(Slip Opinion)

1

Executive Branch Participation in the 

Cyberspace Solarium Commission

In our tripartite constitutional structure, any commission performing federal functions 

must reside within a single one of the three branches of government.

The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity, 

because congressional appointees compose the majority of the Commission’s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission’s ultimate mission is to advise Congress.

The Executive Branch officials serving on the Commission should act with one unified 

voice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission.

October 9, 2020

MEMORANDUM OPINION FOR THE LEGAL ADVISOR 

NATIONAL SECURITY COUNCIL

The John S. McCain National Defense Authorization Act for Fiscal 

Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018) (“FY 2019 

NDAA”), created the Cyberspace Solarium Commission (“Commission”) 

to “develop a consensus on a strategic approach to defending the United 

States . . . against cyber attacks.” Id. § 1652(a)(1), 132 Stat. at 2140–41.

The fourteen-member Commission consisted of representatives from both 

the Legislative Branch and the Executive Branch: four senior Executive 

Branch officers who served ex officio and ten appointees from Congress.

Id. § 1652(b)(1)(A), 132 Stat. at 2141. The Commission was required to 

provide a report to Congress with recommendations related to the proper 

“core objectives” for cyber defense and to “various strategic options to 

defend the United States.”1 Id. § 1652(f)(1)–(2), (k)(1), 132 Stat. at 2142, 

2146. The Director of National Intelligence (“DNI”), Secretary of Defense, and Secretary of Homeland Security were then required to provide 

their assessment of the report within 60 days of receiving it. Id. § 1652(l), 

132 Stat. at 2146.

 1 The Commission publicly released the report on March 11, 2020, but was not required by statute to formally submit the report to Congress until April 30. See Cyberspace 

Solarium Commission, Final Report (Mar. 2020), https://www.solarium.gov/report.
44 Op. O.L.C. __ (Oct. 9, 2020)

2

The structure of the Commission raised a number of questions under 

the constitutional separation of powers, which bore upon whether and how 

the Executive Branch members of the Commission could participate in its 

work. This memorandum memorializes this Office’s oral advice provided 

to the Executive Branch members of the Commission, regarding the 

organization of the Commission’s operations, votes by Executive Branch

officials about the Commission’s business, and the Executive Branch

contributions to the Commission’s final report.

Commissions with members appointed by both the Legislative and Executive Branches have been established on many prior occasions, but the 

Executive Branch has long recognized that such “hybrid” commissions 

present constitutional concerns.2 Although these commissions may lawfully exercise advisory functions, where they exercise the authority of the 

government, they must do so within the confines of the Constitution’s 

tripartite structure and reside in one branch. Here, congressional appointees composed the majority of the Commission’s membership, the Commission exercised the investigative authorities of a congressional committee, and the Commission’s ultimate mission was to advise Congress. The 

Commission thus was properly viewed as a Legislative Branch entity. 

 2 See, e.g., Statement on Signing the Bill Establishing a Commission on the Bicentennial of the United States Constitution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald 

Reagan 1390 (1983) (“[B]ecause of the constitutional impediments contained in the 

doctrine of the separation of powers, I understand” that the Chief Justice and the congressional members of the bicentennial commission “will be able to participate only in 

ceremonial or advisory functions of the Commission, and not in matters involving the 

administration of the act.”); Constitutionality of Resolution Establishing United States 

New York World’s Fair Commission, 39 Op. Att’y Gen. 61, 62 (1937) (Cummings, Att’y 

Gen.) (objecting to a congressional commissioner that would plan and appoint commissioners for the New York World’s Fair as “amount[ing] to an unconstitutional invasion 

of the province of the Executive”); Participation of Members of Congress in the Ronald 

Reagan Centennial Commission, 33 Op. O.L.C. 193, 195 (2009) (“Ronald Reagan 

Commission”) (identifying constitutional concerns with commissions with members 

from multiple branches engaging in responsibilities that “extend beyond providing advice 

or recommendations . . . or participating in ceremonial activities”); Memorandum for the 

Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal 

Counsel, Re: Congressional Incursions into Areas of Executive Responsibility at 3–4 (Oct. 

31, 1984) (“Congressional Incursions”) (describing the Department’s repeated “strong[]” 

opposition to congressional creation of commissions with legislative and executive branch 

appointees as “inconsistent with the tripartite system of government established by the 

Framers of our Constitution” (internal quotation marks omitted)).
Executive Branch Participation in the Cyberspace Solarium Commission

3

We recognized that the Commission, as a Legislative Branch entity, 

could benefit from participation of its Executive Branch members, but we 

advised that those members should carry out their advisory functions not 

as free agents, but as executive officers subject to supervision by their 

departments, and ultimately, the President. Because the Commission’s 

Executive Branch members represent the interests of the Executive 

Branch in performing their work, we advised that they should not provide 

independent statements in assessing the Commission’s work and that the 

commission members should not vote individually on the Commission’s 

final report or any of its subpoenas. The Commission’s report and its 

subpoenas were the official actions of a Legislative Branch entity. While 

the Executive Branch members could, in principle, have adopted and 

advanced common positions on those actions, the Commission’s procedures and the need to release its report promptly made it impracticable for 

them to do so. We therefore advised the Executive Branch officials not to 

vote, consistent with their accountability to the Executive Branch.

