The Constitutional Separation of Powers Between the President

and Congress

T his m em orandum provides an overview o f the constitutional issues that periodically arise concerning 

the relationship betw een the executive and legislative branches o f the federal government. Although 

that relationship is shaped in part by the policy and political concerns o f the President and Congress 

o f the day, the political interaction betw een the President and Congress takes place within an 

enduring constitutional framework that confers pow ers and responsibilities on both elected 

branches. In this mem orandum we discuss the general principles underlying separation o f powers 

analysis, and w e address certain specific questions that have arisen in the past. A ny set o f exam ples 

is necessarily illustrative rather than exhaustive, how ever, and the Office o f Legal Counsel is alw ays available to assist in reviewing legislation or oth er congressional action for potential separation o f pow ers issu e s.'

May 7, 1996

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

o f t h e F e d e r a l G o v e r n m e n t

Table of Contents

I. General Principles 125

A. Express Procedures: The Bicameralism and Presentment Requirements

and the Appointments Clause 129

B. The Anti-Aggrandizement Principle 131

C. The General Separation of Powers Principle 133

II. Common Separation of Powers Issues 135

A. Bicameralism/Presentment Questions 135

B. Appointments Clause and Related Questions 139

1. Who is Required to Be an Officer of the United States? 139

a. Employment by the Government: The Distinction between

Appointees and Independent Contractors 140

b. The Exercise of Significant Authority 143

c. Appointment to a Position of Employment within the Federal 

Government 145

d. Summary 148

2. W ho May Be an Inferior Officer? 149

3. W ho May Appoint Inferior Officers? 151

* This memorandum supersedes a 1989 memorandum that the Office of Legal Counsel provided to the General 

Counsels’ Consultative Group. See Common Legislative Encroachments on Executive Branch Authority, 13 Op. 

O.L.C. 248 (1989). While we agree with many of the conclusions of that document, we have determined that subsequent decisions by the Supreme Coun and certain differences in approach to the issues make it appropriate to revisit 

and update the O ffice’s general advice on separation of powers issues.

Editor’s Note: TTiis memorandum was issued in 1996 but is being formally published in 2002. We caution that 

intervening Supreme Court decisions and “ certain differences in approach to the issues” discussed herein may render 

portions o f this memorandum inadequate as an expression o f the Office's advice on separation of powers. Rather 

than drafting a superseding memorandum on separation of powers, divorced from a specific context, the Office 

will provide advice on separation of powers as questions are presented to it.

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The Constitutional Separation o f Powers Between the President and Congress

4. Legislation Lengthening the Tenure of an Officer 153

5. Legislation Imposing Additional Duties on an Officer 157

6. The Ineligibility and Incompatibility Clauses 159

7. The Recess Appointments Clause 161

8. Acting and Interim Appointments 161

9. Other Issues of Combined, Collective, and Interbranch Authority and

the Appointments Clause 164

C. Removal Power Issues 166

1. The Executive’s Removal Power 166

2. Congressional Removal Power 170

D. Issues Involving the Boundaries of the Legislative Sphere 171

1. The Paradox of Congressional Agencies 172

2. Reporting Requirements 173

3. Congressional Agents in Non-Legislative Contexts 175

E. The General Separation of Powers Principle 176

F. Statutory Construction 178

III. Constitutional Requirements and Policy Concerns 180

I. General Principles

The Constitution reflects a fundamental conviction that governmental “ power 

is of an encroaching nature, and that it ought to be effectually restrained from 

passing the limits assigned to it.” The Federalist No. 48, at 332 (James Madison) 

(Jacob E. Cooke ed., 1961), quoted in Metropolitan Washington Airports Auth.

v. Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) 

(“ MWAA” ). The founders, not content to rely on paper definitions of the rights 

secured to the people, “ viewed the principle of separation of powers as a vital 

check against tyranny.” Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam). 

In order to safeguard liberty, therefore, the Constitution creates three distinct 

branches of government— Congress, the President, and the federal judiciary — 

and assigns to them differing roles in the exercise of the government’s powers. 

The resulting division of governmental authority is not a mere set of housekeeping 

rules indicating which branch presumptively performs which functions; it is, rather, a fundamental means by which the Constitution attempts to ensure free, responsible, and democratic government. See MWAA, 501 U.S. at 272 (“ The ultimate 

purpose of this separation of powers is to protect the liberty and security of the 

governed.” ). The constitutional separation of powers advances this central purpose 

by “ assur[ing] full, vigorous, and open debate on the great issues affecting the 

people” ; 1 by “ placing both substantive and procedural limitations on each

1Bowsher v. Synar. 478 U.S. 714, 722 (1986).

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Opinions of the Office o f Legal Counsel in Volume 20

[branch]” ; 2 and by maintaining a “ system of . . . checks and balances” among 

the three branches.3

Although the structure of the Constitution is designed to obviate the danger 

to liberty posed by each of the branches,4 the founders were particularly concerned with the Congress’s potential for improvident or overreaching action: “ the 

tendency of republican governments is to an aggrandizement of the legislature] 

at the expense of the other departments.” The Federalist No. 49, at 315-16 (James 

Madison) (Clinton Rossiter ed., 1961), cited in United States v. Brown, 381 U.S. 

437, 444 n.17 (1965). Many specific aspects of the Constitution’s separation of 

governmental powers embody the founders’ “ profound conviction . . . that the 

powers conferred on Congress were the powers to be most carefully circumscribed” and the founders’ recognition of the particular “ ‘propensity’ ” of 

the legislative branch “ ‘to invade the rights of the Executive.’ ” INS v. Chadha,

462 U.S. 919, 947 (1983) (quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a constitutional obligation, one grounded not in parochial institutional interests but in our 

fundamental duty to safeguard the liberty of the people, to assert and maintain 

the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitchell put it long 

ago:

Since the organization of the Government, Presidents have felt 

bound to insist upon the maintenance of the Executive functions 

unim paired by legislative encroachment, just as the legislative 

branch has felt bound to resist interferences with its power by the 

Executive. To acquiesce in legislation having a tendency to encroach upon the executive authority results in establishing dangerous precedents.

Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y 

Gen. 56, 64 (1933).5

The Constitution, however, “ by no means contemplates total separation of each 

of these three essential branches of Government.” Buckley, 424 U.S. at 121. Instead, “ ‘[w]hile the Constitution diffuses power the better to secure liberty, it

2 MWAA, 501 U.S. at 272.

3Morrison v. Olson, 487 U.S. 654, 693 (1988). James Madison described the “ policy'* lying behind “ distributions 

of power** — “ the constant aim is to divide and arrange the several offices in such a manner as that each may 

be a check on the other.*’ The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961), quoted

in Buckley, 424 U.S. at 122-23.

ASee INS v. Chadha, 462 U.S. 919, 951 (1983) (the Constitution's separation of powers is designed to counteract 

the “ hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power” ).

3 The Attorney General noted that “ [t]he first presidential defense of the integrity of the powers of the Executive 

under the Constitution was made by W ashington himself’’ and that “ [f]rom that day to this the Presidents, with 

very few exceptions, have felt the necessity for refusing to overlook encroachments upon the executive power.” 

37 Op. A tt’y Gen. at 64.

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The Constitutional Separation o f Powers Between the President and Congress

also contemplates that practice will integrate the dispersed powers into a workable 

government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.’ ” Mistretta v. United States, 488 U.S. 361, 381 (1989) 

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) 

(Jackson, J., concurring)). The Constitution thus guards against “ the accumulation 

of excessive authority in a single Branch” not by providing mutually exclusive 

lists of executive, legislative, and judicial powers, but by imposing on each of 

the three branches “ a degree of overlapping responsibility, a duty of interdependence as well as independence.” Id. at 381.6 The constitutional boundaries between 

the powers of the branches must be determined “ according to common sense and 

the inherent necessities of the governmental co-ordination.” J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928).

Some general observations on the sources and methodology we employ in analyzing separation of powers questions are appropriate. We believe that the constitutional structure obligates the executive branch to adhere to settled judicial 

doctrine that limits executive and legislative power. While the Supreme Court’s 

decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the 

law of the Constitution. “ It is emphatically the province and duty of the judicial 

department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 

177 (1803).

The Supreme Court’s decisions interpreting the constitutional separation of powers among Congress, the President, and the courts recognize the founders’ basic 

concern over the “ encroaching nature” of power, as well as their specific belief 

that Congress is potentially the most dangerous branch. “ It is this concern of 

encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and aroused our vigilance against the ‘hydraulic pressure inherent 

within each of the separate Branches to exceed the outer limits of its power.’ ” 

Mistretta, 488 U.S. at 382 (quoting Chadha, 462 U.S. at 951). The Court’s decisions have employed three distinct principles in resolving separation of powers 

disputes. First, where “ [e]xplicit and unambiguous provisions of the Constitution 

prescribe and define . . . just how [governmental] powers are to be exercised,” 

Chadha, 462 U.S. at 945, the constitutional procedures must be followed with 

precision. Second, where the effect of legislation is to vest Congress itself, its 

members, or its agents with “ ‘either executive power or judicial power,’ ” the 

statute is unconstitutional. MWAA, 501 U.S. at 274 (quoting Hampton, 276 U.S.

6The Supreme Court repeatedly has rejected the “ ‘archaic view of the separation of powers as requiring three 

airtight departments of government.’ ” Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977) (quoting 

Nixon v. Administrator o f Gen. Servs., 408 F. Supp. 321, 342 (D.D.C. 1976)). In doing so, the Court has noted 

that such a view is “ inconsistent with the origins of thfe] doctrine” as well as with “ the contemporary reaJities 

of our political system.” Id. at 441; see abo id. at 442 & n.5 (noting that James Madison in The Federalist No.

47 and Justice Joseph Story in his famous treatise on the Constitution rejected the claim that the Constitution requires 

an absolute separation).

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Opinions o f the Office o f Legal Counsel in Volume 20

at 406).7 Finally, legislation that affects the functioning of one of the other 

branches may be unconstitutional if it prevents the affected branch “ from accomplishing its constitutionally assigned functions.” Nixon v. Administrator o f Gen.

Servs., 433 U.S. at 443 (legislation affecting the executive branch); accord CFTC

v. Schor, 478 U.S. 833, 851, 856-57 (1986) (legislation affecting the judiciary).8

Our analyses are guided and, where there is a decision of the Court on point, 

governed by the Supreme Court’s decisions on separation of powers. At the same 

time, the executive branch has an independent constitutional obligation to interpret 

and apply the Constitution.9 That obligation is of particular importance in the 

area of separation of powers, where the issues often do not give rise to cases 

or controversies that can be resolved by the courts. This is due in part to the 

limits of jurisdiction and justiciability that Article III places on the courts. In addition, there may be legislation that violates one of the three principles outlined 

above and yet is unlikely to reach the courts in a form or context in which the 

judiciary will be able to identify or remedy the constitutional problem.10 The 

Attorneys General and this Office have a long tradition of carrying out this constitutional responsibility, one that dates back to Attorney General Edmund Randolph’s 1791 opinions on the constitutionality of a national bank. See The Constitutionality o f the Bank Bill (1994) (reprinting, with commentary, the bank opinions), reprinted in H. Jefferson Powell, The Constitution and the Attorneys General 3 (1999).11 We believe therefore that it is important in addressing separation 

of powers matters to give careful consideration to the views of our predecessors 

and to what seems to us to be the import of the Constitution’s text, history, and 

structure.12

To be sure, respect for the legislative branch of the government requires a degree of deference to legislative judgments.13 However, it is also the President’s

7 W e shall refer to this theme in the Supreme Court’s separation of powers jurisprudence as “ the anti-aggrandizement principle.”

8 We refer to this line of reasoning as “ the general separation o f powers principle.”

9 Indeed, Article II specifically requires the President to take an oath or affirmation “ to preserve, protect and 

defend the Constitution.” U.S. Const, art. n, § I, cl. 8.

10 An example of such legislation, would be an enactment that does not, when viewed in isolation, violate the 

constitutional principles we have identified, but as to which constitutional difficulties arise when the statute is examined in conjunction with other similar enactments. Because, absent a refusal by the executive to enforce any of 

these cumulative enactments, the courts may not have an opportunity to review the statute in its full context, it 

is incumbent upon the executive to object to such legislation before it becomes law. Burdensome reporting requirements may illustrate this problem. Even if no single reporting requirement violates the general separation o f powers 

principle, see Administrator o f Gen. Servs., 433 U.S. at 443, the cumulative effect of many such requirements might 

prevent the executive from acting with the dispatch and efficiency that the Constitution intends and that, indeed. 

Congress expects.

11 Persuaded by Secretary of the Treasury Hamilton’s opinion defending the validity of the legislation, President 

W ashington declined to accept the Attorney General’s arguments that the bank bill was unconstitutional and signed 

it into law. The Supreme Court upheld the President’s conclusion that Congress could charter a national bank in 

M ’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

12 For an example of an opinion that is, in our view, an exemplary model of the approach this Office should 

take in interpreting the Constitution. See Article II, Section 2, Clause 3 — Recess Appointments— Compensation (5

U.S.C. §5503), 3 Op. O.L.C. 314 (1979).

13 From the beginning of the Republic, the executive branch has interpreted the Constitution with a due regard 

for the constitutional views of Congress. See, e.g., Thomas Jefferson, The Constitutionality of the Bill for Establishing

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The Constitutional Separation o f Powers Between the President and Congress

“ duty to pass the executive authority on to his successor, unimpaired by the adoption of dangerous precedents.” Proposed Legislation Affecting Tax Refunds, 37 

Op. Att’y Gen. at 6 5 .14 Our constitutional analyses are informed by both of these 

concerns.15

A. Express Procedures: The Bicameralism and Presentment Requirements

and the Appointments Clause

While the expression “ separation of powers” does not appear in the Constitution, the Constitution does require both separation and interdependence on some 

matters by specifying, expressly and precisely, the procedures that must be followed. Where the constitutional text is unequivocal as to the manner in which 

the branches are to relate, any attempt to vary from the text’s prescriptions is 

invalid.16 The Court has identified two such express procedures relating to the 

separation of executive and legislative powers: the bicameralism and presentment 

requirements for legislation, and the Appointments Clause.

Congress’s broad authority to take action that has “ the purpose and effect of 

altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,” INS v. Chadha, 462 U.S. at 952, is limited by the procedural requirements of-Article I. With a few express exceptions found or rooted in the 

constitutional text, see MWAA, 501 U.S. at 276 n.21,17 Article I requires that

a National Bank (Feb. 15, 1791) (Opinion of the Secretary of State), in 5 Writings o f Thomas Jefferson 284, 289 

(Paul L. Ford ed., 1895) (arguing that the President should not veto a bill on constitutional grounds, “ if the pro 

and the con hang so even as to balance his judgment,” out of “ a just respect for the wisdom o f the legislature” ). 

Respect for Congress also demands that the Executive, like the judiciaiy, construe statutes so as to avoid constitutional 

problems. See, e.g.. Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980) 

(“ It is our practice to interpret statutes in ways that avoid constitutional infirmities, whenever possible.” ).

l4Thus, for example, in declining to comply with a request from the House of Representatives that he deemed 

an intrusion on the treaty power, President Washington explained that “ as it is essential to the due administration 

of the government, that the boundaries fixed by the [Constitution between the different departments should be preserved: A just regard to the Constitution and to the duty of my Office . . . forbids a co m p lian ce with your request.” 

Message to the House of Representatives (Mar. 30, 1796), reprinted in 35 Writings o f George Washington 5 (John 

C. Fitzpatrick ed., 1940).

15 The correct resolution of separation of powers questions demands that due respect be given to two distinct 

constitutional axioms. The fust axiom is that the Constitution's creation of a vigorous Executive and an independent 

judiciary must not be undermined by legislative encroachment. The second axiom is that the Constitution delegates 

to Congress broad power “ [t]o make all Laws which shall be necessary and proper for carrying into Execution 

(he foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the 

United States, or in any department or officer thereof.” U.S. Const, art. I, § 8, cl. 18 (emphasis added). The Necessary 

and Proper Clause thereby authorizes Congress not only to choose any appropriate means of exercising the legislative 

powers it has been delegated, but also “ to exercise its best judgment in the selection of measures to cany into 

execution the constitutional powers of the government” as a whole, M’Culloch v. Maryland, 17 U.S. at 420, including 

the powers vested in the President. In our analyses, we fully acknowledge the broad sweep of Congress’s powers 

while insisting, as we must, that those powers cannot be legitimately employed so as to undermine the constitutional 

authority of the executive branch.

16 In such circumstances “ the balance” between the branches “ already has been struck by the Constitution its e lf’ 

in the text. Public Citizen v. United States Dep’t o f Justice, 491 U.S. 440, 486 (1989) (Kennedy, J., concurring).

17 The House of Representatives has the power to impeach any civil officer of the United States, see U.S. Const, 

art. I, §2, cl. 5; id. art. II, §4, and the Senate has the power to try and, if convinced that the officer is guilty 

of “ high Crimes and Misdemeanors,” to remove him or her from office. Id. art. I, §3, els. 5, 6; id. art. II, §4.

Continued

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Congress take such action “ in accord with a single, finely wrought and exhaustively considered, procedure’’ — bicameral passage and presentation to the President followed by presidential signature, or bicameral repassage by a two-thirds 

majority. Chadha, 462 U.S. at 951; see U.S. Const, art. I, §§1, 7. The classic 

and often-repeated violation of this express textual requirement is the “ legislative 

veto” mechanism invalidated in Chadha. 18

The Supreme Court has applied a similar analysis to the Appointments Clause 

of Article II, Section 2. In Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (per 

curiam), the Court concluded that “ Congress’ power under [the Necessary and 

Proper] Clause is inevitably bounded by the express language of Art. II, §2, cl.

2,” and that consequently Congress cannot provide for the appointment of “ Officers of the United States,” except through a procedure that “ comports with” 

the Appointments Clause.19 Pursuant to the language of the Clause, principal officers must be appointed by the President with the advice and consent of the Senate, 

while Congress is limited in providing alternative means for the appointment of 

inferior officers to the “ possible repositories for the appointment power.” Freytag

v. Commissioner, 501 U.S. 868, 884 (1991). Those repositories are “ the President 

alone, . . . the Courts of Law, or . . . the Heads of Departments.” U.S. Const, 

art. II, §2, cl. 2.

The rules of law derived from the requirements of bicameralism/presentment 

and the Appointments Clause have the clear and powerful effect of invalidating 

any inconsistent congressional action. Congress may not employ any mode of exercising legislative power other than through bicameralism and presentment. The 

Appointments Clause’s list of those who may appoint officers is exclusive, and 

Congress cannot authorize anyone else to appoint officers of the United States. 

The major difficulty in applying the bicameralism/presentment and Appointments 

Clause requirements lies in determining whether a particular action falls within 

the scope of the prescribed procedures. In section II of this memorandum, we 

discuss questions that have arisen concerning the scope of both requirements.

