Constitutionality of Statute Requiring Executive Agency to

Report Directly to Congress

Statute requiring the Administrator of the Federal Aviation Administration (FAA) to transmit concurrently to C ongress any budget inform ation and legislative recommendations that are transm itted to the Secretary of Transportation, the Office of M anagem ent and Budget (OMB), and the 

President, w ould, if interpreted strictly, on its face violate the constitutional principle of separation 

of powers.

Separation o f powers requires that the President have ultimate control over subordinate officials who 

perform purely executive functions, which includes the right to supervise and review the work of 

such officials; this principle, coupled with the constitutional protection afforded the deliberative 

process within the Executive B ranch, creates an area of executive prerogative that may not be 

invaded by a coordinate branch of governm ent absent a very com pelling and specific need

D isclosure to C ongress of unreviewed recom m endations by subordinates within the Executive 

Branch would disrupt the normal interchange between agency heads and the President in connection with the decisionmaking process, and interfere with the President’s ability to supervise the 

actions of his subordinate officials while this process is going on, thus adversely affecting the 

President’s ability to carry out his responsibilities.

Because there appears to be no specific o r com pelling congressional need for the information at issue 

in this case, the concurrent reporting requirem ent can and should be construed so as to avoid 

constitutional infirmity, by allowing the FAA Administrator to provide Congress with budget data 

and legislative com m ents only after they have been approved by the Administrator’s superiors in 

the Executive B ranch, including, w here appropriate, the President and OM B.

November 5, 1982

MEMORANDUM OPINION FOR THE GENERAL COUNSEL, 

DEPARTMENT OF TRANSPORTATION

This responds to your request for the advice of this Office regarding your 

implementation of § 506(f) of the Tax Equity and Fiscal Responsibility Act of 

1982, Pub. L. No. 97-248, 96 Stat. 324, 677 (1982), which requires the 

Administrator of the Federal Aviation Administration (Administrator) to transmit 

certain budget information and legislative recommendations directly to Congress 

at the same time that they are transmitted to the Secretary of Transportation 

(Secretary), the President, or the Office of Management and Budget (OMB). 

Specifically, you have expressed concern that this provision may conflict with the 

principle of separation of powers under the Constitution. In response to your 

request, we have reviewed the relevant statutory provisions, case law concerning 

separation of powers, the Constitution itself and the history of its development,

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and prior opinions of this Office on this general subject. On the basis of this 

review, we have concluded that, if interpreted strictly, the statutory provision 

would, on its face, violate the separation of powers which is central to the 

structure of the United States Constitution.

As discussed in Section II of this opinion, several clearly established principles 

of the separation of powers doctrine apply to the question raised by the concurrent 

reporting provision. The separation of powers requires that the President have 

ultimate control over subordinate officials who perform purely executive functions and assist him in the performance of his constitutional responsibilities. This 

power includes the right to supervise and review the work of such subordinate 

officials, including reports issued either to the public or to Congress. This 

supervisory control is reinforced by the constitutional protection afforded to the 

deliberative process within the Executive Branch. These principles combine to 

create an area of executive prerogative that may not be invaded by a coordinate 

branch of government absent a very compelling and specific need.

As detailed in Section III, a requirement that subordinate officials within the 

Executive Branch submit reports directly to Congress, without any prior review 

by their superiors, would greatly impair the right of the President to exercise his 

constitutionally based right to control the Executive Branch. This interference 

contrasts with the relatively nonspecific request for information embodied in 

§ 506(f). In balancing Congress’ limited apparent need for direct reports against 

the President’s right to control subordinates within the Executive Branch, it 

seems clear that § 506(f) would be unconstitutional if it were construed to require 

the Administrator to report to Congress without prior review by his superiors.

In Section IV, we consider how § 506(0 might be interpreted so as to avoid this 

constitutional problem. In brief, we conclude that in order to harmonize the 

statute with the requirements of the Constitution, the Administrator should 

provide to Congress only budget information and legislative comments that have 

been approved by the Administrator’s superiors, including, where appropriate, 

the President, OMB, and the Secretary.