We further construed statutory provisions providing for the Executive 

Branch to provide staff and office space to the Commission to be discretionary, rather than mandatory, because the separation of powers imposes 

constraints upon Congress’s ability to enlist the Executive’s staff and 

physical resources. Finally, we advised that the Commission’s Executive 

Branch members and staff were obliged to preserve Executive Branch

confidentiality interests. We explained that they should evaluate requests 

for information in light of the accommodation principles at play when 

congressional committees request information and support from the 

Executive Branch, and in light of any executive privilege concerns, particularly given the classified nature of some of the Commission’s work, 

see FY 2019 NDAA § 1652(g)(3)(C), 132 Stat. at 2144. See, e.g., United 

States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (requiring each branch to “seek optimal accommodation through a realistic 

evaluation of [their respective] needs . . . in the particular fact situation”).

Such obligations, however, do not mean that the Executive Branch officers could not accommodate the Commission’s legitimate interests in that 

regard, consistent with the assistance regularly provided by the Executive 

Branch to Congress.
44 Op. O.L.C. __ (Oct. 9, 2020)

4

I.

The FY 2019 NDAA established the Cyberspace Solarium Commission 

to gather evidence and prepare a report recommending a long-term strategy for defense against cyber attacks. Id. § 1652(a)(1), (f)(1)–(7), (k)(1), 

132 Stat. at 2141–43, 2146. The Commission was modeled on President 

Dwight D. Eisenhower’s Cold War-era “Project Solarium,” which gathered three task forces of experts from public and private life to study

strategies for guarding against a potential stockpiling of atomic weapons 

by the Soviet Union.3

Congress directed the Cyberspace Solarium Commission “[t]o define 

the core objectives and priorities” of a national cyber-defense strategy, 

“weigh the costs and benefits of various strategic options,” “evaluate the 

effectiveness of the current national cyber policy,” and “consider possible 

structures and authorities that need to be established, revised, or augmented within the Federal Government” to successfully guard against cyber

attacks. FY 2019 NDAA § 1652(f), 132 Stat. at 2142–43. By statute, the 

Commission’s fourteen members included the Principal Deputy DNI, the 

Deputy Secretary of Homeland Security, the Deputy Secretary of Defense, 

the Director of the Federal Bureau of Investigation, and ten congressional 

appointees who could be members of Congress. Id. § 1652(a)(1)–(2), 

(b)(1), 132 Stat. at 2141. On some prior occasions, Congress at least 

purported to specify whether a hybrid commission of this sort should be 

considered legislative or executive.

4 But it did not do so here.

 3 See 164 Cong. Rec. S3927 (daily ed. June 13, 2018) (statement of Sen. Sasse, who 

had originally proposed an amendment to the FY2018 NDAA that would have created the 

Cyberspace Solarium Commission, see 163 Cong. Rec. S5674 (daily ed. Sept. 13, 2017)); 

see also Memorandum of Discussion at the 144th Meeting of the National Security 

Council, Wednesday, May 13, 1953, in Dep’t of State Pub. No. 9347, 15 Foreign Relations of the United States, 1952–1954 (Korea) 1012, 1016 (1984) (describing statement of 

President Eisenhower explaining the objectives of Project Solarium). President Eisenhower named the project after the White House solarium, where the idea was conceived. See 

William B. Pickett, Introduction: The Solarium Exercise of June 1953, in George F. 

Kennan and the Origins of Eisenhower’s New Look: An Oral History of Project Solarium 

3 (William B. Pickett ed., 2004).

4 See, e.g., FY 2019 NDAA § 1051(a)(1)–(4), (b), 132 Stat. at 1962–63 (establishing 

an advisory commission “in the executive branch” with legislative and executive appointees to produce reports and recommendations on the national security uses of artificial 

intelligence and machine learning); Evidence-Based Policymaking Commission Act of 
Executive Branch Participation in the Cyberspace Solarium Commission

5

To carry out its mission, the Commission was authorized to exercise 

investigative functions. The Commission was able to hold hearings, take 

testimony, receive evidence, and issue subpoenas requiring witness 

testimony and document production. Id. § 1652(g)(1)(A), 132 Stat. at 

2143; see also id. § 1652(g)(1)(B), 132 Stat. at 2143. The statutes governing contempt of Congress were made applicable to failures to comply 

with the Commission’s subpoenas. Id. § 1652(g)(1)(C), 132 Stat. at 

2143. Separately, executive agencies were instructed, “to the extent 

authorized by law, [to] furnish such information, suggestions, estimates, 

and statistics” as are required for the Commission to carry out its duties.

See id. § 1652(g)(3)(A)–(B), 132 Stat. at 2143–44; see also, e.g., id.

§ 1652(g)(1)(A), 132 Stat. at 2143 (authorizing the Commission, “for 

the purpose of carrying out the provisions of this section,” to require by 

subpoena testimony, books, records, correspondence, and documents as 

the Commission or “designated subcommittee or designated member 

considers necessary”). In addition, the statute specified that the Secretary of Defense “shall” provide the Commission with nonreimbursable 

administrative services, funds, staff, and facilities, id. § 1652(g)(4)(A), 

132 Stat. at 2144, and that the DNI and the heads of other executive 

agencies “may” give the Commission administrative services and staff, 

id. § 1652(g)(4)(B), (C), 132 Stat. at 2144. See also id. § 1652(h)(1)(B), 

132 Stat. at 2144 (authorizing the detailing of federal staff to the Commission).

The Commission was required to memorialize its recommendations in a 

“final report” to the congressional defense, intelligence, and homeland 

security committees, as well as to the Secretary of Defense, the Secretary 

of Homeland Security, and the DNI. Id. § 1652(k)(1), 132 Stat. at 2146.

