Appointments to the Commission on the

Bicentennial of the Constitution

Presidential appointment of the C hief Justice of the United States to the Commission on the 

Bicentennial of the Constitution is consistent with the Appointments Clause, art. II, § 2, cl. 2, 

and, as applied to the unique circumstances of this Commission, with general separation of 

powers principles.

In addition, participation of the Chief Justice on the Commission would appear to be permissible 

under the Code o f Judicial Conduct.

M embers of Congress may participate on the Commission without violating the Appointments 

Clause or the Incompatibility Clause, art. I, § 6, cl. 2, if the Commission creates an executive 

committee to discharge the purely executive functions of the Commission, or if the noncongressional members determine that the Commission will not act unless a full majority, 

including the congressional members, approve.

August 31, 1984

M e m o r a n d u m Op in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

Some time ago we discussed whether there was some practical means for 

resolving the legal disputes that have arisen concerning the Commission on the 

Bicentennial of the Constitution. You suggested that we consider the matter 

and put any thoughts we might have in a memorandum to you. This follows 

through on that discussion.

I. Introduction

On September 29, 1983, the President signed S. 118, a bill that established 

the Commission on the Bicentennial of the Constitution (Commission). The 

statute authorized the Commission to plan and coordinate activities to celebrate 

the bicentennial of the Constitution and specifically included within the 

Commission’s powers, in addition to the generally advisory functions, certain 

clearly executive functions, such as carrying out a limited number of commemorative events and projects and the adoption of binding regulations governing use of the Commission’s logo. The statute vests the appointment of most 

of the members of the Commission in the President, but it also specifically 

designates as members, the Chief Justice of the Supreme Court, the President 

pro tempore of the Senate, and the Speaker of the House of Representatives. 

Because the members of the Commission are authorized to perform executive 

duties that may be performed only by Officers of the United States, this Office

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concluded that the statutory designations were improper under the Incompatibility and Appointments Clauses of the Constitution. This position is one that 

has been taken by President Reagan and many of his predecessors on innumerable occasions under similar circumstances. Moreover, in an analogous context, the Senate Judiciary Committee recently expressed its appreciation for, 

and agreement with, our Appointments Clause objections to legislation that 

purports to vest in Congress the power to designate persons to serve on a 

commission that is given Executive functions:

The Appointments Clause requires that individuals with executive responsibilities must be appointed by the President with the 

advice and consent of the Senate, or if authorized by Congress, 

by the President alone, the courts or the heads of departments. 

Buckley v. Valeo, 424 U.S. 1, 124—41 (1976). Inasmuch as the 

Committee intended the Commission to initiate and conduct 

commemorative activities, and to avoid any constitutional questions, the Committee has amended S. 500 to give the President 

full authority over all appointments. This will ensure that the 

Commissioners will be appointed in accordance with the Constitution and remove any doubt about the Commission’s ability 

to plan, sponsor, and conduct such activities as it deems appropriate.

S. Rep. No. 194, 98th Cong., 1st Sess. 2 (1983) (referring to the Commission 

charged with planning, encouraging, coordinating, and conducting the Christopher Columbus Quincentenary Jubilee).

In a statement he issued at the time he signed S. 118, the President articulated 

the constitutional conclusions that had been raised by this Office:

I welcome the participation of the Chief Justice, the President 

Pro Tempore of the Senate, and the Speaker of the House of 

Representatives in the activities of the Commission. However, 

because of the constitutional impediments contained in the Doctrine of the Separation of Powers, I understand that they will be 

able to participate only in ceremonial or advisory functions of 

the Commission, and not in matters involving the administration 

of the Act. Also, in view of the Incompatibility Clause of the 

Constitution, any Member of Congress appointed by me pursuant to Section 4(a)(1) of this Act may serve only in a ceremonial 

or advisory capacity.

I also understand that this Act does not purport to restrict my 

ultimate responsibility as President for the selection and appointment of Members of the Commission, under Article 2,

Section 2, Clause 2, of the Constitution.

Senator Hatch apparently disagreed with the legal conclusions contained in the 

President’s signing statement and asked the Congressional Research Service

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(CRS) to review the President’s objections to the structure of the Commission. 

The CRS memorandum supported, to a certain extent, the viewpoint of Senator 

Hatch. Senator Hatch forwarded that memorandum both to Edwin Meese, III, 

Counselor to the President, and to the Attorney General. This Office prepared a 

response to the CRS memorandum (which we have previously sent to you) in 

which we reviewed the issues raised by the CRS and concluded that our 

original opinion with respect to the Commission was correct and that the CRS 

memorandum was in error.