I. Background

The Airport and Airway Improvement Act of 1982 (AAIA) was enacted as 

Title V of the Tax Equity and Fiscal Responsibility Act of 1982. Pub. L. No. 

97-248, 96 Stat. 324, 677 (1982). The AAIA generally authorizes an extension 

of, and enacts certain changes to, the Federal Airport Aid Program. In addition, 

§ 506(0 provides:

(0 TRANSMITTAL OF BUDGET ESTIMATES.— Whenever 

the Administrator of the Federal Aviation Administration submits 

or transmits any budget estimate, budget request, supplemental 

budget estimate, or other budget information, legislative recommendation, or comment on legislation to the Secretary, the President of the United States, or to the Office of Management and

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Budget pertaining to funds authorized in subsection (a) or (b) of 

this section, it shall concurrently transmit a copy thereof to the 

Speaker of the House of Representatives, the Committees on 

Public Works and Transportation and Appropriations of the House 

of Representatives, the President of the Senate, and the Committees on Commerce, Science, and Transportation and Appropriations of the Senate.

In essence, this provision purports to direct the Administrator to report 

concurrently to Congress any budget data or legislative comments that are 

transmitted to the President, the Secretary, or OMB. By the terms of § 506(f), 

this requirement applies to budget information or legislative comments “ pertaining to funds authorized in subsection (a) or (b) of this section ...” Subsections 

(a) and (b) authorize funding for acquiring or establishing and improving air 

navigation facilities and for establishing demonstration projects in connection 

with certain research and development activities. In addition, § 504(b) requires 

the Administrator to prepare and submit to Congress “ a national airways system 

plan” and directs that the preparation be “ subject to the requirements of section 

506(f). . . .”

Given this statutory language, it is arguable that the Administrator is required 

to submit the specified reports, information, and comments directly to Congress 

prior to any review or approval by the President, the Secretary, or OMB. If the 

statute were read to impose such a requirement, the Administrator would be 

severed from his superiors in the Executive Branch with respect to these matters 

and would, in effect, become an independent agency reporting to both Congress 

and the President. In addition, the internal deliberative process within the 

Executive Branch would be tapped by an information pipeline running directly to 

a coordinate branch of government. These possibilities raise serious separation of 

powers issues, which are discussed below.

II. Applicable Separation off Powers Principles

Article II, § 1 of the United States Constitution begins with the statement that 

“ [t]he executive Power shall be vested in a President of the United States of 

America.” Article II, § 3 requires the President to “ take Care that the Laws be 

faithfully executed . . .,” and also requires the President to “recommend to 

[Congress’] Consideration such Measures as he shall judge necessary and expedient. . . .” These constitutional provisions, taken together, impose certain 

fundamental duties upon the President and grant the power to direct the Executive 

Branch to carry out those duties.

In order to execute the laws adopted by Congress, the President must have the 

assistance of subordinate officials who will carry out his policies and implement 

his instructions with respect to the execution of law. The Supreme Court has, 

from its earliest decisions, consistently recognized this basic principle. For 

example, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803), Chief 

Justice Marshall stated:

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By the Constitution of the United States, the president is 

invested with certain important political powers, in the exercise of 

which he is to use his own discretion, and is accountable only to 

his country in his political character, and to his own conscience.

To aid him in the performance of these duties, he is authorized to 

appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and 

whatever opinion may be entertained of the manner in which 

executive discretion may be used, still there exists, and can exist, 

no power to control that discretion.

Although it is clear that the Constitution does not contemplate “ a complete 

division of authority between the three branches,” Nixon v. Administrator of

General Services, 433 U.S. 425, 443 (1977), each branch retains certain core 

prerogatives upon which the other branches may not transgress. See Buckley v. 

Valeo, 424 U.S. 1 (1976). In Buckley, the Court recognized that “ a hermetic 

sealing off of the three branches of Government from one another would preclude 

the establishment of a Nation capable of governing itself effectively,” but it 

emphasized that there was a “ common ground in the recognition of the intent of 

the Framers that the powers of the three great branches of the National Government be largely separate from one another.” 424 U.S. at 120-21. The Court 

declared that it “ has not hesitated to enforce the principle of separation of powers 

embodied in the Constitution when its application has proved necessary for the 

decision of cases or controversies properly before it.” 424 U.S. at 123.