Within 60 days of receiving the report, the Secretaries and the DNI were 

each to “submit to the congressional intelligence committees and the 

 

2016, Pub. L. No. 114-140, §§ 2, 3(a), 4, 130 Stat. 317, 317–18 (2016) (establishing an 

advisory commission “in the executive branch” with legislative and executive appointees 

to produce recommendations for amending federal agency data infrastructure, database 

security, and statistical protocols); see also Matthew E. Glassman & Jacob R. Straus, 

Cong. Research Serv., R40076, Congressional Commissions: Overview, Structure, and 

Legislative Considerations 10 (2017) (“In some instances, the establishment clause will 

identify the commission as ‘established in the legislative branch.’”).
44 Op. O.L.C. __ (Oct. 9, 2020)

6

congressional defense committees an assessment” of the report, including 

“such comments” as each of the three officials “considers appropriate.”

Id. § 1652(l), 132 Stat. at 2146. The original deadline for the report was 

September 1, 2019, see id. § 1652(k)(1), 132 Stat. at 2146, but Congress 

extended the deadline to April 30, 2020. National Defense Authorization 

Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1639, 133 Stat. 1198, 

1750 (2019). On March 11, 2020, the Commission made the report available to the public, in anticipation of its formal submission to Congress in 

April. See Cyberspace Solarium Commission, Final Report (Mar. 2020), 

https://www.solarium.gov (last visited Oct. 9, 2020). The Commission 

was to terminate within 120 days of the report’s formal submission to the 

congressional defense and intelligence committees. See FY 2019 NDAA

§ 1652(k)(2)(A), 132 Stat. at 2146. During that 120-day period, the Commission was able to wind down its activities and provide testimony to 

Congress on its report. Id. § 1652(k)(2)(B), 132 Stat. at 2146.

II.

A truly hybrid commission with Executive and Legislative Branch appointees creates separation of powers concerns because it lacks accountability to any single branch of government. As the Supreme Court has 

recognized, “[t]he Constitution sought to divide the delegated powers of 

the new federal government into three defined categories, legislative, 

executive and judicial, to assure, as nearly as possible, that each Branch 

of government would confine itself to its assigned responsibility.” INS v. 

Chadha, 462 U.S. 919, 951 (1983); see also, e.g., Martin v. Hunter’s 

Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (“The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.”); Hayburn’s Case, 

2 U.S. (2 Dall.) 408, 410 n.* (1792) (reporting the decision of the Circuit 

Court for the District of New York, including Chief Justice Jay and Justice Cushing, which had observed “[t]hat by the Constitution of the United 

States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, 

encroachments on either” (emphasis added)). In our tripartite constitutional structure, any commission performing federal functions must reside 

within a single one of the three branches of government.
Executive Branch Participation in the Cyberspace Solarium Commission

7

A.

This Office has long expressed constitutional concerns about hybrid 

commissions, which occupy a “no-man’s land between . . . two branches,” 

with commission members who risk being unaccountable to either of the 

political branches. Memorandum for John R. Bolton, Assistant Attorney 

General, Office of Legislative and Intergovernmental Affairs, from Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R. 3345, 99th Cong. 1st Sess., at 2 (Apr. 9, 1986); see also

Congressional Incursions at 3–4 (describing such commissions as “inconsistent with the tripartite system of government established by the Framers of our Constitution” and detailing the Department’s repeated 

“strong[]” opposition to congressional creation of hybrid commissions

(internal quotation marks omitted)).5

The problems with hybrid commissions are two-fold. First, an entity 

with members representing two branches is not fully accountable to any 

governmental authority. The constitutional separation of powers is designed to diffuse power among different federal actors to better protect 

liberty. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (recognizing that the “purpose of separating and dividing the powers of government” was to “‘diffus[e] power the better to secure liberty’” (alteration in 

original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

635 (1952) (Jackson, J., concurring))). But “[t]he diffusion of power 

carries with it a diffusion of accountability.” Free Enter. Fund v. Pub. Co. 

Accounting Oversight Bd., 561 U.S. 477, 497 (2010). To ensure that the 

government remains responsive to the people, the constitutional separation of powers “requires that each branch maintain its separate identity, 

and that functions and responsibilities be clearly assigned among the 

separate branches, so that each can be held accountable for its actions.”

Memorandum for William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, from Ralph W. Tarr, Acting Assistant Attor-

 5 See, e.g., Statement on Signing a Bill Establishing a National Commission on Agricultural Trade and Export Policy (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan 

1211, 1211–12 (1984) (urging that the commission “be composed either entirely of 

members selected by the legislative branch, if it is to serve primarily legislative functions, 

or entirely of members appointed by the President, if it is to serve the executive branch”); 

Statement on Signing the Patent Law Amendments Act of 1984 (Nov. 9, 1984), 2 Pub. 

Papers of Ronald Reagan 1816, 1817 (1984) (same).
44 Op. O.L.C. __ (Oct. 9, 2020)

8

ney General, Office of Legal Counsel, Re: S. 519, 99th Cong. 1st Sess., 

the “Federal Employee Anti-Sex Discrimination in Compensation Act of 

1985” at 2 (July 2, 1985). 

“The creation of a Commission that is not clearly legislative, judicial, 

or executive, tends to erode” this foundational restraint. Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 

251 (1989) (“Common Legislative Encroachments”) (internal quotation 

marks omitted). When a blended executive-legislative body ultimately 

reports to neither political branch, the public is left unable to determine 

where the blame for “a pernicious measure . . . ought really to fall.” See 

Free Enter. Fund, 561 U.S. at 498 (internal quotation marks omitted) 

(quoting The Federalist No. 70, at 476 (Alexander Hamilton) (J. Cooke 

ed. 1961)). And “[w]hen citizens cannot readily identify the source of 

legislation or regulation that affects their lives, Government officials can 

wield power without owning up to the consequences.” Dep’t of Transp. v. 