The Senate also acts on its own in exercising its advice and consent powers with respect to treaties and the appointment of officers. Congress and congressional committees, furthermore, may take certain actions in aid of Congress’s 

legislative tasks that have legal consequences for specific persons outside the legislative branch; a congressional 

committee, for example, may issue a subpoena to a witness. See Lear Siegler, Inc. Energy Prods. Div. v. Lehman,

842 F.2d 1102, 1108 (9th Cir. 1988), modified as to attorney fees, 893 F.2d 205 (9th Cir. 1989) (en banc). We 

disagree with the Lear Siegler court’s application of this principle to the question before it.

,8The statute at issue in Chadha provided for a one-house “ veto” of certain decisions by the Attorney General. 

A two-house “ veto’* satisfies bicameralism but is inconsistent with the requirement of presentment, and soon after 

Chadha the Court summarily invalidated a statute employing this mechanism. See United States Senate v. FTC,

463 U.S. 1216 (1983) (mem.). These Supreme Court decisions vindicated the executive branch’s long-held objections 

to any form of legislative “ veto.” See Memorandum for the Attorney General from President Franklin D. Roosevelt 

(Apr. 7, 1941), reprinted in Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357-58 

(1953) (concurrent resolution); Proposed Legislation Affecting Tax Refunds, 37 Op. A tt’y Gen. at 60-62 (joint congressional committee); Constitutional Issues Raised by Inter-American Convention on International Commercial Arbitration, 4B Op. O.L.C. 509, 512-13 (1980) (one-house veto o f “ private” action).

l9BuckIey vindicated the long-standing constitutional view of the executive branch. See, e.g., Constitutionality

o f Resolution Establishing United Stales New York World's Fair Commission, 39 Op. A tt’y Gen. 61 (1937).

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The Constitutional Separation o f Powers Between the President and Congress

B. The Anti-Aggrandizement Principle

Although the founders were concerned about the concentration of governmental 

power in any of the three branches, their primary fears were directed toward congressional self-aggrandizement,20 and the Supreme Court’s decisions call for careful scrutiny of legislation that has the purpose or effect of extending Congress’s 

authority beyond the legislative process. Just as the textual requirement of bicameralism and presentment limits the means by which Congress may legislate, 

so the anti-aggrandizement principle limits the means by which Congress may 

influence the execution (or adjudication) of the laws.21 The Constitution affords 

Congress great latitude in making policy choices through the process of bicameral 

passage and presentment. However, “ once Congress makes its choice in enacting 

legislation, its participation ends,” and “ Congress can thereafter control the execution of its enactment only indirectly— by passing new legislation.” Bowsher

v. Synar, 478 U.S. at 733-34. While Congress may inform itself of how legislation 

is being implemented through the ordinary means of legislative oversight and investigation, the anti-aggrandizement principle forbids Congress, directly or 

through an agent subject to removal by Congress,22 from intervening in the decision making necessary to execute the law. See id. at 733-34; FEC v. NRA Political

Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 

(1994).«

In Bowsher, the Court held that a provision of the Gramm-Rudman Deficit Reduction Act was unconstitutional because it vested in the Comptroller General 

(an official “ removable only at the initiative of Congress,” 478 U.S. at 728) the 

power to make post-enactment decisions about how the executive branch should 

implement budget reduction legislation. The Court rejected the argument that selfaggrandizing legislation can be upheld when it is as a practical matter harmless 

or de minimis and dismissed as beside the point Justice White’s vigorous argument

20See Mistretta, 488 U.S. at 411 n.35 (distinguishing Bowsher, as resting on "‘the special danger recognized by 

the Founders of congressional usurpation of Executive Branch functions").

2‘ The fact that the anti-aggrandizement principle does not rest on a particular provision of the Constitution does 

not make it any less important and legitimate a feature of the law of separation of powers than those features 

such as bicameralism and presentment that do have specific textual loci:

The Framers regarded the checks and balances they had built into the tripartite Federal Government as 

a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of 

the other. . . . This Court has not hesitated to enforce the principle of separation embodied in the Constitution when its application has proved necessary for the decisions o f cases or controversies properly before 

it.

Buckley v. Valeo, 424 U.S. at 122-23.

22 “ The structure o f the Constitution does not permit Congress to execute the laws; it follows that Congress cannot 

grant to an officer under its control what it does not possess.” Bowsher, 478 U.S. at 726. An officer subject to 

removal by Congress is subordinate to Congress as a matter of constitutional law and must be viewed as an agent 

of Congress for separation of powers purposes. Id. at 730. The Constitution expressly prescribes the only means 

by which the houses of Congress may participate in the removal from an ongoing office of a non-legislative official — 

impeachment by the House and trial by the Senate. Id. at 723.

23Bowsher upheld the view of the Constitution long maintained by the executive branch. See, e.g., Constitutionality

o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 56 (1933) (unconstitutional for Congress 

to give a joint committee o f Congress authonty “ to approve or disapprove executive acts” ).

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that “ [r]ealistic consideration of the nature of the Comptroller General’s relation 

to Congress . . . reveals that the threat to separation of powers . . . is wholly 

chimerical.” 478 U.S. at 774 (White, J., dissenting); see also MWAA, 501 U.S. 

at 269 n.15 (finding that “ the likelihood that Congress” actually would exercise 

its authority to remove the members of the review board under consideration in 

MWAA was “ irrelevant for separation-of-powers purposes” ). In contrast, the 

Court upheld the validity of the laws challenged in Morrison v. Olson (independent counsel provisions of Ethics in Government Act of 1978) and CFTC v. 

Schor, 478 U.S. 833 (1986) (regulations implementing section of the Commodity 

Exchange Act), in part because the Court saw no reason to view those laws as 

examples of legislative aggrandizement.24

Like the express requirements of the bicameralism/presentment process and the 

Appointments Clause, the anti-aggrandizement principle puts a powerful constraint 

on congressional power: legislative action that falls within the scope of the principle is unconstitutional.25 The complementary limit on the principle is that, as 

the Court understands it, the principle applies only to congressional action that 

amounts to form al or direct self-aggrandizement— for example, the placement 

of congressional agents on a body with prosecutorial or law enforcement powers — no matter how limited the power thereby seized by Congress. See NRA Political Victory Fund, 6 F.3d at 826-27. The Court reviews legislation that arguably 

increases Congress’s power indirectly by weakening the Executive politically 

under the less stringent general separation of powers principle. See Morrison, 487 

U.S. at 694. A significant difficulty in applying the anti-aggrandizement principle 

arises from the uncertain line between minor (but unconstitutional) aggrandizements and (constitutional) exercises of Congress’s broad investigative and oversight powers.26 In section II, we discuss some of the questions that have arisen.

24Morrison, 487 U.S. at 694 ( “ We observe first that this case does not involve an attempt by Congress to increase 

its own powers at the expense o f the Executive Branch.” ); Schor, 478 U.S. at 856 ( “ Unlike Bowsher, this case 

raises no question o f the aggrandizement of congressional power at the expense of a coordinate branch.” ).

25 The bicameralism/presentment and anti-aggrandizement requirements converge when Congress attempts to vest 

in itself or its agents the power to take action with legal effects outside the legislative branch by some means 

other than the textually prescribed procedure o f bicameral passage of a bill and presentation to the President. Such 

an attempt is unconstitutional regardless of whether one views the attempt as a violation of the bicameralism/presentment requirement for legislation or as a self-aggrandizing intrusion into the sphere of activity of another branch. 

See MWAA, 501 U.S. at 274-77. However, the two requirements do not always work in tandem. A statute providing 

that the President can exercise additional authority over some issue with the approval of a single house of Congress 

would not amount to congressional self-aggrandizement but would violate the bicameralism requirement. Similarly, 

it is difficult to view the designation by statute o f agents of Congress to be non-voting members of an extra-legislative 

decision-making body as leading to the exercise of legislative authority in violation of Chadha, but such designation 

may well run afoul of the anti-aggrandizement principle. See, e.g., NRA Political Victory Fund, 6 F.3d at 826- 

27.

26 Compare NRA Political Victory Fund, 6 F.3d at 826-27 (unconstitutional for Congress to place agents within 

an entity exercising final decision-making authority) with McGrain v. Daugherty, 273 U.S. 135 (1927) (constitutional 

for Congress to issue subpoenas).

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The Constitutional Separation o f Powers Between the President and Congress

C. The General Separation of Powers Principle

Legislation that affects the constitutional separation of powers but is consistent 

with the requirements of bicameralism/presentment, the Appointments Clause, and 

the anti-aggrandizement principle is subject to less searching scrutiny.27 While 

some older judicial opinions used language suggesting that any overlap between 

the powers wielded by the different branches is illegitimate,28 the modem Supreme Court interprets the general principle of separation of powers in light of 

Madison’s assertion that the separation necessary to free government is violated 

only “ ‘where the whole power of one department is exercised by the same hands 

which possess the whole power of another department.’ ” Nixon v. Administrator

o f Gen. Servs., 433 U.S. at 442 n.5 (quoting The Federalist No. 47, at 325-26 

(James Madison) (Jacob E. Cooke ed., 1961)).29 Therefore, “ in determining 

whether [an] Act disrupts the proper balance between the coordinate branches, 

the proper inquiry focuses on the extent to which it prevents the Executive Branch 

from accomplishing its constitutionally assigned functions.” Id. at 443; cf. CFTC

v. Schor, 478 U.S. at 856-57 (“ [T]he separation of powers question presented 

in this litigation is whether Congress impermissibly undermined . . . the role of 

the Judicial Branch.” ). An affirmative answer to the question of whether Congress 

has prevented the Executive or Judiciary from accomplishing its functions, furthermore, would not lead inexorably to the judicial invalidation of the statute: in that 

case, the Court has stated, it would proceed to “ determine whether that impact 

is justified by an overriding need to promote objectives within the constitutional 

authority of Congress.” Administrator o f Gen. Servs., 433 U.S. at 443.30

27 Legislation impinging on the President’s responsibilities in the areas of foreign affairs and national defense 

poses unique issues in the application of the general principle of separation of powers, requiring a more searching 

examination o f the validity of congressional action.

28 See, e.g., Springer v. Philippine Islands, 277 U.S. 189, 201 (1928) (discussing the “ exclusive character of 

the powers conferred upon each o f the three departments” ). On the present Court, Justice Scalia adheres to a version 

of this view. See, e.g., Morrison, 487 U.S. at 703-04 (Scalia, J., dissenting) (criticizing the Court for focusing 

on “ such relatively technical details as the Appointments Clause and the removal power” rather than on “ the principle of separation of powers” ).

29 Madison’s language about “ the whole power of [a] department” should not be construed in a woodenly literalistic manner. As the Supreme Court’s decisions indicate, the point is that the principle of separation of powers 

safeguards the overall constitutional role and function o f the affected branch. Indeed, this would seem to have been 

Madison’s view as well: during the great debate in the First Congress over the President's authority to remove 

executive branch officers, Madison argued against congressional power to limit the President’s authority on the 

ground that such limitations would distort the constitutionally ordained role of the Executive. See Myers v. United

States, 272 U.S. 52, 131 (1926) (quoting Madison).

30 Although most of the Court’s decisions applying the general separation of powers principle have concerned 

legislation arguably interfering with the executive or judiciary, the Court’s approach is applicable in other circumstances as well. For example, United Stales v. Nixon, 418 U.S. 683 (1974), addressed the argument that a subpoena duces tecum addressed to the President in the course of a criminal proceeding was a judicial encroachment 

on the Executive’s autonomy. The Court rejected the argument, holding in the circumstances o f the case that the 

President's “ generalized interest in confidentiality” was outweighed by “ the demonstrated, specific need [of the 

courts and the accused] for evidence in a pending criminal trial.” Id. at 713. The threat to the President's constitutionally based interest posed by compelled disclosure in such (presumably rare) circumstances was slight, the Court 

concluded, while “ the allowance of the privilege to withhold evidence . . . would . . . gravely impair the basic 

function of the courts.” Id. at 712. The Court built on its reasoning in United States v. Nixon in formulating the

Continued

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The Court’s current understanding of the general principle of separation of powers is illustrated by Morrison v. Olson. 31 There the Court concluded that the restrictions in the independent counsel statute on the Executive’s supervisory and 

removal powers did not violate the principle. While the Court acknowledged that 

the statute rendered the independent counsel “ free from Executive supervision 

to a greater extent than other federal prosecutors,” it was unpersuaded that the 

limitations placed on that supervision meant that the President would not be able 

“ to perform his constitutionally assigned duties.” 487 U.S. at 696.32 In light of 

the narrow range of the independent counsel’s jurisdiction, her essential insulation 

from any significant policy-making role, and the well-established principle that 

Congress can limit the removal authority of a head of department when granting 

that officer the power to appoint subordinates, the Court concluded that the independent counsel statute did not fundamentally undermine the Executive’s constitutional authority.

The Supreme Court’s basic formulation of the general principle of separation 

of powers is consistent with the approach taken by most Attorneys General in 

the past, and it accords with what we find to be the most persuasive scholarship 

on the original understanding and early practice of the separation of powers under 

the United States Constitution.33 However, given the very emphasis the general 

principle places on evaluating constitutional questions in light of the overall structure and functioning of the federal government, the principle’s application to spetest set out a few years later in Administrator o f General Services, under which it examined the impact of an adverse 

decision on the constitutional functions of the executive and judicial branches.

31 See also Mistretta. Mistretta upheld the validity of Congress’s decision to create the Sentencing Commission 

as an independent entity within the judicial branch composed, in part, of Article in judges against the claim that 

the Commission violated the general separation of powers principle. 488 U.S. at 383. As in Morrison, the Court 

looked to the impact o f the challenged legislation on the ability o f the affected branch to fulfill its duties and concluded that the legislation posed no real threat to the integrity or authority o f the judiciary. 488 U.S. at 384.

32The Court also addressed the statute's imposition of a for-cause requirement on the Attorney General's power 

to remove an independent counsel, arguably a violation of the rule of Myers v. United States, 272 U.S. 52 (1926) 

(holding unconstitutional a statute requiring Senate advice and consent to the presidential removal of certain postmasters). Morrison distinguished Myers as based on what we have called the anti-aggrandizement principle, 487 

U.S. at 686 (like Bowsher v. Synar, Myers involved "C ongress’ attempt to involve itself in the removal of an 

executive official” ), and rejected the argument that the constitutionality o f a for-cause removal requirement depends 

on whether an official is classified as “ purely executive,” id. at 689. The proper inquiry, the Court concluded, 

was the compatibility of the restriction on the Executive’s removal power with the general separation of powers 

principle that Congress cannot legislate in such a way that the President cannot carry out his constitutional functions. 

Ultimately, the Court was “ simply [unable to] see how the President’s need to control the [counsel's] exercise 

of . . . discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional 

law that the counsel be terminable at will by the President.” Id. at 691-92.

33 W hile we do not rest any conclusions on the potentially shifting ground of scholarly consensus, we note the 

existence of a num ber o f impressive studies arguing that the principle o f separation was originally understood to 

be flexible, open-ended, and consistent with a variety of actual institutional relationships among the three branches. 

Furthermore, it seems undeniable that early practice under the Constitution reflected a loose rather than strict understanding o f the required separation. See, e.g., Susan Low Bloch, The Early Role o f the Attorney General in our

Constitutional Scheme: In the Beginning There was Pragmatism, 1989 Duke L.J. 561; Gerhard Casper, An Essay

in Separation o f Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211 (1989); William B. 

Gwyn, The Indeterminacy o f the Separation o f Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474 (1989); 

Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 93 Colum. L. Rev. 1 (1994); Peter 

M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 

596(1989).

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cific questions is unavoidably difficult, and the answers we or the courts reach 

ordinarily should be viewed as quite specific to context.34 Furthermore, although 

the general principle marks the boundary of the law of separation of powers, it 

is inappropriate for the Executive to regard this as defining the outer limit of 

proper separation of powers policy objections to legislation.35 The Constitution’s 

very structure suggests the importance of maintaining the hallmarks of “ executive 

administration essential to effective action” 36 as well as the accountability to the 

public that stems from vesting ultimate authority in a single, politically responsible 

officer.37 Several quite common types of legislation threaten the structural values 

protected by the general separation of powers principle even if the courts are unlikely to invalidate them. Examples of such legislation may include burdensome 

reporting requirements, attempts to dictate the processes of executive deliberation, 

and legislation that has the purpose or would have the effect of “ micromanaging” 

executive action. Executive branch agencies should be careful to object to any 

legislation that unduly reduces the accountability of officials or agencies to the 

President, or that unnecessarily interferes with the flexibility and efficiency of 

executive decision making and action. Such legislation undercuts the constitutional 

purpose of creating an energetic and responsible executive branch.

IT. Common Separation of Powers Issues

A. Bicameralism/Presentment Questions

The Supreme Court’s holding in INS v. Chadha was emphatic: Congress can 

exercise “ the legislative power of the Federal Government” only “ in accord with 

a single, finely wrought and exhaustively considered, procedure” — passage by

34 Once again, we note that the areas of foreign relations and national defense present unique considerations, 

in light of the President's much greater constitutional authority to act in those areas.

35 In analyzing the validity of congressional action, we are mindful of the respect it is appropriate for the executive 

branch to pay to an equal and coordinate branch of the government. However, the executive branch is not bound 

by precisely the same rules of deference that guide the courts in exercising their power of judicial review. Judicial 

deference to the legislative choices embodied in statutes is one o f the means by which the courts themselves avoid 

interfering improperly with the constitutional powers of the politically responsible branches. (In the case of most 

statutes, judicial review involves scrutinizing the legal and policy judgments of the President who signed the legislation into law as well as those of the Congress that enacted it.) The courts, it should be remembered, are also deferential to purely executive branch decisions, and for the same basic reason: the constitutional structure makes the President, like Congress, politically responsible. See Chevron U.SJi., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 865 (1984) (“ While agencies are not directly accountable to the people, the C hief Executive is, 

and it is entirely appropriate for this political branch o f the Government to make . . . policy choices.").

36 Myers, 272 U.S. at 134.

37 Rejecting the argument that it was unsafe to delegate the executive power to a single official, Alexander Hamilton 

wrote that 4'one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults, 

and destroy responsibility." The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), cited

in In re Sealed Case, 838 F.2d 476, 527 n.27 (D.C. Cir.) (Ginsburg, R.B., J., dissenting), rev’d., Morrison v. Olson,

487 U.S. 654 (1988). Then-Judge Ginsburg explained that “ [t]he unity of the executive branch was intended to 

serve the ends of responsibility and accountability." Id.

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both houses and presentment to the President.38 462 U.S. at 951. Applying that 

rule, the Court struck down a statutory mechanism in the Immigration and Nationality Act by which a single house of Congress could override decisions of the 

Attorney General. The effect of the Court’s decision was to invalidate the similar 

“ legislative veto” provisions found in many other statutes.39 In addition to the 

classic legislative veto mechanism invalidated by Chadha, we think that the requirement of bicameralism and presentment is infringed whenever a single house, 

committee, or agent of Congress attempts to direct the execution of the laws, 

to determine the “ final disposition of the rights of persons outside the legislative 

branch,” or to promulgate rules or standards intended to bind the actions of executive or administrative officials that have not been approved by both houses and 

presented to the President. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v. 