The extent of the President’s right to control subordinate officers was specifically considered by the Supreme Court in a trilogy of cases involving the 

President’s power to remove federal officials. \v\M yers\. UnitedStates, 272U.S. 

52 (1926), the Court ruled unconstitutional a statute that limited the President’s 

power to remove certain postmasters, and it declared, in dictum, that the repealed 

Tenure of Office Act had been unconstitutional as well.1 In reaching this conclusion, the Court considered a number of factors, including the constitutional 

debates, previous congressional practice, and the relationship between the power 

to appoint and the power to remove. In addition, the Court expressly based its 

decision on the conclusion that “Article II grants to the President the executive 

power of the Government, i.e., the general administrative control of those 

executing the laws, including the power of appointment and removal of executive 

officers—a conclusion confirmed by his obligation to take care that the laws be 

faithfully executed. . . .” 272 U.S. at 163-64. The Court based this conclusion 

on the following analysis of the President’s control over subordinate officials:

1 The Tenure of Office Act, 14 Stat. 430 ( 1867), had provided that all officers appointed by and with the consent of 

the Senate should hold their offices until their successors had been appointed and approved, and that certain heads of 

departments, including the Secretary of War, should hold their offices during the term of the President who 

appointed them, subject to removal by consent of the Senate. This Act was the pnncipal basis for the articles of 

impeachment filed against President Andrew Johnson after he dismissed his Secretary of War without the consent of 

the Senate

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The ordinary duties of officers prescribed by statute come under 

the general administrative control of the President by virtue of the 

general grant to him of the executive power, and he may properly 

supervise and guide thei/construction of the statutes under which 

they act in order to secure that unitary and uniform execution of 

the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President 

alone. Laws are often passed with specific provision for the 

adoption of regulations by a department or bureau head to make 

the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and 

stimulation of his subordinates, are subjects which the President 

must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President 

should have the power to remove them.

272 U.S. at 135.

The Court confirmed this view of the President’s power over his subordinates 

within the Executive Branch in Humphrey's Executor v. United States, 295 U.S. 

602 (1935). In that case, the Court ruled that Congress could, consistent with the 

Constitution, immunize a Commissioner of the Federal Trade Commission 

(FTC) from removal by the President at his pleasure. The Court reasoned that the 

FTC could not “ be characterized as an arm or eye of the executive. Its duties are 

performed without executive leave and, in the contemplation of the statute, must 

be free from executive control.” 295 U.S. at 628. Myers was distinguished on the 

ground that “ [t]he actual decision in the Myers case finds support in the theory 

that such an officer is merely one of the units in the executive department and, 

hence, inherently subject to the exclusive and illimitable power of removal by the 

Chief Executive, whose subordinate and aid he is.” 295 U.S. at 627. The Court 

emphasized that within the Executive Branch, the President retained the right to 

direct the actions of his subordinates free from interference by another branch:

The fundamental necessity of maintaining each of the three 

general departments of government entirely free from the control 

or coercive influence, direct or indirect, of either of the others, has 

often been stressed and is hardly open to serious question. So 

much is implied in the very fact of the separation of the powers of 

these departments by the Constitution; and in the rule which 

recognizes their essential co-equality. The sound application of a 

principle that makes one master in his own house precludes him 

from imposing his control in the house of another who is master 

there.

295 U.S. at 629-30. Thus, by narrowing Myers to cover only subordinates of the 

President within the Executive Branch, the Court linked the removal power even 

more clearly to the right of the President to control purely executive officials.

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This principle was reaffirmed in W iener\. UnitedStates, 357 U.S. 349 (1958). 

In that case, the Court held that the President did not have a constitutional right to 

remove a member of the War Claims Commission. The Court ruled that the 

Commission was essentially judicial in nature and that it was intended by 

Congress to operate entirely free of the President’s control. 357 U.S. at 355-56. 