Ass’n of Am. R.Rs., 575 U.S. 43, 57 (2015) (Alito, J., concurring). Because a branchless entity would undermine the accountability that the 

separation of powers demands, the Constitution requires that every entity 

exercising the authority of the federal government be accountable to a 

single branch.

Second, once the nature of a hybrid commission is determined, that 

constitutional location determines the roles that its executive and legislative members may play. To the extent that a commission exercises executive powers, for instance, agents of the Legislative Branch may not participate, even in an advisory capacity. See, e.g., Metro. Wash. Airports Auth. 

v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276

(1991) (“If the power is executive, the Constitution does not permit an 

agent of Congress to exercise it.”); Buckley v. Valeo, 424 U.S. 1, 139 

(1976) (per curiam) (holding that congressional appointees may “perform 

duties only in aid of those functions that Congress may carry out by itself, 

or in an area sufficiently removed from the administration and enforcement of the public law”); FEC v. NRA Political Victory Fund, 6 F.3d 821, 

827 (D.C. Cir. 1993) (observing that even in a purely advisory role, the 

presence of ex officio congressional agents on an Executive Branch

commission violated the separation of powers); see also The Constitutional Separation of Powers Between the President and Congress, 20 Op. 

O.L.C. 124, 160 n.95 (1996) (“Separation of Powers”) (“[D]esignating a 

member of Congress to serve on a commission with any executive func-
Executive Branch Participation in the Cyberspace Solarium Commission

9

tions, even in what was expressly labeled a ceremonial or advisory role, 

may render the delegation of significant governmental authority to the 

commission unconstitutional as a violation of the anti-aggrandizement 

principle.” (citing NRA Political Victory Fund, 6 F.3d at 827)); Common 

Legislative Encroachments, 13 Op. O.L.C. at 251–52.

At the same time, if a commission is an arm of the Legislative Branch, 

then Executive Branch members may participate in an advisory role but, 

in that capacity, they do not cease to be subject to the supervision of the 

President. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 

2183, 2197 (2020) (“The entire ‘executive Power’ belongs to the President alone,” and “lesser [executive] officers must remain accountable to 

the President, whose authority they wield.”); see also, e.g., Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the 

Implementing Recommendations of the 9/11 Commission Act of 2007, 32 

Op. O.L.C. 27, 31 (2008) (“Direct Reporting Requirement”) (“[S]tatutes 

that interfere with the President’s ability to supervise, directly or through 

subordinate officials, the Executive Branch’s communications with Congress raise serious constitutional concerns.”). As discussed below, the 

structure of the Cyberspace Solarium Commission presented a number of 

concerns about the roles Executive Branch members may play in the 

Commission, in light of its constitutional location.

Thus, the threshold question in evaluating the structure of a hybrid 

commission is determining the branch in which the entity resides. This 

approach finds consistent support in our precedents. In Status of the 

Commission on Railroad Retirement Reform for Purposes of the Applicability of Ethics Laws, 13 Op. O.L.C. 285 (1989) (“Railroad Retirement 

Reform Commission”), we considered the Railroad Retirement Reform 

Commission, whose members were appointed variously by the President, 

congressional leaders, and the Comptroller General (an agent of Congress). Id. at 286. The commission was charged with submitting a report 

to Congress and to the President with legislative recommendations about 

the railroad retirement system. Id. In view of the statute’s dual-reporting 

requirement, the Commission was “vested with ‘[o]bligations to two 

branches,’” but the “presence of such dual obligations” did not prevent its 

“characterization . . . as part of one branch.” Id. at 287 n.5 (quoting Bowsher, 478 U.S. at 746 (Stevens, J., concurring in the judgment)). The 

commission’s obligation to report to Congress “without any prior review” 

by the Executive Branch would raise “serious constitutional questions,” if 
44 Op. O.L.C. __ (Oct. 9, 2020)

10

the commission fell within the Executive Branch. See id. at 287–88. We

thus construed the statute’s dual-reporting requirement “as contemplating 

that the Commission’s report would be prepared principally for Congress’ 

benefit” and concluded that the commission should be deemed to fall 

outside the Executive Branch for purposes of laws governing conflicts of 

interest and financial disclosure. See id. at 289–90.

We reached a similar conclusion with respect to the National Gambling 

Impact Study Commission, an advisory commission with six members 

appointed by Congress and three by the President. Applicability of 18 

U.S.C. § 208 to National Gambling Impact Study Commission, 23 Op. 

O.L.C. 29, 29 (1999) (“National Gambling Impact Study Commission”).

We emphasized that the commission performed only “informationgathering and advisory functions, which need not be performed by the 

executive branch.” Id. at 30 n.2. And we concluded that, because a majority of the commissioners were congressionally appointed and the commission operated like a congressional committee, it was “part of the 

legislative branch.” See id. at 30 n.2, 35.

In yet another opinion, we considered the location of the Native Hawaiians Study Commission in order to determine whether the Hatch Act 

applied to its chairman. See Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission, 6 Op. O.L.C. 292, 294 

(1982) (“Native Hawaiians Study Commission”). The commission there 

consisted solely of presidential appointees, but it had been initially funded 

by Senate appropriations and had been “established to advise Congress 

rather than the President.” Id. We recognized that “a commission may 

have dual responsibilities—as in this case, advisory to Congress, factfinding and reporting to the President—without necessarily losing its 

character as an executive entity.” Id. While finding that the structure 

presented a “difficult question,” we concluded “that the circumstances 

viewed as a whole point[ed] to the Commission as an entity within the 

Executive Branch.” Id. at 295.

