Whether Members of the Sentencing Commission Who Were

Appointed Prior to the Enactment of a Holdover Statute May

Exercise Holdover Rights Pursuant to the Statute

S tatutory provisions that allow m em bers o f the U nited S tates S entencing C om m ission to h o ld o v e r in 

office a fte r their term s have expired apply to incum bent m em bers w ho w ere appointed p rio r to the 

en ac tm e n t o f the holdover statute

C om m issioners w ho w ere appointed p n o r to the en actm en t o f the ho ld o v er statute m ay co n stitu tio n ally 

e x ercise such hold o v er rights w ithout violating the A ppointm ents C lause.

April 5, 1994

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

BACKGROUND AND SUM M ARY

On August 26, 1992, President Bush signed “An Act to amend [28 U.S.C. § 

992] to provide [that] a member of the United States Sentencing Commission 

whose term has expired may continue to serve until a successor is appointed or 

until the expiration of the next session of Congress.” Act of Aug. 26, 1992, Pub. 

L. No. 102-349, 106 Stat. 933 (1992) (codified at 28 U.S.C. § 992(b)) (“the holdover statute”). This memorandum addresses whether members of the Sentencing 

Commission (“Commission”) who were in office at the time the holdover statute 

was enacted may exercise holdover rights pursuant to the statute.

We first address whether Congress intended the holdover statute to apply to 

commissioners who were appointed prior to its enactment. The plain meaning of 

the holdover provision belies any claim that it does not apply equally to incumbent 

commissioners and to newly appointed commissioners. By its own terms, it applies to any “voting member of the Commission whose term has expired” regardless of when the member was appointed. Id. Only by consulting the legislative 

history does any ambiguity arise regarding its application to incumbent com m issioners. Even then, the legislative history of the holdover provision and the presidential signing statement provide inconclusive evidence of intent. Assuming that 

an examination of the legislative history is appropriate, there simply is insufficient 

evidence to disregard the plain meaning of the holdover provision.

We next address whether the holdover provision is constitutional as it applies to 

commissioners who were appointed before its enactment. As applied to such 

commissioners, the holdover provision raises questions under the Appointments 

Clause of the Constitution. It may be argued that the holdover provision interferes

33
Opinions o f the Office o f Legal Counsel

with the President’s appointment pow er because it extends the terms of office of 

appointees beyond that contemplated by the appointing authority and amounts to a 

legislative reappointment. Although this issue is not entirely free from doubt, we 

conclude that the particular holdover provision at issue would survive an Appointments Clause challenge. In sum, we conclude that the commissioners serving at 

the time the provision became law on August 26, 1992 may (like those appointed 

after the provision was adopted) constitutionally exercise holdover rights pursuant 

to the statute.

I.

The threshold issue requires us to construe the holdover provision to determine 

whether it applies to commissioners who were serving at the time of its enactment. 

The holdover provision provides that:

Section 992(b) of title 28, United States Code, is amended to read 

as follows:

* * *

“(2) A voting member of the Commission whose term has expired 

may continue to serve until the earlier of—

“(A) the date on which a successor has taken office; or 

“(B) the date on which the Congress adjourns sine die to end 

the session of Congress that commences after the date on which the 

m em ber’s term expired.”

106 Stat. at 933. The text of the holdover provision does not distinguish between 

commissioners appointed before or after its enactment. By its own terms, it applies 

to any “voting member of the Commission whose term has expired” without reference to when the member was appointed. Although the text of the holdover provision contains no language either raising or addressing the question of whether it 

applies to a commissioner who was serving at the time of its passage, such a commissioner is a “voting member of the Commission” and one “whose term has expired,” and thus is unquestionably within the plain meaning of the terms of the 

holdover statute.

The Supreme Court has instructed that “[t]he plain meaning of legislation 

should be conclusive, except in the ‘rare cases [in which] the literal application of a 

statute will produce a result demonstrably at odds with the intentions of its drafters.’” U nited States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989) 

(second set of brackets in original) (quoting Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 571 (1982)). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 432

34
Opinion Regarding the Sentencing Commission H oldover Appointees

and n.12 (1987) (where “the plain language of [the] statute appears to settle the 

question. . . . [W]e look to the legislative history to determine only whether there is 

‘clearly expressed legislative intention’ contrary to that language, which would 

require us to question the strong presumption that Congress expresses its intent 

through the language it chooses”). In his signing statement, President Bush cited a 

portion of the legislative history of the holdover provision and rejected the plain 

reading of the statute. See infra. After examining the legislative history of the 

holdover provision, we conclude that President Bush was mistaken in his statement 

about its legislative history and that a careful reading of the legislative history as a 

whole provides no support for rejecting the plain meaning of the statute.

