Reassignment of Assistant Secretary of Labor Without Senate

Reconfirmation

Where the Secretary o f Labor exercises statutory power to reassign the duties of a lawfully confirmed 

Assistant Secretary of Labor whose duties are not otherwise assigned by statute, reconfirmation 

of the Assistant Secretary is not legally required.

November 2, 1995

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

Over the past few days, this Office has considered whether Senate reconfirmation of Anne H. Lewis as an Assistant Secretary of Labor is legally required. 

The answer to this question is clear: the Senate, having already confirmed Ms. 

Lewis as an Assistant Secretary of Labor, need not do so again.

Under 29 U.S.C. §553,

[t]here are established in the Department of Labor nine offices of 

Assistant Secretary of Labor, which shall be filled by appointment 

by the President, by and with the advice and consent of the Senate.

Each of the Assistant Secretaries of Labor shall perform such duties 

as may be prescribed by the Secretary of Labor or required by law.

Congress has provided that “ [o]ne of such Assistant Secretaries shall be an Assistant Secretary of Labor for Occupational Safety and Health,” id.', another, the 

“ Assistant Secretary of Labor for Mine Safety and Health,” id. §557a; and a 

third, the “ Assistant Secretary of Labor for Veterans’ Employment and Training,” 

id. §553 note. The allocation of duties to the other Assistant Secretaries is not 

set by statute.

On July 29, 1993, in accordance with the statute, the President nominated Anne

H. Lewis to be “ an Assistant Secretary of Labor.” 139 Cong. Rec. 17,906 (1993). 

Although some of the references in the Congressional Record to the committee 

hearings on the nomination characterize the position for which she was nominated 

as “ Assistant Secretary [of Labor] for Public Affairs,” see id. at D563, the Senate 

(in accordance with the statute) confirmed her on October 7, 1993, simply as 

an “ Assistant Secretary of Labor.” Id. at 23,995.

Secretary Reich then exercised his statutory power to assign duties to Ms. 

Lewis. He first allocated duties to her as Assistant Secretary for Public Affairs. 

Later, he reassigned her to carry out duties as Assistant Secretary for Policy. When 

he made this reassignment, Ms. Lewis’s name was not sent to the Senate for 

reconfirmation.

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The Secretary acted on the advice of our Office which relied upon a 1976 

opinion written by then Assistant Attorney General Antonin Scalia. Memorandum 

for the Honorable Bobbie Greene Kilberg, Associate Counsel to the President, 

from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re:

Reassignment o f Department Heads Without Reconfirmation by the Senate (Apr.

2, 1976). Assistant Attorney General Scalia concluded that although the statute 

required Senate confirmation before the President could appoint an Assistant Secretary of Labor, it did not require the Senate to approve the assignment or 

reassignment of duties to Assistant Secretaries, once confirmed. Indeed, the statute 

did not mandate that the Secretary assign any continuing duties at all to any of 

the “ generic” Assistant Secretaries. Each could have served as a general aide 

to the Secretary.

The Chair of the Committee on Labor and Human Resources, however, has 

objected to Secretary Reich’s actions and believes that the President is required 

to submit Ms. Lewis for reconfirmation. On October 10, 1995, the Congressional 

Research Service issued a legal opinion arguing that the Scalia memorandum is 

wrong and that the duties of Assistant Secretaries of Labor may not be reassigned 

without a renewed confirmation by the Senate. Memorandum for the Honorable 

Nancy L. Kassebaum, Chair, Senate Labor and Human Resources Committee, 

from Morton Rosenberg, Specialist in American Public Law, Congressional 

Research Service, Re: Requirement of Reconfirmation by the Senate When the

Executive Seeks to Shift an Officer from One Advice and Consent Position to

Another (Oct. 10, 1995) (“ CRS Opinion” ).