Finally, on several occasions, this Office has considered the status of 

commemorative commissions, which have “representatives of multiple 

branches participating in ceremonial events,” but which also must exercise executive authority in the course of administering the events in question. Ronald Reagan Commission, 33 Op. O.L.C. at 195. Those commissions have included members from the Legislative and Judicial Branches, 
Executive Branch Participation in the Cyberspace Solarium Commission

11

and in light of “ample historical precedent,” we have accepted that “[i]t is 

not unconstitutional for such commissions to perform advisory functions.”

Id. at *2 & n.1. But to the extent that these commissions perform executive functions—like “exercising operational control over a statutorily 

prescribed national commemoration”—then the participation of nonexecutive agents must end. Id. at *3.

Thus, in 1984, we advised that the Commission on the Bicentennial of 

the Constitution, whose members included the Chief Justice and congressional leaders, should establish an “executive committee composed of all 

non-advisory members of the Commission . . . legally responsible for 

discharging the purely executive functions of the Commission” to accommodate separation of powers concerns. Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984)

(“Bicentennial Commission”). In 2010, we took the same course in advising that the Reagan Centennial Commission—a majority of which comprised members of Congress—could carry out the executive functions of 

planning and developing commemorative activities to honor President 

Reagan only by establishing a separate executive committee consisting 

solely of the Executive Branch members of the commission. See Memorandum for Robert F. Bauer, Counsel to the President, from Martin S. 

Lederman, Deputy Assistant Attorney General, Office of Legal Counsel, 

Re: Administration of the Ronald Reagan Centennial Commission at 3–4 

(May 7, 2010) (“Lederman Memo”). Following the approach of Bicentennial Commission, 8 Op. O.L.C. at 207, we construed the statute itself as 

“limit[ing] the exercise of the purely executive functions of the Commission to the five presidentially appointed commissioners” who would 

constitute the executive committee. Lederman Memo at 3 (internal quotation marks and citation omitted). With this executive committee in place, 

we advised that the full commission, with its majority of congressional 

appointees, was “limited to giving advice.” Ronald Reagan Commission, 

33 Op. O.L.C. at 200. In so doing, we essentially divided the Reagan 

Centennial Commission into two entities—one executive (consisting 

solely of Executive Branch representatives) and one advisory (consisting 

of both Executive Branch and Legislative Branch representatives). We 

therefore resolved the separation of powers concerns presented by such a 

ceremonial commission by cabining the functions of the full commission 

in a manner consistent with its implicit location in the Legislative Branch.

See also Administration of the John F. Kennedy Centennial Commission, 
44 Op. O.L.C. __ (Oct. 9, 2020)

12

41 Op. O.L.C. __, at *1 (Jan. 10, 2017) (recommending that the John F. 

Kennedy Centennial Commission adopt the same “structure used to carry 

out the functions of the Ronald Reagan Centennial Commission”).

Previous practice therefore buttresses our conclusion: Every seemingly 

hybrid commission still must be situated in one and only one branch of 

our tripartite constitutional structure.

6

B.

We turn then to the Cyberspace Solarium Commission. Generally, 

“[t]he status within the government of an office created by statute is a 

matter of statutory interpretation.” Railroad Retirement Reform Commission, 13 Op. O.L.C. at 285. But constitutional constraints prevent Congress from assigning purely executive duties to a legislative entity. See

Buckley, 424 U.S. at 138–39. Because the FY 2019 NDAA did not specify 

where the Commission would reside, we consider the statutory context, 

the method of appointment of its members, and the powers that it exercises. Here, the relevant statutory indicia suggested that the Commission was 

located within the Legislative Branch.

 6 See also Statement on Signing the National Defense Authorization Act for Fiscal 

Year 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 3 (Dec. 20, 2019) (observing with 

respect to a number of provisions that “establish[ed], reauthorize[d] or add[ed] to the 

authorities of hybrid commissions or boards,” including the Cyberspace Solarium 

Commission, that commissions with Legislative Branch and Executive Branch appointees “separate from the executive branch” are simply “legislative branch entities”); 

Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal 

Year 2019, 2018 Daily Comp. Pres. Doc. No. 533, at 2 (Aug. 13, 2018) (“FY 2019 

NDAA Signing Statement”) (“While I welcome the creation of this commission, these 

legislative branch appointees preclude it, under the separation of powers, from being 

located in the executive branch. My Administration accordingly will treat the commission as an independent entity, separate from the executive branch.”); Statement on 

Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 Daily Comp. 

Pres. Doc. No. 863, at 3 (Dec. 23, 2016) (“Because the commission contains legislative 

branch appointees, it cannot be located in the executive branch consistent with the 

separation of powers.”); Statement on Signing the Alyce Spotted Bear and Walter 

Soboleff Commission on Native Children Act, 2016 Daily Comp. Pres. Doc. No. 695, at 1 

(Oct. 14, 2016) (“While I welcome the creation of this Commission, it cannot be located 

in the executive branch consistent with the separation of powers because it includes 

legislative branch appointees[.]”).
Executive Branch Participation in the Cyberspace Solarium Commission

13

Multiple factors supported this determination. First, the Commission’s 

membership structure suggested that it was located in the Legislative 

Branch, because “the majority of the Commissioners were congressionally 

appointed,” National Gambling Impact Study Commission, 23 Op. O.L.C. 

at 30 n.2; see also FY 2019 NDAA § 1652(b), 132 Stat. at 2141. The 

presence of members of Congress on the Commission counseled strongly 

against treating it as an Executive Branch entity. See NRA Political Victory Fund, 6 F.3d at 827 (holding that two congressional agents could not 

serve, even as non-voting members, on the eight-member Federal Election 

Commission). Members of Congress may neither serve as officers of the 

United States, see U.S. Const. art. I, § 6, cl. 2, nor appoint such officers, 

see id. art. II, § 2, cl. 2. But even for commissions whose members lack 

the authority of officers of the United States—either because the Legislative Branch appointees perform only advisory roles or the commission 

itself lacks significant authority under the laws of the United States—

locating a commission in the Executive Branch if Congress appoints a 

majority of the members would raise concerns of congressional aggrandizement and the blurring of the separation of powers. See, e.g., Separation of Powers, 20 Op. O.L.C. at 160 n.95. The fact that members of 

Congress appoint a majority of the members of the Commission thus 

counseled strongly in favor of the conclusion that it is a Legislative 

Branch entity.

