Statute Limiting the President’s Authority to Supervise the

Director of the Centers for Disease Control in the Distribution of an

AIDS Pamphlet

Statutory provision requiring the Director o f the Centers for Disease Control to distribute an AIDS 

inform ation pam phlet to the public “without necessary clearance of the content by any official, 

organization or office” violates the separation o f powers by unconstitutionally infringing upon the 

President’s authority to supervise the executive branch.

March 11, 1988

M e m o r a n d u m O p 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

This memorandum responds to your request that this Office comment on the 

constitutionality of a provision found in H.J. Res. 395 (the fiscal 1988 Continuing Resolution), which purports to require the Director of the Centers for Disease Control (“CDC”) to arrange for the mass mailing of AIDS information fliers, 

free from any executive branch supervision. For the reasons set forth below, we 

believe that this provision violates the separation of powers by unconstitutionally infringing upon the President’s authority to supervise the executive branch.1

I. Background

The provision in question is found at page 22 of the “Departments of Labor, 

Health and Human Services, and Education, and Related Agencies Appropriation Act,” one of the appropriations measures subsumed within H.J. Res. 395. 

That provision requires “[t]hat the Director [of the CDC] shall cause to be distributed without necessary clearance of the content by any official, organization

or office, an AIDS mailer to every American household by June 30,1988, as approved and funded by the Congress in Public Law 100-71” (emphasis added).2

1 This memorandum is confined to the constitutional illegitimacy of this provision’s restriction on the President’s exercise o f his supervisory powers. Accordingly, this memorandum does not address the constitutionality of 

the provision’s establishment of a June 30, 1988, deadline for the mailing of AIDS fliers. See text of provision, infra, main text.

2 The provision’s legislative history suggests that congressional concern over White House delays in authorizing the mailing o f AIDS fliers by the CDC led to passage of the provision under scrutiny in this memorandum. The 

Senate Appropriations Committee Report accompanying the fiscal 1988 Departments of Labor, Health and Human 

Services, and Education and Related Agencies Appropriations Bill stated* “The Committee is greatly concerned 

that the $20,000,000 provided by the Committee in the 1987 supplemental for an every-household mailing has been 

delayed by the White House The Committee believes that this is an important initiative as recommended by the

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The CDC is a subordinate executive branch agency within the Public Health 

Service of the Department of Health and Human Services (“HHS”).3 On its face, 

the language highlighted above (“shall cause to be distributed without. . . clearance of the content by any official”) appears to preclude the President and his 

subordinates from overseeing the CDC ’ s determination of the content of the AIDS 

mailer. This language thus prevents the President, either directly or through his 

subordinates, from supervising a subordinate executive branch official (the CDC 

Director) in the conduct of certain of his duties (viz., the dissemination of specified AIDS-related information to the public), trenching upon the President’s exclusive constitutional authority to supervise the executive branch. See U.S. Const, 

art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United 

States of America.”).4

II. Discussion

A. The Nature o f the Unitary Executive

As head of a unitary executive, the President controls all subordinate officers 

within the executive branch. The Constitution vests in the President of the United 

States “The executive Power,” which means the whole executive power. Because 

no one individual could personally carry out all executive functions, the President delegates many of these functions to his subordinates in the executive branch. 

But because the Constitution vests this power in him alone, it follows that he is 

solely responsible for supervising and directing the activities of his subordinates 

in carrying out executive functions. Any attempt by Congress to constrain the 

President’s authority to supervise and direct his subordinates in this respect, violates the Constitution.

2 (. . continued)

CDC and the Department [of Health and Human Services], and bill language has been included mandating this 

mailing by February 15, 1988.” S. Rep No 189, 100th Cong., 1st Sess. 70 (1987). (The mailing deadline date was 

changed to June 30,1988, in the final Continuing Resolution.) Reflecting this concern, the amended version of the 

Labor and Related Agencies Appropriations Bill, reported by the Appropriations Committee and debated by the 

full Senate on October 13,1987, contained language requiring CDC to distribute AIDS mailers “without necessary 

clearance of the content by any official, organization or office.” See 133 Cong Rec. 27,372 (1987).

