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Authority of the President to Designate Another Member 

as Chairman of the Federal Power Commission

While a substantial argument can be made to support the President’s the authority to change the 

existing designation of the Chairman of the Federal Power Commission and to designate another 

member of that agency as Chairman, sufficient doubt exists so as to preclude a reliable prediction as 

to the result should the matter be judicially tested.

Apparently the only remedies the present Chairman would have, if his designation should be recalled 

and another member of the Commission designated as Chairman, would be to bring an action in the 

nature of quo warranto or sue for the additional $500-a-year annual salary of the Chairman in the 

Court of Claims. Since the Chairman has no functions additional to those of any other commissioner 

affecting parties appearing before the Commission, their rights could not be affected even if he 

should win such a suit.

February 28, 1961

MEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL 

TO THE PRESIDENT

This memorandum examines the President’s authority to change the existing 

designation of the Chairman of the Federal Power Commission and to designate 

another member of that agency as Chairman. It concludes that, while a substantial 

argument can be made to support the President’s authority to do so, sufficient 

doubt exists so as to preclude a reliable prediction as to the result should the 

matter be judicially tested. Nevertheless, it should be emphasized that apparently 

the only remedies the present Chairman would have, if his designation should be 

recalled and another member of the Commission designated as Chairman, would 

be to bring an action in the nature of quo warranto or sue for the additional $500-

a-year annual salary of the Chairman in the Court of Claims. Since the Chairman 

has no functions additional to those of any other commissioner affecting parties 

appearing before the Commission, their rights could not be affected even if he 

should win such a suit.

I.

Section 3 of Reorganization Plan 9 of 1950, 3 C.F.R. 166 (Supp. 1950), 64 Stat. 

1265, relating to the Federal Power Commission, provides:

Designation of Chairman.—The functions of the Commission with 

respect to choosing a Chairman from among the commissioners

composing the Commission are hereby transferred to the President.

Plan 9 was submitted to the Congress by President Truman on March 13, 1950, 

along with six others relating to six of the regulatory boards and commissions. The 

plans were “designed to strengthen the internal administration of these bodies,”
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207

and a feature was to vest in the President the function of designating the Chairman 

“in those instances where this function is not already a Presidential one.” H.R. 

Doc. No. 81-504, at 4 (1950).

At the time Plan 9 was transmitted, section 1 of the Federal Water Power Act, 

as amended, provided for election of the Chairman “by the commission itself,” and 

permitted “each chairman when so elected to act as such until the expiration of his 

term of office.” Pub. L. No. 65-280, § 1, 41 Stat. 1063 (June 10, 1920), as amended by Pub. L. No. 71-412, 46 Stat. 797 (June 23, 1930).

The President explained, in his transmittal message, with respect to Plans 7–13:

In the plans relative to four commissions—the Interstate Commerce Commission, the Federal Trade Commission, the Federal

Power Commission, and the Securities and Exchange Commission—

the function of designating the Chairman is transferred to the President. The President by law now designates the Chairmen of the other 

three regulatory commissions covered by these plans. The designation of all Chairmen by the President follows out the general concept 

of the Commission on Organization for providing clearer lines of 

management responsibility in the executive branch.

H.R. Doc. No. 81-504, at 5.1 No mention was made in the message of the statutory 

provision relating to the term of service of the Chairman of the Federal Power 

Commission until the expiration of his term of office. Nor was it mentioned by

Budget Director Frederick J. Lawton, when he supported Plan 9 in hearings before 

the Senate Committee which considered it along with others. Mr. Lawton testified:

The plans affecting the Interstate Commerce Commission, the

Federal Trade Commission, and the Federal Power Commission provide that the President shall designate a Commissioner to serve as 

Chairman. These provisions will vest uniformly in the President the 

function of designating Commission Chairmen. At present he 

already designates the Chairmen in the Federal Communications 

Commission, the National Labor Relations Board, and the Civil Aeronautics Board. . . .

. . . .

 

1 For a further discussion of the concept of the Commission on Organization of the Executive 

Branch of the Government in this area, see Commission on Organization of the Executive Branch of 

the Government, The Independent Regulatory Commissions, Rep. No. 12, at 5–6 (1949), reprinted in 

H.R. Doc. No. 81-116, at 5–6 (1949), which emphasized the desirability of the Chairman exercising 

administrative control.
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208

Since the President now designates some Chairmen and does not 

designate others, and since Presidential designation has . . . advantages pointed out by the task force, these plans authorize Presidential designation of Chairmen in all cases.