Second, the nature of the Commission’s powers supported this conclusion. The Commission’s principal duty was to prepare a report that “define[d] the core objectives and priorities” of national cyber policy and 

“consider[ed] possible structures and authorities that need to be established, revised, or augmented within the Federal Government” to defend 

the United States from cyber-attacks. FY 2019 NDAA § 1652(f)(1), (7), 

132 Stat. at 2142–43. The Commission authored and submitted the report 

to Congress without any review from the Executive Branch, other than the 

four Executive Branch commissioners, who made up a minority of the 

Commission’s fourteen members. Id. § 1652(k)(1), 132 Stat. at 2146. The 

procedure for publication and assessment of the Commission’s report also 

suggested that the report was prepared “principally for Congress’ benefit,” see Railroad Retirement Reform Commission, 13 Op. O.L.C. at 289.

While the FY 2019 NDAA required submission of the Commission’s final 

report to several Executive Branch officials in addition to multiple congressional committees, see FY 2019 NDAA § 1652(k)(1), 132 Stat. at 
44 Op. O.L.C. __ (Oct. 9, 2020)

14

2146, the executive officials were provided with the report merely to 

facilitate their own further responses to Congress. See id. § 1652(l), 132 

Stat. at 2146. Both sets of recommendations—the Commission’s report, 

and the analysis of the executive officials required to respond—were 

therefore ultimately for Congress’s consideration. And any testimony or 

briefing on the Commission’s report was also to be provided to Congress, 

see id. § 1652(k)(2)(B), 132 Stat. at 2146, again indicating that its recommendations were directed toward the Legislative Branch. In this way, 

the Commission was designed to “function[] much as a congressional 

committee does when conducting an investigation or drafting a legislative 

proposal based on the information it has gathered.” National Gambling 

Impact Study Commission, 23 Op. O.L.C. at 35.

The Commission exercised no purely executive powers. Indeed, the 

Commission was expressly given the subpoena power of an agent of 

Congress; the FY 2019 NDAA authorized the Commission to issue subpoenas and provided that any actions in contempt of its subpoenas should 

be governed by the statutory procedures applicable to contempt of Congress, 2 U.S.C. §§ 192–194. FY 2019 NDAA § 1652(g)(1)(C). We have 

previously advised that “[i]f Congress intends [a] Commission to be part 

of the Executive Branch,” then we would expect it to exercise the kind of 

civil enforcement power given to executive agencies, rather than the 

contempt powers of Congress. See Proposed Commission on Deregulation 

of International Ocean Shipping, 7 Op. O.L.C. 202, 204 (1983). The 

nature of the Commission’s subpoena powers further confirmed that it 

was a legislative entity.

Finally, the FY 2019 NDAA exempted the Commission from the Federal Advisory Committee Act (“FACA”) and Freedom of Information Act 

(“FOIA”) requirements that typically apply to Executive Branch advisory 

commissions. FY 2019 NDAA § 1652(m), 132 Stat. at 2146. Ordinarily, 

“any committee” established by statute “in the interest of obtaining advice 

or recommendations for the President or one or more agencies or officers 

of the Federal Government” is subject to FACA. 5 U.S.C. app. § 3(2).

FOIA likewise applies to most executive agencies. 5 U.S.C. § 552; id. 

§ 551(1). Congress’s choice to exempt the Commission from these requirements, while not dispositive, bore upon the interpretive question.

Notably, in the very same act in which it created the Commission, Congress expressly located another advisory commission “in the executive 

branch” without excepting it from FACA and FOIA requirements. FY 
Executive Branch Participation in the Cyberspace Solarium Commission

15

2019 NDAA § 1051(a) (National Security Commission on Artificial 

Intelligence). That contrast provided an additional indication of the Commission’s location in the Legislative Branch.

For the reasons set forth above, we concluded, and advised, that the 

Commission should be viewed as a Legislative Branch entity.

III.

Our conclusion that the Commission was a Legislative Branch entity 

had separation of powers implications for the service of its Executive 

Branch members.

7 We advised that the Executive Branch officials serving 

on the Commission should act with one unified voice, subject to executive 

supervision, in advising the Commission. Although robust participation 

on a commission through the provision of advice, information, and staff 

and office resources is perfectly appropriate when that work promotes 

comity and is consistent with the interests of the Executive Branch, we 

advised that individual executive members should not participate in 

formal acts of the legislative commission, such as individualized voting or 

signing the Commission’s final report; that they must preserve Executive 

Branch confidentiality interests when advising the Commission; and that 

they should comply with commission requests to share Executive Branch

resources, outside of the statutory process, only to the extent that the 

provision of resources would be consistent with Executive Branch interests.

 7 The appointment by Congress of executive branch officers to a legislative entity presents a different constitutional question from when Congress vests the President with the 

power to appoint officials to serve on legislative commissions. See, e.g., Removal of 

Members of the Commission on Federal Laws for the Northern Mariana Islands, 7 Op. 