The legislative history of the holdover statute contains, at most, some ambiguous evidence of congressional intent. The text of the holdover provision is contained in the only section of the statute. When the bill was introduced in the 

Senate, it also contained a second section that provided:

Sec. 2. EXTENSION OF TERMS OF PRESENT MEMBERS OF 

THE COMMISSION

The amendment to [28 U.S.C. § 992(b)] contained in section 1 of 

this Act shall apply to the term of any voting member of the Commission whose term expires on October 31, 1991.

S. 1963, 102d Cong., § 2 (1991). The same provision was contained in the bill 

when it was reported out of committee. On January 31, 1992, Senate Majority 

Leader Mitchell sought and received unanimous consent to consider passage of the 

bill immediately. 138 Cong. Rec. 1 166 (1992). At that date, the event specified in 

section two (the expiration of two commissioners’ terms on October 31, 1991) had 

already occurred. Rather than alter section two, an amendment was offered on 

behalf of the bill’s sponsors, the Chairman and Ranking Minority Member of the 

Judiciary Committee, to strike section two of the bill entirely. Id. Without any 

discussion, the amendment striking section two was approved (by unanimous consent) and then the bill as amended was passed by unanimous consent. Id.

The Senate’s decision to strike all of section two rather than to amend it to 

cover other sitting commissioners is subject to different interpretations. Based on 

the future verb tense “expires” rather than the past tense “expired” in draft section 

two, it can be inferred that the sponsors of S. 1963 originally hoped to introduce 

and pass the bill prior to October 31, 1991. It could be argued that the sponsors 

thought that it was important to provide in the text that the holdover provisions in 

section one applied to these commissioners whose terms would soon expire because they believed that section one, in and of itself, might not apply to commissioners who were then serving on the Commission. If that were the case, however, 

it seems curious that they would want to grant holdover rights only to the commis35
Opinions o f th e Office o f Legal Counsel

sioners whose terms expired in October of 1991 and not to any of the other incumbent commissioners. It is also possible that at the time the Senate deleted section 

two, it simply realized that it could do nothing for the commissioners whose terms 

had already expired but that it assumed section 1 would apply to all of the then 

incumbent commissioners whose terms of office had not yet expired. These conflicting arguments based on the Senate’s deletion of section two are difficult to 

reconcile, which suggests that placing much reliance on them is not warranted.

The signing statement issued by President Bush reflects a misinterpretation of 

the Senate’s action in deleting section two. The signing statement states that:

Today I am signing into law S. 1963, which permits Members of 

the United States Sentencing Commission whose terms have expired 

to continue to serve until either a successor takes office or the next 

session of the Congress ends.

The legislation does not specify whether it would apply to the 

current M embers of the Commission. Were the Act read to apply to 

the current Members, it would appear to violate the Appointments 

Clause of the Constitution by, in effect, permitting the Members to 

extend the terms of the office to which they were appointed by the 

President and confirmed by the Senate. Accordingly, I sign this 

legislation based on my understanding that it applies only to appointments made after the date of enactment of the Act, so as not to 

infringe on my constitutional appointment authority. This is in 

keeping with the well-settled obligation to construe ambiguous 

statutory provisions to avoid constitutional questions.

I note that this interpretation o f the Act is supported by the fact

that the Senate deleted from the Act a provision that would have

expressly applied it to current M em bers o f the Commission.

Statement of President George Bush Upon Signing S. 1963, II Pub. Papers 1432 

(Aug. 31, 1992) (emphasis added).

There are two problems with giving much weight to President Bush’s signing 

statement. In general, the use of presidential signing statements by the courts and 

others as evidence of legislative history and the weight to be given such evidence

— if it is to be given any weight at all — is controversial. See The Legal Significance o f Presidential Signing Statements, 17 Op. O.L.C. 131 (1993) (discussing 

arguments for and against such use of presidential signing statements). Moreover, 

we believe President Bush’s signing statement quoted above is subject to even less 

weight than is normally appropriate because it is based on a misreading of the legislative history. It simply is not true “that the Senate deleted from the Act a provi36
Opinion Regarding the Sentencing Commission H oldover Appointees

sion that would have expressly applied it to [then] current Members of the Commission.” II Pub. Papers at 1432. The deleted section only applied to commissioners whose terms had already expired when the section was deleted; it did not

apply to those then serving as commissioners whose terms would expire after enactment of the law. That fact makes questionable the inference drawn in the signing statement.

