Removal of Members of the Commission on

Federal Laws for the Northern Mariana Islands

The basic presumption underlying the general law on the President’s removal authority is that the 

power to appoint implies the power to remove. Although Congress may alter this presumption 

by an express indication to limit the President’s removal authority, consistent with constitutional requirements, it has not done so in establishing the Commission on Federal Laws for the 

Northern Mariana Islands.

Members of the Commission are appointed by the President. The covenant establishing the 

Commission and its legislative history indicate no intention to restrict Presidential removal 

power. Accordingly, in the absence of any congressional intent to the contrary, the President 

has the authority to remove Commission members in his discretion, even though the Commission performs no executive functions and provides services exclusively to the Legislative 

Branch.

April 14, 1983

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

This memorandum responds to your request for our opinion whether the 

President may remove members of the Commission on Federal Laws for the 

Northern Mariana Islands (Commission). You have transmitted to us two 

memoranda prepared by different officials of the Department of Interior reaching conflicting conclusions on this question, and have asked us to resolve the 

matter. The first memorandum, which was prepared by the Assistant Solicitor 

to the Associate Solicitor, Division of General Law, Department of the Interior, 

concludes that the Commission is an adjunct of Congress and, as such, part of 

the Legislative Branch. This conclusion rests on a determination that the sole 

function of the Commission is to make recommendations to Congress about the 

applicability of laws of the United States to the Northern Mariana Islands, 

which recommendations Congress may or may not enact in legislation. This 

memorandum reasons that because the Commission is part of the Legislative 

Branch, Congress must have intended that the President would not have the 

authority to remove Commission members in his discretion. The second memorandum, which was prepared by the Associate Solicitor of the Interior Department, concludes that because the President has the authority to appoint Commission members, the presumption must be that Congress intended that the 

President also has the power to remove members at will. This presumption is 

not found to be overcome by any express indication of congressional intent to 

limit Presidential removal authority. Without specifically discussing the ratio95
nale of the first memorandum, the second memorandum tacitly accepts the 

possibility that the President may have plenary removal authority over advisers 

to the Legislative Branch, at least absent any clear indication to the contrary by 

Congress.

In our view, the second of these memoranda more faithfully reflects in its 

reasoning and conclusion the key principles concerning Presidential removal 

power. We believe that the President may, in his discretion, remove Commission members, even assuming arguendo that the Commission is an entity 

which performs no Executive functions whatsoever and provides services 

exclusively to the Legislative Branch. An important, but not necessarily 

dispositive principle in interpreting statutes regarding matters of removal from 

office, is that the power to appoint implies the power to remove absent some 

affirmative indication of congressional intent to the contrary. We have found 

no such indication in this instance. Indeed, Congress vested the appointment 

power over members of this entity in the President without in any way suggesting that the appointing authority did not retain the power of removal.

In Part I, we will discuss the background of this issue; in Part II, we will 

analyze the pertinent legal issues.

L Background

The Commission was established pursuant to a joint resolution adopted in 

1976, which approved the “Covenant to Establish a Commonwealth of the 

Northern Mariana Islands in Political Union with the United States of America” 

(Covenant). Pub. L. No. 94-241, 90 Stat. 263 (1976). The joint resolution 

approving the Covenant in general marked a new stage in the ongoing relationship between the United States and the Northern Mariana Islands (Northern 

Marianas). The Northern Marianas are part of the Pacific Trust Territories.1 

The trusteeship arrangement with the Northern Marianas established after 

World War II eventually will terminate, and the islands will become a Commonwealth in Political Union with the United States.

The function and composition of the Commission are set forth in § 504 of the 

Covenant, as follows:

The President will appoint a Commission on Federal Laws to

survey the laws of the United States and to make recommendations to the United States Congress as to which laws o f the

United States not applicable to the Northern Mariana Islands

should be made applicable and to what extent and in what

manner, and which applicable laws should be made inapplicable and to what extent and in what manner. The Commission 

will consist of seven persons (at least four of whom will be

1 In addition to the Northern Mariana Islands, the Pacific T rust Territories include Palau. Truk, the Marshall 

Islands, Ponape and Yap. See S. Rep. No. 596, 94th Cong., 2d Sess. 13 (1976). The m ajor islands of the 

Northern M ananas are Saipan, Tinian and Rota.