3 The CDC was established by the Secretary of HHS pursuant to his authority under section 301 of the Act of 

July 1, 1944, as amended, 58 Stat. 691 (1944) (codified at 42 U.S.C § 241). That section authorizes the Secretary 

of HHS to “conduct in the [Public Health] Service . . . research, investigations, experiments, demonstrations, and 

studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man.” 42 U.S.C § 241(a). The CDC was organized as the “Communicable Disease Center” in the 

1950s, and redesignated the CDC in 1970. See 35 Fed. Reg 10,797 (1970). The CDC was given full “agency status” in 1973. See 38 Fed. Reg. 18,261(1973). The CDC was reorganized in 1980. See 45 Fed. Reg. 67,772 (1980).

4 Since the provision in question, on its face, precludes supervision of the CDC Director “by any official, organization or office,” the question arises whether the President himself is an “official, organization or office” within 

the meaning of the statute. Even assuming that the President himself is deemed to be neither an “official” (a strained 

interpretation, since the President certainly exercises “official” functions m carrying out his duties, such as the duty 

to “lake Care that the Laws be faithfully executed”) nor an “organization” nor an “office,” the provision at issue is 

constitutionally impermissible, in that it effectively eviscerates the President’s ability to supervise a subordinate 

executive branch agency, the CDC. Since even under this construction the terms “official," “organization,” and “of48
B. Evidence of Original Intent

Evidence of the framers’ original intent demonstrates that the Constitution was 

designed to vest the whole executive power in the President.5 The framers purposefully chose a unitary executive approach over a more traditional alternative. 

Influenced by the British model, in which ministers were held responsible for the 

acts of an unimpeachable monarch, most of the original states inhibited their governors’ power by forcing them to act through, or in cooperation with, some form 

of privy council or constitutional cabinet. See The Federalist No. 70 (Alexander 

Hamilton) (Clinton Rossitered., 1961) (“The Federalist”). This device was carefully considered and deliberately rejected by the Federal Convention. The question of the proper disposition of the executive power in the new Constitution provoked a lengthy explication in several numbers of the The Federalist.

The two main reasons for adopting a truly unitary executive in the new Constitution were complementary and mutually reinforcing. On the one hand, unity 

obviously promotes dispatch and decisiveness, which is of far greater importance 

in the executive than in either of the other branches. As Hamilton pointed out:

In the legislature, promptitude of decision is oftener an evil than 

a benefit. The differences of opinion, and the jarring of parties in 

that department of the government, though they may sometimes 

obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.. . . But 

no favorable circumstances palliate or atone for the disadvantages 

of dissention in the executive department. . . . They serve to embarrass and weaken the execution of the plan or measure to which 

they relate, from the first step to the final conclusion of it.

4 (... continued)

flee” certainly encompass all officers of the executive branch other than the President, the President would be precluded from assigning supervision of the CDC’s AIDS mailer activities to any of his subordinates Wholly apart 

from the fact that limitations on the President’s time would prevent him personally from overseeing the CDC’s 

AIDS-related functions, such a preclusion would intolerably denude the President of his constitutional prerogative 

to establish the means by which his supervisory authonty is to be exercised As this Office has opined, the mere 

fact that Congress places particular executive functions in specified executive branch agencies does not preclude 

the President from exercising general supervisory authority with regard to those functions through his agents, such 

as the Office of Management and Budget See Proposed Executive Order Entitled "Federal Regulation”, 5 Op 

O L.C. 59, 63-64 (1981). Yet the statutory provision at issue would bar him from assigning supervision of the 

CDC’s AIDS mailer to any other individual or entity within the executive branch. (For example, even assuming the 

President himself is not covered by this statute, he could not assign supervision of the CDC’s AIDS mailer activities to his subordinates within the White House Office, since the term “office” would appear to apply to that entity. 

Buttressing this conclusion is the fact that the Senate’s concern about “White House delays” {see supra note 2) apparently prompted adoption of the statutory provision under scrutiny.) In sum, even if the President is not personally covered, the effective result of this statutory provision would be an infringement on the President’s supervisory authonty vis-a-vis CDC’s AIDS mailer activities.

5 Our discussion of the Framers’ original intent with respect to the unitary executive does not purport to be exhaustive, but illustrative. For a fuller discussion of the issue, see Myers v United States, 272 U.S. 52 (1926).

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The Federalist No. 70, at 426-27 (Alexander Hamilton). Even more important in 

Hamilton’s view, however, unity in the executive promotes accountability, which 

is the necessary flip side of decisiveness. As Hamilton pointed out, the more that 

the executive power is watered down and distributed among various persons, the 

easier it is for everyone concerned to avoid the blame for bad actions taken or for 

desirable actions left undone.