Lehman, 842 F.2d 1102, 1108 (9th Cir. 1988), modified as to attorney fees, 893 

F.2d 205 (1989) (en banc);40 cf. M istretta v. United States, 488 U.S. at 396 (distinguishing Sentencing Guidelines from political policy making on the grounds 

that “ they do not bind or regulate the primary conduct of the public” ).

For many decades, the congressional Joint Committee on Printing (“JCP” ) has 

attempted to exercise the legislative authority to promulgate rules and procedures 

binding on the executive branch’s activities relating to printing, publication, and 

(more recently) data storage. In 1920, President Wilson vetoed an appropriations 

bill because it purported to confer on the JCP the power to promulgate regulations 

governing printing by executive officials or agencies: Congress has no power, 

he explained, to “ endo[w] a committee of either House or a joint committee of 

both Houses with power to prescribe ‘regulations’ under which executive departments may operate.” Veto Message on Legislative, Executive and Judicial Appropriation Bill, H.R. No. 764, 66th Cong., 2d Sess. 2 (1920), reprinted in 59 Cong. 

Rec. 7026 (1920); see Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 62-63, 65 (1933) (quoting and endorsing President 

Wilson’s reasoning). In 1984, we concluded that legislation granting the JCP authority to promulgate regulations that “ would require executive departments to

38 As a matter o f practical reality, much of the federal government’s legislative activity is undertaken by officers 

and agencies outside the legislative branch (in the form of regulations), but as a rule such entities act under statutory 

delegation ftom Congress. The delegating legislation is, for Chadha purposes, the congressional exercise of legislative 

power. See Chadha, 462 U.S. at 953 n. 16,

39 A statutory provision conditioning the Executive’s ability to take action on approval by one or both houses 

of Congress or by a congressional committee is as invalid as a provision enabling one of these bodies to “ veto” 

executive action, and for the same reason: it is a legislative attempt to exercise authority beyond the legislative 

sphere in a mode not conforming to the requirements of bicameralism and presentment. See, e.g., American Fed’n

o f Gov't Employees v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982).

40 We agree with the court o f appeals in Lear Siegler that many separation of powers issues can properly be 

analyzed under either the Chadha rule (forbidding Congress to exercise legislative power except by bicameralism 

and presentment) or the anti-aggrandizement principle (forbidding Congress to exercise executive power). Attempts 

to resolve constitutional issues by categorizing an exercise o f authority as “ in its essence, ‘legislative’ or "executive’,” can be confusing and, in any event, m iss the point that under either analysis, “ the critical issue is whether 

Congress or its agent seeks to control. . . the execution of its enactments without respect to the Article I legislative 

process.” 842 F.2d at 1108. In MWAA, the Supreme Court concluded that it was unnecessary to resolve the categorization issue because the exercise of authority was unconstitutional however it was viewed. 501 U.S. at 276.

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submit annual plans outlining their intended activities and to seek advance approval of all projected goals, policies, strategies, purchases, publications, and 

means of distribution” with respect to printing, word processing, and data storage 

and retrieval was unconstitutional. Constitutionality of Proposed Regulations o f

Joint Committee on Printing, 8 Op. O.L.C. 42, 42 (1984). The proposed regulations would have established general rules binding upon the conduct of executive 

officials without those rules being approved by both houses of Congress and presented to the President, in plain violation of Article I’s procedural requirements.41 

We have also advised that the statutory provision authorizing the JCP “ unilaterally 

to create exceptions to the [statutory] rule that all printing must be accomplished 

through the GPO [Government Printing Office]” has no lawful force under 

Chadha. Id. at 51 & n. 14; see also Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. at 58-60 (bill subjecting Treasury Department decisions on tax refunds to review and disallowance by congressional joint 

committee would be unconstitutional).

The requirement of bicameralism and presentment also can be violated in more 

convoluted ways. Section 431 of the General Education Provisions Act, for example, subjected final regulations of the Department of Education to a forty-five 

day report-and-wait provision 42 and provided that the final regulation would not 

become effective if Congress “ by concurrent resolution, findfs] that the final regulation is inconsistent with the Act . . . and disapprove^] such final regulation.” 

20 U.S.C. § 1232(d) (Supp. IV 1980). Concurrent resolutions are not legislation 

within the meaning of the Constitution, see U.S. Const, art. I, §7, cl. 3, because 

they are not presented to the President. Accordingly, Attorney General Civiletti 

advised the Secretary of Education that the subjection of the Education Department’s delegated lawmaking authority to congressional control and revision by 

means other than those required by Article I was unconstitutional. “ [0]nce a function has been delegated to the executive branch, it must be performed there, and 

cannot be subjected to continuing congressional control except through the constitutional process of enacting new legislation.” Constitutionality o f Congress’

Disapproval o f Agency Regulations by Resolutions Not Presented to the President,

4A Op. O.L.C. 21, 27 (1980) (opinion of the Attorney General).

Similarly, while Congress has near-plenary authority in deciding to grant, limit 

or withhold appropriations, the Department of Justice has long contended that the 

appropriations power may not be used to circumvent the restrictions the Constitution places on the modes of legislative action. See, e.g., Authority o f Congressional

Committees to Disapprove Action of Executive Branch, 41 Op. Att’y Gen. 230

(1955) (opining that legislation authorizing congressional committees to dis41 We also determined that the proposed regulations were not authorized by any of the statutes concerning the 

JCP. See 8 Op. O .L.C at 43-46. That point was not relevant to the constitutional analysis, however, since Congress 

cannot circumvent the bicameralism and presentment requirement by delegating legislative authority to a part or 

agent o f itself even by means of a statute itself duly passed and presented.

42 In themselves report-and-wait mechanisms usually are valid, as we discuss more fully later in this memorandum.

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approve Defense Department contracts is unconstitutional). Several years before 

Chadha, for example, this Office advised that Congress could not validly provide 

for the indirect implementation of a legislative “ veto” by an appropriations rider 

that would prospectively deny funding for the implementation of any regulation 

disapproved in the future by such a “ veto.” See Appropriations Limitation fo r

Rules Vetoed by Congress, 4B Op. O.L.C. 731 (1980). Our reasoning in that opinion is equally applicable to appropriations provisions that attempt to cut off funding that would otherwise be available on the basis of any future expression of 

disapproval by Congress that does not take the form of new legislation. The same 

analysis would apply, as well, to a provision prohibiting the expenditure of funds 

for some purpose, but allowing a future expression of approval by committee action to remove the prohibition.

In carrying out its legitimate legislative functions, Congress “ enjoys ample 

channels to advise, coordinate, and even directly influence an executive agency 

[including by] direct communication with the [agency].” FEC v. NRA Political

Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 

(1994). As a practical matter, therefore, congressional committees and individual 

members of Congress often are able to sway the decisions of the executive officials with whom they deal. In addition, congressional committees can exercise 

limited but legally coercive authority over persons outside the legislative branch 

through the power to issue subpoenas to compel testimony.43 In light of the capacity of Congress to extend its influence beyond the legislative sphere by informal 

means that are sometimes troubling although not unlawful, it is imperative that 

the executive branch consistently assert the rule of constitutional law that formal 

control of executive decisionmaking and administration is subject to the requirements of Article I, and especially to the constitutional authority of the President 

to participate in the legislative process through the presentment mechanism. The 

executive branch has a constitutional obligation not to accede to legislative action 

that does not conform to Article I. Advising the Secretary of Education that she 

could validly implement departmental regulations despite a legislative “ veto,” Attorney General Civiletti wrote that “ recognition of these concurrent resolutions 

as legally binding would constitute an abdication of the responsibility of the executive branch, as an equal and coordinate branch of government with the legislative 

branch, to preserve the integrity of its functions against constitutional encroachment.” Congress’ Disapproval o f Agency Regulations, 4A Op. O.L.C. at 29.

43 The Supreme Court has reasoned that the “ congressional power of inquiry” is necessary to “ ‘enable [Congress] 

efficiently to exercise [the] legislative function[s] belonging to it under the Constitution.’ ” Barenblait v. United

States, 360 U.S. 109, 111 (1959) (quoting McGrain v. Daugherty, 273 U.S. 135, 160 (1927)) Like Congress’s 

substantive powers to legislate, the power o f inquiry is “ subject to the limitations placed by the Constitution on 

governmental action,” id. at 112, including the anti-aggrandizement and general separation of powers principles.

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B. Appointments Clause and Related Questions

The Appointments Clause provides:

[The President,] shall nominate, and by and with the Advice and 

Consent of the Senate, shall appoint Ambassadors, other public 

Ministers and Consuls, Judges of the supreme Court, and all other 

Officers of the United States, whose Appointments are not herein 

otherwise provided for, and which shall be established by Law: but 

the Congress may by Law vest the Appointment of such inferior 

Officers, as they think proper, in the President alone, in the Courts 

of Law, or in the Heads of Departments.

U.S. Const, art. II, §2, cl. 2.44 In Buckley v. Valeo, the Supreme Court held 

that the terms of the Appointments Clause set out the only means by which Congress may provide for the appointment of “ Officers of the United States.” 45 424 

U.S. at 124-37. Principal officers must be appointed by the President with the 

advice and consent of the Senate; inferior officers must be appointed in the same 

manner unless Congress by statute provides for their appointment by the President, 

the “ Head[] of [a] Department! ],” or the courts. Id. at 132;46 see also Freytag

v. Commissioner, 501 U.S. at 878 (“ [T]he Constitution limits congressional discretion to vest power to appoint ‘inferior Officers’ to three sources.” ). Despite 

the apparent clarity of its language, however, the Appointments Clause has provided the occasion for many opinions of the Attorneys General and of this Office. 47

1. Who is Required to Be an “ Officer of the United States” ? Not everyone 

who performs duties for the federal government is an “ officer” within the meaning of the Appointments Clause. From the early days of the Republic, this term 

has been understood to embrace the ideas of “ tenure, duration, emolument, and 

duties.” United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). Because

44 As the language of the Appointments Clause suggests, offices in the constitutional sense “ are onJy those established or recognized by the Constitution or by act of Congress." Inventions International Exposition, 18 Op. A tt’y 

Gen. 171, 171 (1885); see also id. ( “ [T]he President cannot create an office.").

45 The officers at issue in Buckley were the six voting members o f the Federal Election Commission, four of 

whom were appointed by congressional officials and two by the President, subject to the approval of the Senate 

and the House of Representatives. The statutory scheme thus violated the Appointments Clause in two distinct ways, 

by vesting appointment power in officials not listed in the Clause and by subjecting presidential nominees to confirmation by the House. 424 U.S. at 126-27.

46 See Appointment o f Assistant Secretary ofState, 6 Op. A tt’y Gen. 1, 1 (1853) (*‘[W]ithout there be[ing] express 

enactment to the contrary . . . the appointment of any officer of the United States belongs to the President, by 

and with the advice and consent of the Senate.").

47 We do not state anything novel in observing that the Appointments Clause sometimes presents difficult questions 

of interpretation. Attorney General Legare remarked in an 1843 opinion that 44[n]o points of our fundamental law 

are more difficult than those involved in this whole subject of appointments." Appointment and Removal o f Inspectors

o f Customs, 4 0 p . A tt'y Gen. 162, 164(1843).

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Hartwell has long been taken as the leading statement of the constitutional meaning of “ officer,” 48 that statement is worth repeating in full:

An office is a public station, or employment, conferred by the 

appointment of government. The term embraces the ideas of tenure, 

duration, emolument, and duties.

The employment of the defendant was in the public service of 

the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior 

would not have affected the tenure of his place. His duties were 

continuing and permanent, not occasional or temporary. They were 

to be such as his superior in office should prescribe. A government 

office is different from a government contract. The latter from its 

nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of 

both parties, and neither may depart from them without the assent 

of the other.

Id. at 393.

H artwell and the cases following it specify a number of criteria for identifying 

constitutional officers, and in some cases it is not entirely clear which criteria 

the Court considered essential to its decision. Nevertheless, we believe that from 

the earliest reported decisions onward, the constitutional definition of officer has 

involved at least three necessary conditions.

a. Employment by the Government: The Distinction between Appointees and 

Independent Contractors. An officer’s duties are permanent, continuing, and 

based upon responsibilities created through a chain of command rather than by 

contract. Underlying an officer is an “ office,” to which the officer must be appointed. As Chief Justice Marshall, sitting as circuit justice, wrote: “ Although 

an office is ‘an employment,’ it does not follow that every employment is an 

office. A man may certainly be employed under a contract, express or implied, 

to do an act, or perform a service, without becoming an officer.” United States

v. M aurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747). Chief Justice 

Marshall speaks here of being “ employed under a contract” ; in modem terminology the type of non-officer status he is describing is usually referred to as

48 In an opinion discussing an Appointments Clause issue. Attorney General Kennedy referred to Hartwell as 

providing the “ classical definition pertaining to an officer.*’ Communications Satellite Corporation, 42 Op. A tt’y 

Gen. 165, 169 (1962). Hartwell itself cited several earlier opinions, mcluding United States v. Maurice, 26 F. Cas. 

1211 (C.C.D. Va. 1823) (No. 15,747) (M arshall, Circuit Justice), see 73 U.S. at 393 n.f, and in turn has been 

cited by numerous subsequent Supreme Court decisions, including United States v. Germaine, 99 U.S. 508, 511—

12 (1879), and Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). These latter two decisions were cited with approval 

by the Court in Buckley v. Valeo, 424 U.S. at 125-26 & n. 162.

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that of independent contractor. In Hartwell, this distinction shows up in the opinion’s attention to the characteristics of the defendant’s employment being “ continuing and permanent, not occasional or temporary,” as well as the opinion’s 

suggestion that with respect to an officer, a superior can fix and then change 

the specific set of duties, rather than having those duties fixed by a contract. 73 

U.S. at 393.

The distinction between employees and persons whose relationship to the government takes some other form also appears in later decisions.49 The question 

in United States v. Germaine, 99 U.S. 508 (1879), concerned whether a surgeon 

appointed by the Commissioner of Pensions “ to examine applicants for pension, 

where [the Commissioner] shall deem an examination . . . necessary,” id. at 508 

(quoting Rev. Stat. §4777), was an officer within the meaning of the Appointments Clause. The surgeon in question was “ only to act when called on by the 

Commissioner of Pensions in some special case” ; furthermore, his only compensation from the government was a fee for each examination that he did in fact perform. Id. at 512. The Court stated that the Appointments Clause applies to “ all 

persons who can be said to hold an office under the government” and, applying 

Hartwell, concluded that “ the [surgeon’s] duties are not continuing and permanent 

and they are occasional and intermittent.” Id. The surgeon, therefore, was not 

an officer of the United States.50

The Court employed the same reasoning in Auffmordt v. Hedden, 137 U.S. 310 

(1890). Pursuant to statute, an importer dissatisfied with the government’s valuation of dutiable goods was entitled to demand a reappraisement jointly conducted 

by a general appraiser (a government employee) and a “ merchant appraiser” appointed by the collector of customs for the specific case. Despite the fact that 

the reappraisement decision was final and binding on both the government and 

the importer, id. at 329, the Court rejected the argument that the merchant appraiser was an “ inferior Officer” whose appointment did not accord with the 

requirements of the Appointments Clause.

He is an expert, selected as such. . . . He is selected for the special 

case. He has no general functions, nor any employment which has 

any duration as to time, or which extends over any case further 

than as he is selected to act in that particular case. . . . He has 

no claim or right to be designated, or to act except as he may be 

designated. . . . His position is without tenure, duration, con49In this memorandum, the term “ officer” will be used to refer exclusively to “ Officers of the United States” 

in the constitutional sense; other full-time government servants will be called “ employees.”

50Germaine clearly was discussing the concept of “ officer” in the constitutional, and not simply a generic, sense: 

the alternative basis for the holding was that the surgeon was not an officer because he was appointed by the Commissioner who, as the head of a bureau within the Interior Department, could not be a “ Head of Department” with 

the authority to appoint officers. Id. at 510-11.

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tinuing emolument, or continuous duties .... Therefore, he is not 

an ‘officer,’ within the meaning of the clause.

Id. at 326-27.

We believe that under its best reading, Buckley v. Valeo, 424 U.S. 1 (1976) 

(per curiam), reflects and endorses this distinction, and that suggestions to the 

contrary misread the opinion. First, Buckley cites both Germaine and Auffmordt

approvingly. See id. at 125-26 & n.162. Second, in several of its statements of 

the definition of “ officers,” Buckley, sometimes citing Germaine explicitly, says 

that the term applies to appointees or appointed officials who exercise significant 

authority under federal law, thus recognizing the possibility that non-appointees 

might sometimes exercise authority under federal law. See, e.g., id. at 131 (“ Officers” are “ all appointed officials exercising responsibility under the public 

laws.” ). It is true that at other points in its opinion, the Buckley Court used language that, taken in isolation, might suggest that the Appointments Clause applies 

to persons who, although they do not hold positions in the public service of the 

United States, exercise significant authority pursuant to federal law. See id. at 

141. However, we think such a reading of Buckley is unwarranted. So understood, 

Buckley must be taken to have overruled, sub silentio, Germaine and Auffmordt— 

cases upon which it expressly relies in its analysis, see id. at 125-26 & n.162 — 

and its repeated quotation of the Germaine definition of “ officer” as “ all persons 

who can be said to hold an office under the government” would make no sense. 

The apparently unlimited language of some passages has a simpler explanation: 

there was no question that the officials at issue in Buckley held “ employments],” 

Maurice, 26 F. Cas. at 1214, under the federal government, and thus the question 

of the inapplicability of the Appointments Clause to persons not employed by 

the federal government was not before the Court.51 The Supreme Court’s decision 

in Buckley, we conclude, did not modify the long-settled principle that a person 

who is not an officer under Hartwell need not be appointed pursuant to the Appointments Clause.52

51 The post-Buckley Supreme Court has often assessed the validity of statutes that would starkly pose Appointments 

Clause issues if, in fact, the Court had adopted the position that wielding significant authority pursuant to the laws 

of the United States, without more, requires appointment in conformity with that Clause. In none of these cases 

has the Court even hinted at the existence o f an Appointments Clause issue. See, e.g., Thomas v. Union Carbide

Agric. Prods. Co., 473 U.S. 568 (1985) (upholding statutory requirement that registrants under a federal regulatory 

scheme submit to binding arbitration conducted by a panel of arbitrators who are private individuals not appointed 

by one o f the methods specified in the Appointments Clause and are subject only to limited judicial review); FERC

v. Mississippi, 456 U.S. 742 (1982) (upholding requirement that states enforce federal regulatory scheme relating 

to utilities); Lake Carriers’ Ass'n v. Kelley, 456 U.S. 985 (1982) (mem.) (upholding statute that granted states authority to ban sewage emissions from all vessels), a ffg 527 F. Supp. 1114 (E.D. Mich. 1981) (three-judge panel); Train

v. National Resources Defense Council, Inc., 421 U.S. 60 (1975) (construing provision of Clean Air Act that gave 

states authority to devise and enforce plans for achieving congressionally defined national air quality standards).