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citizens of the Trust Territory of the Pacific Islands who are and 

have been for at least five years domiciled continuously in the 

Northern Mariana Islands at the time of their appointments) who 

will be representative of the federal, local, private and public 

interests in the applicability of laws of the United States to the 

Northern Mariana Islands. The Commission will make its final

report and recommendations to the Congress within one year

after the termination o f the Trusteeship Agreement, and before 

that time will make such interim reports and recommendations 

to the Congress as it considers appropriate to facilitate the 

transition of the Northern Mariana Islands to its new political 

status. In formulating its recommendations the Commission will 

take into consideration the potential effect of each law on local 

conditions within the Northern Mariana Islands, the policies 

embodied in the laws and the provisions and purposes of the 

covenant. The United States will bear the cost of the work of the 

Commission.

Pub. L. No. 94-241, § 504, 90 Stat. 268 (1976) (emphasis added).2 Thus, the 

President appoints the Commission members, and the Commission makes 

recommendations to Congress about the applicability of United States laws to 

the Marianas. The Commission’s final report will be made not later than one 

year after the termination of the trusteeship arrangement with the Marianas. 

The Commission members are not appointed to determinate, fixed terms of 

service.3

II. Discussion

Before analyzing this particular case, we first consider the broader legal 

principles that have been held by the courts to be applicable to questions 

regarding the power of the President to remove his appointees. As we will 

discuss below, the fundamental principle applicable in removal cases is that the 

power to appoint implies the power to remove. Congress has, however, frequently sought to limit the President’s power to remove and replace those 

whom he (or his predecessor) has appointed to particular positions. Accordingly, it is necessary to turn preliminarily to the intent of Congress and

2 The Commission is the latest in a line o f sim ilar Commissions whose purpose has been to advise Congress 

on the applicability of United States laws in different areas. See 30 Stat. 750, 751 (1899) (Hawaii); 45 Stat. 

1253 (1929) (American Samoa); 64 Stat. 390(1950) (Guam); 68 Stat. 501 (1954) (Virgin Islands). The status 

of the members o f the 1899 Hawaiian Commission are the subject of a House Judiciary Committee report. See

H.R. Rep. No. 2205, 55th Cong., 3d Sess. (1899). The question addressed in that report — whether members 

of the Hawaiian and similar commissions were “officers” o f the United States, and thus whether the 

constitutional bar on service as civil officers by Members o f Congress (some o f whom served on such 

advisory commissions) applied — is not germane to this opinion. In our view, the issue o f the President’s 

removal power may be settled without deciding whether the Commission members are “officers’' o f the 

United States.

3 It is of course possible that the trusteeship agreem ent will not actually terminate for some years.

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determine whether Congress has sought to restrict the appointing authority’s 

removal power. If there is persuasive evidence of such a congressional intent, it 

is necessary to determine whether there is any constitutional limit on Congress’ 

effort to restrict removal power in a given case.

Thus, our analysis will commence with the basic principles regarding removal, and then will focus on the question whether Congress endeavored to 

limit the President’s removal power in this instance. Because, as we conclude, 

there is no sufficient basis on which to infer such an intent, we do not reach the 

further question whether it would be constitutional for Congress to limit the 

President’s removal power in this context.4

A basic presumption, albeit rebuttable, underlying the general law on the 

President’s removal authority is that the power to appoint implies the power to 

remove. This principle has been recognized by Congress and the Supreme 

Court since the earliest days of the Republic, and has been ratified repeatedly in 

modem case law. See 1 Annals of Cong. 469 (1789) (statement of James 

Madison on the floor of the House of Representatives during the Great Debates 

of 1789); M atter ofHennen, 38 U.S. (13 Pet.) 230, 259-60 (1839); Blake v. 

United States, 103 U.S. 227, 231 (1880); Keim v. United States, 177 U.S. 290, 

293-94 (1900); Shurtlejf\. United States, 189 U.S. 311,314-15 (1903); Myers

v. United States, 272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367 

U.S. 886, 896-97 (1961); Sampson v. Murray, 415 U.S. 61, 70 n.17 (1974); 

N ational Treasury Employees Union v. Reagan, 663 F.2d 239, 246—48 (D.C. 

Cir. 1981); Kalaris v. Donovan, 697 F.2d 376, 389 (D.C. Cir. 1983); Martin v. 

Reagan, 525 F. Supp. 110, 112 (D. Mass. 1981).