At the Pennsylvania ratifying convention, James Wilson offered the same view 

of the advantages of a unitary executive:

The next good quality that I remark is, that the executive authority is one. . .. The executive power is better to be trusted when it 

has no screen. . . . We secure vigor. We well know what numerous executives are. We know there is neither vigor, decision, nor 

responsibility, in them. Add to all this, that officer is placed high, 

and is possessed of power far from being contemptible, yet not a 

single privilege is annexed to his character; far from being above 

the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.

2 Elliot’s Debates 480.

The Framers were under no illusions that vesting the executive power in a single person would suffice to accomplish the goals they had in mind when they 

chose a unitary executive. They believed that the nature of popular government 

is such that legislative tyranny is the danger most to be feared: as Madison noted, 

legislatures inevitably seek to draw “all power into [their] impetuous vortex.” 

The Federalist No. 48, at 309 (James Madison). Alexander Hamilton explained 

this tendency as follows: “The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition 

from any other quarter; as if the exercise of its rights, by either the executive or 

judiciary, were a breach of their privilege and an outrage to their dignity.” The 

Federalist No. 71, at 433.

The constitutional remedies for what Madison called “this inconveniency” 

(The Federalist No. 51, at 322) (James Madison) included the devices of bicameralism and the presidential veto. But human nature being what it is, the framers 

anticipated that the legislature would inevitably seek and find new devices for 

encroaching on the other branches and for trying to make those other branches 

its servants. The only way to prevent this from happening was to arm the President and encourage him to fight against it:

[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who 

administer each department the necessary constitutional means

50
' and personal motives to resist encroachments of the others. . . . 

Ambition must be made to counteract ambition.

The Federalist No. 51, at 321-322 (James Madison) (emphasis added). See also

INS v. Chadha, 462 U.S. 919,951 (1983) (“The hydraulic pressure inherent within 

each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”).

The fundamental need for the President to have firm control over the conduct 

of his executive branch subordinates was recognized by the First Congress when 

it debated whether he had the inherent power to remove those subordinates from 

office. In the course of an extended debate in the House of Representatives, numerous Congressmen articulated the reasons for leaving the President the means 

of remaining master in his own house. See 1 Annals of Cong. 462-584 (1789). 

For example, James Madison said:

Vest [the power of removal] in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the Executive department .... If the President 

should possess alone the power of removal from office, those who 

are employed in the execution of the law will be in their proper 

situation, and the chain of dependence be preserved__ The powers relative to offices are partly Legislative and partly Executive.

The Legislature creates the office, defines the powers, limits its 

duration, and annexes a compensation. This done, the Legislative

power ceases.

Id. at 499,581-82 (emphasis added). Mr. Boudinot of New Jersey described what 

would happen if the President could not unilaterally dismiss his subordinates:

[W]hat a situation is the President then in, surrounded by officers 

with whom, by his situation, he is compelled to act, but in whom 

he can have no confidence, reversing the privilege given him by

the Constitution, to prevent his having officers imposed upon him 

who do not meet his approbation?

Id. at 469 (emphasis added). Mr. Sedgwick of Massachusetts said:

Shall a man . . . be saddled upon the President, who has been appointed for no other purpose but to aid the President in performing certain duties? . . . If he is, where is the responsibility? Are 

you to look for it in the President, who has no control over the of51
ficer, no power to remove him if he acts unfeelingly or unfaithfully?6

Id. at 522-23.

In short, the Framers believed that the President should enjoy exclusive authority to supervise his subordinates in carrying out executive functions, free from 

interference by the other branches.

C. Case Law Precedents

Supreme Court jurisprudence supports the proposition that the President should 

enjoy full power to supervise his subordinates in carrying out executive branch 

functions. For example, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 

(1803), Chief Justice Marshall stated:

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of 

which he is to use his own discretion, and is accountable only to 

his country in his political character, and to his own conscience.

To aid him in the performance of these duties, he is authorized to 

appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may 

be entertained of the manner in which executive discretion may 

be used, still there exists, and can exist, no power to control that 

discretion.

