351



### Presidential Authority to Require the Resignation s of Members of the Civil Rights Commission

Members of the Civil Rights Commission serve at the pleasure of the President. The President m ay t herefore r equire t heir r esignations.

November 20, 1972

M EMORANDUM O PINION FOR THE S PECIAL C ONSULTANT

TO THE P RESIDENT *

This is in response to your request for our opinion whether the President is authorized to require the resignations of members of the United States Commi ssion on Civil Rights. Stated another way, the question is whether these officials serve at the pleasure of the President. For the reasons detailed below, we conclude that Civil Rights Commission members do serve at the p leasure of the President.

I.

The basic rule governing p residentially

- appointed officials was stated by James Madison during the first session of the f irst Congress : “ [ T ] he power of removal result [ s ] by a natural implication from the power of appoin t [ing]

. ” 1 Ann als of Cong. 496 ( 1789 )

. The principal problems in this area con cern whether and to what extent Congress may limit the power of removal which flows from the power of appointment. Myers v. United States established that Congress may not limit the power of the President to remove purely executive officers appointed with the advice and consent of the Senate, such as c abinet officers. 272 U.S. 52 (1926). On the other hand, Congress can, for example, limit t he President ’ s power to remove members of independent regulatory commissions and specially constituted tribunals. Humphrey ’ s Executor v. United States , 295 U.S. 602 (1935); Wiener v. United States , 357 U.S. 349 (1958). The principal theory underlying this congre ssional authority is that such bodies may need to function independent ly of

e xecutive control in their legislative and adjudicative capacities. The Civil Rights Commission, primarily an investigative and advisory body, does not fall clearly into eith er of these categories. For purposes of this discussion, however, we will

* Editor’s Note: The memorandum was addressed to “the Honorable Leonard Garment, Special Consultant to the President.” The reference to Mr. Garment as “Special Consultant,” not “Special Counsel,” appears to have been accur ate and deliberate. Mr. Garment was described in multiple news articles at the time as a “special consultant” to the President on civil rights and cultural issues. See, e.g.
, Ex

- Law Partner to Join Nixon , Wash. Post, June 7, 1969, at A4; Carroll Kilpatrick

, Leonard Garment Is Bright, Musical, a Known New York Liberal and a Man Close to Richard Nixon , Wash. Post, June 7, 1970, at 17. In 1973, Mr. Garment succeeded John Dean as Counsel to the President. Lawrence Meyer, New Counsel Had Obscure Role at Top , Was h. Post, May 1, 1973, at A8.Supplemental Opinions of the Office of Legal Counsel in Volume 1

352 assume that Congress could have insulated its members from removal at the pleasure of the President. The question, then, is whether it has done so. The statutory descriptions governi ng the appointment and duties of c ommi ssioners are the starting point of analysis. 42 U.S.C. § 1975 (1970) . With respect to appointment, c ommissioners do not serve for a fixed term, and there is no statutory provision governing removal. By contrast, member s of independent regulatory bodies usually serve for a fixed term of years, and some may only be removed for

“ cause ” or other specified reason. While neither of these factors is dispositive, absent other strong reasons pointing toward independent tenure, t he natural implication to be drawn is that Civil Rights Commission members serve at the President ’ s pleasure. Perhaps the strongest case for limiting the President ’ s removal power is pr esented by a body created to adjudicate the rights of private parties. The Civil Rights Commission has no such authority, and this has been established by Supreme Court decision. In Hannah v. Larche , certain state officials sought to enjoin a Civil Rights Commission hearing in Louisiana concerning discriminatory voter registr ation practices on the ground that, as prospective witnesses, they were entitled to a panoply of procedural protections denied by the Commission ’ s rules, including the right to confront and cross

- examine other witnesses. 363 U.S. 420 (1960). The Court sust ained the Commission ’ s rules, saying that
As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and fact

finding. It does not adjudicate. It does not hold trials or determine
anyone ’ s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any a ffirmative action which will affect an individual ’ s legal rights. The only pu rpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.

Id. at 440

–

41. There are other indicia of e xecutive control over the Commission. The statute establishes it “ in the executive branch of the Government. ” 42 U.S.C. § 1975(a). Although, standing alone, this phrase has no special significance, it is significant that many of the regulatory commissions whose members clearly do not serve at the President ’ s pleasure

— for example, the F ederal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commi ssion

— are not similarly established “ in the executive branch. ” The Preside nt designates the Chairman and the Vice Chairman. 42 U.S.C. § 1975(c). Employees of the federal government, including, presumably, employees clearly subject to the President ’ s control, are eligible to serve as members. 42 U.S.C. § 1975b(b) (1970)

.Presidential Authority to Require Resignation s of Civil Rights Commission ers

353 The s taf f d irector, a full

- time employee responsible for day

- to

- day operations, is appointed by the President following consultation with the Commission, and subject to Senate confirmation. 42 U.S.C. § 197 5d(a) (1970)

. The Com mission ’ s budget requests are subject to OMB approval. The legislative history of the Civil Righ ts Act of 1957, Pub. L. No. 85

- 315, 71 Stat. 634, which originally established the Commission, does not speak directly to the matter of the President ’ s remov al power. However, an amendment offered b y Senator Kefauver in floor debate, and defeated, lends some support to our conclusion. The Kefauver amendment would have established the Commission as an arm of Congress, with most of its members appointed by Congress. 103 Cong. Rec. 13,456 (1957). In support of his amendment, Senator Kefauver argued that such a commission would be more independent than one in the E xecutive B ranch, and warned against the “ dangerous degree of E xecutive control ” he foresaw in the Commission as it was later established. Id. at 13,458. Senators Javits, Dirksen and Knowland spoke against the Kefauver amendment, urging establishment of an