Reorganization Plans Nos. 7, 8, 9, and 11 of 1950: Hearings on S. Res. 253, 254, 

255, and 256 Before the S. Comm. on Expenditures in the Executive Departments, 

81st Cong. 30–31 (1950) (“Reorganization Hearings”). Because the President at 

that time had the power to designate the Chairman of each of the three regulatory 

bodies referred to,2it could be inferred that the intent to produce uniformity in this

respect extended to the Federal Power Commission. However, the fact that Plan 9

dealt only with the designation of the Chairman, and left his term, as fixed by the 

Federal Water Power Act, untouched was expressly called to the attention of the 

Senate Committee on Expenditures in the Executive Departments, the only 

congressional body which held a hearing on the plan.3 That Committee had before

it comments, submitted at its request, by the Federal Power Commission. A 

separate statement was also submitted by one of its commissioners.

The Commission commented favorably on the plan and observed that, although 

it had “recommended that the present statutory provision that a Chairman be 

elected and retain office for the balance of his term be amended, so as to provide 

that the Chairman be elected annually,” it saw “no serious objection to the 

proposed designation of the Chairman by the President.” Reorganization Hearings

at 215.

In his separate statement, Commissioner Thomas C. Buchanan took sharp issue 

with the provision for choosing a Chairman. He stated:

The provision for the selection of the Chairman by the President 

changes only the method of “choosing” and does not affect the term 

of the Chairman so selected under existing law.

The term of a Federal Power Commissioner is presently 5 years, 

therefore, a President in the fourth year of his term might select as 

Chairman the member of the Commission nominated by him and 

confirmed by the Senate during that year. Under the terms of plan 9 

as applied to the old law, the Chairman so selected would serve as 

such not only during the fourth year of the Presidential term in which 

 

2 The Federal Communications Act, Pub. L. No. 73-416, § 4, 48 Stat. 1064, 1066 (1934), and the 

National Labor Relations Act, Pub. L. No. 74-198, § 3, 49 Stat. 449, 451 (1935), provided no fixed 

term for the Chairmen. However, the Civil Aeronautics Act, Pub. L. No. 75-706, § 201, 52 Stat. 973, 

980 (1938), provided for designation of the Chairman annually by the President. 

3 No resolution for disapproval of Plan 9 was introduced in the House of Representatives. Consequently, there were no hearings or discussion on the floor in that branch of the Congress.
Authority of the President to Designate Another Member as Chairman of the FPC

209

he was appointed, but likewise 4 years of the succeeding term even 

though there may be a change in the Presidential office.

The provision of plan 9 relating to appointment might better carry 

out the intent of the administration if it provided that . . . chairmen 

shall be appointed annually by the President.

Id. at 215–16.

Despite the Buchanan observations, the Senate Committee reported favorably 

and recommended that the Congress approve Plan 9. It reported:

The designation of the Federal Power Commission Chairman by

the President would provide an entirely normal channel of communication to the Commission without impairing its independence in any 

way. The alleged “inherent dangers” which some witnesses projected 

into the future simply do not exist in fact as was proved conclusively 

during the committee hearings when witnesses were unable to cite 

any evidence whatsoever of Presidential domination of the chairmen 

of the five regulatory agencies which he presently appoints.

S. Rep. No. 81-1563, at 5–6 (1950).

When the Plan reached the floor of the Senate, the matter of presidential designation of the Chairman was an important subject of debate. Strong objection was 

voiced by Senator Long to permitting the President “to name the chairman.” 96 

Cong. Rec. 7380 (May 22, 1950). Senator Capehart likewise opposed the Plan “for 

the simple reason that under it the President will be given authority to name the 

Chairman.” Id. Senator Johnson called attention of the Senate to the peculiar 

application of the presidential designation provisions to the Federal Power 

Commission, quoting the statement filed with the Senate Committee by Commissioner Buchanan, and noted that none had “found any fault with Mr. Buchanan’s

facts” in regard to the proposal. Id. at 7381. Senator Johnson’s reference was not 

pursued. Objections to presidential designation did not prevail and the resolution 

to disapprove the Plan was defeated by a vote of 37 to 36. Id. at 7383 (disapproving S. Res. 255, 81st Cong.). As a result Plan 9 became effective—pursuant to the

provisions of the Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203 

(codified at 5 U.S.C. §§ 133z et seq. (1958))—on May 24, 1950. 64 Stat. 1265.