The extent of the President’s right to control subordinate officers was specifically considered by the Supreme Court in a trilogy of cases involving the President’s power to remove federal officials. In Myers v. United States, 272 U.S. 52 

(1926), the Court ruled unconstitutional a statute that limited the President’s 

power to remove certain postmasters, and it declared, in dictum, that the repealed

6 Admittedly, this debate was not entirely one-sided. Some Members of Congress argued that the Senate must 

consent to the President’s removal of particular subordinates. For example, Mr. Jackson o f Georgia argued against 

allowing officers of the executive departments to be “mere creatures of the President,” on the ground that such a 

result would cause executive “ministers [to] obtrude upon us to govern and direct the measures of the Legislature, 

and to support the influence of their master.” Id at 487 Mr. White of Virginia maintained that the President’s 

claimed power to remove executive officers “ is a doctrine not to be learned in American Governments; is no part 

of the Constitution of the Union.” Id at 513. Nevertheless, the point of view articulated by Madison— that the President alone possesses the power to remove his subordinates within the executive branch— earned the day. In enacting legislation creating executive departments, the First Congress decided not to include provisions specifying 

the means by which executive officers could be removed from Office.

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Tenure of Office Act had been unconstitutional as well.7 In reaching this conclusion, the Court considered a number of factors, including the constitutional 

debates, previous congressional practice, and the relationship between the power 

to appoint and the power to remove. In addition, the Court expressly based its 

decision on the conclusion that “Article II grants to the President the executive 

power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive 

officers—a conclusion confirmed by his obligation to take care that the laws be 

faithfully executed.” 272 U.S. at 163-64. The Court based this conclusion on the 

following analysis of the President’s control over subordinate officials:

The ordinary duties of officers prescribed by statute come under 

the general administrative control of the President by virtue of the 

general grant to him of the executive power, and he may properly 

supervise and guide their construction of the statutes under which 

they act in order to secure that unitary and uniform execution of 

the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.

Laws are often passed with specific provision for the adoption of 

regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of 

his subordinates, are subjects which the President must consider 

and supervise in his administrative control. Finding such officers 

to be negligent and inefficient, the President should have the 

power to remove them.

Id. at 135.

The Court confirmed this view of the President’s power over his subordinates 

within the executive branch in Humphrey’s Executor v. United States, 295 U.S. 

602 (1935). In that case, the Court ruled that Congress could, consistent with the 

Constitution, immunize a Commissioner of the Federal Trade Commission from 

removal by the President at his pleasure. The Court reasoned that the FTC could 

not “be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be 

free from executive control.” Id. at 628. Specifically, the Court found that “the 

[Commission acts in part quasi-legislatively [in making investigations for the 

information of Congress] and in part quasi-judicially [in acting as a ‘master in 

chancery’] .... To the extent that it exercises any executive function . . . it does

7 The Tenure of Office Act, 14 Slat. 430 (1867), had provided that all officers appointed by and with the consent of the Senate should hold their offices until their successors had been appointed and approved, and that certain heads of departments, including the Secretary of War, should hold their offices during the term of the President who appointed them, subject to removal by consent of the Senate. This Act was the principal basis for the 

articles of impeachment filed against President Andrew Johnson after he dismissed his Secretary of War without 

the consent of the Senate.

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so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.” 

Id. (citation omitted). Myers was distinguished on the ground that “[t]he actual 

decision in the Myers case finds support in the theory that such an officer is merely 

one of the units in the executive department and, hence, inherently subject to the 

exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is.” Id. at 627. The Court emphasized that the President retained the right to direct the actions of his subordinates in carrying out executive 

branch functions, free from interference by another branch:

The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or 

coercive influence, direct or indirect, of either of the others, has 

often been stressed and is hardly open to serious question. So much 

is implied in the very fact of the separation of the powers of these 

departments by the Constitution; and in the rule which recognizes 

their essential co-equality. The sound application of a principle 

that makes one master in his own house precludes him from imposing his control in the house of another who is master there.

Id. at 629—30. Thus, by narrowing Myers to cover only subordinates of the President carrying out purely executive functions, the Court linked the removal power 

even more clearly to the right of the President to control purely executive officials.

This principle was reaffirmed in Wiener v. United States, 357 U.S. 349 (1958). 

In that case, the Court held that the President did not have a constitutional right 

to remove a member of the W ar Claims Commission. The Court ruled that the 

Commission was essentially judicial in nature and that it was intended by Congress to operate entirely free of the President’s control. Id. at 355-56. The Court 

expressly linked the right of removal with the right of the President to control a 

particular official:

If, as one must take for granted, the War Claims Act precluded 

the President from influencing the Commission in passing on a 

particular claim, a fortiori must it be inferred that Congress did 

not wish to have hang over the Commission the Damocles’ sword 

of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.