Two other statements of congressional intent are contained in the House report 

on S. 1963. H.R. Rep. No. 102-827, at 3 (1992). The section-by-section analysis 

describes the effect of the holdover statute:

Section 1 of S. 1963 (the bill’s only section) amends 28 U.S.C.

992(b) to provide for a voting member of the United States Sentencing Commission whose term has expired to continue to serve 

beyond the expiration date until a successor has taken office or until 

the end of [Congress’s next] session .... No distinctions between 

types of voting members is intended; this provision is intended to 

apply to all voting members of the Sentencing Commission, including those appointed to fill a vacancy that occurs before the expiration of the term. In addition, the section is intended to have

prospective application only.

Id. (emphasis added). The underlined language of the House report is also ambiguous. One possible meaning of “prospective application only” is that the 

holdover statute would apply to commissioners who were appointed to serve on the 

Commission in the future but not to commissioners who were already serving on 

the Commission. Another possible meaning of “prospective application only” is 

that the holdover statute could not be invoked by a commissioner whose term had 

already expired, i.e., the commissioners whose terms had expired in October of 

1991. This second proposition is obviously true. If a commissioner’s presidential 

commission had expired, nothing short of a renomination, reconfirmation, and reappointment consistent with the Appointments Clause would allow the former 

commissioner to serve again on the Commission. Thus, this statement in the House 

Report, which is subject to two reasonable but different interpretations, is to no 

avail in resolving the interpretive question.

There is some unambiguous evidence in the legislative history to support the 

plain meaning of the holdover provision. The congressional purpose in passing the 

holdover statute, as expressed in floor statements and the House Report, would 

apply equally to sitting commissioners and future members of the Commission.1 

The House Report explained that the problem of vacancies on the Commission was 

exacerbated by “the requirement that sentencing guidelines be promulgated or

1 See H. R Rep. No 102-827, at 2-3, 138 Cong Rec 23,098-99 (1992) (statem ents o f Reps. Schum er and 

Sensenbrenner)

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Opinions o f the Office o f Legal Counsel

amended with the support of at least four of the seven authorized voting members 

o f the Commission. Consequently, whenever there is less than a full complement 

of sentencing commissioners, the work of the Commission may be impaired.” H.R. 

Rep. No. 102-827, at 2. The House Report also related that:

On October 31, 1991, the terms of three voting members of the 

Commission expired with no successors having been nominated.

Two of these terms remain unfilled at the time of the writing of this 

report — more than eight months later. * * * In 1989-90, the 

Commission was forced to operate approximately seven months 

with only four voting members. * * * This legislation is necessary to ensure that this situation is not repeated whenever com m issio n ers’ term s expire in the future.

Id. (emphasis added).

The situation that Congress was attempting to prevent would exist now if the 

holdover statute did not apply to commissioners who were appointed prior to the 

statute’s enactment. For this reason, we believe the legislative history of the 

holdover provision, on balance, reinforces the plain meaning of the statute. At 

worst, the legislative history is ambiguous regarding whether Congress intended 

the holdover statute to apply to commissioners who were appointed before it was 

passed. It is simply not conclusive enough to reject the plain meaning of the statute.

We do not believe that “the well-settled obligation to construe ambiguous 

statutory provisions to avoid constitutional questions,” to which President Bush 

referred in his signing statement, is to the contrary. II Pub. Papers at 1432. We 

may not avoid all constitutional questions whenever a statutory ambiguity exists. 

The Supreme Court has instructed instead that statutes should be read, when fairly 

possible, to avoid grave and doubtful constitutional questions. See Rust v. Sullivan, 500 U.S. 173, 191 (1991) (“[a] statute must be construed, if fairly possible, so 

as to avoid not only the conclusion that it is unconstitutional but also grave doubts 

upon that score”) (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401 

(1916)). To begin with, we are not convinced that the interpretation of the statute 

in President Bush’s signing statement is “fairly possible.” This is because such an 

interpretation would violate another canon of construction, the plain meaning rule, 

and was based on an erroneous reading of the legislative history.