52 Some recent opinions of this Office have read Buckley more broadly as repudiating the historical understanding 

o f the Appointments Clause and endorsing the proposition we reject here— that is, that all persons exercising significant federal authority, by virtue o f that fact alone, must be appointed pursuant to the Appointments Clause. We 

are aware of four opinions in which our disagreement with this understanding of Buckley would cause us to reach 

a different conclusion on the Appointments Clause question presented. See Constitutionality o f Subsection 4117(b)

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b. The Exercise of Significant Authority. Chief Justice Marshall’s observation 

that “ [although an office is ‘an employment,’ it does not follow that every employment is an office,” United States v. Maurice, 26 F. Cas. at 1214 points to 

a second distinction as well — although not one that was at issue in Maurice itself. 

An officer is distinguished from other full-time employees of the federal government by the extent of authority he or she can properly exercise. As the Court 

expressed this in Buckley:

We think that the term “ Officers of the United States” as used 

in Art. II, defined to include “ all persons who can be said to hold 

an office under the government” in United States v. Germaine,

[means] that any appointee exercising significant authority pursuant 

to the laws of the United States . . . must . . . be appointed in 

the manner prescribed by [the Appointments Clause].

424 U.S. at 125-26 (emphasis added).53 In contrast, “ [e]mployees are lesser functionaries subordinate to officers of the United States.” Id. at 126 n.162.

The distinction between constitutional officers and other employees is a longstanding one. See, e.g., Burnap v. United States, 252 U.S. 512, 516-19 (1920) 

(landscape architect in the Office of Public Buildings and Grounds was an employee, not an officer); Second Deputy Comptroller o f the Currency—Appointment, 26 Op. Att’y Gen. at 628 (Deputy Comptroller of the Currency was “ manifestly an officer of the United States” rather than an employee). At an early point, 

the Court noted the importance of this distinction for Appointments Clause analysis. See Germaine, 99 U.S. at 509.54

o f Enrolled Bill H.R. 5835, the “Omnibus Budget Reconciliation Act o f 1990," 14 Op. O.L.C. 154, 155-56 (1990) 

(statutory scheme under which congressional delegations and physicians* organizations of certain states exercise **significant authority” violates Appointments Clause); Constitutionality o f the Qui Tam Provisions o f the False Claims

Act, 13 Op. O.L.C. 207, 221-24 (1989) (provisions of False Claims Act authorizing qui tam suits by private parties 

violate Appointments Clause because qui tam relators exercise “ significant governmental power” ); Representation

o f the United States Sentencing Commission in Litigation, 12 Op. O.L.C. 18, 26 (1988) (private party acting as 

counsel for United States agency must be appointed pursuant to Appointments Clause); Proposed Legislation to

Establish the National Indian Gaming Commission, 11 Op. O.L.C. 73, 74 (1987) (Appointments Clause problems 

raised where state and local officials given authority to waive federal statute). Our conclusion that the more limited 

historical understanding o f the Appointments Clause is correct requires us to disavow the Appointments Clause 

holdings of those opinions. To the extent that our current reading of Buckley is inconsistent with the Appointments 

Clause reasoning of other opinions of this office, that reasoning is superseded. See Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989).

33 See Appointments in the Department o f Commerce and Labor, 29 Op. Att’y Gen. 116, 118-19, 122-23 (1911) 

(official authorized to perform all the duties of the Commissioner of Fisheries, who was appointed by the President 

and confirmed by the Senate, was an officer, scientists, technicians, and superintendent of mechanical plant in the 

Bureau of Standards were employees rather than officers); Second Deputy Comptroller of the Currency— Appointment, 26 Op. A tt’y Gen. 627, 628 (1908) (“ The officer is distinguished from the employee in the greater importance, 

dignity, and independence of his position” ; official authorized to exercise powers of the Comptroller of the Currency 

in the absence of the Comptroller was clearly an officer.).

54The status of certain officials traditionally appointed in modes identical to those designated by the Appointments 

Clause is somewhat anomalous. For instance, low-grade military officers have always been appointed by the President 

and confirmed by the Senate and understood to be “ Officers of the United States” in the constitutional sense. 

In Weiss v. United States, 510 U.S. 163, 170 (1994), the Supreme Court recently indicated its agreement with that

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The Supreme Court relied on the officer/employee distinction in its recent decision in Freytag v. Commissioner, 501 U.S. 868 (1991). In Freytag, the Court 

rejected the argument that special trial judges of the Tax Court are employees 

rather than officers because “ they lack authority to enter a final decision” and 

thus arguably are mere subordinates of the regular Tax Court judges.55 Id. at 

881. The Court put some weight on the fact that the position of special trial judge, 

as well as its duties, salary, and mode of appointment, are specifically established 

by statute;56 the Court also emphasized that special trial judges “ exercise significant discretion” in carrying out various important functions relating to litigation 

in the Tax Court. Id. at 881-82.

Applying the same understanding of the distinction between officers and employees, this Office has concluded that the members of a commission that has 

purely advisory functions “ need not be officers of the United States” because 

they “ possess no enforcement authority or power to bind the Government.” Proposed Commission on Deregulation o f International Ocean Shipping, 7 Op. O.L.C. 

202, 202-03 (1983). For that reason, the creation by Congress of presidential advisory committees composed, in whole or in part, of congressional nominees or 

even of members of Congress does not raise Appointments Clause concerns.

Since employees do not wield independent discretion and act only at the direction of officers, they do not in their own right “ exercis[e] responsibility under 

the public laws of the Nation,” Buckley, 424 U.S. at 131.57 As a constitutional

understanding. It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is 

so limited and subordinate that their analogues in the civil sphere clearly would be employees. There are at least 

three possible explanations. (1) Congress may make anyone in public service an officer simply by requiring appointment in one of the modes designated by the Appointments Clause. The Clause, on this view, mandates officer 

status for officials with significant governmental authority but does not restrict the status to such officials. This 

apparently was the nineteenth-century view. See, e.g., United States v. Perkins, 116 U.S. 483, 484 (1886) (Cadet 

engineer at the Naval Academy was an officer because “ Congress has by express enactment vested the appointment 

of cadet-engineers in the Secretary of the Navy and when thus appointed they become officers and not employees."). 

While recognizing that Congress may make anyone in the public service an officer, Attorney General Kennedy 

rejected the argument that Congress evinces and effectuates such an intention merely by providing for the public 

servant to be appointed by a method that coincidentally conforms with the Appointments Clause. See Communications

Satellite Corporation, 42 Op. A tt’y Gen. 165, 167 (1962) (“ [I]t does not follow” from the Constitution that “ every 

appointment authorized by law which is preceded by nomination and confirmation necessarily renders the appointee 

an officer.” ). (2) Certain officials are constitutional officers because in the early Republic their positions were of 

greater relative significance in the federal government than they are today. Cf. Buckley, 424 U.S. at 126 (postmasters 

first class and clerks of district courts are officers). (3) Even the lowest ranking military or naval officer is a potential 

commander of United States armed forces in com bat— and, indeed, is in theory a commander of large military 

or naval units by presidential direction or in the event of catastrophic casualties among his or her superiors.

55 In fact, as the Court pointed out, the chief judge of the Tax Court can assign special trial judges to render 

final decisions in certain types of cases, a pow er that the government conceded rendered them, in those circumstances, 

“ inferior officers who exercise independent authority.” The Court rejected the argument that special trial judges 

could be deemed inferior officers for some purposes and employees for others. Freytag, 501 U.S. at 882.

56The text o f the Appointments Clause implies that offices in the sense of the Clause must be established in 

the Constitution or by statute. See U.S. Const, art. II, §2, cl. 2 (specifying certain officers and then referring to 

“ all other Officers o f the United States, whose Appointments are not herein otherwise provided for, and which 

shall be established by Law ” ).

57 That an employee may not exercise independent discretion does not, o f course, mean that his or her duties 

may not encompass responsibilities requiring the exercise o f judgment and discretion under the ultimate control 

and supervision o f an officer. In Steele v. United States (No. 2), 267 U.S. 505, 508 (1925), the Supreme Court 

noted that a “ deputy marshal is not in the constitutional sense an officer of the United States,” yet “ is called 

upon to exercise great responsibility and discretion” in “ the enforcement of the peace of the United States, as

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matter, therefore, an employee may be selected in whatever manner Congress directs. Conversely, “ any appointee” in federal service who “ exercis[es] significant 

authority pursuant to the laws of the United States” must be an officer in the 

constitutional sense and must be appointed in a manner consistent with the Appointments Clause.58 Buckley, 424 U.S. at 126. Congress and the President may 

not avoid the strictures of the Clause by vesting federal employees with the independent or discretionary responsibility to perform any “ significant governmental 

duty.” Id. at 141.59

c. Appointment to a Position of Employment within the Federal Government.

Finally, United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868), and the other 

major decisions defining “ Officers of the United States” all reflect the historical 

understanding that a constitutional officer is an individual who is appointed to 

his or her office by the federal government. The Appointments Clause simply 

is not implicated when significant authority is devolved upon non-federal actors.60 

In Hartwell the Court stated, “ [a]n office is a public station, or employment, 

conferred by the appointment of government. . . . The employment of the defendant was in the public service of the United States.” 73 U.S. at 393; see also

United States v. Germaine, 99 U.S. 508, 510 (1879) (founders intended appointment pursuant to the Appointments Clause only for “ persons who can be said 

to hold an office under the government about to be established under the Constitution” ). It is a conceptual confusion to argue that federal laws delegating authority 

to state officials create federal “ offices,” which are then filled by (improperly 

appointed) state officials. Rather, the “ public station, or employment” has been 

created by state law; the federal statute simply adds federal authority to a preexisting state office. Accordingly, the substantiality of the delegated authority is 

immaterial to the Appointments Clause conclusion.61 An analogous point applies

that is embraced in the enforcement of federal law ." But deputy marshals act at the direction o f “ the United States 

marshal under whom they serve,” id., who is an officer in the constitutional sense.

58See Appointment and Removal o f Inspectors o f Customs, 4 Op. Att’y Gen. 162, 164 (1843) (Congress may 

not provide for the appointment of “ any employe(e], coming fairly within the definition of an inferior officer of 

the government,” except by a mode consistent with the Appointments Clause).

39Buckley illustrates this last point. The FEC commissioners appointed by congressional officials were undoubtedly 

employees of the federal government but they could not constitutionally exercise the enforcement powers the statute 

attempted to grant them because their mode of appointment precluded them from being officers. 424 U.S. at 137- 

41.

60 The delegation to private persons or non-federal government officials of federal-law authority, sometimes incorrectly analyzed as raising Appointments Clause questions, can raise genuine questions under other constitutional 

doctrines, such as the non-delegation doctrine and the general separation of powers principle. Compare Confederated

Tribes o f Siletz Indians v. United States, 841 F. Supp. 1479, 1486-89 (D. Or. 1994) (confusing Appointments Clause 

with separation of powers analysis in holding invalid a delegation to a state governor), a ffd on other grounds,

110 F.3d 688 (9th Cir.), cert. denied, 522 U.S. 1027 (1997), with United Slates v. Ferry County, 511 F. Supp. 

546, 552 (E.D. Wash. 1981) (correctly dismissing Appointments Clause argument and analyzing delegation to county 

commissioners under non-delegation doctrine).

61 See Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 

F.2d 1359, 1365 (9th Cir. 1986) (“ [BJecause the Council members do not serve pursuant to federal law,” it is

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to delegations made to private individuals: the simple assignment of some duties 

under federal law, even significant ones, does not by itself pose an Appointments 

Clause problem.62

In our view, therefore, the lower federal courts have been correct in rejecting 

Appointments Clause challenges to the exercise of federally derived authority by 

state officials,63 the District of Columbia City Council,64 qui tam relators under 

the False Claims Act,65 and plaintiffs under the citizen suit provisions of the 

Clean Water Act.66 The same conclusion should apply to the members of multinational or international entities who are not appointed to represent the United 

States.67 We believe that the Appointments Clause doubts sometimes voiced about

“ immaterial whether they exercise some significant executive or administrative authority over federal activity.” ). 

cert, denied, 479 U.S. 1059 (1987).

62 One might also view delegations to private individuals as raising the same considerations as suggested by the 

distinction drawn earlier between appointee and independent contractor— so long as the statute does not create such 

tenure, duration, emoluments and duties as would be associated with a public office, the individual is not the occupant 

of a constitutional office but is, rather, a private party who has assumed or been delegated some federal responsibilities.

63 See, e.g., Seattle Master Builders, 786 F.2d at 1364-66. The particular state officials at issue were serving 

on an entity created by an interstate compact established with the consent of Congress, but that fact is not significant 

for Appointments Clause purposes. The crucial point was that “ [t]he appointment, salaries and direction” of the 

officials were “ state-derived” : “ the states ultimately empower the [officials] to carry out their duties.” Id. at 1365. 

The Supreme C ourt’s recent decision in New York v. United States, 505 U.S. 144 (1992), which held that Congress 

cannot “ commandeer” state officials to serve federal regulatory purposes, reenforces this conclusion. Where state 

officials do exercise significant authority under or with respect to federal law, they do so as state officials, by 

the decision and under the ultimate authority o f the state.

Metropolitan Washington Airports Authority v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252 

(1991), does not suggest a different conclusion. The constitutional issue in that case was the validity of a statutory 

provision subjecting the Airports Authority “ to the veto power o f ’ a Board of Review composed o f members of 

Congress purportedly “ acting ‘in their individual capacities.’ ” Id. at 270. The Supreme Court held that the Board 

in fact acted as an agent of Congress and that the Board’s veto power therefore represented an unconstitutional 

enlargement of congressional authority. Id. at 272-77. Nothing in the Court’s opinion suggests that there would 

have been any constitutional problem if Congress had delegated the same power to the Authority subject to review 

by the executive branch.

64 See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 115-17 (D.D.C. 1986).

63 We believe that United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757-59 (9th Cir. 1993) (rejecting Appointments Clause challenge to False Claims Act), cert, denied, 510 U.S. 1140 (1994), reached the correct result but 

through an incorrect line of analysis. See id. at 758 (Clause not violated because of the relative modesty o f the 

authority exercised by the relator). The better analysis, in our view, is that of the court in United States ex rel.

Burch v. Piqua Engineering, Inc., 803 F. Supp. 115 (S.D. Ohio 1992), which held that “ because qui tam plaintiffs 

are not officers of the United States, the FCA does not violate the Appointments Clause.” Id. at 120. We now 

disapprove the Appointments Clause analysis and conclusion o f an earlier opinion of this Office, Constitutionality

o f the Qui Tam Provisions o f the False Claims Act, 13 Op. O.L.C. 207 (1989) (arguing that the qui tam provisions 

violate the Clause).

66 Here the Court phrased its analysis in terms of separation of powers, but the challenge to the statute was, 

at its core, based on the Appointments Clause. See Chesapeake Bay Found, v. Bethlehem Steel Corp., 652 F. Supp. 

620, 624 (D . Md. 1987) (Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), “ does not stand for the proposition 

. . . that private persons may not enforce any federal laws simply because they are not Officers of the United 

States appointed in accordance with Article II o f the Constitution.” ).

67 At least where these entities are created on an ad hoc or temporary basis, there is a long historical pedigree 

for the argument that even the United States representatives need not be appointed in accordance with Article D. 

See, e.g., Alexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The Papers o f Alexander Hamilton

13, 20 (Harold C. Syrett ed., 1974):

As to what respects the Commissioners agreed to be appointed [under the Jay Treaty with Great Britain], 

they are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in 

the Constitutions, both of the U[nited] States and of most of the Individual states, a particular mode of

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legislation requiring the concurrence of state or local officials, Indian tribes, or 

private persons as a condition precedent to federal action are equally without 

merit.68

Determining whether an individual occupies a position of private employment 

or federal employment can pose difficult questions. The Supreme Court recently 

set forth rules for making this determination in Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995). There, the Court found itself faced with the 

question of whether Amtrak is a private corporation or an agency of the government. Amtrak is chartered by Congress and incorporated under the District of 

Columbia Business Corporation Act. Id. at 383-85. The organic statute expressly 

provides that Amtrak “ shall be operated and managed as a for-profit corporation, 

and is not a department, agency, or instrumentality of the United States Government.” 49 U.S.C. §24301(a)(2)-(3). The Court ruled that this provision “ is assuredly dispositive of Amtrak’s status as a Government entity for purposes of 

matters that are within Congress’ control .... But it is not for Congress to 

make the final determination of Amtrak’s status as a government entity for purposes of determining the constitutional rights of citizens affected by its actions.” 

513 U.S. at 392.

However, the Court held that an entity is “ what the Constitution regards as 

the Government,” if the entity is government-created and government-controlled. 

Id. Because Amtrak was created “ by special law, for the furtherance of governmental objectives,” it is government-created.69 Id. at 400. Because federally appointed members of Amtrak’s governing board hold “ voting control” and there 

is no provision for this government control to sunset, Amtrak is govemment-controlled. See id. at 399-400. The Court contrasted Conrail, which it determined 

is not what the Constitution regards as the government. By statute the federal 

government appoints a voting majority of Conrail’s board of directors. Nevertheless, the Court held that Conrail is not part of the government, because the government’s voting control will shift to the private shareholders if Conrail’s debt to 

the federal government falls below half of its total indebtedness and because 

“ ‘[t]he responsibilities of the federal directors are not different from those of 

the other directors — to operate Conrail at a profit for the benefit of its shareholders’— which contrasts with the public-interest ‘goals’ set forth in Amtrak’s

appointing officers is designated, yet in practice it has not been deemed a violation of the provision to

appoint Commissioners or special Agents for special purposes in a different mode.

The traditional view of the Attorneys General has been that the members of international commissions hold “ an 

office or employment emanating from the general treaty-making power, and created by it and” the foreign nation(s) 

involved and that members are not constitutional officers. Office— Compensation, 22 Op. Att’y Gen. 184, 186 (1898).

68 Some of our prior opinions express such concerns. Because that view, we now conclude, cannot be reconciled 

with Appointments Clause principles or caselaw, we expressly disavow it.

69The Court also referred to this as a “ policy-implementing’' role. Id. at 396. This is to distinguish government 

agencies and instrumentalities, such as Amtrak, from truly private corporations that, though created pursuant to statutory authority, do not implement any government policy, but instead pursue profit and the policies of their shareholders.

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charter.” Id. at 399 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 

102, 152 (1974)).70

d. Summary. An appointee (1) to a position of employment (2) within the federal 

government (3) that carries significant authority pursuant to the laws of the United 

States is required to be an “ Officer of the United States.” Each of these three 

conditions is independent, and all three must be met in order for the position 

to be subject to the requirements of the Appointments Clause.