Id. at 356. The Court thus emphasized that Humphrey’s Executor “drew a sharp 

line of cleavage between officials who were part of the Executive establishment 

and were thus removable by virtue of the President’s constitutional powers,” and 

those who were members of an independent body required to exercise its judgment without hindrance from the Executive. Id. at 353. As the Court pointed out, 

it is the function of a governmental body that determines whether it is subject to

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executive control. The “sharp differentiation [between those officials who are 

freely removable by virtue of the President’s inherent constitutional powers and 

those who are not] derives from the difference in functions between those who 

are part of the Executive establishment and those whose tasks require absolute 

freedom from Executive interference.” Id.

These three cases clearly establish the President’s right to control the actions 

and duties of his subordinates within the executive branch. Myers explicitly set 

forth the President’s right to control as one of the bases for establishing the presidential right to discharge subordinate officials. Humphrey’s Executor and 

Wiener, while limiting the President’s removal power, reinforced the link between the President’s right to control and his right to remove executive branch 

officials. Since, in the instant case, the Director of the CDC performs an executive function and is thus inescapably within the executive branch, the limitations 

imposed by Humphrey’s Executor and Wiener do not apply to presidential supervision of the CDC Director.

The President’s right to control the execution of the laws free from undue interference from coordinate branches of government is supported by an additional 

line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme 

Court confirmed that the Constitution protects the integrity of the executive 

branch decision-making process from interference by another branch through demands for information about the executive’s deliberations. The Court recognized

the valid need for protection of communications between high 

Government officials and those who advise and assist them in the 

performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of 

their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.

Id. at 705. The Court specifically acknowledged that this right of confidentiality 

“can be said to derive from the supremacy of each branch within its own assigned 

area of constitutional duties. Certain powers and privileges flow from the nature 

of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinings.” Id. at 705-06 (footnote 

omitted). The Court further noted that this protection “is fundamental to the operation of Government and inextricably rooted in the separation of powers under 

the Constitution.” Id. at 708.

This decision gives further content to the principle that the constitutional separation of powers requires the President to have effective control over the decision-making process within the executive branch. The constitutional prerogative 

recognized by the Court connects the President’s constitutional responsibility to 

take care that the laws be faithfully executed with the practical need for confidentiality in executive branch deliberations. The Court has unmistakably declared

55
that the powers necessary to the implementation of the President’s authority over 

the executive branch cannot be abridged absent a compelling and specific need 

asserted by another branch.8

D. Implications for the Instant Case

The preceding discussion delineating the President’s control of the unitary executive is directly applicable to the instant case. The Director of the CDC, as a 

subordinate executive branch officer within the Department of Health and Human Services, is subject to the complete supervision of the President with respect 

to the carrying out of executive functions. The congressionally-imposed requirement that the Director of the CDC develop and distribute AIDS information 

to the general public entails the carrying out of a purely executive function. The 

dissemination of AIDS information to the public does not involve the judicial 

function of the adjudication o f cases, nor does it involve legislative activity.9 

Rather, the dissemination of this information clearly involves “[interpreting a 

law enacted by Congress [the Continuing Resolution] to implement the legislative mandate” of furthering the public health and welfare by informing the public about AIDS, which “plainly entail[s] execution of the law in constitutional 

terms.” Bowsher v. Synar, 478 U.S. 714, 732-33 (1986). In short, the President 

has complete constitutional authority to supervise the Director of the CDC (a subordinate executive branch officer) in connection with the dissemination of AIDS 

fliers to the general public (an executive function). Accordingly, by preventing 

the President from supervising the CDC Director in this regard, the Continuing 

Resolution provision at issue in this memorandum unconstitutionally infringes 

upon the President’s exercise of that authority.

The unconstitutional nature of the AIDS-related Continuing Resolution provision also may be established by reference to the Supreme Court’s discussion 

in Nixon of Congress’s constitutional inability to undercut the confidential nature of internal executive branch deliberative processes. The fundamental principle emerging from Nixon is that Congress cannot constitutionally require the 

President to render unto it information bearing on the precise manner in which

8 Although the Nixon case dealt with communications between the President and White House advisors, it seems 

clear that the principles enunciated therein extend at least to other important decision makers within the executive 

branch. See United States v. AT& T, 567 F.2d 121 (D.C. Cir. 1977). The Nixon Court specifically referred not simply to the President but to “high Government officials and those who advise and assist them.” 418 U.S. at 705 Furthermore, as the Supreme Court recognized in Barr v M atteo, 360 U S. 564 (1959), where it extended the privilege against libel suits involving official utterances to executive officials below Cabinet rank:

We do not think that the principle announced in Vilas can properly be restricted to executive officers 

of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is 

not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government The complexities and magnitude o f governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many 

functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.