O.L.C. 95, 102 (1983) (noting that, “[e]ven if we grant that the Commission is an arm of 

Congress,” the President could still remove its members at will if Congress chose to vest 

appointment power in the President). Here, we addressed the separation of powers 

concerns that arose when a statute directed presidential appointees with pre-existing 

executive branch ties to serve ex officio in a position within the Legislative Branch. We 

did not disturb the long-standing historical practice of the President’s appointing individuals to offices serving the entire Legislative Branch. See, e.g., Constitutionality of Bill 

Creating an Office of Congressional Legal Counsel, 1 Op. O.L.C. Supp. 384, 389 (1976); 

see also 31 U.S.C. § 703(a)(1) (“The Comptroller General and Deputy Comptroller 

General are appointed by the President, by and with the advice and consent of the Senate.”); 2 U.S.C. § 1801(a)(1) (“The Architect of the Capitol shall be appointed by the 

President by and with the advice and consent of the Senate for a term of 10 years.”).
44 Op. O.L.C. __ (Oct. 9, 2020)

16

The Executive Branch officers did not serve on the Commission as 

independent actors, but as representatives of one Executive Branch, 

which is subject to ultimate supervision by the President. See U.S. 

Const. art. II, § 1, cl. 1 (vesting the President with “[t]he executive 

Power” (emphasis added)); id. art. II, § 3 (charging the President with 

the duty to “take Care that the laws be faithfully executed”); see also, 

e.g., Seila Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ belongs to the President alone”); Myers v. United States, 272 U.S. 52, 135 

(1926) (highlighting that the President “may properly supervise and 

guide” subordinate officers “in order to secure . . . unitary and uniform 

execution of the laws”); Printz v. United States, 521 U.S. 898, 922 

(1997) (“The insistence of the Framers upon unity in the Federal Executive—to ensure both vigor and accountability—is well known.”); Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (“[The 

Founders] sought to encourage energetic, vigorous, decisive, and speedy 

execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the 

other branches, the Constitution divides among many.”); Direct Reporting Requirement, 32 Op. O.L.C. at 31 (“[S]tatutes that interfere with the 

President’s ability to supervise, directly or through subordinate officials, the Executive Branch’s communications with Congress raise 

serious constitutional concerns.”). Therefore, in serving on a Legislative 

Branch entity, Executive Branch members on the Commission remained 

agents of the Executive Branch.

We addressed a somewhat analogous situation in connection with the 

detail of Executive Branch law enforcement agents to congressional 

committees. There, we observed that when executive officials work for a 

congressional committee, “[t]he pertinent issue . . . is whether the President’s ability to supervise his subordinates in the performance of their 

executive branch functions is unconstitutionally impaired.” Detail of Law 

Enforcement Agents to Congressional Committees, 12 Op. O.L.C. 184, 

186 (1988) (“Detail of Law Enforcement Agents”). And we warned that 

congressional details potentially place executive officials “in the difficult 

position of serving two masters with conflicting interests—the legislative 

and executive branches.” Id. at 184. To counteract these concerns, we 

advised that the Executive Branch members on detail could perform “only 

non-law enforcement, advisory functions,” and even while performing 

those functions, they should “faithfully defend the interests of the execu-
Executive Branch Participation in the Cyberspace Solarium Commission

17

tive branch” and preserve the confidentiality of Executive Branch information. See id. at 187–88.

So too here. In practice, the principle that Executive Branch officials 

must advance Executive Branch interests limited their participation in the 

Commission’s work in several ways. First, the Executive Branch officials 

charged with assessing the Commission’s final report were advised do so 

collectively, or at least in coordination with each other, rather than 

providing independent assessments in their separate capacities. And 

because members of the Commission were expected to cast their votes 

individually, we advised that the Executive Branch members should not 

vote on the final report or on commission decisions to issue subpoenas in 

the Commission’s investigative capacity. Although the Executive Branch

members could theoretically have adopted and advanced common positions with respect to matters on which they were expected to vote, the 

need for the Commission to release its report promptly made it impracticable for them to engage in the kinds of consultations necessary to do so.

This limitation, however, did not necessarily preclude Executive 

Branch members from robust participation in the formulation of the 

report. Just as Executive Branch officials may perform “advisory or 

research” functions while on detail to a congressional committee, Detail 

of Law Enforcement Agents, 12 Op. O.L.C. at 186, they could advise and 

provide information, expertise, and substantial resources to the Commission. But such input had to be consistent with the Executive Branch’s 

understanding of its own interests. And any contributions to, and assessments of, the Commission’s report had to be subject to the supervision of 

others in the Executive Branch. Cf. Separation of Powers, 20 Op. O.L.C. 

at 174–75 (objecting to requirements that reports be simultaneously 

submitted to the Executive and Legislative Branches, because such requirements “increase congressional leverage on the President and other 

officials of the executive branch” and thus potentially “interfer[e] with the 

President’s fulfillment of his obligations under the Take Care Clause”).

We therefore advised that the Executive Branch members could serve an 

advisory role and articulate a uniform position on the Commission’s 

work, but they should not formally vote or sign the legislative commission’s final report. We further advised that the Executive Branch officers 

assigned the statutory role of providing assessments of the Commission’s 

report to Congress, see FY 2019 NDAA § 1652(l), 132 Stat. at 2146, did 

not act in their individual capacities, but rather remained subject to the 
44 Op. O.L.C. __ (Oct. 9, 2020)

18

ordinary mechanisms by which the President supervises and coordinates 

the position of the Executive Branch.