We recently applied this principle in determining whether the Appointments 

Clause represents a blanket proscription against participation by the federal government in binding arbitration. Typically, arbitrators are private individuals chosen 

by the parties to the dispute. In a binding arbitration, the decision of the arbitrators 

is mandatory upon the parties, subject only to limited judicial review. The view 

that the Appointments Clause prohibits federal government participation in binding 

arbitration proceeds from the misinterpretation of Buckley discussed above. We 

reasoned that although it is “beyond dispute that arbitrators exercise significant 

authority, at least in the context of binding arbitration involving the federal government,” 71 the standard binding arbitration mechanism does not implicate the 

Appointments Clause. Arbitrators

are manifestly private actors who are, at most, independent contractors to, rather than employees of, the federal government. Arbitrators are retained for a single matter, their service expires at the 

resolution of that matter, and they fix their own compensation.

70 In some passages, the Court spoke in terms of the First Amendment and individual rights, for instance:

We hold that where, as here, the Government creates a corporation by special law, for the furtherance 

o f governmental objectives, and retains for itself permanent authority to appoint a majority of the directors 

of that corporation, the corporation is part o f the Government for purposes of the First Amendment.

Id. at 400. We do not, however, believe that the Court meant to imply that it is within Congress’s power to exempt 

federal instrumentalities from the Constitution’s structural requirements, such as the Appointments Clause and the 

separation o f powers doctrine, that apply to all other federal agencies. We believe instead that the references to 

individual rights are explained by two considerations. First, the issue in the case was whether Amtrak had violated 

the petitioner’s First Amendment rights, and so did not raise any structural issues. Second, the Constitution imposes 

certain obligations on ail government entities, state as well as federal. In other words, not all government entities, 

within Lebron’s definition, are part of the federal government; many are part of a state or local government or 

o f an interstate compact. See id. at 397 (citing Pennsylvania v. Board o f Directors o f City Trusts, 353 U.S. 230 

(1957) (per curiam)). These latter entities are not subject to the separation o f powers doctrine or the Appointments 

Clause. Because the Court was concerned with all entities that the Constitution regards as within the government, 

not just the federal government, it naturally phrased its opinion in terms o f the obligations that apply to all organs 

o f government, not just the organs of the federal government. Ultimately, we can conceive of no principled basis 

for distinguishing between the status of a federal entity vis-a-vis constitutional obligations relating to individual 

rights and vis-a-vis the structural obligations that the Constitution imposes on federal entities. See Brief of Appellant 

United States, Wilkinson v. Legal Servs. Corp., 80 F.3d 535 (D.C. Cir. 1996) (Nos. 95-5144, 91-5174). It therefore 

is not surprising that the Court did not consistently limit its language to individual rights. See, e.g., Lebron, 513 

U.S. at 397 (“ It surely cannot be that government, state or federal, is able to evade the most solemn obligations 

imposed in the Constitution by simply resorting to the corporate form.” ). Thus, we do not believe that Congress 

may evade the “ solemn obligations” of the doctrine of separation of powers by resorting to the corporate form 

any more than it may evade the obligations o f the Bill of Rights through this artifice.

71 Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208, 

216(1995).

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Hence, their service does not bear the hallmarks of a constitutional 

office — tenure, duration, emoluments, and continuing duties. Consequently, arbitrators do not occupy a position of employment within the federal government, and it cannot be said that they are officers of the United States. Because arbitrators are not officers, the 

Appointments Clause does not place any requirements or restrictions on the manner in which they are chosen.

19 Op. O.L.C. at 216.72 The only case that to our knowledge addresses this question agreed with our analysis and conclusion, and held that the Appointments 

Clause does not prohibit the federal government from entering into binding arbitration. See Tenaska Wash. Partners v. United States, 34 F. Cl. 434, 440 (1995) 

(“ [T]he OLC Memorandum is a thorough and persuasive analysis.” ).

2. Who May Be an Inferior Officer? Since all officers of the United States 

may be appointed by the President with the advice and consent of the Senate, 

the only Appointments Clause significance to the distinction between principal 

and inferior officers lies in Congress’s ability to provide for the appointment of 

inferior officers by one of the alternative means listed in the Clause. The Supreme 

Court has observed that “ [t]he line between ‘inferior’ and ‘principal’ officers is 

one that is far from clear, and the Framers provided little guidance into where 

it should be drawn.” Morrison v. Olson, 487 U.S. 654, 671 (1988). Unfortunately, 

the Court’s own decisions provide only modest additional guidance. In Morrison,

the Court declined to “ attempt . . . to decide exactly where the line falls” because it found that the independent counsel “ clearly falls on the ‘inferior officer’ 

side of that line.” Id. at 671. The Court advanced several factors that pointed 

to that conclusion: (1) The counsel was removable by the Attorney General, thus 

making counsel “ to some degree ‘inferior’ in rank and authority.” Id. (2) The 

counsel’s duties were limited, particularly with respect to policy making and administration. (3) The counsel’s tenure was limited to the particular “ mission that

72 We nevertheless noted that it is possible for a theoretical binding arbitration mechanism to run afoul of the 

Appointments Clause. As indicated, arbitrators whose sole or collective decisions are binding on the government 

exercise significant authority. If any such arbitrator were to occupy a position of employment within the federal 

government, that arbitrator would be required to be appointed in conformity with the Appointments Clause. See

Freytag v. Commissioner, 501 U.S. 868, 881 (1991). Thus, if a federal agency were to conduct binding arbitrations 

and to employ arbitrators with whom it provided all relevant attributes o f an office, all such arbitrators would be 

required to be appointed in conformity with the Appointments Clause. See 19 Op. O.L.C. at 216.

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she was appointed for.” Id. at 672.73 The Court’s other recent Appointments 

Clause decisions shed little additional light on the subject.74

We agree with the court of appeals in Silver v. United States Postal Service,

951 F.2d 1033 (9th Cir. 1991), that the particular factors Morrison discussed do 

not constitute an exhaustive or exclusive list. See id. at 1040 (“ The nature of 

each government position must be assessed on its own merits.” ). The Silver court 

noted that the official at issue in that case, the Postmaster General, “ performs 

many tasks and has many responsibilities,” but determined the office to be an 

inferior one because the Postmaster General “ does not have ‘control’ ” and 

“ serv[es] at the pleasure of the” Board of Governors of the Postal Service. Id.

This approach is consistent with the one we have taken in the past. For example, 

in concluding that United States Attorneys are inferior officers whose appointment 

could be vested in the Attorney General, we rejected the argument that the constitutional term “ inferior” means “ ‘petty or unimportant’ ” ; instead, we concluded that the term connotes amenability to supervision by the superior “ in 

whom the power of appointment is vested.” United States Attorneys— Suggested

Appointment Pow er o f the Attorney General— Constitutional Law (Article 2, §2,

cl. 2), 2 Op. O.L.C. 58, 58-59 (1978) (quoting Collins v. United States, 14 Ct. 

Cl. 568, 574 (1878)); see also Department o f Housing and Urban Development— 

Delegations o f Authority— 42 U.S.C. §3533, 3535, 2 Op. O.L.C. 87, 89 (1978) 

(deputy assistant secretary, who is subject to direction by an assistant secretary, 

is “ unquestionably” an inferior officer). In determining whether an officer may 

properly be characterized as inferior, we believe that the most important issues 

are the extent of the officer’s discretion to make autonomous policy choices and 

the location of the powers to supervise and to remove the officer. While an officer 

responsible only to the President for the exercise of significant discretion in decision making is probably a principal officer, an officer who is subject to control 

and removal by an officer other than the President should be deemed presumptively inferior.

73 The Court also compared the independent counsel's status to that of other officials who had been considered 

inferior officers in earlier decisions. See 487 U.S. at 672-73 (discussing cases dealing with vice-consuls, election 

supervisors, and United States commissioners). The Court also took note of its “ reference in United States v. Nixon, 

418 U.S. 683, 694, 696 (1974), to the Office of Watergate Special Prosecutor— whose authority was similar to 

that of [the independent counsel]— as a ‘subordinate officer' ” and concluded that this characterization was “ consistent” with its conclusion that independent counsels are inferior officers. See 487 U.S. at 673.

74Buckley simply asserted that the members of the FEC were “ at the very least” inferior officers. Buckley v. 

Valeo, 424 U.S. 1, 126 (1976) (per curiam). In Freytag, no one claimed that the special trial judges at issue were 

principal, as opposed to inferior, officers; instead, the case involved the distinction between inferior officers and 

employees. Freytag v. Commissioner, 501 U.S. 868, 880-82 (1991). The military judges under review in Weiss,

like all commissioned officers in the armed forces, were appointed with the advice and consent of the Senate. Weiss

v. United States, 510 U.S. 163, 170 (1994). Justice Souter concurred in the Court’s opinion on the understanding 

that the military judges at issue there are inferior officers. Id. at 182 (Souter, J., concurring). He reasoned that 

there were substantial points to be made on either side of the question whether they were principal or inferior 

pfficers and concluded that the Court should defer “ to the political branches’ [implicit] judgment” that the military 

judges were inferior officers. Id. at 194. Although Justice Souter’s admonition that “ it is ultimately hard to say 

with any certainty on which side of the line” between principal and inferior status a given officer may fall, id.

at 193, is indubitably correct, the executive branch cannot invoke the principle of judicial deference he properly 

used to decide the issue in Weiss.

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3. Who May Appoint Inferior Officers? The Appointments Clause does not define “ Heads of Departments” or “ Courts of Law,” and questions have arisen 

about which entities are included by these terms within the “ possible repositories 

for the appointment power.” Freytag v. Commissioner, 501 U.S. 868, 884 (1991). 

Earlier Attorneys General have accorded these terms a broad construction. See,

e.g., Authority o f Civil Service Commission to Appoint a Chief Examiner, 37 Op. 

Att’y Gen. 227 (1933). The same is true of the courts,75 which have held that 

the Tax Court,76 a special division of a court of appeals created primarily for 

the purpose of appointing independent counsels,77 and the Governors of the Postal 

Service (as a collective head of department),78 can be vested with appointments 

power. The interpretive difficulties lie in determining exactly how broadly the 

term “ Department” should be read.

We think that the “ Departments” to which the Appointments Clause refers are 

not limited to those major divisions of the executive branch that are headed by 

members of the President’s cabinet.79 In 1933, Acting Attorney General Biggs 

opined that Congress could authorize the Civil Service Commission to appoint 

an inferior officer. Authority o f Civil Service Commission to Appoint a Chief Examiner, 37 Op. Att’y Gen. 227 (1933). His opinion noted that the Commission 

“ ha[d] certain independent executive duties to perform,” was “ responsible only 

to the Chief Executive,” id. at 229, and was “ not a subordinate Commission 

attached to one of the so-called executive departments,” id. at 231. As “ an independent division of the Executive Branch,” he concluded, the Commission was 

a “ Department” for Appointments Clause purposes and its three commissioners, 

collectively, “ the ‘head of a Department’ in the constitutional sense.” Id. The 

fact that the commissioners were not members of the Cabinet was not controlling,

75 The exception to this broad reading of the Clause was Buckley's unsurprising conclusion that “ neither Congress 

nor its officers [are] included within the language ‘Heads o f Departments.’ ” Buckley v. Valeo, 424 U.S. 1, 127 

(1976) (per curiam).

16Freytag, 501 U.S. at 892. The Court in Freytag concluded that it is constitutional for the chief judge of the 

Tax Court to appoint special trial judges because the Tax Court, though an Article I legislative court, “ exercisefs] 

judicial power and perform[s] exclusively judicial functions” and thus is a “ Court[] of Law” within the meaning 

of the Clause. Id. Justice Scalia argued in a concurring opinion that the Tax Court should be treated as a “ Department” and the chief judge as its “ Head.” Id. at 914-22 (Scalia, J., concurring in part and concurring in the judgment). Justice Souter recently has suggested that the opinion of the Court in Freytag did not actually resolve the 

question of whether the judges of the Tax Court, including the chief judge, are principal officers. Weiss v. United

States, 510 U.S. 163, 192 (1994) (Souter, J., concurring).

77Morrison v. Olson, 487 U.S. 654 (1988). In Morrison, the Court indicated that there is some “ constitutional 

limitation on ‘incongruous' interbranch appointments,” id. at 677, despite the broad language the Appointments 

Clause uses in describing Congress’s discretion on the subject. A statute vesting in a court the power to appoint 

officers acting in areas in which judges “ have no special knowledge or expertise,” id. at 676 n.13, for example, 

might create tension between the court’s normal functions and “ the performance of [its] duty to appoint.” Id. at 

676. We think that this limitation is probably of little practical significance with respect to presidential appointments 

in light of the fact that it is difficult to conceive a plausible argument that vesting the power in the Piesident to 

appoint any officer (other, perhaps, than some legislative officers) could ever be constitutionally “ incongruous.”

7SSilver v. United States Postal Sen/., 951 F.2d 1033, 1038 (9th Cir. 1991).

79The Appointments Clause thus differs from Section 4 of the Twenty-fifth Amendment, the language and history 

of which confirm that the “ principal officers of the executive departments” it mentions are the members o f the 

Cabinet. U.S. Const, amend. XXV, §4; see Freytag, 501 U.S. at 886-87; id. at 917 (Scalia, J., concurring in part 

and concurring in the judgment).

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the Acting Attorney General concluded, because the Cabinet itself is not a creation 

of the Constitution. Id. 80 We find this opinion persuasive and note that the Court’s 

opinion in Freytag ultimately reserved the question of whether the heads of entities other than cabinet-level departments can be vested with the power to appoint 

inferior officers. See Freytag, 501 U.S. at 887 n.4.81 Cf. United States v. 

Germaine, 99 U.S. 508 (1879) (Commissioner of Pensions, as head of a bureau 

within the Interior Department, was not a “ Head of Department” ).82

We would apply the reasoning of the 1933 opinion in concluding that it is constitutional for Congress to vest the power to appoint inferior officers in the heads 

of the so-called independent agencies — those agencies whose heads are not subject to removal at will by the President and that conventionally are understood 

to be substantially free of policy direction by the President. Except for the attenuated nature of the President’s supervisory authority, most of the independent agencies are clearly analogous to major executive agencies. They exercise governmental authority without being subordinated to any broader unit within the executive branch, and Congress has implicitly characterized them as “ Departments” 

for Appointments Clause purposes by permitting their heads to appoint officials

80 “ The Cabinet, as such, was not provided for by the Constitution and it follows therefore that the interpretation 

of the Constitution cannot depend upon such consideration.” 37 Op. A tt’y Gen. at 231; accord Freytag, 501 U.S. 

at 916-17 (Scalia, J., concurring in part and concurring in the judgment).

81 While the opinion of the Court in Freytag rejected the argument that “ every part of the Executive Branch 

is a departm ent,” 501 U.S. at 885, we do not think that the Court’s reasoning is inconsistent with the 1933 Justice 

Department opinion. The Court’s chief concern was that part of the Appointments Clause’s purpose is to prevent 

“ the dangers posed by an excessively diffuse appointment power.” Id. The Court observed that “ [g]iven the inexorable presence of the administrative state, a holding that every organ in the Executive Branch is a department 

would multiply indefinitely the number of actors eligible to appoint.” Id. We do not think that our view that entities 

other than cabinet-level agencies can be “ Departments” for the purposes of the Appointments Clause leads to this 

constitutionally troublesome result. We assume the continuing validity of United States v. Germaine, 99 U.S. 508 

(1879), which held that the head of a bureau within an executive branch department was not the head o f a department. 

Most o f the discrete units of the executive branch in fact are subordinate to some larger executive agency, and 

therefore are not departments under Germaine. The Federal Bureau o f Investigation, for example, wields far-reaching 

law enforcement authority, but as a component of the Justice Department it is not itself a “ Department” for purposes 

o f the Appointments Clause. Legislation authorizing the appointment of inferior officers by a subordinate officer 

within a department with the approval of the head of the department, see United States v. Hartwell, 73 U.S. (6 

W all.) 385, 392-94 (1868); see also Germaine, 99 U.S. at 511 (explaining Hartwell), does not transgress this principle 

because for constitutional purposes the appointment should be deemed to be made by the department head. We 

also note that the four concurring Justices in Freytag expressly adopted the reading o f the Appointments Clause 

set forth in the 1933 Attorney General's opinion: that “ the term ‘Departments’ means all independent executive 

establishm ents.” 501 U.S. at 919 (Scalia, O ’Connor, Kennedy, & Souter, JJ., concurring in part and concurring 

in the judgment).

82 The court of appeals in Silver found no constitutional problem with a statute vesting the power to appoint 

an inferior officer, the Deputy Postmaster General, in an entity consisting o f the Governors of the Postal Service 

(principal officers who are collectively the “ head of a Department” ) and the Postmaster General (an inferior officer 

appointed by the Governors). See 951 F.2d at 1036-41. This conclusion might be justified on either of two rationales. 

(1) As Justice Souter recently noted, it remains unresolved whether “ the Appointments Clause envisions appointment 

o f some inferior officers by other inferior officers,” Weiss v. United States, 510 U.S. 163, 192-93 (1994) (Souter, 

J., concurring), and it may be that there is no constitutional objection to designating one or more inferior officers 

to be the head of a department with the power to make appointments. (2) It might be argued that although as 

a general matter the head of a department must be a principal officer and a collective head of department must 

consist o f exclusively principal officers, the association o f an inferior officer with a collective head of department 

in making a specific appointment is constitutionally harmless.

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who plainly are inferior officers.83 Nothing in the original history of the Clause 

suggests any intention to exclude from the scope of the Clause separate establishments that are not subject to plenary presidential control.84 Finally, in reserving 

the question of appointments by “ the head of one of the principal agencies,” 

the Freytag Court itself included as examples of those agencies the “ independent” 

FTC and the SEC as well as the clearly executive CIA, which suggests that the 

Court did not perceive a difference between the two types of agencies, at least 

in the Appointments Clause context. 501 U.S. at 887 n.4. We see no reason to 

exclude the independent regulatory agencies from the class of entities that are 

“ Departments” for Appointments Clause purposes.

We note that, even accepting the reasoning of the 1933 Justice Department opinion, some entities may exercise governmental authority in so limited a manner 

that they need not be viewed as “ Departments” even though their heads are responsible only to the President. For example, the Committee for Purchase from 

People Who Are Blind or Severely Disabled, the members of which are appointed 

by the President alone, 41 U.S.C. § 46(a), appears to exercise significant authority 

but is subordinate to no larger executive agency. Id. §§ 46-48c. Given the narrow 

scope of the Committee’s powers, however, we do not think that the Committee 

necessarily should be analyzed as a collective head of a department for Appointments Clause purposes.