360 U.S. at 572-73 (footnote omitted).

9 Nor can the CDC’s task be viewed as quasi-legislative or quasi-judicial, as those terms are used in Humphrey's

Executor.

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the President carries out his supervisory authority. It follows, a fortiori, that the 

Constitution precludes the Congress from undermining the executive decisionmaking process by preventing the President from even exercising his supervisory 

authority over an executive agency, such as the CDC. If Congress is barred from 

unacceptably interfering in internal executive branch deliberations (Nixon), it 

surely is precluded from preventing the carrying out of such deliberations—the 

result that would obtain if Congress were permitted to bar presidential oversight 

of CDC actions.

Our conclusion that Congress cannot constitutionally preclude presidential 

oversight of the CDC’s dissemination of AIDS mailers (or the CDC’s carrying 

out of any other executive function) is fully in keeping with principles previously 

enunciated by this Office. As this Office opined in commenting upon a law that 

purported to require a subordinate executive officer to provide specified information directly to Congress, “[t]he separation of powers requires that the President have ultimate control over subordinate officials who perform purely executive functions and assist him in the performance of his constitutional 

responsibilities. This power includes the right to supervise and review the work 

of such subordinate officials, including reports issued either to the public or to 

Congress.” Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632,633 (1982) (emphasis added). Accordingly, 

a legislative provision precluding presidential review of AIDS fliers drafted by 

the CDC for public dissemination violates the separation of powers.

Consistent with the preceding analysis, it matters not at all that the information in the AIDS fliers may be highly scientific in nature. The President’s supervisory authority encompasses all of the activities of his executive branch subordinates, whether those activities be technical or non-technical in nature.10 This 

necessarily follows from the fact that the Constitution vests “[t]he entire executive Power,” without subject matter limitation, in the President.11

Finally, we wish to stress the significance of the fundamental constitutional 

principles at stake here. The egregious manner in which the Continuing Resolution provision at issue offends the separation of powers cannot be overemphasized. Congress has no more right to prevent the President from supervising a 

subordinate (the CDC Director) in his performance of an executive task (the dissemination of AIDS-related information) than the President would have to preclude federal judges from reviewing draft opinions prepared by their clerks— or 

than the federal judiciary would have to bar Members of Congress from reviewing draft legislation and reports prepared by congressional staff. If the principle

10 Thus, for example, the President enjoys supervisory authority over Environmental Protection Agency deliberations in the area of environmental science, and over National Aeronautics and Space Administration deliberations dealing with space science

11 Indeed, it would be an absurdity to suggest that the existence of the President’s supervisory authonty should 

turn on the nature of the executive duties being exercised. In enacting laws, Congress does not categonze the many 

different statutory duties it creates according to their “technical” or “non-technical” nature. Moreover, there is no 

suggestion in the Constitution that the nature of the President’s responsibility to “take Care that the Laws be faithfully executed” (I) S Const art. II, § 3) is affected by the subject matter of the law under consideration

57
of separation of powers means anything, it means that each one of the three coequal branches of government must be free to supervise its subordinates in the 

performance of their official duties. Any effort by one branch to intrude upon 

and, indeed, eviscerate the supervisory prerogatives of another branch is patently 

offensive to the separation of powers. Such a destruction of the coequality of the 

branches would help bring about “a gradual concentration of the several powers 

in the same [offending] department”, thereby eliminating the means by which 

“[ajmbition must be made to counteract ambition.” The Federalist No. 51, at 

321-22 (James Madison). As such the provision at issue here is fundamentally 

inconsistent with our tripartite system of republican government.

III. Conclusion

For the foregoing reasons, we conclude that Congress cannot, consistent with 

the Constitution, preclude the President from reviewing, either personally or 

through subordinates, the content of AIDS mailers that are to be distributed to 

the public. Statutory language that purports to preclude the President from carrying out such supervision is unconstitutional on its face and should be regarded 

as a nullity.

C h a r l e s J. C o o p e r

Assistant Attorney General

Office of Legal Counsel

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