In my view, Assistant Attorney General Scalia’s opinion was correct and has 

been powerfully reinforced by a later decision of the Supreme Court. The relevant 

statutes, on their face, divide Assistant Secretaries into two classes: those whose 

duties are assigned by statute and those whose duties are allocated to them by 

the Secretary. When Congress has desired to attach specific duties to an office 

of Assistant Secretary, it has done so. Congress has not specified any duties for 

the Assistant Secretary position to which the President appointed Ms. Lewis. The 

CRS Opinion, which contests Assistant Attorney General Scalia’s view, purportedly rests on “ Congress’ prerogative over the administrative bureaucracy.” CRS 

Opinion at 3. According to CRS, Congress may provide for execution of the laws 

by officers of the United States, and “ under the Necessary and Proper Clause, 

it has authority to create offices, determine their location in the governmental 

structure, the qualifications of officeholders, prescribe their appointments, and generally promulgate the standards for the conduct of the offices.” Id. at 4 (citations 

omitted). The CRS Opinion, however, ignores the implications of this (valid) 

premise. It is Congress, not the Senate, that may define offices under the Necessary and Proper Clause. The position of Assistant Secretary is statutory and 

is not a constitutional office. As the Supreme Court held in INS v. Chadha, 462 

U.S. 919, 951 (1983), “ the legislative power of the Federal Government [must]

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be exercised in accord with a single, finely wrought and exhaustively considered, 

procedure.” This procedure entails passage by both houses of Congress and 

presentment to the President. Id. To place specific limitations on the duties performed by Assistant Secretaries of Labor, therefore, Congress would have to 

amend the current statute, using the constitutionally required procedure. Even if 

the President had nominated Ms. Lewis to be “ Assistant Secretary for Public 

Affairs” (as he did not), or even if the Senate had voted to confirm Ms. Lewis 

as “ Assistant Secretary for Public Affairs” (as it did not), Chadha would refute 

the argument that the Secretary may not reassign Ms. Lewis to new duties without 

reconfirmation.

In standing upon the principle that the Senate may not aggrandize itself by effectively redefining offices established by statute, we would be well supported by 

practice. Congress has provided, for example, that there are to be ten Senateconfirmed Assistant Attorneys General, “ who shall assist the Attorney General 

in the performance of Pier] duties.” 28 U.S.C. §506. We have identified ten 

instances, the earliest in 1936 and the latest in 1988, in which the Attorney General reassigned an Assistant Attorney General from one division to another without 

reconfirmation. In our Department’s history, there is, as far as we know, no contrary case. To be sure, the first head of the Civil Rights Division, W. Wilson 

White, was nominated for Senate confirmation in 1958, even though he had been 

serving as an Assistant Attorney General in charge of the Office of Legal Counsel. 

However, Mr. White first resigned his position as Assistant Attorney General, 

received a recess appointment, and then went through the process for confirmation. 

Thus, when the Senate confirmed Mr. White the second time, he did not hold 

a Senate confirmed position as Assistant Attorney General.

It is more difficult to ascertain the practice at other agencies. Our files suggest 

that, even apart from actions by the present Administration, reassignments without 

new confirmations were made in 1974 (Department of Agriculture), 1976 (Department of Labor), and 1984 (Department of Energy). On the other hand, the Executive Clerk has identified four instances where the Senate was asked to reconfirm 

an official who was being reassigned. In two of these cases, an Assistant Administrator of the Agency for International Development was transferred to a regional 

desk. Because the statute fixing the pay of Assistant Administrators distinguishes 

between “ Assistant Administrators” and “ Regional Assistant Administrators,” 5 

U.S.C. §5315, the appointees apparently were moving to offices with different 

statutory definitions, and the reconfirmations thus appear proper. The other two 

cases seem to have involved reassignments where reconfirmation was unnecessary 

and perhaps inappropriate. But these two cases can hardly outweigh the decided 

practice to the contrary.

Ms. Lewis is lawfully serving as a Senate confirmed Assistant Secretary of 

Labor, performing duties lawfully assigned to her by the Secretary under 29

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Reassignment o f Assistant Secretary o f Labor Without Senate Reconfirmation

U.S.C. §553. Thus, no further action by the Senate is required for her to continue 

to serve as an Assistant Secretary of Labor.

WALTER DELLINGER 

Assistant Attorney General

Office of Legal Counsel

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