The establishment of the Commission has remained a controversial issue, 

and the President has not yet appointed the members of the Commission. A 

conflict continues to persist between what we believe to be the clear requirements of the Constitution and the understandable desires of certain members of 

the Legislative and Judicial Branches to participate in the commemoration of 

the document that created all three branches of government.

This memorandum suggests some potential practical means for resolving the 

conflict. First, the memorandum considers the legality of the President appointing the Chief Justice as a member of the Commission. If such an appointment 

were permissible, the Appointments Clause problems arising from Congress’ 

attempt to make the appointment might be avoided, and the Chief Justice might', 

then be eligible to participate in all aspects of the Commission’s activities, 

including those of an executive nature. Second, we make some suggestions 

concerning how the Commission might be structured in order to avoid the 

Incompatibility and Appointments Clause problems with respect to potential 

congressional members of the Commission.

II. Presidential Appointment of the Cihiieff Justice to tlhe Cbmmissioini

A. Constitutional Considerations

1. The Appointments Clause

It seems apparent that there would be no Appointments Clause problems if 

the President himself appointed the Chief Justice as one of the regular members 

of the Commission. Even if, as we have concluded, members of the Commission are Officers of the United States who must be appointed pursuant to the 

Appointments Clause, a direct Presidential appointment would satisfy the 

requirements of that Clause. The Appointments Clause contains no direct 

prohibitions against the appointment of any particular individuals to serve as 

Officers of the United States; it simply requires a certain procedure for appointing such Officers. See U.S. Const, art. II, § 2, cl. 2. Presidential appointment of 

the Chief Justice would satisfy this procedure.1

1 The Incom patibility C lause would present no problem with respect to Presidential appointment of the 

C hief Justice. By its express terms, the Incom patibility Clause applies only to M embers o f Congress. See U.S. 

Const, art. I, § 6, cl. 2. Thus, under the principle that expressio unius est exctusio alterius, the absence o f any 

reference to the judiciary in the Incompatibility Clause suggests that there is no absolute constitutional bar to 

the appointm ent o f judges to positions th at may be filled only by Officers o f the United States.

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Although the Appointments Clause would not bar appointment of the Chief 

Justice in this instance, the more general principles of the separation of powers 

may have more relevance to this issue. In this context, the basic separation of 

powers issue is whether appointment of the Chief Justice to an Executive 

Branch position would disrupt the separation of functions that the Framers 

intended to build into the structure of the federal government. The separation of 

powers doctrine generally requires a careful balancing of the potential impact 

of a given action on the constitutional powers of each branch. See, e.g., Nixon

v. Administrator o f General Services, 433 U.S. 425 (1977).

With respect to the issue of performance of executive functions by a judge, 

the Supreme Court has made it clear that Congress may not require a court to 

perform nonjudicial functions. In H aybum ’s Case, 2 U.S. (2 Dali.) 409 (1792), 

the Supreme Court appended to its decision an opinion of Chief Justice Jay, 

Justice Cushing, and a district judge sitting as a circuit court, in which they 

made the following Findings in ruling that Congress could not assign nonjudicial 

duties to courts:

That by the Constitution of the United States, the government 

thereof is divided into three distinct and independent branches, 

and that it is the duty of each to abstain from, and to oppose, 

encroachments on either.

That neither the Legislative nor the Executive branches, can 

constitutionally assign to the Judicial any duties, but such as are 

properly judicial, and to be performed in a judicial manner.

2 U.S. (2 Dali.) at 410 n.*. This decision has subsequently been recognized by 

the Supreme Court as establishing the principle that courts could not be 

required to perform nonjudicial functions that would then be subject to review 

and revision by the Executive or Legislative Branches. See Muskrat v. United

States, 219 U.S. 346, 352 (1911); United States v. Ferreira, 54 U.S. 40,50-51 

(1851).

This principle is not implicated in this matter, however, because the Chief 

Justice would not be required to perform nonjudicial functions, but rather 

would voluntarily accept an appointment to a nonjudicial office. Moreover, the 

Chief Justice would not be performing executive functions in his role as a 

judge, but rather would be holding two separate appointments, one of which 

was judicial, the other, executive. Thus, the issue is whether the Chief Justice 

may voluntarily accept this additional appointment.