This principle applies to the appointments by the President and by other 

Executive officers, such as department heads, who are appointing officials. A 

fundamental rationale for this principle appears to be the notion that appointing 

authorities necessarily have some degree of supervisory responsibility with 

respect to those whom they appoint. In particular, the appointing authority 

retains a certain duty to assure that the appointed official carries out his duties 

in a satisfactory manner. This idea is reflected in the Supreme Court’s statement in Shurtleff\. United States, 189 U.S. at 316, that the principle recognizes 

an “inherent” implication of the appointing power:

The right o f removal would exist if the statute had not contained

a w ord upon the subject. l5l It does not exist by virtue of the 

grant, but it inheres in the right to appoint, unless limited by 

Constitution or statute.

(Emphasis added.) In another passage in Shurtleff, 189 U.S. at 314-15, the 

Court explicitly drew the connection between this principle and the notion that

4 B ecause the Com m ission merely advises Congress and does not exercise purely Executive powers, we 

acknow ledge that the courts are most likely to uphold restrictions on Presidential removal power with respect 

to this type o f entity, if such restrictions are intended by Congress. C f Wiener v. United States, 357 U.S. 349 

(1958); H um phrey's Executor v. United States, 295 U.S. 602 (1935).

9 This is the case here. The statute creating this Commission contains not a word on the subject of removal.

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an appointing official necessarily has a degree of supervisory responsibility 

with respect to those whom he appoints. The Court wrote with respect to the 

President’s power to remove an official appointed with advice and consent:

It cannot now be doubted that in the absence of constitutional 

or statutory provision the President can by virtue of his general 

power of appointment remove an officer, even though appointed 

by and with the advice and consent of the Senate... . Congress 

has regarded the office as of sufficient importance to make it 

proper to fill it by an appointment to be made by the President 

and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President 

and to be administered by officers appointed by him, (and 

confirmed by the Senate,) with reference to his constitutional 

responsibility to see that the laws are faithfully executed. Article

II, sec. 3.

Id. This emphasis on the appointing authority’s supervisory responsibility for 

officials whom he appoints also appears in Myers v. United States, 272 U.S. at 

119, where the Court wrote:

The reason for the. principle is that those in charge of and 

responsible for administering functions of government who select their executive subordinates need in meeting their responsibility to have the power to remove those whom they appoint.

In addition, the basic principle that the power to appoint implies the power to 

remove reflects a practical awareness of the need for a rule for use in cases in 

which the governing statute is silent on removal. Absent such a rule, it would 

be unclear who has the power of removal. By providing that, as a general 

matter, the appointed official serves at the discretion of the appointing authority, the principle also helps prevent the possibility of an official serving 

indefinitely in his position, a status disfavored under normal understandings of 

tenure of office in the United States. As the Court wrote in M atter o f Hennen,

38 U.S. at 259:

All offices, the tenure of which is not fixed by the Constitution or 

limited by law, must be held either during good behavior, or (which 

is the same thing in contemplation of law) during the life of the 

incumbent; or must be held at the will and discretion of some 

department of the government, and subject to removal at pleasure.

It cannot, for a moment, be admitted, that it was the intention 

of the Constitution, that those offices which are denominated 

inferior offices should be held during life. And if removable at 

pleasure, by whom is such removal to be made? In the absence 

of all constitutional provision, or statutory regulation, it would

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seem to be a sound and necessary rule, to consider the power of 

removal as incident to the power of appointment.

This general principle accordingly provides the starting point for discussion: 

absent contrary indication in the governing legislation, the President’s power to 

appoint members of the Commission implies the President’s power to remove 

such members. This approach has the additional virtue of being consistent with 

the position that the Executive Branch has taken in case after case and legal 

opinion after legal opinion throughout this nation’s history. Of course, it allows 

Congress to alter the starting point by expressing a contrary intent consistent 

with constitutional requirements. Our task is to determine whether any relevant 

indications of legislative purpose preclude or overcome the application of the 

general principle in this case. We find no reliable evidence of such an intent, 

and we therefore conclude that the President’s authority to remove Presidential 

appointees from the Commission was not restricted by the Legislature.

First of all, the Covenant establishing the Commission and the legislative 

history of the Covenant contain no language indicating a specific intention to 

restrict Presidential removal power. The joint resolution itself is silent on the 

question. The legislative history, when it discusses the Commission at all, 

tends simply to repeat the basic provisions of § 504 of the Covenant, quoted 

above.6 For example, the legislative history underscores that Congress intended the President to appoint Commission members, and it reveals no effort 

to require either any congressional participation in the appointing process or 

any limitation on the exercise of removal authority.