The Court expressly linked the right of removal with the right of the President to 

control a particular official:

If, as one must take for granted, the War Claims Act precluded the 

President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not 

wish to have hang over the Commission the Damocles’ sword of 

removal by the President for no reason other than that he preferred 

to have on that Commission men of his own choosing.

357 U.S. at 356. The Court thus emphasized that Humphrey’s Executor “ drew a 

sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President’s constitutional 

powers,” and those who were members of an independent body required to 

exercise its judgment without hindrance from the Executive. 357 U.S. at 353.

These three cases clearly establish the President’s right to control the actions 

and duties of his subordinates within the Executive Branch. Myers explicitly set 

forth the President’s right to control as one of the bases for establishing the 

presidential right to discharge subordinate officials. Humphrey’s Executor and 

Wiener, while limiting the President’s removal power, reinforced the link between the President’s right to control and his right to remove Executive Branch 

officials.

The President’s right to control the execution of the laws free from undue 

interference from coordinate branches of government is supported by an additional line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the 

Supreme Court confirmed that the Constitution protects the integrity of the 

Executive Branch decisionmaking process from interference by another branch 

through demands for information about the Executive’s deliberations. The Court 

recognized

the valid need for protection of communications between high 

Government officials and those who advise and assist them in the 

performance of their manifold duties; the importance of this 

confidentiality is too plain to require further discussion. Human 

experience teaches that those who expect public dissemination of 

their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the 

decisionmaking process.

418 U.S. at 705 (footnote omitted). The Court specifically acknowledged that 

this right of confidentiality “can be said to derive from the supremacy of each 

branch within its own assigned area of constitutional duties. Certain powers and

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privileges flow from the nature of enumerated powers; the protection of the 

confidentiality of Presidential communications has similar constitutional underpinnings.” 418 U.S. at 705-06 (footnote omitted). The Court further noted that 

this protection “ is fundamental to the operation of Government and inextricably 

rooted in the separation of powers under the Constitution.” 418 U.S. at 708 

(footnote omitted).

This decision gives further content to the principle that the constitutional 

separation of powers requires the President to have effective control over the 

decisionmaking process within the Executive Branch. The constitutional prerogative recognized by the Court connects the President’s constitutional responsibility to take care that the laws be faithfully executed with the practical need for 

confidentiality in Executive Branch deliberations. The Court has unmistakably 

declared that the powers necessary to the implementation of the President’s 

authority over the Executive Branch cannot be abridged absent a compelling and 

specific need asserted by another branch.2

The D.C. Circuit has explicitly recognized the right of the President to protect 

himself from unwarranted intrusions by Congress into the domain of protected 

decisionmaking activity. In Senate Select Committee on Presidential Campaign

Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), the court ruled that 

the President was not required to produce to Congress certain transcripts of White 

House conversations. The court decided that the general presumption in favor of 

the confidentiality of executive deliberations could be overcome “ only by a 

strong showing of need by another institution of government—a showing that the 

responsibilities of that institution cannot responsibly be fulfilled without access 

to records of the President’s deliberations. . . .” 498 F. 2d at 730. The court found 

that the general oversight need of Congress in this instance was not sufficient to 

meet the court’s requirement that the information be “ demonstrably critical to the 

responsible fulfillment of the Committee’s functions.” 498 F.2d at 731.

The decisions and the long practical history concerning the right of the 

President to protect his control over the Executive Branch are based on the 

fundamental principle that the President’s relationship with his subordinates must 

be free from certain types of interference from the coordinate branches of 

government in order to permit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President,

2 Although the N ixon case dealt with communications between the President and White House advisors, it seems 

clear that the principles enunciated therein extend at least to other important decisionmakers within the Executive 

Branch. See U nited States v. Am erican Telephone & Telegraph C o., 567 F2d 121 (D.C. Cir 1977). The Nixon

Court specifically referred not simply to the President but to “ high government officials and those who advise and 

assistthem. . . 418 U.S. at 705 Rirthermore, as the Supreme Court recognized m B a rrv . M atteo, 360U . S. 564 

(1959), where it extended the privilege against libel suits involving official utterances to executive officials below 

Cabinet rank:

We do not think that the principle announced in Vilas can properly be restricted to executive 

officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The 

privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid 

in the effective functioning of government. The complexities and magnitude of governmental 

activity have become so great that there must of necessity be a delegation and redelegation of 

authority as to many functions, and we cannot say that these functions become less important simply 

because they are exercised by officers of lower rank in the executive hierarchy 

360 U.S. at 572-73 (footnotes omitted)

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and he is obligated to “ take care that the laws are faithfully executed.” In order to 

fulfill these responsibilities, the President must be able to rely upon the faithful 

service of subordinate officials. To the extent that Congress or the courts interfere 

with the President’s right to control or receive effective service from his subordinates within the Executive Branch, those other branches limit the ability of the 

President to perform his constitutional function. Therefore, only the most 

compelling and specifically supported needs will justify any interference with the 

President’s power within the Executive Branch.

III. Application of Separation of Powers Principles to § 506(f)

In this instance, the potential impact of § 506(f) on the Executive Branch is 

significant and adverse. On the other hand, the provision does not reflect any 

particularized congressional need for specific factual information. Under these 

circumstances, as described more fully below, the constitutionally based need to 

protect the executive process from a non-compelling intrusion by Congress 

suggests that the statutory provision should be very narrowly construed so as not 

to offend separation of powers principles.

A. Interference with the Executive Process

There is no doubt that the Administrator is a purely executive official who 

serves at the pleasure of the President and is subject to the President’s control. 

The FAA, as a division of the Department of Transportation, is indisputably an 

executive agency. The Administrator is appointed by the President with the 

advice and consent of the Senate, and he serves at the pleasure of the President.

49 U.S.C. § 1652(e)(1). The Administrator reports directly to the Secretary of 

Transportation, who reports in turn to the President. 49 U.S.C. § 1652(e)(3). 

Since the Administrator is a purely executive official subject to the direct control 

of the President, under the principles set forth above, the Administrator must be 

responsible to the Secretary, and ultimately to the President, and the Administrator’s superiors have the right to supervise and approve the Administrator’s 

work.

The concurrent reporting provision could be construed to interfere greatly with 

the President’s right to supervise the Administrator’s action. The provision could 

be read to require the Administrator to submit any budget information or 

legislative comments directly to Congress prior to any approval or even review by 

the Administrator’s superiors, including the Secretary and the President. If the 

provision were interpreted in that manner, the Administrator would be effectively 

severed from his superiors in the Executive Branch with respect to these areas of 

his responsibility. On these vital budget and legislative matters, the Administrator would become, in effect, an independent agency reporting both to 

Congress and to the President. This concurrent responsibility is entirely inconsistent with the separation of powers principles set forth above and with the

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corollary right of the President to control his subordinates within the Executive 

Branch.

The practical effect of a broad interpretation of § 506(f) would severely impair 

the President’s ability to carry out his constitutionally assigned responsibilities. 

The President’s responsibility to take care that the laws are faithfully executed 

includes the responsibility imposed by the Budget and Accounting Act to present 

a unified national budget to Congress. See 31 U.S.C. § 11. In order to implement 

this statutory responsibility, the President has established a budget development 

and review process through OMB, which is a part of the Executive Office of the 

President. The President through OMB requires that

the confidential nature of agency submissions, requests, recommendations, supporting materials and similar communications 

should be maintained, since these documents are an integral part 

of the decisionmaking process by which the President resolves 

budget issues and develops recommendations to the Congress. . . . Budgetary material should not be disclosed in any 

form prior to transmittal by the President of the material to which 

it pertains. The head of each agency is responsible for preventing 

premature disclosures of this budgetary information.

OMB Circular No. A-10(Nov. 12, 1976) at 2. Thus, the Executive has explicitly 

determined that disclosure of unreviewed recommendations by subordinates 

within the Executive Branch would adversely affect the President’s ability to 

carry out his responsibilities.3

Moreover, the President has an explicit constitutional obligation to “ recommend to [Congress’] Consideration such Measures as he shall judge necessary 

andexpedient. . . .” Article II, § 3. The Administrator is responsible for making 

recommendations to the President concerning such legislative action so that the 

President may review them and determine which measures “ he shall judge 

necessary and expedient.” Id. Congress seeks to interdict this process by requiring immediate reporting of such legislative recommendations prior to the President’s review or approval. Thus, although the Constitution gives to the President 

the right to present legislative recommendations on behalf of the Executive 

Branch, Congress, by this concurrent reporting provision, purports to require a 

subordinate executive official to present legislative recommendations of his own. 