Although, as far as we know, no court has ever ruled on this question, the 

Attorney General has on several occasions issued opinions upholding the right 

of the President to appoint members of the judicial branch to other government 

positions. See 40 Op. Att’y Gen. 423 (1945); 22 Op. Att’y Gen. 184 (1898). In 

the former instance, Attorney General Clark concluded that a judge of the

2. The Separation of Powers

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United States Court of Appeals could continue in that position while serving at 

the request of the President, and without compensation, as an alternate judicial 

member of the International Military Tribunal established for the trial of 

persons charged with war crimes. Attorney General Clark concluded:

There is no express prohibition against Federal judges performing other services of a general character for the Federal Government. On the contrary, it is a well established practice for the 

President to secure the services of Federal judges in connection 

with various matters. The practice arose along ago. Chief Justice 

Jay served as special envoy to England at the request of the 

President. . . and Chief Justice Fuller twice acted as an arbitrator of international disputes ....

40 Op. Att’y Gen. at 424. Although none of the examples cited and approved 

by the Attorney General involved the performance by judges of executive 

duties that may be performed only by an Officer of the United States, there are 

examples of such appointments, particularly during World War II when, for 

example, Judge John C. Collet served as Director of Economic Stabilization. 

See 32 A.B.A. J. 682 (1946). In addition, judges have frequently undertaken 

diplomatic missions, and during this Administration, Chief Judge Irving R. Kaufman 

of the United States Court of Appeals for the Second Circuit was appointed to serve 

as Chairman of the President’s Commission on Organized Crime.

Such actions have not, however, gone uncriticized. In 1947, the Senate 

Judiciary Committee issued a report that questioned the propriety of appointing 

members of the judiciary to nonjudicial posts. S. Exec. Rep. No. 7, 80th Cong., 

1st Sess. (1947) (reprinted in 33 A.B.A. J. 792 (1947)). The Committee raised 

the following general objection:

If it becomes common to expect Executive appointments, judges 

may slip into that frame of mind which seeks promotional 

opportunity at the hand of the Executive and the quality of the 

judicial character may be impaired. This could take on an ugly 

political tinge if judges came to see in the Executive appointment a chance to advance themselves politically or a chance to 

aid the Chief Executive politically.

33 A.B.A. J. at 793. The Committee went on to list a series of specific problems 

that might result from appointment of judges to executive positions:

1. Reward may be conferred or expected in the form of 

elevation to a higher judicial post.

2. The judicial and Executive functions may be improperly merged.

3. The absence of the judge from his regular duties increases 

the workload of the other judges of the Court, if any, and may 

result in an impairment of judicial efficiency in the disposition 

of cases.

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4. Nonjudicial activities may produce dissension or criticism 

and may be destructive of the prestige and respect of the federal 

judiciary.

5. A judge, upon resumption of his regular duties, may be 

called upon to justify or defend his activity under an Executive 

commission.

Id. at 795. We believe that these are appropriate factors to be evaluated in 

assessing the impact of an appointment on the constitutionally prescribed 

separation of powers.

In this particular case, consideration of these factors supports the conclusion 

that appointment of the Chief Justice (or other members of the judiciary) to the 

Commission on the Bicentennial of the Constitution would not be inconsistent 

with separation of powers principles. First, given the position of the Chief 

Justice and the nature of this particular Commission, the appointment would 

not generally be regarded as a reward or, conversely, further reward would not 

be expected as a result of service on the Commission. Second, because the 

executive functions of the Commission are relatively insubstantial, there seems 

little danger of improperly merging the judicial and executive functions. Third, 

the work of the Commission is unlikely to draw the Chief Justice’s attention 

away from the duties of his work on the Court to any material extent. Fourth, 

the relatively noncontroversial responsibilities of the Commission are unlikely 

to create dissension or criticism that would affect the prestige of the Court or 

the federal judiciary. Fifth, the Commission’s activities are unlikely to result in 

actions that would later be subject to review by the Court. Finally, a Commission to plan the celebration of the two- hundredth anniversary of the Constitution is an entity that seems peculiarly suited to some participation by representatives of all three branches of government and is less likely than other types of 

entities to be considered a broad precedent.

An analysis of these factors therefore suggests that the appointment would 

not be inconsistent with the Constitution. Nevertheless, the general concerns 

that underlie the constitutional issue are significant enough to raise serious 

policy questions concerning the appropriateness of judicial appointments to 

executive positions in other circumstances. The considerations suggested by 

the Senate report are legitimate; the appointment of judges to Executive Branch 

positions is generally not a prudent policy. Thus, even though this particular 

appointment may be entirely appropriate, there is some risk that this appointment would be cited in some quarters as a precedent for future appointments 

with respect to which the problems may be greater.

B. Statutory Questions

The only statutory issue that might be raised by the appointment of a judge to 

an additional position in the federal government would involve the Dual 

Compensation Act, 5 U.S.C. § 5533, which prohibits a person from receiving

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compensation for more than one position with the federal government. In this 

case, however, because membership on the Commission involves no remuneration, no problem exists under this particular statute.