Furthermore, the typical indicia of congressional intention to restrict Presidential removal power that have been relied upon by the courts in the leading 

decisions on this subject in finding such an intention are generally not present 

here. For example, there is no express or implicit provision limiting removal of 

Commission members for stated “causes.” Cf. Humphrey’s Executor v. United

States, 295 U.S. 602, 619 (1935). Also, there is no provision in the Covenant 

providing that the Commission’s decisions are to be transmitted directly to 

Congress without any review or comment by concerned Executive officials. Cf.

W iener v. United States, 357 U.S. 349, 352-53 (1958). Nor is there language in 

the legislative history of which we are aware calling generally for the 

Commission’s “independence” from Executive oversight. Cf. Humphrey’s

Executor, 295 U.S. at 624-25. Finally, the Covenant does not provide for 

specific, fixed-year terms of service for Commission members. Cf. id. at 

622-23.

This last point is worthy of particular note. Although the mere presence of a 

statutory provision for a specific term of service has not been deemed a 

sufficient basis on which to infer a legislative purpose of restricting Presidential removal authority,7 the absence of any fixed-year term of service buttresses

6See S. Rep. No. 5 9 6 .94th Cong., 2d Sess. 5 (1976); H.R. Rep. No. 3 6 4 ,94th Cong , 1st Sess. 9 (1975); 122 

Cong. Rec. 4187-232 (1976); 121 Cong. R ec. 23662-73 (1975).

7 R ather, it has been interpreted as providing a limit on the period for which an appointee can serve without 

reappointm ent. See Parsons v. United States, 167 U.S. 324, 338 (1897).

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the argument that the President has removal authority in this case. Commission 

members are to serve not longer than one year after the termination of the 

trusteeship agreement with the Northern Mariana Islands.8 Although this provision establishes some outer limit of service, it does not establish any definite, 

fixed term of service. To the contrary, given that the trusteeship agreement 

conceivably could last for a substantial length of time, the linkage between its 

continuance and the Commission’s existence establishes that Commission 

members would, if not removable by someone, serve for an indefinite period. 

Because, as a general matter, good behavior is presumed, an official who can 

be removed during an indefinite term of service only by way of impeachment, 

or for “cause” as a result of “bad behavior,” is considered to have the possibility of life tenure. Cf. S h u rtlejf\. United States, 189 U.S. at 316; M atter of

Hennen, 38 U.S. at 260; Kalaris v. Donovan, 697 F.2d 376, 398 (D.C. Cir. 

1983); see also DeCastro v. Board o f Comm’rs o f San Juan, 322 U.S. 451,462 

(1944); Reagan v. United States, 182 U.S. 419, 426-27 (1901). Accordingly, 

the presumption against the possibility of life tenure supports the view that the 

President has removal authority in this case.

Another factor which must be noted is that Congress has provided for the 

Commission’s funding through a line item in the Department of the Interior’s 

appropriation for territorial affairs. See Pub. L. No. 96-126, 93 Stat. 954, 969 

(1979). The source of funding by itself is not necessarily a determinative 

indication of an entity’s status as in the Executive or Legislative Branch. See

Eltra Corp. v. Ringer, 579 F.2d 294, 301 (4th Cir. 1978). Nevertheless, the fact 

that Congress has provided for the Commission to receive its funds from the 

Interior Department’s appropriation is a further indication, albeit relatively 

slight, that Congress did not intend to establish the kind of independence from 

the Executive Branch that normally accompanies restrictions on Presidential 

removal authority.

It might be argued that Humphrey’s Executor, 295 U.S. at 624—25, provides 

support for a contrary argument. In Humphrey’s Executor, the Court held that 

the President did not have unlimited removal authority with respect to members of the Federal Trade Commission. Although much of the Court’s opinion 

dealt with the constitutional questions raised by the case, the Court did discuss 

the statute involved. One of the factors relied upon in its statutory construction 

was the fact that the FTC performed “quasi- legislative” functions, namely, 

rulemaking, which the Court concluded were intended by Congress to be 

performed by an entity independent of the President’s plenary removal authority. In the present case, it might be suggested that the Northern Mariana Islands 

Commission’s sole function is to advise Congress in aid of its legislative 

power, and thus it should be viewed as an arm of Congress. From this premise, 

it might be argued that one should infer that Congress did not intend to allow

8 Section 504 of the Covenant establishing the Commission provides that the Commission will make its 

final report within one year o f the termination of the trusteeship agreement. Hence, the Commission is to go 

out of existence after that time.

