(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 Commis sion 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 unifiedvoice, 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

M EMORANDUM O PINION FOR THE L EGAL A DVISOR
N ATIONAL S ECURITY C OUNCIL

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

- memb er Commission consist ed of representatives from both the Legislative Branch and the Executive Branch: four senior Executive
Branch officers who serv ed ex officio and ten appointees from Congress.

I

d. § 1652(b)(1)(A) , 132 Stat. at 2141

. The Commission was r equired 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

. T he 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 Executi ve 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.

C ommissions with members appointed by both the L egislative and E xecutive B ranches 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 Com mission’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 L egislative B ranch 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 thedoctrine 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, an d 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 activiti es”); Memoran dum 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 D epartment’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 quotati on 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 supe rvision 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 asses sing the C ommission’s work and that the
commission members should not vote individually on the Commission’s final report or any of its subpoenas. The C ommission ’s report and its subpoenas were the official actions of a Legislative Branch entity. While
the Executive Branch members could, in principle, have adopted andadvanced 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 B ranch officials not to
vote, consistent with their accountability to the Executive Branch

. We further construed statutory provisions providing for the ExecutiveBranch to provide staff and office space to the Commission to be discretionary, rather than ma ndatory, because the separation of powers imposes constraints upon Congress’s ability to enlist the E xecutive ’s staff and physical resources. Finally, we advised that the Commission’s Executive
Branch members and staff were obliged to preserve Executive Br anch confidentiality interests. We explained that t hey 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 ex ecutive 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 legi timate 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 str ategy 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 pub lic 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 possiblestructures and authorities that need to be established, revised, or augmented within the Feder al Government” to successfully guard against cyber
attack s

. FY 2019 NDAA § 1652(f ) , 132 Stat. at 2142

– 43

. By statute, t he
Commission’s fourteen members include d the Principal Deputy DNI, the Deputy Secretary of Homeland Security, the D eputy Secretary of D efense, 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 occasion s, Congress at least purported to specif y whether a hybri d commission of this sort should be
considered legislative or executive

. 4 B ut it did not do so here.

3 See 16 4 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. S567 4 ( daily ed. Sept. 13, 2017) );
see also Memorandum of Discussion at the 1 4 4th 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 explain ing 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 executi ve branch” with l egislative and e xecutive appointees to produce reports and recommendations on the national security uses of artificial intelligence and machine learning); Evidence

- Based Policymaking Commission Act ofExecutive 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, rec eive 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 th e 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
sub poena 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 no nreimbursable 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), 1 32 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 th e 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 protoco ls); 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 ‘estab lished 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, 202 0, 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

wa s to terminate within 120 days of the report’s formal submission to the congressional defense and intelligence commi ttee s. See FY 2019 NDAA § 1652(k)(2)(A) , 132 Stat. at 2146

. During that 120

- day period, the Co mmission 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 E xecutive and Legislative Branch appointees creates separation of powers concerns bec ause it lacks accountability to a ny 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 legis

lative, the executive, and the judicial departments.”); Hayburn’s Case

, 2 U.S. (2 Dall.) 40 8 , 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, a ny 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 con stitutional concerns about hybrid commissions, which occupy a “no

- man’s land between

. . . two branches

, ”
with commission members who risk being un accountab le to either of the political branches

. Memorandum for John R. Bolton, Assistant Attorney General, O ffice 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 commi ssions 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 accountabl e to any governmental authority. The constitutional separation of powers is designed to diffuse power among different fe deral 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] pow er the better to secure liberty’ ” (alteration in origina l) ( 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 thegovernment 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 branch es, 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 commissio n “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 La w 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. 1 st 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 Legislativ e 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 le ft unable to determine where the blame for “a pernicious measure .

. . ought really to fall.” See
Free Enter. Fund , 561 U.S. at 4 98 (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, t he Constitution requires that every entity exercising the authority of the federal government be accountab le to a single branch. Second, on ce the nature of a hybrid commission is determined, thatconstitutional 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 B ranch 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 Congre ss 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 adminis tration 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 tio ns, 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 Fun d , 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 ceas e 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

t he Presid ent, 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 R equirement ”) (“[S]tatutes that interfere with the President’s ability to supervise, directly or throughsubordinate officials, the Executive Branch’s communications with Congress raise serious constitutional concerns.”). As discussed below, the

structure o f 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
commissio n is determining the branch in which the entity resides. This approach finds consistent support in our precedents. I n Status of theCommission on Railroad Retirement Reform for Purposes of the Applicability of Ethics Laws , 13 Op. O.L.C. 285 (1989) (“ Railro ad Retirement Reform Commission ”) , we considered t he 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 c harged 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

, ’” b ut 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 Congres s “without any prior review” by the Executive Branch would raise “serious constitutional questions

, ” if44 Op. O.L.C. __ ( Oct. 9, 2020 )