C. The Code o f Judicial Conduct

Canon 5(G) of the Code of Judicial Conduct for United States Judges is also 

relevant to the issue discussed in this memorandum. The Canon states:

Extra-judicial Appointments. A judge should not accept appointment to a governmental committee, commission, or other 

position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or 

the administration of justice, unless appointment of a judge is 

required by Act of Congress. A judge should not, in any event, 

accept such an appointment if his governmental duties would 

interfere with the performance of his judicial duties or tend to 

undermine the public confidence in the integrity, impartiality, or 

independence of the judiciary. A judge may represent his country, state, or locality on ceremonial occasions or in connection 

with historical, educational, and cultural activities.

The Code was adopted by the Judicial Conference of the United States in 1973. 

It is interpreted for the judiciary by the Advisory Committee on Judicial 

Activities. As we have stated before, in view of the existence of this Committee, and in view of the autonomy of the judiciary in matters concerning the 

propriety of judicial conduct, this Office cannot issue authoritative pronouncements concerning the applicability of the Code in the circumstances presented 

by this case. Nevertheless, we can offer our views with respect to what we 

perceive to be the apparent meaning of this provision.

We believe that participation of the Chief Justice on the Commission of the 

Bicentennial of the Constitution would not be inconsistent with Canon 5(G). 

First, it seems clear that the Commission’s activities, because they involve 

celebration of, and education regarding, our fundamental legal charter, relate to 

a certain extent to “the legal system” and the “administration of justice.” 

Moreover, participation on the Commission also seems to involve representation of the country “in connection with historical, educational, and cultural 

activities.” In addition, participation on the Commission is unlikely to impose 

significant time demands on the Chief Justice or to involve the Court in an 

“extra-judicial matter that may prove to be controversial,” which are the 

principal concerns underlying the Canon. See Commentary to Canon 5(G). 

Finally, full participation in the executive functions of the Commission would 

pose no greater problems with respect to Canon 5(G) than would participation 

as an advisory member, which the President interpreted the statute to mandate. 

Therefore, we believe that the President’s appointment of the Chief Justice to 

the Commission would not pose a problem under Canon 5(G).

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D. Conclusion

In sum, we believe that there are no legal obstacles to Presidential appointment of the Chief Justice to the Commission. Such an appointment would be 

permissible under the Constitution, current statutory law, and, at least as we 

read it, the Code of Judicial Conduct.

III. Practical Solutions to the Incompatibility Clause Problem

We have also explored the possibility of various structural arrangements 

within the Commission that might be designed to respect the Incompatibility 

Clause requirements of the Constitution,2 but at the same time enable congressional members of the Commission to play a significant role in the Commission’s 

work. We have two general suggestions, both of which involve significant and 

meaningful participation by congressional members, but in a technical advisory capacity.

A. Establishment o f an Executive Committee to Handle Executive Duties

The Commission might wish to create an executive committee composed of 

all non-advisory members of the Commission that would be legally responsible 

for discharging the purely executive functions of the Commission. These 

functions would include official approval of any binding regulations, signing 

legal instruments, and the technical responsibility for implementation of the 

commemorative events that the Commission is authorized to undertake itself. 

The full Commission would conduct meetings and do all the other things 

contemplated for the Commission, and the executive committee could finally 

approve all executive actions. This approach would separate the purely executive functions from the advisory functions that the Commission will perform 

and would allow all members of the Commission to participate in nearly all of 

the Commission’s activities, including the formulation of programs that would 

be technically approved and executed by non-congressional members.

B. Establishment o f a Special Advisory Committee to the Commission

The Commission, without the congressional members voting, could decide 

that it would not act unless a full majority of the Commission, including the 

congressional members, approved. Technically the non-congressional members, i.e., those who were “officers” of the United States, could also reverse a 

Commission decision reached in this way, but we suspect such a contingency 

would be extremely unlikely.

2 A sim ilar problem is raised by the Ineligibility Clause, which provides in part that no “Senator or 

Representative shall, during the Time for which he was elected, be appointed to any civil O ffice under the 

Authority o f the United States, which shall have been created, or the Emoluments whereof shall have been 

increased during such time." U.S. Const, art. I, § 6, cl. 2.

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Both of these concepts are quite general and the details would have to be 

more fully developed. There may be problems that we have not anticipated, but 

we think that both of the above proposals could be implemented in such a way 

so as to resolve the technical legal problems with respect to establishment of 

the Commission. In fact, some combination of the alternatives could be considered which would accommodate the interests, enthusiasm, expertise, and support from the congressional members without contravening the Incompatibility 

Clause.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office o f Legal Counsel

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