Such a provision clearly transgresses upon the President’s constitutionally designated role.

Thus, the concurrent reporting provision presents a constitutional problem 

that transcends the issue of executive privilege.4 The issue here concerns not just

3 Although Congress has enacted concurrent reporting provisions with respect to certain independent agencies, 

we are unaware that it has ever imposed a concurrent reporting requirement upon a purely executive agency that is 

under the President’s direct supervision and control See 7 U S C § 4a(h)(l) (Commodity Ritures Trading 

Commission); 15 U .S.C. § 2076(k)(l) (Consumer Product Safety Commission); 31 U.S.C § ll(j) (Interstate 

Commerce Commission).

4 The provision would present a more classic executive privilege problem if it required production of recommendations and deliberative documents after the final budget decisions had already been made and transmitted to 

Congress by the President. That type of statute would present constitutional problems, but they would be of a 

different character thairthe ones presented by § 506(0-

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protection of the deliberative process once a final decision has already been 

made, but rather protection of the President’s ability to supervise the actions of his 

subordinate officials while the decisionmaking process is still going on. Because 

§ 506(0 might be read to require a presidential subordinate to report both to 

Congress and his superiors within the Executive Branch, it intrudes deeply into 

the President’s constitutional prerogative. Indeed, as thus construed, it would 

interdict and therefore irreparably damage, if not destroy, the normal exchange of 

views between agency heads and the President (through OMB) before budget 

submissions are finally approved. A potential result is that the Administrator 

might be cut out of the process and made into a figurehead with the budget work 

assigned to someone not subject to the constraints of § 506(f).

This Office has previously considered, and found constitutionally defective, 

legislative proposals that impose concurrent reporting requirements upon executive officials. For example, this Office has published an opinion concerning a 

proposal that an inspector general be required to report information directly to 

Congress, without review or approval by the head of the particular agency 

involved. Inspector General Legislation, 1 Op. O.L.C. 16 (1977).5 In that 

opinion, this Office determined that the “ President’s power of control extends to 

the entire executive branch, and includes the right to coordinate and supervise all 

replies and comments from the executive branch to Congress.” Id. at 17. The 

opinion stated that the requirement to provide information directly to Congress 

without Executive Branch clearance was “ inconsistent with [the Inspector General’s] status as an officer in the executive branch, reporting to and under the 

general supervision of the head of the agency.” Id. In conclusion, the opinion set 

forth the following principle:

Reports of problems encountered and suggestions for remedial 

legislation may be required of the agencies in question, but those 

reports must come to Congress from the statutory head of the 

agency, who must reserve the power of supervision over the 

contents of these reports.

Id. at 18.

B. Congressional Need for § 506(f)

In the face of this significant interference with the President’s right to control 

his subordinates, there does not appear from the legislation or its history a strong 

comparable Legislative Branch interest. Congress has not expressed a specific 

need for § 506, either in the statute itself or in the legislative history. One can 

only infer that Congress adopted the provision in order to obtain more information to assist it in carrying out its review of the budget. There is no indication that 

Congress could not obtain similar information to aid its deliberations from other 

sources or by other means that would be less intrusive upon the Executive 

Branch. Certainly there is no indication that the material “ is demonstrably

5 See also Proposals Regarding an Independent Attorney G eneral, 1 O L C. 75 (1977)

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critical to the responsible fulfillment of the Committee’s functions.” See Senate

Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d at 731.