M oreover, to satisfy the canon of construction articulated in Rust, one interpretation of the statute must be necessary to avoid a “grave and doubtful constitutional 

question[].” Id. at 191 (quoting U nited States v. D elaw are and Hudson Co., 213 

U.S. 366, 408 (1909)). The Supreme Court has explained that although this canon 

is followed “out of respect for Congress, which [is presumed to] legislate^ in the 

light of [its] constitutional limitations, . . . avoidance of a difficulty will not be

38
Opinion Regarding the Sentencing Commission H oldover Appointees

pressed to the point of disingenuous evasion.” Id. (quoting M oore Ice Cream Co.

v. Rose, 289 U.S. 373, 379 (1933)). In Rust, for example, the Court concluded that 

the constitutional questions were not so doubtful that it should read the statute as 

precluding the questions. Id. As we explain in part II, we do not believe that the 

constitutional question is so grave and doubtful that we should evade answering it.

We conclude that the holdover provision does apply to commissioners who 

were appointed prior to its enactment. By its own terms, the text of the holdover 

provision applies to any “voting member of the Commission whose term has expired,” regardless of when the member of the Commission was appointed. We also 

find support for this interpretation in the legislative history of the holdover provision. Although the legislative history contains some ambiguous evidence of legislative intent, we simply cannot say that it is sufficient to reject the plain meaning of 

the statute.

II.

We next address whether the application of the holdover provision to commissioners who were appointed before its enactment violates the Appointments 

Clause. The Appointments Clause provides that the President “shall nominate, and 

by and with the Advice and Consent of the Senate shall appoint . . . [principal] 

Officers of the United States.” U.S. Const, art. II, § 2, cl. 2. It further provides 

that “the Congress may by Law vest the Appointment of such inferior Officers, as 

they think proper, in the President alone, in the Courts of Law, or in the Heads of 

Departments.” Id. The Commission is “an independent commission in the judicial 

branch of the United States.” 28 U.S.C. § 991(a). See also M istretta v. United

States, 488 U.S. 361, 368, 384-94 (1989). The Commission’s seven voting members are appointed by the President “by and with the advice and consent of the 

Senate.” 28 U.S.C. § 991(a).

The Appointments Clause by its terms and its structure prohibits Congress from 

itself exercising the power to appoint “Officers of the United States.” See Buckley

v. Valeo, 424 U.S. 1, 126-28, 139 (1976) (per curiam). The text and structure of 

the Constitution reflect a deliberate constitutional choice to deny to the legislature 

the power to select the individuals who exercise significant governing authority as 

(non-legislative) officers of the federal government. See id. at 128-31 (reviewing 

the debates in the Philadelphia convention). That choice can be set at naught either 

by legislation overtly vesting in Congress the power of appointment or by statutes 

that functionally enable Congressional exercise of a power to appoint. This latter 

concern arises most pointedly in connection with statutes that attempt to extend the 

fixed tenure of an officer with a set term, thus denying the President the power he 

would otherwise have to reappoint the officer or select someone else.

In 1951, for example, the President requested the Justice Department’s views on 

the validity of a statute extending the terms of the members of a commission: ac39
Opinions o f the O ffice o f Legal Counsel

cording to the original legislation creating the commission, the terms were to expire in June 1951, but prior to that date Congress amended the legislation to extend 

the com m issioners’ tenure to August 1952. Acting Attorney General Perlman advised the President that while he did not think “there can be any question as to the 

power of the Congress to extend the terms of offices which it has created,” that 

legislative power was subject “to the President’s constitutional power of appointment and removal.” D isplaced Persons Commission — Terms o f M embers, 41 Op. 

A tt’y Gen. 88, 90 (1951). However, because the legislation did not attempt to restrict the President’s authority to remove the commissioners at will, it was constitutionally harmless: the President remained free to exercise his appointment power 

simply by removing the incumbents from office. Id. (“As so construed, the 

[extension legislation] presents no constitutional difficulties”).2 See also Pension

Agents and Agencies, 14 Op. Att’y Gen. 147 (1872) (discussing the President’s 

power to remove officer serving a term extended by statute).

We think that the Department’s 1951 opinion adopted the correct approach to 

this issue: while the power to lengthen the tenure of an incumbent officer is incident to Congress’s general power to create, determine the duties of, and abolish 

offices,3 that power cannot legitimately be employed to produce a result that is, 

practically speaking, a congressional reappointment to office or a removal from 

office. This problem is not presented where a statutory change in the term of office 

is applied to subsequent appointees, for the appointing authority in the latter case 

appoints to an office that includes the potential for holdover as one of its attributes. 