“ executive commission, ” and the amendment was defeated by voice vote. Id. at 13
, 459. A further argument in support of the President ’ s rem oval power with res pect to members of the Civil Rights Commission rests upon the absence of a stated term of appointment. While this omission may have had its origin in the temporary status of the Commission, its tenure has been extended six times by the C ongress and it has had a life of fifteen years. It should not be presumed that Congress intended that members of the Commission would se r ve indefinitely without any possibility

— other than death or voluntary resignation

— for change in the membe rship of the C ommission. Lifetime appointments are confined to the judiciary in our political systems and it would be anomalous to view persons exercising purely advisory functions as having permanent status.

II.
In support of an argument that members of the Commission do not serve at the President ’ s pleasure, the following points could be made. First, among its other statutory duties, the Commission is directed to “ appraise the laws and policies of the Federal Government with respect to denials of equal protection of th e laws .” 42 U.S.C. 1975c(a)(3) (1970)

. Independent tenure would tend to promote the discharge of that duty. Second, the Commission is directed to submit re ports to both the President and Congress. 42 U.S.C. § 1975c(b). This joint accountability feature may be said to derogate from broad e xecutive control. Third, unlike most of the independent regulatory commissions in which the President may name a majority of his own party as vacancies arise, the Commi ssion is strictly bipartisan

— it has six members, and no more than three may be of the same party. 42 U.S.C. § 1975(b).Supplemental Opinions of the Office of Legal Counsel in Volume 1

354 Fourth, the Commission has always been a temporary agency. It was origin ally established for two years, Pub. L. No. 85

- 315, § 104, 71 Stat. at 635
, and has since been extended six times for additional temporary periods

, Pub. L. No. 86

- 383, tit. IV , 73 Stat. 717
, 724 (1959); Pub. L. No. 87

- 264, tit. IV , 75 Stat. 545
, 559 (1961); Pub. L. No. 88

- 152, § 2, 77 Stat. 271 , 271 (1963); Pub. L. No. 88

- 352, § 504 (b) , 78 Stat. 241 , 251 (1964); Pub. L. N o. 90

- 198, § 1, 81 Stat. 582 , 582 (1967); Pub. L. No. 92

- 496
, § 4 , 86 Stat. 813 , 814 (1972)

. It can be argued, then, that Congress intended for members to serve for the relatively short life of the Commission. Although each of these points is valid, we do not find them persuasive against the contrary arguments, either singly or in combination. Moreover, most of these points can be answered to some extent. As to the first, as a matter of history, the Commission has in fact been a vigorous critic of a dministr ation civil rights policies, Republican and Democratic, through much of its history. As to the

s econd, the requirement of reporting to Congress was added in S enate floor discussion without debate or any indication that the requirement affected the Commissi on ’ s status in the E xecutive B ranch. 103 Cong. Rec. 13

, 45 6 (1957). Moreover, e xecutive officers or agencies are quite frequently required by sta tute to report to Congress as well as the President. As to the third

— bipartisanship

— there is no strong answer, b ut we consider it a relatively minor point. As to the fourth, the Commission, as noted above, has become a more or less permanent agency. Father Theodore M. Hesburgh, for example, served for fifteen years, from the Commission ’ s inception. Although this argument may have had force a decade ago, we do not view it as very substantial now. Last year, Father Hesburgh wrote an article entitled Integer Vita e : Indepen dence of the United States Commission on Civil Rights , 46 Notre Dame L aw

. 445 (1971), in which h e discussed, among other things, the President ’ s removal power vis

- à

- vis the Commission. He noted several of the arg uments discussed in this memorandum

, concluding tha t “ the l egality of a [p residential ] demand for resignation remains in question. ” Id

. at 4 54. Reportedly, Father Hesburgh has now conceded the legality of such a demand. See Spencer Rich, Nixon Confers with Cabinet Aides on Reorganization
, Wash

. Post , Nov. 18, 197 2 , at A 15 (“What I did say was that if I were asked to resign by the reelected President, as is his privilege, I would. He did, and I did resign.”) (quoting Father Hesburgh)

. In his article, Father Hesburgh quotes a 1964 l etter to the other c ommissioners from Solic itor General Erwin Griswold, then a c ommissioner, in which Griswold stated that removal at the pleasure of the President was not, in his view, “ either the legal or factual situation. ” 46 Notre Dame L aw . at 454

. A pparently, however, the Solicitor Gene r al ’ s expressed view w as not accompanied by legal argument. The Hesburgh article also includes a review of the pr a ctice of Civil Rights Commissioners with regard to submission of resignations to a new or reelected President. Resignations were tendered in 1961, i n November 1963, and again in 1964. Id. at 454. In 1968, four c ommissioners did not tender their resignations, andPresidential Authority to Require Resignation s of Civil Rights Commission ers

355 two did so for personal reasons. I d. On balance, then, the rather brief historical practice favors the President ’ s authority to require resig nations.

III.
In conclusion, while there are no directly controlling judicial precedents, we believe that the arguments clearly weigh in favor of the view that members of the Civil Rights Commission serve at the pleasure of the President.

ROGER C. CRAMTON Assistant Attorney General Office of Legal Counsel