In addition, we advised that all Executive Branch members and staff 

should maintain the confidentiality of Executive Branch information when 

sharing their information and expertise with the Commission. Executive 

agencies should treat a legislative commission’s requests for confidential 

Executive Branch information in the same way that the Executive Branch 

generally responds to requests for information from Congress. Like a 

congressional committee, the Commission was empowered to obtain the 

information necessary for its work through hearings, voluntary requests, 

and subpoenas. See id. § 1652(g)(1)(A)–(C), 132 Stat. at 2143. Executive 

agencies should similarly seek to accommodate legitimate requests consistent with the established accommodation process. See, e.g., Am. Tel. & 

Tel. Co., 567 F.2d at 127 (requiring each branch to “seek optimal accommodation through a realistic evaluation of [their respective] needs . . . in 

the particular fact situation”); Attempted Exclusion of Agency Counsel 

from Congressional Depositions, 43 Op. O.L.C. __, at *19 (May 23, 

2019) (describing “the constitutional balance” of providing Congress with 

information essential to oversight while preserving Executive Branch

constitutional prerogatives); Authority of the Department of Health and 

Human Services to Pay for Private Counsel to Represent an Employee 

Before Congressional Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18, 

2017); Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989); see also Trump v. Mazars USA, 

LLP, 140 S. Ct. 2019, 2031 (2020) (referring to this practice with approval and noting ruefully that “Congress and the President [had] maintained 

this tradition of negotiation and compromise—without the involvement of 

this Court—until the present dispute”). And while the Commission may 

have had a legitimate need to obtain classified or sensitive national security information for its work, its requests needed to be measured like any 

other Legislative Branch request for sensitive information, and they 

remained subject to the President’s ultimate control over such information. See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988).

Finally, Executive Branch entities were advised that they should treat 

the FY 2019 NDAA’s provisions requiring them to provide administrative 

assistance to the Commission (in the form of resources such as office 

space, computer facilities, and staff) as discretionary. Congress, of 

course, may appropriate funds to itself for the performance of its duties 
Executive Branch Participation in the Cyberspace Solarium Commission

19

and the support of its agents. The anti-aggrandizement principle of the 

separation of powers, however, prohibits a congressional body from using 

any means other than the enactment of legislation to order the Executive 

Branch to execute legislation. See Bowsher, 478 U.S. at 733 (“[O]nce 

Congress makes it choice in enacting legislation, its participation ends.”).

As a Legislative Branch entity, the Commission could not be given the 

power to compel Executive Branch departments to provide office space, 

administrative support, and supplies on a nonreimbursable basis, see FY 

2019 NDAA § 1652(g)(4), 132 Stat. at 2144.

8 See, e.g., Letter for Heidi 

Heitkamp & Lisa Murkowski, U.S. Senate, from Stephen E. Boyd, Assistant Attorney General, Office of Legislative Affairs, Re: Implementation 

of the Alyce Spotted Bear and Walter Soboleff Commission on Native 

Children at 2 (Aug. 10, 2018) (“In order to avoid a constitutional issue, 

the Department will treat as permissive the directives to provide administrative support and detailees[.]”). Accordingly, we advised that the Executive Branch should provide the Commission with Executive Branch resources—such as office space, access to computer networks, and e-mail 

addresses—only if it concluded that providing access to a resource would 

sufficiently advance Executive Branch interests to outweigh any potential 

risks from the resulting commingling of executive and legislative resources.

More specifically, we advised that the sharing of Executive Branch

computer networks or the use of Executive Branch e-mail addresses to 

conduct commission business should be done in a manner that would not 

 8 Several of the FY 2019 NDAA provisions providing for commission support used 

the mandatory “shall,” rather than the discretionary “may.” See, e.g., FY 2019 NDAA

§ 1652(g)(3)(B), 132 Stat. at 2144 (providing that executive entities “shall, to the extent 

authorized by law, furnish” information to the Commission (emphasis added)); id. 

§ 1652(g)(4)(A), 132 Stat. at 2144 (“The Secretary of Defense shall provide to the 

commission, on a nonreimbursable basis, such administrative services, funds, staff, 

facilities, and other support services as are necessary for the performance of the Commission’s duties[.]” (emphases added)); id. § 1652(g)(4)(D), 132 Stat. at 2144 (“The Commission shall receive the full and timely cooperation of any official, department, or 

agency of the United States Government whose assistance is necessary, as jointly determined by the [Commission] co-chairs[.]” (emphases added)). But these provisions nonetheless authorized officials to exercise some judgment in determining whether certain 

resources would be made available, based on an analysis of whether the support was 

“necessary” or “authorized by law.” To the extent that those provisions denied such 

discretion, they were required to yield to constitutional separation of powers principles.
44 Op. O.L.C. __ (Oct. 9, 2020)

20

suggest an Executive Branch imprimatur. And if administrative assistance 

was to take the form of detailing personnel to the Commission, executive 

agencies were encouraged to consider whether the Executive Branch

benefits to be gained by the personnel’s service to the Commission would 

be sufficiently significant to outweigh any potential confidentiality or 

accountability considerations raised by their service to a legislative entity.

See Detail of Law Enforcement Agents, 12 Op. O.L.C. at 185 (providing 

that, in detailing law enforcement agents to congressional committees on 

a voluntary basis, the Department should consider “whether the benefits 

to be gained by the law enforcement agencies are sufficiently extraordinary to outweigh the separation of powers and ethical concerns raised by 

the detail”).

IV.

For the reasons set forth above, we concluded that the Commission had 

to be located within one branch of the tripartite federal constitutional 

structure. In addition, we advised that the statutory structure and context 

indicated that the Commission was most appropriately viewed as a Legislative Branch entity. Accordingly, as a constitutional matter, the Executive Branch members of the Commission were limited in the ways they 

could participate in the Commission’s work; they were required to perform their commission responsibilities as Executive Branch representatives, consistent with the Executive Branch’s confidentiality and policy 

interests.

STEVEN A. ENGEL

Assistant Attorney General

Office of Legal Counsel