Where a statutory change in the term of office is applied to incumbent officers, 

however, we must analyze the statute to determine whether it amounts to a legislative exercise of the executive’s appointment powers.

The situation presented by the holdover statute at issue is on a continuum between legislation that we would view as non-objectionable and legislation we 

would view as constitutionally questionable. On one end of the continuum is a 

statute that extends the terms of officers whose appointment is vested in the President alone and who serve at the will and pleasure o f the President. The extension 

of these officers’ terms does not interfere with the appointing authority’s (here, the 

President’s) power to terminate or reappoint a given officer. Such legislation adjusts the interval at which the President must either make another appointment or 

face a vacancy, but does not infringe the appointment power. The President can 

terminate and replace the person who is serving in the office at any time, notwith2 C f In re Benny, 812 F 2d 1133, 1142-43 (9th Cir. 1987) (N om s, J , concurring in the judgm ent): 

*‘[T]he A ppointm ents C lause precludes Congress from extending the terms o f incum bent officeholders I am 

sim ply unable to see any principled distinction betw een congressional extensions o f the term s of incum bents 

and m ore traditional form s o f congressional appointm ents Both im plicate the identical constitutional evil— 

congressional selection of the individuals filling nonlegislative offices ”

See Crenshaw v. U nited States, 134 U S . 99 (1890), C ivil Service Retirem ent Act — Postm asters — 

A utom atic Separation From the Service, 35 O p. A tt’y Gen 309, 314 (1927): “If, as stated in [Embry v 

U nited States, 100 U S 680 (1879)], Congress m ay at any time add to or take from com pensation fixed, it 

may also, it would seem, by analogy, at any time shorten or lengthen a term o f office ’*

40
Opinion Regarding the Sentencing Commission H oldover Appointees

standing the term extension. Approaching the other end of the continuum is a statute that lengthens the fixed terms of officials who can be removed only for cause, 

thus depriving the appointing authority of the opportunity to reappoint the incumbent or to chose someone else. In sum, the extension of tenure of officers serving 

at will raises no Appointments Clause problem, but lengthening the term of an officer who may be removed only for cause is constitutionally questionable.4

However, this conclusion, which we think sound in principle, has been partly 

rejected, at least in one context, by the courts. Congress’s extension of the tenure 

of bankruptcy judges (who can be removed only for cause) in the Bankruptcy 

Amendments and Federal Judgeship Act of 1954 has been sustained repeatedly 

against constitutional challenge. The leading case, In re Benny, held that a statutory extension of tenure “becomes similar to an appointment” only “when it extends the office for a very long time.” 812 F.2d at 1141. See also In re Investment

Bankers, 4 F.3d 1556, 1562, 1563 (10th Cir. 1993) (“Although plausible arguments can be raised in response to the reasoning adopted by the Benny court, we 

are ultimately persuaded that this reasoning is correct;” noting that the Appointments Clause challenge “has been rejected by every court that has considered it”); 

M atter o f Koerner, 800 F.2d 1358, 1366-67 (5th Cir. 1986) (“Congress has the 

constitutional power to make reasonable changes in the duties of any office it creates, including shortening or lengthening the term of service. . . . Under the limited 

circumstances of this case, . . . the action of Congress was a constitutionally reasonable change in the term of an existing office”) (citations omitted). Although we 

are not persuaded by Benny's reasoning, we must acknowledge that the courts may 

follow Benny’s conclusion in analogous situations.5 In light of the fact that Benny

4 In 1987, this Office opined that legislation extending the terms of the certain members o f the United 

States Parole C om m ission was an unconstitutional interference with the President's appointm ents power. 

See Reappointm ent o f United States Parole Com missioners, 11 Op. O L C 135 (1987) If, as we think likely 

under the rule of W iener v U nited States, 357 U.S 349 (1958), the Com m issioners w ere rem ovable only for 

cause, that conclusion was consistent with the earlier view s of the A ttorneys General, which we believe are 

sound. However, the analysis in the opinion suggests that the extension legislation was invalid because the 

C om m issioners were “purely executive officers,” id. at 352, rem ovable (presum ably) by the President at will, 

a line o f reasoning with which we disagree The opinion m ight be read to suggest that extension legislation 

concerning officers removable only for cause is not unconstitutional That conclusion may be dictated by 

judicial precedent, see mjra, but the'reasoning would be contrary to our view of the better interpretation of 

the A ppointm ents Clause.

