the Act. Second, the Commission
would carry out its planning and other functions up to the point of
execution, and then create a final plan in the form of a resolution.
Third, the Commission would transmit this resolution to the Presi-
dentially appointed member of the Commission who would be des-
ignated to exercise the § 3(1) power. That designated Commissioner
would evaluate and potentially execute the resolution as an Officer
of the United States.
Implementation Memo at 3.
II.
This proposal raises the following constitutional concern. The six con-
gressional members, along with four of the five presidentially appointed
members, would vote to delegate statutory duties to the remaining presi-
dentially appointed commissioner. Those duties would include all of the
statutory duties of the Commission, including those that may constitution-
176
Administration of the Ronald Reagan Centennial Commission
ally be exercised only by Commission members who were presidentially
appointed. The congressional members lack the authority to exercise the
significant executive authority that, under the proposal, they would pur-
port to confer on another member of the Commission.
To avoid this anomaly, and to reflect the allocation of authority the
Constitution requires, we believe the Commission should follow the
recommendation this Office offered in a comparable context in 1984, see
Constitution Bicentennial Commission, 8 Op. O.L.C. 200—namely, “to
create an executive committee composed of all [five of the Commission
members who are constitutionally eligible to exercise the duties of the
Commission] that would be legally responsible for discharging the purely
executive functions of the Commission,” id. at 207—including, in particu-
lar, determining which activities would be “fitting and proper to honor
Ronald Reagan on the occasion of the 100th anniversary of his birth,”
Pub. L. No. 111-25, § 3(1), and giving final approval to all executive
actions. The six congressional members, in turn, could “participate in
nearly all of the Commission’s activities,” could perform ceremonial
functions, and could advise the executive committee as to all of its func-
tions, including “the formulation of programs that would be technically
approved and executed by non-congressional members.” Constitution
Bicentennial Commission, 8 Op. O.L.C. at 207. Moreover, under this
approach the entire Commission, including the congressionally appointed
members, could also “provide advice and assistance to Federal, State, and
local governmental agencies, as well as civic groups to carry out activities
to honor Ronald Reagan on the occasion of the 100th anniversary of his
birth,” as section 3(2) of the Act authorizes, since such functions do not
raise the constitutional problems we have identified.
We do not think that the Commission’s establishment of such an “ex-
ecutive committee” would present the problem identified above. Con-
sistent with the President’s signing statement, and in order to avoid seri-
ous constitutional questions, we would construe the Act already to limit
the exercise of “the purely executive functions of the Commission,”
Constitution Bicentennial Commission, 8 Op. O.L.C. at 207, to the five
presidentially appointed commissioners who would constitute the “execu-
tive committee.” Cf. 58 Fed. Reg. 59,640 (Nov. 10, 1993) (reporting that
four days after a court of appeals had held that the presence of two ex
officio congressional appointees on the Federal Election Commission was
177
34 Op. O.L.C. 174 (2010)
unconstitutional, the FEC “reconstituted itself as a body of six voting
members”). Thus, there would be no purported “delegation” of significant
authority from congressionally appointed officers to presidentially ap-
pointed ones. This formal distinction, while effectively resulting in the
same allocation of functions to the congressional members as in the
proposal in the Implementation Memo submitted to you, would not pre-
sent the constitutional infirmities we discussed in our earlier memoran-
dum, or the anomaly described above. Instead, an executive committee
would simply exercise those functions that may be properly exercised
only by the presidentially appointed officers.
Moreover, because this course would involve no delegation of statutory
authority within the Commission, it would also avoid a potentially serious
statutory problem. The members’ proposal would call for a delegation of
the Commission’s statutory duties to a single member. Particularly in light
of section 4(h) of the Act, which provides that “[a] majority of the mem-
bers of the Commission shall constitute a quorum to conduct business, but
two or more members may hold hearings,” and the fact that the statute
contains neither a specific authority to delegate powers to Commission
members, see R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1334
(D.C. Cir. 1983) (citing 45 U.S.C. § 154 (1976)), nor a general rulemak-
ing authority from which certain delegation authorities might be inferred,
see Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 121
(1947), we do not see any obvious source of authority for the Commission
to delegate its powers to a subset (or one) of its members. That is another
reason why the better course would be for the Commission to create an
“executive committee,” consisting of the five presidentially appointed
members, to exercise the Commission’s statutory authorities. Were the
executive committee to consist of fewer than five members, it would raise
the issue of the statutory authority of the presidentially appointed mem-
bers to delegate some of their significant executive authority to that
smaller group. But so long as the executive committee consists of all
members entitled to exercise significant executive authority under the
Constitution, there would be no delegation of Commission duties and thus
no statutory problem.
