Status of the United States Postal Service as an “Executive

Agency” Under Executive Order No. 12,250

In light of the statutory independence given the United States Postal Service (Service) 

and its officers, Executive Order No. 12,250 should not be construed to include the 

Service as an “Executive agency” subject to the Attorney General’s nondiscrimination 

coordination authority.

July 29, 1981

MEMORANDUM OPINION FOR THE ACTING ASSISTANT 

ATTORNEY GENERAL, CIVIL RIGHTS DIVISION

You have requested the views of this Office with respect to the 

question whether the United States Postal Service (Service) is an “Executive agency” within the meaning of Executive Order No. 12,250, 45 

Fed. Reg. 72,995 (1980). For the reasons that follow, we believe that 

the order should not be construed to include the Postal Service as such 

an agency, notwithstanding the considerable authority of the President 

and the Attorney General over the litigating activities of the Service.

Under 42 U.S.C. § 2000d-l and 20 U.S.C. § 1682, the President has 

been granted broad powers to approve the rules, regulations, and 

orders of general applicability relating to racial, sex, and other forms of 

discrimination. Executive Order No. 12,250 delegates these powers to 

the Attorney General. At the same time, the order grants the Attorney 

General authority to “coordinate the implementation and enforcement 

by Executive agencies of various nondiscrimination provisions of” a 

variety of laws banning discrimination on grounds of race, color, national origin, handicap, religion, or sex. The Attorney General is required, for example, to develop standards and procedures for taking 

enforcement actions and conducting investigations; to promulgate 

guidelines for establishing time limits on enforcement activities; to implement a schedule for review of the agencies’ regulations; to establish 

guidelines for development of consistent recordkeeping and reporting 

requirements and for sharing of information; and to initiate cooperative 

programs between and among agencies in order to improve the coordination of the covered laws. Under the order, each executive agency is 

required to cooperate with the Attorney General in performing its 

functions by furnishing requested information and submitting plans for

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the implementation of its responsibilities under the order. The order 

offers no definition of the “Executive agencies” that it covers.

This Office has recently discussed the “uneasy and unresolved tension between the dependent and independent aspects of the new 

[Postal] Service,” Leonard v. United States Postal Service, 489 F.2d 814, 

815 (1st Cir. 1974). See Memorandum of June 15, 1979, for the Assistant 

Attorney General, Civil Division, from Leon Ulman, Deputy Assistant 

Attorney General, Office of Legal Counsel.1 We summarize that discussion here. After passage of the Postal Reorganization Act of 1970 

(Act), 39 U.S.C. § 101 et seq., the Postal Service was categorized as “an 

independent establishment of the executive branch of the Government. . . .” 39 U.S.C. § 201. The Act provides for a bipartisan Board 

of Governors who are removable by the President only for cause. 

§ 202(c). Moreover, the Postmaster General and the Deputy Postmaster 

General are appointed and removable, not by the President, but by the 

Board of Governors. § 202(c), (d).

An agency directed by a board of governors and by chief executive 

officers who are not freely removable by the President is not “within” 

the Executive Branch of the government as that term is ordinarily 

understood. After Myers v. United States, 272 U.S. 52 (1926), it is plain 

that purely executive officers must be appointed by the President, and 

removable at his will. Under the Act, by contrast, Congress did not 

intend Postal Service officials to have that status. The relevant committee report states that the Service was to be removed from the President’s Cabinet and from the ordinary political process, see H.R. Rep. 

No. 1104, 91st Cong., 2d Sess. 6, 12-13 (1970), and that the Board was 

to act as a buffer between management of the Service and the possible 

influence of partisan politics. In this way, the statute was designed to 

remove “the day-to-day management of the Postal Service from both 

Presidential and Congressional areas of concern while still leaving the 

Postal Service subject to [their] broad policy guidance.” Id. at 13.

For purposes of the present inquiry, we need not say whether the 

President possesses the constitutional or statutory authority to subject 

to the control of the Attorney General the activities of the Postal 

Service in the nondiscrimination area. There is a substantial argument 

that such control would constitute “broad policy guidance” of the sort 

permitted by the Act. The question here, however, is not one of 

presidential authority, but of the intent underlying the order.2

In light of the peculiar status of the Postal Service, we do not believe 

that the Service should be understood to be included as an “Executive 

agency” within the meaning of the order. The Service is not defined as 

such an agency under the Administrative Procedure Act, see 5 U.S.C.

1 In that memorandum, we concluded that, as a general matter, the Attorney General has the power 

to control litigation involving the Service

2 Nor need we say which of the statutes covered by the order is applicable to the Postal Service.

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§§ 103-105. Moreover, both the Act and its history reveal that Congress intended to grant the Service at least some measure of insulation 

from control by the President and to place the Service in a separate 

category from the conventional executive departments. See Leonard v. 

United States Postal Service, 489 F.2d 814. In light of that unequivocal 

intent, we believe that, if the President intended to include the Postal 

Service under an executive order granting both substantive and procedural authority to the Attorney General, an explicit statement to that 

effect would ordinarily be expected.3 Since Executive Order No. 12,250 

contains no such explicit statement, but instead refers to “Executive 

agencies” generally, we interpret the order as not subjecting the Service to the Attorney General’s coordination authority.

L a r r y L . S im m s

Deputy Assistant Attorney General

Office o f Legal Counsel

3 We note in addition that in a memorandum on Executive Order No. 12,250 prepared before the 

order was signed or drafted in finaJ form, this Office referred to the difficult legal problems that 

would arise if the order were applied to the so-called “independent” agencies. We have understood 

the failure to respond to this concern as an indication that the independent agencies were not intended 

to be included.

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