5 Bennv stated that W iener implicitly rejected any Appointm ents Clause problem with term -extension 

legislation, but that overreads the decision T he date on which the President removed the plaintiff in Wiener

from office was in fact within the term of office for which the plaintiff was originally appointed, although 

part o f the back pay the plaintiff ultim ately recovered was for a period after his original term w ould have 

expired. See 357 U S. at 350-51 (the term should have expired on M arch 1, 1954 as the law stood at the time 

plaintiff was appointed, the President rem oved plaintiff on Decem ber 10, 1953; plaintiff recovered back pay 

for four m onths after M arch I, 1954 under a post-appointm ent extension of term) The additional Supreme 

Court cases that Benny and other courts have cited are distinguishable. See, e g , Bennv, 812 F.2d at 1141 

(citing Shoem aker v United States, 147 U S 282 (1893), which upheld legislation im posing additional 

duties on an officer), In re Tom C arter Enters , 44 B.R. 605, 607 (Bankr. C.D. Cal 1984) (citing Shoem aker

and cases dealing with issues under the C ontracts Clause and the Philippine O rganic Act) B enny also 

pointed out that the First Congress twice extended the tenure o f the first Postm aster General. 812 F.2d at 

1142. W hile we agree that this fact supports the argum ent that Congress generally possesses the pow er to

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Opinions o f the Office o f Legal Counsel

does not rule out an Appointments Clause objection to legislation giving tenure for 

extraordinary long terms to incumbent officers removable only for cause, we believe that a short term holdover provision is likely to be upheld by the courts.

As we explained above, the holdover statute at issue is, constitutionally, somewhere in between the situations we believe represent the two extremes. Although 

the voting members of the Commission do have tenure protection and new members of the Commission must receive the advice and consent of the Senate before 

they are appointed, the secured or “guaranteed” terms of office of hold-over members are not being lengthened. The holdover provision simply allows them to continue to serve in office after their terms have expired until the earlier of two events: 

“(A) the date on which a successor has taken office; or (B) the date on which the 

Congress adjourns sine die to end the session of Congress that commences after the 

date on which the mem ber’s term expired.” 106 Stat. at 933.

We must determine whether this change in the incumbent commissioners’ service effectively frustrates the President’s appointment power or confers on the Legislature a reappointment power (albeit for a short period of time). As to the first 

issue, the President’s formal appointment power is not affected in the least. He 

may nominate whomever he wants at precisely the same time as he could before, 

presumably in advance of the expiration of the term he is seeking to fill. Moreover, it is not even clear that the effect of the holdover provision is to limit the discretion of the Executive, since it gives the President the option of retaining the 

holdover officer until he chooses to nominate a successor. In short, it is not clear 

whether the appointing authority’s power is augmented or diminished by a holdover statute that applies to incumbent office holders. See FEC v. NRA Political

Victory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) (holding that the N R A ’s challenge 

to the alleged restriction on the President’s appointment power to select more than 

three commissioners from one party is not justiciable because “it is impossible to 

determine in this case whether the statute actually limited the President’s appointment power[;] . . . we [cannot] assume [] that the President wished to appoint more 

than three members of one party”).

The only problematic effect we see that the holdover statute could have on the 

President’s power of appointment is that the Senate might be less inclined to act on 

a nomination for bureaucratic or institutional reasons, such as a less pressing need 

to act on a nomination where there is a holdover, or for political or inter-branch 

advantage. But all of these reasons for Senatorial inaction are present for commissioners who are appointed after the holdover statute is enacted, and there can be no 

reasonable argument that the holdover statute as applied to subsequent appointees 

is unconstitutional. It is simply not persuasive to argue that the President’s appointment power is effectively frustrated when incumbent commissioners hold over 

but not when subsequent commissioners hold over.

extend term s, the original Postm aster General served at the pleasure of the President, and thus the First 