II.

In light of the foregoing history a substantial argument can be made that approval of Plan 9 by the Congress resulted in vesting in the President the authority 

to designate the Chairman of the Federal Power Commission and to change that 

designation from time to time without limitation. The argument would rest on the 
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210

reasoning that the purpose of the plans, as described in the presidential message 

and executive testimony, was to bring uniformity into the designation arrangements for all seven of the regulatory commissions for which plans were submitted.

Since Congress was aware of the existing right of the Chairman to serve as such 

throughout his term in the Federal Power Commission, it might be assumed that in 

the interest of uniformity it was meant to substitute for that arrangement an

unlimited authority in the President with respect to the designation and removal of 

the Chairman of the Federal Power Commission and that this was accomplished 

by Plan 9.

Moreover, the power to remove an officer is traditionally regarded as an incident of the power to designate or choose him, cf. Myers v. United States, 272 U.S. 

52, 161 (1926), and it seems it would be logical to conclude that, in context, the 

power to choose a Chairman conferred on the President by Plan 9 was intended to 

be broad enough to cover the incidental power of replacing him. This is made

plain by the President’s statement that the purpose of the plans was to give the 

President the same powers with respect to the Federal Power Commission as he 

already had with respect to at least two other regulatory commissions and by the 

testimony of the Budget Director emphasizing the need for uniformity. In other 

words, the function of “choosing a chairman” was intended to include all the 

powers incident thereto, including removal as Chairman, and therefore the plan, 

when it became effective, operated as subsequent legislation repealing previous 

inconsistent legislation.

It is true that Commissioner Buchanan had presented to the Committee his 

view that once a commissioner had been designated as Chairman the designation 

could not be changed during that commissioner’s term. However, there is no 

evidence that the Committee adopted this view, the report being silent in this 

respect. Similarly, it can be argued that the fact that Commissioner Buchanan’s 

view was also brought to the attention of the Senate is no indication that this was 

the view the Senate took of the matter. Further, if Plan 9 had been enacted in the 

course of the removal legislative process, greater weight might have to be given to 

Congress’s failure to adopt an appropriate amendment to meet the problem raised 

by the contention that Plan 9 dealt only with the method of designating the 

Chairman as provided in the Federal Water Power Act, and not with his term. But 

the process of adoption of a reorganization plan differs markedly from the normal 

legislative process, and less weight must, therefore, be afforded to the failure to 

amend. Under section 6 of the Reorganization Act of 1949 (5 U.S.C. § 133z-4

(1958)) Congress had no opportunity to amend. A plan could either be permitted 

to take effect or be rejected by a resolution of either House expressing disfavor.

Finally, it appears clear that the President intended to place the Federal Power 

Commission in a situation similar to the other regulatory agencies. The House 

permitted the plan to go into effect on his recommendation without discussion, 

thereby adopting his view of the matter. Furthermore, in the absence of an 
Authority of the President to Designate Another Member as Chairman of the FPC

211

opportunity to amend, the Senate discussion should not be regarded as establishing 

a different intention.

On the other hand, Plan 9 literally refers only to “[t]he functions of the Commission with respect to choosing a Chairman” (emphasis supplied). It does not 

purport to deal with his term. This interpretation gains strength from the fact that 

the Chairman of the Civil Aeronautics Board, one of the agencies to which the 

President pointed as a model, had a fixed term of one year. 49 U.S.C. § 1321(a)(2)

(1958). It can, therefore, be contended that the intent was actually to deal only

with designation and that, even if broader powers to replace had been intended to 

be conferred upon the President, the language simply failed to effectuate this 

result. It may be of significance in this respect that, as it now appears in the United 

States Code, section 1 of the Federal Water Power Act, which incorporates both 

the original provisions of the Federal Water Power Act and Plan 9, states that the 

President shall designate the Chairman and that “[e]ach Chairman, when so 

designated, shall act as such until the expiration of his term of office.” 16 U.S.C. 

§ 792 (1958). Thus, rather than repealing prior legislation, the language of Plan 9 

can be read consistently with section 1 of the Federal Water Power Act.