4. Legislation Lengthening the Tenure of an Officer. As the Court held in Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Appointments Clause by 

its terms and its structure prohibits Congress from itself exercising the power to 

appoint “ Officers of the United States.” The text and structure of the Clause 

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

select the individuals who exercise significant governing authority as non-legislative officers of the federal government. See id. at 129-31 (reviewing the debates 

in the Philadelphia convention).85 This choice to exclude Congress as such from

93 See Freytag, 501 U.S. at 918 (Scalia, J., concurring in part and concurring in the judgment) (noting that most 

inferior officers in independent agencies are appointed by neither the President nor a Cabinet official).

84 In late-eighteenth century English, the term “ department” had no specialized governmental or organizational 

meaning. For example. Dr. Johnson defined “ department” as “ [sjeparate allotment; province or business assigned 

to a particular person,” 1 Samuel Johnson, A Dictionary o f the English Language (1755), to which Webster added 

the gloss “ in which a class of duties are allotted to a particular person.” 1 Noah Webster, American Dictionary

58 (1828), quoted in Freytag, 501 U.S. at 920 (Scalia, J., concurring in part and concurring in the judgment) (founders 

chose “ Department” to connote “ separate organization” ). In its foundational legislation, the First Congress used 

the word both for the Departments of Foreign Affairs (later, State) and War and for the Department of the Treasury, 

even though it pointedly did not term Treasury an “ executive department” as it did State and War. Compare Act 

of July 27, 1789, ch. 4, 1 Stat. 28, 28-29 (establishing the Department of Foreign Affairs) and Act of Aug. 7, 

1789, ch. 7, 1 Stat. 49, 49-50 (establishing the Department of War) with Act of Sept. 2, 1789, ch. 12, 1 Stal. 

65, 65-67 (establishing the Department of the Treasury). A substantial body of scholarship views this terminological 

choice as reflecting an intention to make Treasury at least partially independent of the President, although by means 

other than limiting the latter’s removal power. See Lessig & Sunstein, supra note 33, at 27-29; Casper, supra note 

33, at 240-42; Shane, supra note 33, at 615-16.

85 Buckley noted that the Constitution expressly authorizes the selection of the Speaker of the House and the 

President pro tempore of the Senate from among the membership of those bodies, see U.S. Const, art. I, §2, cl.

Continued

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the appointments process can be set at naught by means other than legislation 

overtly vesting in Congress the power of appointment. Accordingly, the executive 

branch has traditionally viewed statutes that constitute an effective exercise by 

Congress of the power to appoint as violations of the Appointments Clause.

This issue sometimes arises in connection with statutes that attempt to extend 

the tenure of an officer with a set term, thus potentially denying the President 

the power he or she would otherwise have to reappoint the officer or select someone else. In 1951, for example, the President requested the Justice Department’s 

views on the validity of a statute extending the terms of the members of a commission. See D isplaced Persons Commission— Terms o f Members, 41 Op. Att’y Gen. 

88 (1951). According to the original legislation creating the commission, the terms 

were to expire in June 1951, but prior to that date Congress amended the legislation to extend the commissioners’ tenure to August 1952. Acting Attorney General 

Perlman advised the President that, while he did not think “ there can be any 

question as to the power of the Congress to extend the terms of offices which 

it has created,” this legislative power is subject “ to the President’s constitutional 

power of appointment and removal.” Id. at 90. However, because the legislation 

did not attempt to restrict the President’s authority to remove the commissioners 

at will, it was constitutionally harmless: the President remained free to exercise 

his appointment power simply by removing the incumbents from office at any 

time. See id. (“ As so construed, the [extension legislation] presents no constitutional difficulties.” ); see also Pension Agents and Agencies, 14 Op. Att’y Gen. 

147, 148-49 (1872) (discussing President’s power to remove officer serving a 

term extended by statute).86

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

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

offices,87 that power cannot legitimately be employed to produce a result that 

is, practically speaking, a congressional reappointment to office. On this reasoning, 

the extension of tenure of officers serving at will raises no Appointments Clause 

problem, but lengthening the term of an officer who may be removed only for

5; id. art. I, §3, cl. 5, and held that nothing in the Constitution forbids Congress from appointing non-members 

as legislative branch officials to “ perform duties . . . in aid of those functions that Congress may carry out by 

itself.” 424 U.S. at 127-28, 139.

86 In this circumstance, Congress’s action in lengthening an officer’s term does not have the effect of usurping 

the power of appointment the Constitution vests in the President rather than in Congress. Cf. In re Benny, 812 

F.2d 1133, 1142—43 (9th Cir. 1987) (Norris, J., concurring in the judgment):

[T]he Appointments Clause precludes Congress from extending the terms of incumbent officeholders. I 

am simply unable to see any principled distinction between congressional extensions o f the terms of the 

incumbents and more traditional forms o f congressional appointments. Both implicate the identical constitutional ev il— congressional selection of the individuals filling nonlegislative offices.

87 See Crenshaw v. United States, 134 U.S. 99 (1890), Civil Service Retirement Act— Postmasters— Automatic

Separation from the Service, 35 Op. Att’y Gen. 309, 314 (1927) (“ If, as stated in [Embry v. United States, 100 

U.S. 680, 685 (1879),] Congress may at any time add to or take from compensation fixed, it may also, it would 

seem, by analogy, at any time shorten or lengthen a term of office.” ).

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The Constitutional Separation o f Powers Between the President and Congress

cause would be constitutionally questionable.88 However, this conclusion, which 

we think sound in principle, has been rejected by the courts in at least one context. 

The Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 

98-353, 98 Stat. 333 (codified as amended in scattered sections of 28 U.S.C.), 

extended the tenure of bankruptcy judges, who can be removed only for cause, 

and that provision has been sustained repeatedly against constitutional challenge. 

The leading case, In re Benny, 812 F.2d 1133 (9th Cir. 1987), held that a statutory 

extension of tenure “ becomes similar to an appointment” only “ when it extends 

the office for a very long time.” Id. at 1141; see also In re Investment Bankers,

Inc., 4 F.3d 1556, 1562 (10th Cir. 1993) (agreeing with Benny and noting that 

the contrary Appointments Clause argument “ has been rejected by every court 

that has considered it” ), cert, denied, 510 U.S. 1114 (1994). We do not find especially persuasive the reasoning of Benny,89 and it is possible that the doctrine 

of Benny is limited to its factual context.90 However, the reasoning set forth in 

Benny and the cases that follow it is susceptible to general application, and it 

is unclear that the courts could repudiate Benny's conclusion with respect to other 

officers without undercutting the legitimacy of those cases.

The relevant precedents contemplate a continuum. At the one end is constitutionally harmless legislation that extends the term of an officer who is subject 

to removal at will. At the other end is legislation, constitutionally objectionable 

even under Benny, that enacts a lengthy extension to a term of office from which

88 In 1987, this Office issued an opinion that may be read to hold that legislation extending the term o f any 

officer, even one serving at the pleasure of the President, is unconstitutional. See Reappointment o f United States

Parole Commissioners, 11 Op. O.L.C. 13S (1987) At the time it was issued, that opinion was directly contrary 

to long-standing executive branch precedent. See, e.g., Displaced Persons Commission— Terms o f Members, 41 Op. 

Att’y Gen. at 90-91. We recently revisited the question presented in the 1987 opinion and concluded that it was 

in error. See Constitutionality o f Legislation Extending the Terms o f Office of United States Parole Commissioners,

18 Op. O.L.C. 166 (1994). We therefore reaffirmed the traditional view that legislation extending the term o f an 

officer subject to removal at will does not violate the Appointments Clause and disavowed our 1987 suggestion 

to the contrary.

*9 Benny asserted that Wiener v. United States, 357 U.S. 349 (1958), implicitly rejected any Appointments Clause 

argument against term-extension legislation. 812 F.2d at 1141. We think that this overstates Wiener. Wiener dealt 

only with the President's removal power and did not consider any issue regarding the Appointments Clause. The 

date on which the President removed the plaintiff in Wiener from office was in fact within the term of office for 

which the plaintiff was originally appointed, although part of the backpay the plaintiff ultimately recovered was 

for a period after his original term would have expired. See 357 U.S. at 350-51 (term should have expired on 

March 1, 1954 as the law stood at the time plaintiff was appointed; President removed plaintiff on December 10, 

1953; plaintiff recovered backpay for four months after March 1, 1954, because commission’s authorization was 

extended after his appointment). The additional Supreme Court cases that Benny and other opinions have cited are 

distinguishable. See. e.g., Benny, 812 F.2d at 1141 (citing Shoemaker v. United States, 147 U.S. 282 (1893), which 

upheld legislation imposing additional duties on an officer); In re Tom Carter Enters., 44 B.R. 605, 607 (C.D. 

Cal. 1984) (citing Shoemaker and cases dealing with issues under the Contracts Clause and the Philippine Organic 

Act). Benny also pointed out that the First Congress twice extended the tenure of the first Postmaster General. 

812 F.2d at 1142. While we agree that this fact supports the argument that Congress generally possesses the power 

to extend terms, the original Postmaster General served at the pleasure of the President, and thus the First Congress's 

actions placed no practical limitation on the appointments power.

90The result reached in the Benny line o f cases was as a practical matter much less troublesome than its reverse, 

which would have put in question an enormous number of decisions within the bankruptcy system. It is therefore 

possible to characterize these decisions as a sensible resolution of a legal quandary, which may have compromised 

constitutional logic but did so at no real cost to the ultimate purposes of the Constitution. However, while this 

view of the cases may be quite sensible from a political-science perspective, it leaves the constitutional law on 

the subject in some disarray.

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the incumbent may be removed only for cause. Legislation along this continuum 

must be addressed with a functional analysis. Such legislation does not represent 

a formal appointment by Congress and, absent a usurpation of the President’s 

appointing authority, such legislation falls within Congress’s acknowledged authority— incidental to its power to create, define, and abolish offices— to extend 

the term of an office. As indicated, constitutional harm follows only from legislation that has the practical effect of frustrating the President’s appointing authority 

or amounts to a congressional appointment.

Our recent opinion on legislation extending the terms of members of the United 

States Sentencing Commission is illustrative of this functional approach. After 

the Sentencing Commission had been appointed, Congress enacted legislation “ to 

provide [that] a member of the United States Sentencing Commission may continue to serve until a successor is appointed or until the expiration of the next 

session of Congress.” Act of Aug. 26, 1992, Pub. L. No. 102-349, 106 Stat. 

933. Commissioners may be removed only for cause. 28 U.S.C. §991 (a). We concluded that the statute did not function to violate the President’s appointment 

power. See Whether Members o f the Sentencing Commission Who Were Appointed

P rior to the Enactment of a H oldover Statute May Exercise Holdover Rights Pursuant to the Statute, 18 Op. O.L.C. 33 (1994). The statute left the President free 

to ‘ ‘nominate whomever he wantfed] at precisely the same time as he could before 

[the statute was enacted].” Id. at 42. We noted that the effect of the legislation 

could actually be to augment the President’s power by giving him “ the option 

of retaining the holdover officer until he chooses to nominate a successor.” Id.

We acknowledged the argument that the statute might give Congress the opportunity to appoint, in effect, an incumbent to a new term because the President’s 

removal authority is statutorily restricted and the Senate might refuse to confirm 

any presidential nominee in order to retain a congressionally favored incumbent. 

Id. But this argument was unavailing for two reasons. First, the argument is unduly 

speculative insofar as it hypothesizes contumacious conduct on the part of the 

Congress, and whatever danger such a possibility might entail was mitigated by 

the limitation on the period for which a holdover may continue to serve. Second, 

we noted that the holdover provision is unarguably valid as applied to Sentencing 

Commissioners who took office after the statute’s enactment. We concluded that 

“ [i]t is simply not persuasive to argue that the President’s appointment power 

is effectively frustrated when incumbent commissioners hold over but not when 

subsequent commissioners hold over.” Id.

We also found it significant that the holdover statute was neutral in its application. We reserved the question of whether a holdover statute “ might amount to 

a prohibited congressional designation, even if the holdover period is for a short 

time,” if the statute “ would create or repeal holdover provisions for selective 

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sion, e.g., those appointed on a certain date or those from a particular political 

party.” Id. at 46 n.8.

5. Legislation Imposing Additional Duties on an Officer. The executive branch 

has consistently maintained that a statute creating a new office and conferring 

it and its duties on the incumbent of an existing office would be unconstitutional 

under the Appointments Clause.91 Congress’s recognized authority to alter the 

duties and powers of existing offices could be employed to achieve substantially 

the same result if the legislature were unconstrained in the duties it could add 

to an office.92 The Supreme Court accordingly has interpreted the Constitution 

to limit the legislature’s discretion. The leading case, Shoemaker v. United States,

147 U.S. 282 (1893), concerned a statute that created a commission to select the 

land for Rock Creek Park in the District of Columbia. Three of the five members 

were to be appointed by the President and confirmed by the Senate; the persons 

holding two existing federal offices, the chief of engineers of the Army and the 

engineer commissioner of the District, were declared members ex officio. The 

Court rejected an Appointments Clause challenge to the assignment of the two 

engineers to the new commission:

[W]e do not think that, because additional duties, germane to the 

offices already held by them, were devolved upon them by the act, 

it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has 

frequently been the case, that Congress may increase the power and 

duties of an existing office without thereby rendering it necessary 

that the incumbent should be again nominated and appointed.

Id. at 301. The legislation at issue was valid, the Court concluded, because the 

new duties assigned to the engineers “ cannot fairly be said to have been dissimilar 

to, or outside of the sphere of,” the engineers’ existing responsibilities. Id.

91 See, e.g.. President Buchanan's signing statement dated June 25, 1860, relating to the Civil Appropriations 

Act for fiscal year 1861, in 5 James D. Richardson, Messages and Papers o f the Presidents, 1789-1897, at 597- 

98 (1897) (construing Act to avoid the constitutional problem).

92The same possibility is not presented by Congress’s power to reduce or limit the duties of an officer. Except 

with respect to (certain) constitutional officers. Congress has plenary authority to eliminate offices altogether, subject 

to the general separation of powers principle. The lesser-included power to take away part of an officer’s authority 

does not in itself enable Congress to choose which individual will exercise authority and thus does not implicate 

the Appointments Clause. Cf. United States v. San Jacinto Tin Co., 125 U.S. 273, 284 (1888) (Congress, as “ the 

legislative body which created the office” of Attorney General, has the authority to put “ restrictions . . . upon 

the exercise of [the Attorney General’s] authority” ).

In Crenshaw v. United States, 134 U.S. 99 (1890), the Supreme Court upheld a statute that affected undergraduates 

(“ cadet midshipmen” ) at the Naval Academy by redesignating them as “ naval cadets” and restricting the circumstances in which they would be commissioned upon graduation. The Court concluded that “ Congress did not 

thereby undertake to name the incumbent of any office. It simply changed the name, and modified the scope of 

the duties.” Id. at 109.

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The Shoemaker rule ensures “ that Congress [is] not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office.” Weiss v. United States, 510 U.S. 163, 174 (1994). For the imposition of 

new duties on an officer to be valid under Shoemaker, two requirements must 

be met. First, as in Shoemaker itself, the legislation must confer new duties on 

“ offices, . . . [not] on any particular officer.” Olympic Fed. Sav. & Loan A ss’n

v. Director, Office o f Thrift Supervision, 732 F. Supp. 1183, 1192 (D.D.C.), appeal

dism issed as moot, 903 F.2d 837 (D.C. Cir. 1990). “ Had the Chief of Engineers 

of the United States Army or the Engineer Commissioner of the District of Columbia resigned from office after the commission was established, he would no longer 

have served on the commission — the new Chief of Engineers or Engineer Commissioner would have taken over those duties.” Id. at 1192-93 (discussing facts 

in Shoemaker). The statute at issue in Olympic Federal, in contrast, abolished 

certain offices (the three-person Federal Home Loan Bank Board) while simultaneously defining the duties of a new office (the Director of Office of Thrift Supervision (“ OTS” )) and designating as the first Director the holder of one of the 

abolished offices (the chair of the Federal Home Loan Bank Board). See id. at 

1186. The Olympic Federal court correctly determined that by doing so the statute 

in effect appointed the particular individual who was chair of the old board to 

a new position. Id. at 1193.93

The second facet of the Shoemaker rule is the requirement that the new duties 

be “ germane to the offices already held by” the affected officers. 147 U.S. at 

301. This inquiry is necessarily case-specific. In Weiss, the Court examined closely 

the specific duties of military judges and the general responsibilities of military 

and naval officers and concluded that they are so intertwined that the selection 

by the Judges Advocate General of certain military and naval officers to serve 

for a time as military judges is consistent with the germaneness requirement. 510 

U.S. at 174-76. In giving advice on this issue, we also have looked at the reasonableness of assigning the new duties “ in terms of efficiency and institutional continuity,” and we have asked whether “ it could be said that [the officers’] functions 

. . . [with the additional duties] were within the contemplation of those who were 

in the first place responsible for their appointment and confirmation.” 4B Op.

O.L.C. at 541.

The Weiss decision may have weakened judicial enforcement of Shoemaker's

germaneness requirement by suggesting that some legislation that adds new duties

93 The Olympic Federal court thought the legislation would have been valid if Congress had created a threeperson directorate for the OTS and designated the members of the former board as the directors. The court reasoned 

that the germaneness requirement of Shoemaker would be satisfied because OTS was absorbing the duties of the 

old board as well as acquiring other, related ones. 732 F. Supp. at 1193. We reached a similar conclusion in 1980 

in opining that Congress could merge the Court of Claims and the Court of Customs and Patent Appeals and designate 

the members of those courts to serve as members of the merged court. See Legislation Authorizing the Transfer

o f Federal Judges from One District to Another, 4B Op. O.L.C. 538, 541 (1980). The “ merger situation . . . involves 

the end of one institution and the continuance of its major functions in another,” and it was reasonable for Congress 

“ to provide in this context for the relocation of experienced and capable judicial personnel, and for their continuing 

to perform the functions of the office to which they were originally appointed.” Id.

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is valid regardless of whether it satisfies the requirement. The opinion of the Court 

stressed the fact that “ [i]n Shoemaker, Congress assigned new duties to two existing offices, each of which was held by a single officer. This no doubt prompted 

the [Shoemaker] Court’s description of the argument as being that ‘while Congress 

may create an office, it cannot appoint the officer.’ . . . But here the statute authorized an indefinite number of military judges, who could be designated from 

among hundreds or perhaps thousands of qualified commissioned officers.” 510 

U.S. at 174. For that reason, the Court concluded, there was “ no ground for suspicion here that Congress was trying to both create an office and also select a 

particular individual to fill the office.” Id. The Court nevertheless went on to 

consider the germaneness issue and concluded that the duties of military judges 

are adequately related to the duties of the commissioned officers from whom the 

judges are selected. Id. at 174-76.