C ongress’s actions placed no practical limitation on the appointm ents power

42
Opinion Regarding the Sentencing Commission H oldover Appointees

With regard to Congress, we must still consider whether the application of a 

holdover provision to incumbent officer holders with tenure protection amounts to 

a legislative designation or legislative reappointment. Once again, there is no legislative reappointment in granting future appointees holdover rights because when 

the President makes a future appointment the holdover provision simply defines 

one of the attributes of the office to which the appointment is made. However, in 

his concurrence in Benny, Judge Norris argued that the problem with extending the 

terms of incumbents lies in the fact that Congress can review the track record of the 

incumbents and manipulate the tenure of officials it likes and dislikes. 812 F.2d at 

1143-44. As Judge Norris argued in the context of extending the fixed term of 

bankruptcy judges:

Congress can dictate with certainty who occupies an office by 

extending the terms of known incumbents. . . . By extending the 

terms of known incumbents, Congress can guarantee that its choices 

will continue to serve for as long as Congress wishes, unless the officers can be removed. Thus, congressional extension can effectively block the exercise of appointing power by the only officials 

constitutionally authorized to exercise it— officials of the other

branches of government. Selective exercise of this extension power 

could prove to be a potent political weapon. For example, if Congress wished to prevent the executive or judicial branch from filling 

an office about to become vacant with an appointee unfavorable to 

the prevailing congressional majority party, it could simply extend 

the incumbent’s term until a more favorable group of officials took 

control of either the executive or judicial branch. * * * In effect, 

extension statutes allow Congress to arrogate to itself one of the 

powers of appointment— the power of reappointment. Indeed, it is 

hard to see any distinction between the congressional extension at 

issue here and a statute expressly authorizing congressional reappointment of incumbents.

Id. (emphasis in original).

Judge Norris was in the minority in Benny, and furthermore, there are several 

important differences between the extension statute he was considering and the 

holdover statute we are considering. For Congress to extend the tenure of a known 

incumbent by means of a holdover statute beyond that desired by the President, 

Congress not only would have to pass a holdover statute, over the President’s veto 

if necessary, but the Senate would also have to cooperate in refusing to confirm the 

President’s subsequent nominee. Such bad faith concerted action is too speculative 

and hypothetical a basis to support a claim of unconstitutionality. Cf. NRA P olitical Victory Fund, 6 F.3d at 824-25 (holding not justiciable the NRA ’s separation

43
Opinions o f the Office o f Legal Counsel

of powers claim that the President would have appointed other commissioners but 

for the political party restriction in the statute).

There are two other important limitations on the Congress’s power to frustrate 

the President’s appointment power by means of this holdover statute. One limitation is that the office probably is vacant for Recess Appointments Clause purposes, 

and the President probably would be able to make a recess appointment to fill the 

position whenever the Senate is in recess for the requisite length of time.6 See U.S. 

Const, art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies 

that may happen during the Recess o f the Senate, by granting Commissions which 

shall expire at the End of their next Session.”). The Department of Justice has long 

interpreted the term “Recess of the Senate” to include intrasession recesses if they 

are of substantial length.7 There usually is a recess of the Senate of sufficient 

length to satisfy the constitutional standard in August and December of each year.

The Sentencing Commission holdover statute, moreover, contains its own time 

limit. In Benny, the Ninth Circuit held that an extension of a term of short duration 

did not constitute a congressional appointment:

Congress’[s] power to extend prospectively terms of office can be 

implied from its power to add to the duties of an office other duties 

that are germane to its original duties. Shoemaker v. United States,

147 U.S. 282, 300-01 (1893). Logically, the only point at which a 

prospective extension of term of office becomes similar to an appointment is when it extends the office for a very long time. . . . [A] 

short extension, like the one at issue here [as much as a six year extension, does not] preventf] those who have the appointment power 

from exercising that power.

6 T here may be som e question, however, w hether the position being filled by the holdover officer is vacant for recess appointm ent purposes Com pare Staebler v. C arter, 464 F. Supp. 585, 588-601 (D.D C 

1979) (holding that the FEC office was vacant for Recess A ppointm ents C lause purposes when the incum ­

bent continued to exercise authority pursuant to a holdover provision that provided that “[a] m em ber of the 

C om m ission [FEC ] may serve on the Com m ission after the expiration o f his term until his successor has 

taken office’*) with M ackie v. C linton, 827 F. Supp. 56, 58 (D.D.C. 1993) (w hether a vacancy exists for 

Recess A ppointm ents C lause purposes depends on the w ording and structure of the particular holdover 

provision, deciding that the Postal Service holdover provision did not create a vacancy) The Sentencing 

C om m ission holdover statute has features in com m on w ith the holdover statutes in both Staebler and 