10 the commission fell within the Executive Branch. See i d. at 28 7

– 8 8

. W e thus construed the statute’s dual

- reporting requirement “as contemplating
that th e 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 i d. 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 o f 18 U.S.C. § 208 to National Gambling Impact Stud y Commission , 23 Op.
O.L.C. 29 , 29 (1999) (“ National Gambling Impact Study Commission ”). We emphasized that the commission performed only “information

gathering and advisory functions, which need not be performed by the
executive branch.” Id. at 30 n.2. An d 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 t he 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 Hawaiian s Study Commission , 6 Op. O.L.C. 292 , 294 (1982) (“ Native Haw aiian s Study Commission ”). T he 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 commis sion may have dual responsibilities

— as in this case, advisory to Congress, fact

finding 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 “repres entatives of multiplebranches 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 memb ers from the L egislative and J udicial B ranches,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 non

executive agents must end. Id. at *3.
Thus, in 1984, we advised that the Commission on the Bicentennial o fthe 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

so lely of the Executive Branch members of the c ommission. 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 Co mmission at 3

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

“ limit [ing] the exercise of the purely executive functions of the Commission to the five presidentia lly 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 c ommission, with its majority of congressional

a ppointees, 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 L egislative B ranch 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 28 5

. But constitutio nal 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 a ppointment of its members, and the powers that it exercises. Here, the relevant statutory indicia suggest ed that the Commission was located within the L egislative 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) (observ ing 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 L egislative B ranch and E xecutive B ranch appoi ntees “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 a n 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 ap pointees, 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 st ructure 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 2 141. The presence of members of Congress on the Commission counsel ed 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 member s, 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 amajority 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 d efend
the United States from c yber

- 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 th e Commission’s fourteen members. Id. § 1652(k)(1), 132 Stat. at 2146. The procedure for publication and assessment of the Commission’s report alsosuggested that the report was prepared “principally for Congress’ benefit,” see Railroad Retirement Reform Co mmission , 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. at44 Op. O.L.C. __ ( Oct. 9, 2020 )

14 2146, the execut ive 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 r espond

— 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; t he FY 2019 NDAA authorized the Commission to issue subpoenas and pro vided that any actions in contempt of its subpoenas shouldbe governed by the statutory procedures applicable to contempt of Congress, 2 U.S.C. §§ 192

– 194

. FY 2019 NDAA § 1652(g)(1)(C). W e 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 exempt ed the Commission from the F ederal Advisory Committee Act (“FACA”) and Freedom of Information A ct (“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 l ikewise applies to most executive agencies. 5 U.S.C. § 552; id. § 551(1). Congress’s choice to exempt the Commission from these requirements , whi le 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

. FYExecutive 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 th e Commission should be viewed as a Legislative Branch entity.

I I I.

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 Bran ch 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 resourc es 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 individualize d 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 sta tutory 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 North ern 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 addr essed 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 prac tice 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) (“Th e Comptroller General and Deputy ComptrollerGeneral 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 co nsent 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,
whi ch 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 faithfu lly 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 o fficers “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.”); C linton v. Jones , 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (“[The Founders] sought to encourage energetic, vigorous, decisive, and speedyexecution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ulti mate 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 subo rdinate 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 a ddressed 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,
18 6 (1988) (“ Detail of Law Enforcement Agents ”). And we warned that congressional details potentially p lace 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, th e principle that Executive Branch officials
must advance Executive Branch interests limited their participation in the Commission’s work in several ways. Firs t, 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 mem bers 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 E xecutive Branchmembers could theoretically have adopted and advanced common positions with respect to matters on which they were expected to vote, theneed for the Commission to release its report promptly made it impracticable for them to engage in the k inds of consultations necessary to do so.

T his 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” fun ctions 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, experti se, and substantial resources to the Commission. But such input had to be consistent with the E xe cutive B ranch ’s understanding of its own interests

. And any contribut ions 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 t o requirements that reports be simultaneously
submitted to the E xecutive and L egislative B ranches, because such requirements “increase congressional leverage on the President and other officials of the executive branch” and thus potentially “interfer[e] wi th 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 vot e 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 a ct in their individual capacities, but rather remained subject to the44 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 mai ntain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission. E xecutive agencies should treat a legislative commission’s requests for confidential
Executive Branch information in the same way th at the Executive Branch generally respond s 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

. Executiveagencies 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 opti mal 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 constituti onal 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 p ractice 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 n eed 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 suc h information. See , e.g. , Dep’t of the Navy v. E gan , 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 administrativ e assistance to the Commission (in t he 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 dutiesExecutive Branch Participation in the Cyberspace Solarium Commission

19 and the support of its agents. The anti

- aggrandizement principle of the

sep aration 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 legisla tion, 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 Commissio n 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 prov ide 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 potent ialrisks 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 authorize d off icials to exercise some judgment in determining whether certain

resources w ould be made available, based on an analysis of whether the support wa s “necessary” or “authorized by law.” To the extent that those provisions den ied such discretion, they were req uired 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 commi ttees on a voluntary basis, the Department should consider “whether the benefitsto be gained by the law enforcement agencies are sufficiently extraordinary to outwe igh 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 we re limited in the ways they
coul d participate in the Commission’s work; they were required to perform their commission responsibilities as Executive Branch representatives, consistent with the E xecutive B ranch ’s confidentiality and policy
interests.

STEVEN A. ENGEL Assistant Attorney General

Office of Legal Counsel