In a separate opinion, Justice Scalia argued that “ ‘germaneness’ is relevant 

whenever Congress gives power to confer new duties to anyone other than the 

few potential recipients of the appointment power specified in the Appointments 

Clause,” because “ taking on . . . nongermane duties . . . would amount to assuming a new ‘Offic[e]’ within the meaning of Article II, and the appointment 

to that office would have to comply with the strictures of Article II.” Id. at 196 

(Scalia, J., concurring in part and concurring in the judgment). We find Justice 

Scalia’s reasoning persuasive and believe that in an appropriate setting the executive branch should urge the Court expressly to accept it. In light of the Weiss

Court’s detailed examination of the germaneness issue, this may not require the 

Court in fact to modify the doctrine of that case because it is unclear to us that 

the Court actually intended to hold germaneness constitutionally irrelevant in 

Wms-type circumstances. The Court may instead simply have been emphasizing 

the fact that assignment of new and nongermane duties to a few specific officers 

not only violates the Appointments Clause per se, but also fails under the more 

general anti-aggrandizement principle of its decisions. We believe that it is appropriate, therefore, to review proposed new-duties legislation for germaneness even 

where the new duties are assigned to large or indefinite groups.

6. The Ineligibility and Incompatibility Clauses. The Constitution places two 

important restrictions on the universe of persons who may be appointed to serve 

as officers of the United States. U.S. Const, art. I, §6, cl. 2 .94 The Ineligibility 

Clause states that ‘ ‘ [n]o Senator or Representative shall, during the Time for which 

he was elected, be appointed to any civil Office under the Authority of the United

94 One possible restriction is notable for its absence from the Constitution: although Articles I and II and the 

Twelfth Amendment establish citizenship and age requirements for serving as a member of Congress, the President, 

or the Vice President (and also set varying minimum age requirements), see U.S. Const, art. I, §2, cJ. 2 (Representatives); id. art. I, §3, cl. 3 (Senators); id art. II, §1, cl. 4 (the President); id. amend. XII (Vice President), the 

Constitution places no such limitations on anyone who becomes an officer through one of the processes prescribed 

by the Appointments Clause.

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States, which shall have been created, or the Emoluments whereof shall have been 

increased during such time.” Id. The Clause “ restricts the President’s power to 

appoint Members of Congress,” and “ [i]t has long been settled within the executive branch that the President, in exercising his powers of appointment under Article II, §2, cl. 2, will not make an appointment in violation of the . . . clause.” 

M em bers o f Congress Holding Reserve Commissions, 1 Op. O.L.C. 242, 244 

(1977). The most common problem under the Ineligibility Clause arises from legislation that creates a commission or other entity and simultaneously requires that 

certain of its members be Representatives or Senators, either ex officio or by selection or nomination by the congressional leadership. Unless the congressional members participate only in advisory or ceremonial roles, or the commission itself 

is advisory or ceremonial, the appointment of members of Congress to the commission would violate the Ineligibility Clause.95

The Incompatibility Clause provides that “ no Person holding any Office under 

the United States, shall be a Member of either House during his continuance in 

Office.” U.S. Const, art. I, §6, cl. 2. The Clause is primarily a restriction on 

Congress and its members: the Incompatibility Clause “ disqualifies individuals 

who have already been appointed from assuming or retaining seats in Congress.” 

Reserve Commissions, 1 Op. O.L.C. at 244; cf. Members o f Congress Serving

in the Arm ed Forces, 40 Op. Att’y Gen. 301 (1943).96 However, the President’s 

duty to take care that the law of the Incompatibility Clause is observed requires 

him or her to ensure that appointments97 and legislation creating governmental 

positions are consistent with the Clause. See, e.g., Case o f the Collectorship of

N ew Orleans, 12 Op. Att’y Gen. 449, 451 (1868) (“ in view of the” Incompatibility Clause, an executive officer’s acceptance of a seat in Congress “ must be 

considered as having the legal character of a resignation of the office” ); Appointments to the Commission on the Bicentennial o f the Constitution, 8 Op. O.L.C. 

200, 207-08 (1984) (providing advice about “ various structural arrangements 

within the Commission that might be designed to respect the Incompatibility 

Clause” ).98

93 After FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 (1994),

it appears that designating a member of Congress to serve on a commission with any executive functions, 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 o f the anti-aggrandizement principle. See id. at 826- 

27.

96The Incompatibility Clause does not prohibit members of Congress from serving in positions that are not offices 

in the constitutional sense. See, e.g., Proposed Commission on Deregulation o f international Ocean Shipping, 1

Op. O.L.C. 202, 202-03 (1983) (members o f Congress may serve as members of a “ purely advisory” commission 

because the members need not be officers).

97 Cf. Deputizjation o f Members o f Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125, 125 n .l (1994) 

(recognizing Incompatibility Clause requirement but finding it unnecessary to reach that issue).

98The suggestion in this O ffice’s 1977 opinion on the Clause that “ exclusive responsibility for interpreting and 

enforcing the Incompatibility Clause rests with Congress,” Reserve Commissions, 1 Op. O.L.C. at 242, thus was 

an overstatement.

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7. The Recess Appointments Clause. With respect to officers of the United 

States, the Constitution vests the President with the “ Power to fill up all Vacancies 

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

shall expire at the End of their next Session.” U.S. Const, art. II, §2, cl. 3. “ A 

long line of opinions of the Attorneys General, going back to 1823, and which 

have been judicially approved, has firmly established that . . . [t]he President’s 

power to make recess appointments . . . extends to all vacancies existing during 

the recess regardless of the time when they arose.” Recess Appointments— Compensation, 3 Op. O.L.C. 314, 314 (1979) (citations omitted); accord Executive

Authority to Fill Vacancies, 1 Op. Att’y Gen. 631 (1823)." Although there was 

some early uncertainty about the President’s power to make appointments under 

the Recess Appointments Clause during intrasession recesses, that question was 

settled within the executive .branch by an often-cited opinion of Attorney General 

Daugherty concluding that the President is so authorized. Executive Pow er— Recess Appointments, 33 Op. Att’y Gen. 20 (1921). The most difficult problem of 

interpretation under the Clause today is determining how substantial an 

intrasession recess must be to give rise to the President’s power.100 Attorney General Daugherty concluded that a twenty-eight-day recess was sufficient, but cautioned that “ the term ‘recess’ must be given a practical construction.” Id. at 24- 

25. We agree with his view that the President has discretion to make a goodfaith determination of whether a given recess is adequate to bring the Clause into 

play.101 Giving advice on how the President may properly exercise that discretion 

has proven a difficult task. See Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15 (1992) (eighteen-day recess a sufficient period, particularly 

in light of the fact that except for a brief formal session on January 3, the Senate 

would actually be absent for fifty-four days); Recess Appointments, 3 Op. O.L.C. 

at 316 (President may make recess appointments “ during a summer recess of 

the Senate of a month’s duration” ).

8. Acting and Interim Appointments. Early Attorneys General repeatedly opined 

that the President enjoyed a constitutional power of appointment empowering the 

President to make temporary or ad interim appointments to offices in cases of

" T h e most thorough judicial treatment of the issue, which quotes extensively from Attorney Genera) W irt’s 1823 

opinion, is United States v. Allocco, 200 F. Supp. 868 (S.D.N.Y. 1961), affd, 305 F.2d 704 (2d Cir. 1962), cert,

denied, 371 U.S. 964 (1963).

100 There must be a vacancy in order for the President to exercise the authority granted by the Recess Appointments 

Clause. See Recess Appointments, 3 Op. O.L.C. at 317 (the power to make a “ recess appointment presupposes 

the existence of a vacancy,” and an appointment cannot in itself remove an incumbent so as to create a vacancy). 

In many situations, whether a vacancy exists will depend on the correct interpretation of a holdover provision in 

the statute creating the office. The scanty case law on this issue — which is a matter of statutory construction rather 

than of constitutional law — is not easily reconciled. Compare Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979), 

with Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, Nos. 93-5287 & 93-5289, 1994 WL 

163761 (D .C Cir. Mar. 9, 1994).

101 “ In this connection I think the President is necessarily vested with a large, although not unlimited, discretion 

to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent 

of the Senate. . . . But there is a point, necessarily hard o f definition, where palpable abuse of discretion might 

subject his appointment to review.” 33 Op. A tt’y Gen. at 25.

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need without conforming to the requirements of the Appointments or Recess Appointments Clause.102 Their initial reaction to congressional legislation on the subject of vacancies was therefore to view it as having neither the purpose nor the 

effect of supplanting the President’s preexisting constitutional authority. See Office

and Duties o f Attorney General, 6 Op. Att’y Gen. 326, 352 (1854) (“ Perhaps 

the truer view of the question is to consider the . . . statutes as declaratory only, 

and to assume that the power to make such temporary appointment is a constitutional one.” ). After the enactment of the Vacancies Act of 1868, ch. 227, 15 

Stat. 168, however, the Attorneys General treated the Act as providing the exclusive means of making temporary appointments to those offices covered by the 

statute. See, e.g., Appointments A d Interim, 17 Op. Att’y Gen. 530 (1883); Appointments A d Interim, 16 Op. Att’y Gen. 596, 596-97 (1880) (authority to fill 

vacancy in the office of Navy Secretary is “ a statutory power,” and when the 

power is exhausted, “ the President is remitted to his constitutional power of appointment” ). A 1904 opinion attempted to synthesize the older and the more recent views, treating as reasonable and legitimate Congress’s wish to cabin presidential discretion to make interim appointments while the Senate is in session, 

but describing as a “ fundamental right as Chief Executive” the President’s authority “ to make such a temporary appointment, designation, or assignment of one 

officer to perform the duties of another whenever the administration of the Government requires it.” Temporary Recess Appointments, 25 Op. Att’y Gen. 258, 

261 (1904); see also Promotion of Marine Officer, 41 Op. Att’y Gen. 291, 294

(1956) (President has the constitutional authority to appoint “ key military personnel to positions of high responsibility” without following statutory procedures).

There is little modem case law on the President’s power to make temporary 

appointments to offices requiring Senate confirmation.103 The “ leading” judicial 

decision is a brief per curiam court of appeals opinion denying a motion for a 

stay of the district court’s mandate pending appeal, Williams v. Phillips, 482 F.2d 

669 (D.C. Cir. 1973) (per curiam).104 Because of its procedural posture, Williams

l02See, e.g., Appointment o f Acting Purser, 6 Op. A tt’y Gen. 357, 365 (1854) (executive power of “ filling up 

a vacancy by an appointment of one to act ad interim, and for a particular exigency, in a distant service’’ could 

be exercised to make temporary appointment o f acting purser despite statutory prohibition on anyone acting as purser 

prior to Senate confirmation); Executive Power o f Appointment, 4 Op. A tt’y Gen. 248, 248 (1843) (appointment 

power is derived from the President’s Take Care Clause duty, “ an obligation imposed by the constitution, and from 

the authority of which no mere act of legislation can operate a dispensation,’’ although President could not pay 

interim appointees without an appropriation).

103 Indeed, at least one court has indicated a judicial willingness to defer to the views of the Attorney General 

on the President’s authority to make temporary appointments. See Olympic Federal Sav. & Loan Ass'n v. Director,

Office o f Thrift Supervision, 732 F. Supp. 1183, 1197-98 (D.D.C.) (“ The Attorney General is charged with responsibility for ensuring that only lawfully appointed officials act on behalf o f the United States, and consequently his 

interpretation of law on this subject is entitled to great deference.” ), appeal dismissed as moot, 903 F.2d 837 (D.C. 

Cir. 1990).

104 Williams was a challenge to the legality of actions taken by the acting director of the Office of Economic 

Opportunity on the ground that the President lacked authority to appoint an acting director of that office and to 

continue the interim appointment for over four months without submitting to the Senate any nomination to the position 

o f director. The district court declared the President’s action unlawful. The court o f appeals refused to grant a stay 

o f the district court's order because in its judgment the acting director had failed to show the requisite likelihood 

o f success on the merits The brief discussion in Williams of the merits emphasized that Article II “ unequivocally

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did not actually resolve the constitutional issue, but it suggested somewhat obliquely that what non-statutory power the President possesses to make interim 

appointments to offices requiring Senate confirmation can be employed only for 

a “ reasonable time required by the President to select persons for nomination.” 

Id. at 671. Looking to the thirty-day period that was, at the time, permitted temporary appointments under the Vacancies Act for an indication of what a reasonable period would be, Williams concluded that even if the implied power existed, 

a four-and-a-half-month period without any nomination was unreasonable. Id. at 

670-71.105 Since Williams was decided, the Vacancies Act has been amended 

to provide for an initial appointment period of 120 days. Up to two extensions, 

each lasting 120 days, may be made depending on the specific circumstances of 

the vacancy. Moreover, the Vacancies Act also tolls the running of these periods 

when particular conditions obtain. See 5 U.S.C. § 3348. * Thus, the Vacancies Act 

allows temporary appointments, in appropriate circumstances, of durations well 

in excess of even one year. Accordingly, we would not currently view a fourand-a-half-month temporary appointment as necessarily exceeding a reasonable 

duration, provided that a nomination is submitted to the Senate.

On the assumption that Williams can be read to indicate that “ [t]o keep the 

Government running calls for the designation of acting officials to fill vacancies 

in the absence of express statutory authority,” Department o f Energy— Vacancies,

2 Op. O.L.C. 113, 117 (1978) (citing Williams), we have argued that the reasonableness of a given interim appointment should be measured not by a per se rule 

but by a variety of pragmatic factors. Those factors include “ the difficulty of 

finding suitable candidates,” id. at 118, “ the specific functions being performed 

by the [interim officer]; the manner in which the vacancy was created (death, 

long-planned resignation) . . . and particular factors affecting the President’s 

choice [such as] a desire to appraise the work of [the interim officer] or the President’s ability to devote attention to the matter.” Status o f the Acting Director,

Office o f Management and Budget, 1 Op. O.L.C. 287, 290 (1977). However, given 

the ambiguity of the Williams opinion, we have urged caution, even when the 

relevant department head has statutory authority to designate another official to 

serve in an acting capacity. See Acting Officers, 6 Op. O.L.C. 119, 121-22 (1982).

We recently revisited the vacancies question in relation to the United States 

Commission on Civil Rights. The Commission is headed by an eight-member

requires an officer of (he United States to be confirmed by the Senate unless different provision is made.** The 

court nevertheless observed that “ [i]t could be argued” that the President has 4ian implied power, in the absence 

of limiting legislation . . . to appoint an acting director for a reasonable period of time before submitting the nomination of a new director to the Senate” 482 F.2d at 670.

>05 Our opinions have struggled with the meaning of Williams. See, e.g.. Power o f the President to Designate

Acting Member o f the Federal Home Loan Bank Board, 1 Op. O.L.C. 150, 151-52 (1977) (court o f appeals* opinion 

in Williams “ can perhaps be read as disagreeing with” the argument that the President has no non-statutory authority 

or “ as perhaps agreeing” that he does have such authority, “ in the absence o f a limiting statute,” subject, of 

course, to the condition that he must submit a nomination within a reasonable time).

’ Editor's Note: The Vacancies Act has been amended by the Federal Vacancies Reform Act o f 1998, Pub. L. 

No. 105-277, Div. C, tit. I, § 151(a), 112 Stat. 2681.

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committee that works on a part-time basis, while its day-to-day functioning is 

administered by a staff director. The statute creating the position of staff director 

vests the authority to appoint the staff director in the President, subject to the 

concurrence of a majority of the members of the Commission. In keeping with 

the Department of Justice’s long-standing position, we concluded that, when confronted with a vacancy in the position of staff director, the President has constitutional authority to appoint an acting staff director, unless Congress had statutorily 

limited this authority. We stated:

The President’s take care authority to make temporary appointments 

rests in the twilight area where the President may act so long as 

Congress is silent, but may not act in the face of congressional 

prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 637 (1952) (Jackson, J., concurring). Thus, the Vacancies Act,

5 U.S.C. §§3345-3348, constitutes a restriction on the President’s 

authority, as opposed to a source of power. If it applies to a given 

position, the Vacancies Act constitutes the sole means by which 

a temporary appointment to that position may be made.

Memorandum for Neil Eggleston, Associate Counsel to the President, from Walter 

Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Appointment

o f an Acting Staff D irector of the United States Commission on Civil Rights at

3 (Jan. 13, 1994).

We concluded that Congress had not limited the President’s constitutional authority with respect to the appointment of an acting staff director of the Civil 

Rights Commission. The Vacancies Act does not apply to the position of staff 

director.106 In addition, the statute creating the position is silent on the subject 

of temporarily filling a vacancy in that position. Consequently, we concluded that 

the President was free to exercise his constitutional authority to appoint an acting 

staff director.107

9. Other Issues of Combined, Collective, and Intertoranch Authority and the 

Appomtmemts Clause. The Appointments Clause prohibits Congress or the President from obscuring the lines of authority and responsibility within the federal

l06The Vacancies Act only applies to temporary appointments “ [w]hen an office[]” is vacant. 5 U.S.C. §3346 

(emphasis added). Because the staff director for the Commission on Civil Rights is not a constitutional officer, 

the Vacancies Act does not apply. See Olympic Fed. Sav. & Loan Ass'n v. Director, Office o f Thrift Supervision,

732 F. Supp. 1183, 1195 (D.D.C.) (finding that “ officer” as used in the Vacancies Act, 5 U.S.C. §3346, means 

“ constitutional officer” ), appeal dismissed as moot, 903 F.2d 837 (D.C. Cir. 1990). Indeed, since the Commission 

is an exclusively investigatory and advisory body, see Hannah v. Larche, 363 U.S. 420, 441 (1960), none of the 

positions at the Commission are constitutional offices. See Statement on Signing the United States Commission on

Civil Rights Act o f 1983, 2 Pub. Papers of Ronald Reagan 1634, 1635 (Nov. 30, 1983) (statement by the Department 

o f Justice). Accordingly, the Vacancies Act does not apply to the Commission at all.

107 A federal district court ruled to the contrary, but its decision has been vacated. See George v. Ishimaru, 849 

F. Supp. 68 (D.D.C. 1994), vacated as moot. No. 94-5111, 1994 WL 517746 (D.C. Cir. Aug. 25, 1994).

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The Constitutional Separation o f Powers Between the President and Congress

government: the political branches cannot vest the power to perform “ a significant 

governmental duty” of an executive, administrative, or adjudicative nature in any 

federal official who is not appointed in a manner consistent with the Clause. Buckley v. Valeo, 424 U.S. 1, 141 (1976) (per curiam). The Clause, however, does 

not prohibit creative combinations of officers and authorities as long as a person 

or body with legitimate appointing authority under the Clause has appointed — 

and therefore is accountable for— all federal officials with such power. Cf. Weiss

v. United States, 510 U.S. 163, 191-92 (1994) (Souter, J., concurring); Silver v. 

United States Postal Serv., 951 F.2d 1033, 1040-41 (9th Cir. 1991).

The Appointments Clause therefore does not forbid the exercise of authority 

by a decision-making body with a collective head that consists of principal officers 

and an inferior officer removable by them. See Silver, 951 F.2d at 1040-41. Nor 

is the Clause offended by the delegation of concurrent authority to a Senate-confirmed officer and her deputy when the latter is appointed by a head of department. 