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the President to remove Commission members, i.e., members of a Congressional entity, in his unfettered discretion.

Although the foregoing argument is by no means frivolous, we do not 

believe that H um phrey’s Executor provides support for the interpretation that 

the President lacks removal power over members of this Commission. The 

Court in Hum phrey’s Executor noted that several indicia of congressional 

intent, taken together, existed to support the conclusion that Congress intended 

to limit the President’s removal authority. See 295 U.S. at 624-26. Not the least 

of these factors was an explicit statutory provision limiting the grounds for 

removal. In addition, the FTC Commissioners served for a specified term of 

years, and according to the Court, the legislative history made clear that 

Congress expected them to act independently of Executive Branch influence. 

Furthermore, unlike the FTC, the Commission here does not exercise quasilegislative powers. It performs merely an advisory function. A body such as 

this might provide advice to any branch of government. Its function, therefore, 

does not by itself suggest the need for its separateness from the Executive 

Branch. See id.; see also Martin v. Reagan, 525 F. Supp. 110, 112-13 (D. 

Mass. 1981). Thus, the situation in Humphrey’s Executor is fundamentally 

distinguishable from the situation in this case.9

Even if we grant that the Commission is an arm of Congress, and thus 

entirely part of the Legislative Branch (a conclusion which we do not reach and 

do not intend by anything articulated herein to prejudge), it does not follow that 

the President cannot remove the Commissioners in his discretion.10 If the 

Commission is entirely part of the Legislative Branch, Congress did not have to 

vest appointment power in the President. But it did so nonetheless. This grant 

of the appointment power has two key implications.

First, because the appointment power by itself is by no means an insignificant power with respect to appointed officials, Congress clearly acceded at 

least to a significant degree of Presidential supervision of Commission members. See Shurtleff v. United States, 189 U.S. 311, 315 (1903).11 Second,

9 W e also believe that this case is clearly distinguishable from Wiener v. United States, 357 U.S. 349 

(1958). That case involved an adjudicatory body, the W ar Claim s Commission, whose statute provided that 

its decisions were to be free from review by any other official of the United States. See id. at 354-55 In 

contrast, no adjudicatory functions such as those in Wiener are performed by the Commission and no 

concom itant need exists for “independence” from the Executive. In addition, there is no similar statutory 

provision in this case indicating an intent to shield the C om m ission's decisions from review by other 

officials. Cf. Borders v. Reagan, 518 F. Supp. 250 (D D.C. 1981); Lewis v. Carter, 436 F. Supp. 958 (D.D.C. 

1977).

W e add that the argum ent based on the functions of the Commission is more central with respect to the 

constitutional question w hether Congress can limit Presidential removal power. C f Humphrey's Executor,

295 U.S. at 631-32. As noted at the outset, w e do not need to reach this issue, given that we are able to resolve 

the question on the basis o f an analysis o f the statute and the principle that the power to appoint implies the 

pow er to remove.

10 W e note that, in a different context, the Comptroller General has concluded that the Commission is a 

Legislative Branch entity. See Comp. Gen. Op. No. B-202206 (June 16, 1981).

11 As the Court noted in Keim v. United States, 177 U.S. 290, 293 (1900): “The appointment to an official 

position in the G overnm ent, even if it be sim ply a clerical position, is not a mere ministerial act, but one 

involving the exercise o f judgment. The appointing power must determ ine the fitness of the applicant; 

whether or not he is the proper one to discharge the duties of the position.”

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because the law is that the power to appoint implies as a basic underlying 

proposition the power to remove, and because we must assume that Congress 

was aware of the law, Congress may reasonably be said to have taken for 

granted in this case that the President would have the power to remove Commission members appointed by him or a previous President. If Congress had 

rejected these implications, it easily could have provided for some other 

method of appointment or specifically limited the President’s power to remove 

the Commissioners.

Conclusion

To summarize, we believe that the Congress is undoubtedly aware that the 

power to appoint has been held throughout this nation’s history to imply the 

power to remove, and that Congress has within its control the ability to 

overcome this presumption, at least as a statutory matter. In construing the 

relevant statutory materials in this case, we have found no intent to restrict the 

President’s removal power and some slight indication that potential removal by 

the President actually was intended (no term specified, the failure to designate 

someone else to exercise removal authority, and other factors discussed herein). 

We conclude that the President has the authority to remove Commission 

members in his discretion.

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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