178
Administration of the Ronald Reagan Centennial Commission
III.
Finally, the members who sent you the March 11 Letter appear to be
concerned (see Implementation Memo at 2) that adopting the “executive
committee” solution from our 1984 opinion could run afoul of FEC v.
NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993). The court in
that case declared invalid a section of the Federal Election Campaign Act,
2 U.S.C. § 437c(a)(1), which provided that the Secretary of the Senate and
Clerk of the House or their designees were to be members of the Federal
Election Commission “ex officio and without the right to vote.” The FEC
had argued that the presence of those members was constitutionally harm-
less because their only formal role was informational and advisory. The
court rejected this argument, reasoning that “the mere presence of agents
of Congress on an entity with executive powers offends the Constitution.”
6 F.3d at 827; see also Reagan Centennial Commission, 33 Op. O.L.C. at
199 & n.8.
But this case would be distinguishable in important respects from NRA
Political Victory Fund. As the United States explained in its brief to the
Supreme Court in that case, the statute at issue there compelled the FEC
“to afford the Secretary and Clerk an integral role in all its deliberative
processes. By participating as members in the FEC’s deliberations, the ex
officio agents give Congress the ability to express its views from within
the Commission on issues involving the execution and administration of
the FECA in specific cases and instances.” Brief for the United States as
Amicus Curiae at 18 –19, FEC v. NRA Political Victory Fund, 513 U.S. 88(1994); see also id. at 20 –21 (warning about the “lack of confidentiality”
and explaining that “[t]he prospect that these congressional employees
will report on FEC proceedings to Congress may cause the other members
to ‘temper candor with a concern for appearances and for their own inter-
ests to the detriment of the decisionmaking process’”) (quoting United
States v. Nixon, 418 U.S. 683, 705 (1974)); NRA Political Victory Fund,
6 F.3d at 827 (reasoning that entitling congressional agents to be present
during the confidential deliberations of the executive officials was analo-
gous to the compelled presence of nonvoting alternate jurors during jury
deliberations); Harold H. Bruff, The Incompatibility Principle, 59 Ad-
min. L. Rev. 225, 255–56 (2007) (“Although Congress opened many of
the deliberations of multi-member agencies like the FEC to public view
179
34 Op. O.L.C. 174 (2010)
through the Sunshine Act, the Act contains exceptions allowing confiden-
tial discussions, which would lose much of their efficacy if congressional
monitors were present for discussions among the Commissioners. . . . The
values underlying both executive privilege and the incompatibility princi-
ple suggest the need for some zone of privacy for executive deliberation.”
(footnote omitted)).
The Ronald Reagan Centennial Commission, by contrast, could imple-
ment our 1984 recommendation in a manner that does not raise these
concerns: The executive committee would simply choose to consult with
and receive advice from those members not serving on the executive
committee. Here, the executive committee alone would be responsible for
exercising significant executive authority, and no one other than the
presidentially appointed officers would be serving on that decision-
making body, thereby distinguishing this case from NRA Political Victory
Fund, in which the congressional agents were ex officio members of a
commission that was required to deliberate as a whole on its decisions. In
NRA Political Victory Fund, the congressional agents did not serve on a
body in which the decisional and advisory functions were segregated in
the manner that our 1984 memorandum suggested and that we recommend
to be the proper course here. Moreover, absent the particular problem
present in NRA Political Victory Fund, there is nothing constitutionally
problematic about members of Congress offering advice designed to
influence executive action, as the court in NRA Political Victory Fund
itself acknowledged. 6 F.3d at 827 (Congress “enjoys ample channels to
advise, coordinate, and even directly influence an executive agency,”
including by “direct communication with the [agency]”); see also Mistret-
ta v. United States, 488 U.S. 361, 408 (1989) (the Constitution “antici-
pates that the coordinate Branches will converse with each other on mat-
ters of vital common interest”).
MARTIN S. LEDERMAN
Deputy Assistant Attorney General
Office of Legal Counsel
180