Moreover, the concurrent reporting provision is a blanket requirement that 

applies to all budget information and legislative comments. The provision is 

sweeping and indiscriminate in its demand for information from the Executive 

Branch. This type of requirement is inconsistent with the Constitution’s “ spirit of 

dynamic compromise” with respect to disputes between coordinate branches of 

government. See United States v. American Telephone & Telegraph Co., 567

F.2d 121, 127 (D.C. Cir. 1977). That case involved a Justice Department suit to 

block a congressional subpoena of third-party materials on the ground that 

production would pose a threat to national security. In resolving the clash 

between the Executive and Legislative Branches, the Court insisted on further 

efforts by the two branches to reach a compromise arrangement and emphasized 

that

the resolution of conflict between the coordinate branches in these 

situations must be regarded as an opportunity for a constructive 

modus vivendi, which positively promotes the functioning of our 

system. The Constitution contemplates such accommodation. 

Negotiation between the two branches should thus be viewed as a 

dynamic process affirmatively furthering the constitutitonal 

scheme.

567 F.2d at 130. By enacting a blanket statutory mechanism that would require 

automatic submission to Congress of preliminary and not fully developed Executive Branch positions, Congress has ignored this common sense construction 

of constitutional principles. Congress’ need is much less significant than would 

be the case if Congress had made a specific, well-defined request for materials 

that were necessary for it to fulfill a vital legislative function. Congress may still 

make such a specific request, and it needs no statute to do so. Congress and its 

committees frequently obtain information in this manner from the Executive 

Branch when, in the view of the Executive Branch, the provision of such 

information will not have an unacceptable impact on the deliberative process.

On balance, if the concurrent reporting provision were construed to require 

immediate transmission to Congress of the Administrator’s budget and legislative 

recommendations, it would violate the constitutionally prescribed separation of 

powers. The potential interference with the President’s constitutional duty to 

supervise the actions of his subordinates would be substantial, while there does 

not appear to be any congressional need of comparable magnitude for the 

information. Therefore, the provision must be construed in a manner consistent 

with the separation of powers required under the Constitution.

IIV. ImpEemeiniltaltnoini off § 506(5)

In implementing § 506(f), the Administrator must act in accordance with the 

constitutional principles set forth above. Therefore, § 506(0 must be carried out

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in a manner that will permit the Secretary and, as necessary, the President or 

OMB to review the Administrator’s reports prior to their submission to Congress.

Broadly worded statutes that could be interpreted in such a way as to create a 

conflict with the separation of powers have, in the past, been interpreted very 

narrowly so as not to impinge upon the constitutional prerogatives of the 

Executive Branch. For example, Congress has enacted a provision that on its face 

requires any executive agency to submit to the Government Operations Committees of the House or Senate “ any information requested of it relating to any matter 

within the jurisdiction of the committee.” 5 U.S.C. § 2954. This provision, 

however, has been narrowly interpreted by the Executive Branch to grant to the 

pertinent committees access to only the type of information that has traditionally 

been made available to Congress and that is not subject to valid claims of 

executive privilege. Statement of Attorney General Elliot Richardson, June 

1973. Attorney General Rogers adopted a similar approach in response to a 

provision of the Mutual Security Act of 1954 in order to avoid a construction of 

the statute that would require production of documents presumptively protected 

by executive privilege. See 41 Op. Att’y Gen. 507, 525 (1960). This practice is, 

of course, consistent with the familiar rule that courts will adopt an interpretation 

of a statute that will avoid constitutional questions. See, e.g., United States v. 

Rumely, 345 U.S. 41, 45 (1953).

In this instance, we have concluded that § 506(f) can and should be construed 

to be consistent with the Constitution by interpreting the budget information and 

legislative comments that the Administrator is required to produce to Congress to 

include only “ final” information and comments. In other words, until budget 

information, legislative comments, or any other material required to be transmitted to Congress is reviewed and approved by the appropriate senior officials, the 

material should be regarded as tentative, rather than final, conclusions of the 

Administrator. The information or comments would not become final until the 

appropriate review process was complete, at which time the Administrator, 

pursuant to § 506(f), would transmit the final information or comments to both 

the Secretary and Congress.

V. Conclusion

In conclusion, we believe that § 506(f) is constitutional only if interpreted to 

permit the Secretary and the President to review the Administrator’s reports prior 

to the time that they are submitted to Congress. We recommend that the Administrator carry out his responsibilities under § 506 in accordance with this constitutional requirement.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office of Legal Counsel

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