M ackie. A lthough the Sentencing Commission holdover statute is sim ilar to the w ording of the statute in 

Staebler in tw o respects, there is a limitation o n the length o f time that the incum bent can hold over, which 

the court in M ackie said was im portant in deciding that a vacancy did not exist in the office. Thus, in the 

present case, it is unclear w hether courts would hold that the President could exercise his recess appointm ent 

pow er to oust a holdover com m issioner and fill the vacancy. We believe that the better view is that this 

holdover statute creates a vacancy for purposes o f the Recess A ppointm ents Clause

7 See generally Executive P ow er — Recess A ppointm ents, 33 O p A tt'y Gen. 20 (1921) (opining that the 

President had the pow er to m ake recess appointm ents dunng an intrasession recess o f the Senate lasting from 

A ugust 24 to Septem ber 21. 1921); Recess A ppointm ents D uring an Intrasession Recess, 16 Op O L C . 15 

(1992), Intrasession R ecess Appointm ents, 13 O p O L C . 271 (1989); R ecess Appointm ents Issues, 6 Op 

O L C 5 8 5 (1 9 8 2 ).

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Opinion Regarding the Sentencing Commission H oldover A ppointees

812 F.2d at 1141 (parallel citation omitted). Judge Norris disputed the short/long 

distinction and the majority’s reliance on Shoemaker. He argued that:

The congressional power to expand the duties of an existing office is subject to a reasonable and relatively clear limitation: Congress may not devolve upon an officeholder responsibilities which 

are not germane to his existing duties [citing Shoemaker]. When 

Congress merely adds duties to an office that are germane to the officeholder’s existing duties, Congress has simply expanded the 

power of an official in the field and for a period of time in which a 

valid appointing authority has already entrusted him to act. The interference with the appointing authority’s choice of personnel is 

marginal. By contrast, it is apparent from reading the majority 

opinion that there is no principled or coherent limitation on the 

power to extend an incumbent’s term of office. * * * I fail to see 

how a line can be drawn between “short” and “long” extensions on 

any principled basis. The same constitutional evil the majority finds 

inherent in “long” extensions . . . is also present with short extensions. It is merely present for a shorter period of time.

Id. at 1145.

Although we are not prepared to articulate the precise line at which an extension 

would effect a congressional appointment, we do not share Judge Norris’s skepticism either. In contrast to the hypothetical cases Judge Norris writes about where 

there is no “principled or coherent limitation” on extending the term of office, there 

is a “reasonable and relatively clear limitation” in the Sentencing Commission 

holdover statute. In fact, we think that the time limit in the Sentencing Commission holdover statute serves the same function, and is a close proxy for, 

“germaneness” as that concept is used when Congress expands the duties of an 

existing office. If the “interference with the appointing authority’s choice of personnel is marginal” where additional but germane duties are added, we do not see 

any reason why the interference is greater, at least in a constitutional sense, for 

holdover provisions of short duration. We do not need to address the precise point 

at which an extension becomes impermissibly long, because we are satisfied that 

the time limit chosen by Congress in the Sentencing Commission holdover statute 

is shorter than the time limit in Benny and comes with a venerable pedigree. The 

time limit in the holdover provision at issue is almost identical to the one in the 

Recess Appointments Clause. The Framers provided that the President alone could 

fill vacancies in principal offices for this length of time without receiving the advice of the Senate. In other words, they decided that keeping the government running for this length of time was more important than adhering to the formalities of 

the Appointments Clause. We conclude that this time limit is also a reasonable

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Opinions o f the O ffice o f L egal Counsel

length within which Congress may by law keep independent agencies running until 

the appointing authority fills the position at issue.8

III.

In summary, we conclude that the holdover statute applies to the members of the 

Commission who were appointed prior to its enactment. We also conclude that 

such commissioners may hold over without violating the Appointments Clause, 

because the President remains free to appoint a successor who, upon confirmation, 

would displace the holdover and because there is a reasonable limit to the period 

during which they can serve as holdover commissioners.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

8 W e do not address other hypothetical statutes that are not neutral in their application For exam ple, we 

do not address a statute that would create or repeal holdover provisions for selective mem bers of the sam e 

com m ission or for classes o f m em bers on the sam e com m ission, e.g., those appointed on a certain date or 

those from a particular political party Such statutes might am ount to a prohibited congressional designation, 

even if the holdover period is for a short period o f time

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