Removal of the limitation can, of course, be effected through amending legislation. It is not altogether clear that the reorganization method (if lapsed reorganization authority is reinstated as presently proposed) would be an available means for 

action which only alters the statutory term of the Chairman. Section 4(2) of the 

Reorganization Act of 1949 provides that any plan transmitted by the President, 

pursuant to section 3, “may include provisions for the appointment and compensation of the head” of an agency. 5 U.S.C. § 133z-2(2). The term of office of the 

head of the agency so provided for “shall not be fixed at more than four years.”

However, section 4(2) appears to limit the President’s authority to provide for the 

appointment of the head of an agency only to circumstances in which “the 

President finds, and in his message transmitting the plan declares, that by reason 

of a reorganization made by the plan such provisions are necessary.” The implication, therefore, is that the authority conferred by section 4(2) may be used only in 

support of a reorganization plan containing other provisions. It would follow that, 

unless the provision relating to the Chairman were part of a reorganization plan 

affecting other operations of the Federal Power Commission, the authority 

contained in the section would not be available.

Even if the President should designate a new Chairman and it should ultimately 

be decided by the courts that the President was not authorized to do so, the 

decision would not appear appreciably to affect the operations of the Commission 

in the interim. The provisions of the statute which created the Federal Power 

Commission (Pub. L. No. 66-280), the legislation which reorganized the Commission in 1930 (Pub. L. No. 71-412), and its rules and regulations have been examined, and nothing therein indicates that the powers of the Commission are to be 

exercised other than by the Commission as a whole. There are no unique powers 

vested in the Chairman which are any different from those vested in other 
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212

members of the Commission. The Commission is authorized and empowered to 

act as a body no matter which of its members is Chairman. 16 U.S.C. § 797

(1958).

The provisions of Reorganization Plan 9 did not change this statutory pattern.

The plan transferred administrative functions to the Chairman, but it was intended, 

as the President explained in his message transmitting the plan, that the changes 

affected only “[p]urely executive duties.” H.R. Doc. No. 81-504, at 4 (1950) (quotation omitted). It was made clear that the plan vested

in the Chairman . . . responsibility for appointment and supervision 

of personnel employed under the Commission, for distribution of 

business among such personnel and among administrative units of 

the [Federal Power] Commission, and for the usage and expenditure 

of funds.

Id. The Senate Committee found that the Plan did not “derogate from the statutory 

responsibilities placed upon the other members of the Commission. They remain 

exactly as they are . . . .” S. Rep. No. 81-1563, at 3 (1950) (quotation omitted).

Accordingly, it is difficult to see how a change in the chairmanship could affect 

the Commission or the rights of third parties. The possibility exists that administrative actions, e.g., employments, discharge, etc., taken by a Chairman, later 

determined to have been improperly designated, could be challenged, but this is 

believed to be of minimal consideration.

III.

Even if it were to be assumed that the Chairman had functions which were 

unique to his office, the authority of his successor to act as Chairman probably 

could not be challenged by third parties under the “well-recognized rule that the 

title of one holding a public office is not subject to collateral attack and that his 

title can only be inquired into in some direct proceeding instituted for that 

purpose.” Annotation, Habeas Corpus on Ground of Defective Title to Office of 

Judge, Prosecuting Attorney, or Other Officer Participating in Petitioner’s Trial 

or Confinement, 58 A.L.R. 529, 529 (1945); see also Ex parte Henry Ward, 173 

U.S. 452 (1899); McDowell v. United States, 159 U.S. 596 (1895).

It is assumed, however, that if the present Chairman were replaced his remedy 

would be either to sue in the Court of Claims for the additional salary ($500 per 

year) of which he would be deprived, for the period between the date of the 

change and the date on which his term of office expires, or to bring an action in 

the nature of quo warranto. Such an action was initiated by a member of the War 

Claims Commission upon his removal by President Eisenhower. The action was

dismissed on the merits in the District Court, and in the Court of Appeals the 

appeal was dismissed as moot by stipulation of the parties. See Wiener v. United 
Authority of the President to Designate Another Member as Chairman of the FPC

213

States, 357 U.S. 349, 351 n.* (1958), cf. Newman v. United States ex rel. Frizzell, 

238 U.S. 537 (1914).

As pointed out above, even if the present Chairman should prevail in any such 

suit, this would not affect the actions of the Federal Power Commission in the 

interim.

NICHOLAS deB. KATZENBACH

Assistant Attorney General

Office of Legal Counsel