See Department o f Housing and Urban Development— Delegations o f Authority,

2 Op. O.L.C. 87, 89-91 (1978). In both cases all of the officials performing significant governmental duties are validly appointed officers.

The exercise of authority by a group of principal officers, some of whom serve 

at the President’s pleasure while others are removable by the President only for 

cause, presents no Appointments Clause issue: once again, the Clause’s procedures 

for appointing federal officials so that they may wield “ significant authority” 

have been met. The Clause’s strictures are likewise satisfied by arrangements in 

which a head of department, pursuant to a statute, designates a subordinate to 

sit in his or her stead on a commission or board: if the designation by the head 

were authorized by statute, then it would itself be an appointment in conformity 

with the Clause, and even if it were not, the designee would be acting for or 

on behalf of the head of department, whose actions, for constitutional purposes, 

are the head’s.

Finally, the Appointments Clause does not invalidate commissions composed 

of members or appointees from more than one branch of the government. Mistretta

v. United States, 488 U.S. 361, 412 (1989), upheld the constitutionality of the 

Sentencing Commission, which includes at least three federal judges and the Attorney General as an ex officio non-voting member, while Buckley concluded that 

a commission consisting of a mixture of presidential appointees and members of 

Congress selected by the Speaker and President pro tempore can validly exercise 

“ powers . . . essentially of an investigative and informative nature,” 424 U.S. 

at 137. Interbranch entities are subject to constitutional review on other grounds, 

including the anti-aggrandizement and general separation of powers principles, but 

their interbranch nature does not in itself raise any Appointments Clause question.

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C. Removal Power Issues

1. The Executive’s Removal Power. The first great constitutional debate in the 

First Congress concerned the power to remove officers of the United States. A 

wide range of views was expressed over the respective roles— or lack thereof— 

of the President and Congress in removal matters,108 but ultimately, as the Supreme Court has interpreted the “ Decision of 1789,” Congress rejected a legislative role in removal in favor of recognizing plenary presidential power over officers appointed by the President with the advice and consent of the Senate. See

Bowsher v. Synar, 478 U.S. 714, 723-24 (1986); see also Myers v. United States,

272 U.S. 52, 111-44 (1926) (discussing debates and subsequent acquiescence in 

the legislative decision).

The nineteenth-century Justices interpreted the First Congress’s actions as illustrative of a more general principle that “ the power of removal [is] incident to 

the power of appointment.” Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839). 

Thus, it was determined that inferior officers appointed by a department head 

were not removable by the President (absent statutory authorization to do so) but 

by the secretary who appointed them and that a new appointment by the proper 

officer amounted to a removal of the previous incumbent by operation of law. 

Id. at 260-61; accord The President and Accounting Offices, 1 Op. Att’y Gen. 

624 (1823). In United States v. Perkins, 116 U.S. 483 (1886), the Court held 

that “ when Congress, by law, vests the appointment of inferior officers in the 

heads of departments, it may limit and restrict the power of removal as it deems 

best for the public interest.” Id. at 485. Although the Court did not address any 

questions about presidential removal powers, its reasoning about Congress’s authority to limit department heads’ removal power could logically be applied to 

the President with respect to inferior officers whose appointment is vested by statute in the President alone.109 The power to suspend an officer, finally, was held 

to be “ an incident of the power of removal.” Bumap v. United States, 252 U.S. 

512, 515 (1920) (relying primarily on nineteenth-century precedents). The Court’s 

conclusions in Hennen, Perkins, and Bumap remain good law.110

108 Professor Gerhard Casper has identified seven “ major positions [in the First Congress] on the question of 

the location of the removal pow er," ranging from the view that the President has illimitable authority to remove 

any non-judicial officer to the argument that Congress has plenary discretion over removal issues under the Necessary 

and Proper Clause. See Casper, supra note 33, at 234-35.

109 “ The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and 

regulate the removal by such laws as Congress may enact in relation to the officers so appointed. The head of 

a Department has no constitutional prerogative o f appointment to offices independently of the legislation o f Congress, 

and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto/’ 

Perkins, 116 U.S. at 485. The President similarly “ has no constitutional prerogative" to make appointments without 

senatorial advice and consent “ independently” o f congressional authorization— that is, the President may make 

appointments without the advice and consent o f the Senate only if Congress authorizes the President to do so. See

Myers, 272 U.S. at 161-62 (noting without deciding the question).

l,0 W e do not read Morrison v. Olson, 487 U.S. 654 (1988), to cast any doubt on the continuing vitality of 

these decisions. See id. at 689 n.27, 690 n.29 (implicitly reaffirming Perkins).

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The Constitutional Separation o f Powers Between the President and Congress

The seminal twentieth-century cases on removal, Myers and Humphrey’s Executor v. United States, 295 U.S. 602 (1935), both addressed the power to remove 

officers appointed by the President with the advice and consent of the Senate. 

Myers held unconstitutional a statute requiring Senate approval of the President’s 

decision to remove certain postmasters. The Court based its holding in part on 

its interpretation of the “ Decision of 1789” and on its understanding of the President’s constitutional role. “ Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet 

it the disciplinary influence upon those who act under him of a reserve power 

of removal. . . . Each head of a department is and must be the President’s alter

ego in the matters of that department where the President is required by law to 

exercise authority.” 272 U.S. at 132-33. An illimitable removal power, M yers

concluded, is a necessary incident to the President’s power and responsibility to 

take care that the laws are faithfully executed. Id. at 163-64.111

Any suggestion in Myers that the Supreme Court would invalidate all limitations 

on the President’s power to remove officers appointed with the advice and consent 

of the Senate was firmly repudiated less than a decade later by Humphrey’s Executor. The case concerned the President’s power to remove a member of the Federal 

Trade Commission (“ FTC” ) on the grounds of policy differences, despite the 

existence of a for-cause removal provision in the statute establishing the Commission.112 The Court dismissed Myers as inapposite because a postmaster is “ an 

executive officer restricted to the performance of executive functions,” and “ the 

necessary reach of the decision” only “ goes far enough to include all purely 

executive officers [and] no farther.” 295 U.S. at 627-28.113 By contrast, the Court 

examined the functions of the FTC and concluded that it was “ an administrative 

body” exercising “ quasi-legislative or quasi-judicial powers,” rather than an 

agency of the executive branch. Id. at 628. The Court reasoned that Congress 

possesses the authority in creating such a body “ to require [it] to act in discharge 

of [its] duties independently of executive control.” Id. at 629.114 In Wiener v.

111 The Court dismissed the argument that the rationale for giving the President plenary removal authority over 

heads of department and other great officers of state simply did not apply to postmasters with the observation that 

Congress could extend civil service tenure protection to the latter simply by vesting their appointment 4>in the head[] 

o f departm ent] to which they belong.” 272 U.S. at 174.

n 2 The statute establishing the FTC included a provision stating that a commissioner “ may be removed by the 

President for inefficiency, neglect of duty, or malfeasance in office,” which the Court construed as intended “ to 

limit the executive power o f removal to the causes enumerated, the existence of none of which is claimed here.” 

Humphrey’s Ex’r, 295 U.S. at 623, 626.

1,3 Humphrey's Executor expressly repudiated the language in Myers suggesting that the President’s general executive powers and Take Care Clause responsibilities rendered it unconstitutional for Congress to reduce or eliminate 

presidential control over the administration of federal law. “ In the course of the opinion [in Myers], expressions 

occur which tend to sustain the government’s contention, but these are beyond the point involved and, therefore, 

do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, 

these expressions are disapproved.” Humphrey’s Ex’r, 295 U.S. at 626.

114 See also id. at 628:

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative 

policies embodied in the [Federal Trade Commission Act, 15 U.S.C. §§41-42] in accordance with the

Continued

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United States, 357 U.S. 349 (1958), the Court extended the scope of Humphrey’s

Executor by inferring the existence of a for-cause limitation on the President’s 

power to remove an officer with quasi-adjudicatory functions, even in the absence 

of an express statutory removal restriction.115

The rationale in Humphrey's Executor for upholding Congress’s power “ to forbid [the commissioners’] removal except for cause” was in fact identical to that 

for recognizing the President’s plenary removal power over “ purely executive officers.” “ [I]t is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence 

against the latter’s will.” 295 U.S. at 629. The constitutionality of congressional 

limitations on presidential removal authority thus depended under Humphrey’s Executor on the legitimacy of a legislative decision to reduce or eliminate the President’s control over a particular agency or officer, and that in turn depended on 

the nature of the functions performed by the agency or officer.116

In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court upheld a provision of the Ethics in Government Act that forbids the removal of an independent 

counsel appointed under the Act except for cause. The Court explained that under 

“ [t]he analysis contained in our removal cases,” the constitutional question is 

whether Congress has “ interfere[d] with the President’s exercise of the ‘executive 

power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed.’ ” Id. at 689-90. Morrison reasoned that the Attorney General 

retained adequate control over the independent counsel to safeguard “ the President’s ability to perform his constitutional duty.” Id. at 691.

legislative standard therein prescribed, and to perform other special duties as a legislative or as a judicial 

aid. . . . Tts duties are performed without executive leave and, in the contemplation of the statute, must 

be free from executive control.

115 The rationale o f Wiener, which is essentially that Congress must have implied a for-cause removal restriction 

when the Court believes that the functions o f the agency demand such tenure protection, 357 U.S. at 353-56, seems 

questionable. There would be nothing illogical in a legislative decision, for example, to protect against review or 

revision of the decisions of the agency, see id. 354-55, while placing the agency’s decisionmakers within the control 

o f the President. Congress has made such decisions from the beginning o f the Republic. To the extent that Wiener

assumes that control is and ought to be a binary matter— either plenary or non-existent— its reasoning is difficult 

to reconcile with more recent separation of powers decisions that reject such an either/or approach to presidential 

control. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988). Despite these possible flaws in its logic, however, Wiener's

holding continues to be followed. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (concluding that the members of the Federal Election Commission probably are removable only for cause despite the 

absence of an explicit statutory restriction on removal), cert, dismissed, 513 U.S. 88 (1994).

1I6C ongress’s decision was considered legitimate in Humphrey's Executor because the Court viewed the FTC 

as “ a body of experts” ' ‘charged with the enforcement of no policy except the policy o f the law” and concluded 

that “ [s]uch a body cannot in any proper sense be characterized as an arm or an eye o f the executive.” 295 U.S. 

at 624, 628. We do not find the Court's reasoning in Humphrey's Executor completely persuasive. The Court’s 

assertion about the FTC ’s “ enforcement of no policy except the policy of the law,” id. at 624, does not differentiate 

the FTC, except perhaps as a matter of degree, from the many undoubtedly executive agencies upon which Congress 

imposes mandatory duties. The Court also stated that an FTC member is “ an officer who occupies no place in 

the executive department,” but the Court m ay only have meant that the FTC is “ an agency of the legislative or 

judicial departments o f the government,” id. at 628, in which case questions would arise under current constitutional 

doctrine as to the legitimacy o f an Article I entity exercising law-making authority without following bicameralism 

and presentment, see INS v. Chadha, 462 U.S. 919 (1983), or of an Article in non-judicial entity “ bind[ing] or 

regulat[ing] the primary conduct o f the public,” Mistretta v. United States, 488 U.S. 361, 396 (1989). We do not 

think that the “ independent” regulatory agencies could be viewed today as within the legislative or judicial branches. 

See id. at 387 n.14 (SEC is “ not located in the Judicial Branch” ).

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Morrison's broader significance is defined by the office in question. The removal restriction upheld in Morrison concerned an inferior officer with a sharply 

limited and highly unusual function, the investigation of particular allegations 

about the conduct of high-ranking executive branch officials. In that context, although it declined to decide “ exactly what is encompassed within the term ‘good 

cause,’ ” the Court held that “ because the independent counsel may be terminated 

for ‘good cause,’ the Executive . . . retains ample authority to assure that the 

counsel is competently performing his or her statutory responsibilities in a manner 

that comports with the provisions of the Act.” 487 U.S. at 692. The Morrison

Court thus had no occasion to consider the validity of removal restrictions affecting principal officers, officers with broad statutory responsibilities, or officers involved in executive branch policy formulation.117

The Supreme Court’s removal cases establish a spectrum of potential conclusions about specific removal limitations. At one end of the spectrum, restrictions 

on the President’s power to remove officers with broad policy responsibilities in 

areas Congress does not or cannot shelter from presidential policy control clearly 

should be deemed unconstitutional. We think, for example, that a statute that attempts to limit the President’s authority to discharge the Secretary of Defense 

would be plainly unconstitutional and that the courts would so hold.118 As the 

Court stated in Morrison, Myers “ was undoubtedly correct . . . in its broader 

suggestion that there are some ‘purely executive’ officials who must be removable 

by the President at will if he is to be able to accomplish his constitutional role.” 

487 U.S. at 690.119 At the other end of the spectrum, we believe that for-cause 

and fixed-term limitations on the power to remove officers with adjudicatory duties affecting the rights of private individuals will continue to meet with consistent 

judicial approval: the contention that the essential role of the executive branch 

would be imperiled by giving a measure of independence to such officials is untenable under both precedent and principle.

,17A much older decision, Shurtleff v. United Stales, 189 U.S. 311 (1903), had held that a for-cause provision 

did not oust the President's power, derived from the power of appointment, to remove an officer at will, but after 

Humphrey's Executor, Shurtleff appeared confined to its factual setting (where the official’s tenure had no fixed 

termination). See Kalaris v. Donovan, 697 F.2d 376, 395 & n.76 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983). 

Bowsher, however, cited Shurtleff in connection with a more general suggestion that “ the enumeration o f certain 

specified causes of removal’’ may not 4'exclud[e] the possibility of removal for other causes.’’ 478 U.S. at 729. 

Bowsher and Morrison together suggest that a generous reading of the President’s (or a department head’s) power 

to remove an inferior officer for cause may be essential to the constitutionality of removal restrictions concerning 

even those officers whose functions are narrow.

1,8The Tenure of Office Act of 1867, ch. 154, 14 Stat. 430, expressly provided the Secretaries of War and the 

Navy, among others, with terms longer than that o f the President who appointed them, subject only to presidential 

removal with the coi^ent of the Senate. President Andrew Johnson’s attempt to remove the Secretary of W ar was 

the legal basis for his impeachment and near-removal from office. The Act had been passed over President Johnson’s 

constitutionally based veto.

119 With respect to an officer serving at the President’s pleasure, the President may remove the incumbent by 

direct order or by appointing his or her successor after receiving the advice and consent of the Senate. See, e.g.,

Quackenbush v. United States, 177 U.S. 20, 25 (1900); Presidential Appointees— Resignation Subject to the Appointment and Qualification o f a Successor, 3 Op. O.L.C. 152 (1979).

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Between these two extremes, the arguments are less clear, and it is imperative 

that the executive branch carefully examine removal limitations in pending legislation for their impact on the President’s ability to exercise his or her constitutional 

powers and carry out his or her duties. In situations in which Congress does not 

enact express removal limitations, we believe that the executive branch should 

resist any further application of the Wiener rationale, under which a court may 

infer the existence of a for-cause limit on presidential removal, except with respect 

to officers whose only functions are adjudicatory.120 In reviewing pending legislation, furthermore, we should be aware that legislative silence about the President’s 

removal power over administrative agency officers invites judicial policy choices 

that may be contrary to those the President or Congress intended.

2. Congressional Removal Power. Unless it limits its own discretion by statute, 

Congress enjoys plenary authority to remove its own officers, as do the individual 

houses of Congress.121 In addition, Congress has the general authority to legislate 

in ways that in fact terminate an executive branch officer’s or employee’s tenure 

by defunding a position, for example, or by legislating mandatory retirement rules 

that apply to incumbents.122 The executive branch, however, has long maintained 

that the Constitution does not permit this legislative authority to be deployed abusively as a de facto removal power. See Civil Service Retirement A ct—Postm asters— Automatic Separation from the Service, 35 Op. Att’y Gen. 309, 312- 

15 (1927) (deeming mandatory retirement statute constitutional because it could 

not fairly be viewed as an encroachment on the President’s removal power). The 

Supreme Court’s decisions confirm the executive position. In Myers v. United

States, 272 U.S. 52 (1926), the Court at one point portrayed the issue before it 

in terms of congressional aggrandizement, id. at 161, and modem decisions have 

redescribed the enduring rationale of Myers in anti-aggrandizement terms. See

M orrison v. Olson, 487 U.S. 654, 686 (1988) (“ [T]he essence of the decision 

in M yers was the judgment that the Constitution prevents Congress from 

‘draw[ing] to itself . . . the power to remove.’ ” ) (quoting Myers, 272 U.S. at 

161); Bowsher v. Synar, 478 U.S. 714, 724-26 (1986). Legislation that can properly be described as exercising the power of removal is unconstitutional, therefore, 

because it amounts to an attempt on Congress’s part “ to gain a role in the removal 

of executive officials other than its established powers of impeachment and con­

,20On the basis o f precedent, and in light o f the understandable tendency of Article 111 judges to value tenure 

protection positively, it is safe to assume that courts will continue to apply Wiener with respect to officials whose 

primary duties involve the adjudication of disputes involving private persons.

121 The two houses of Congress also have complementary roles in the congressional power to impeach and remove 

any civil officer o f the United States. See U.S. Const, art. 1, §2, cl. 5; id. art. I, §3, cl. 6.

122Congress's authority in this regard is bounded, to be sure, by independent constitutional limitations such as 

the Bill of Attainder Clause, U.S. Const, art. I, §9, cl. 3. See United States v. Lovett, 328 U.S. 303 (1946) (provision 

in an appropriations statute prohibiting the payment of compensation to three specified executive branch employees 

because o f their political beliefs was an unconstitutional bill of attainder).

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viction.” Morrison, 487 U.S. at 686.123 We think, for example, that “ ripper” 

legislation that ostensibly abolished an office while simultaneously proceeding to 

recreate it would be a transparent, and unconstitutional, attempt to remove the 

officer in question and therefore would violate the anti-aggrandizement principle. 

See Constitutionality o f Proposed Legislation Requiring Renomination and Reconfirmation o f Executive Branch Officers Upon the Expiration o f a Presidential

Term, 11 Op. O.L.C. 25, 26 (1987).

The executive branch also has resisted attempts by the Senate to “ reconsider” 

the nomination of an officer to whose appointment that body has already given 

its advice and consent once the President has taken steps to complete the appointment. In 1931, for example, President Hoover declined to return to the Senate 

resolutions notifying him that it had confirmed three nominees to the Federal 

Power Commission. The President explained that “ the return of the documents 

by me and reconsideration by the Senate would be ineffective to disturb the appointees in their offices. I cannot admit the power in the Senate to encroach upon 

Executive functions by removal of a duly appointed executive officer under the 

guise of reconsideration of his nomination.” Message to Senate, January 10, 1931, 

quoted in United States v. Smith, 286 U.S. 6, 28 n.3 (1932); see also Smith, 286 

U.S. at 37-48 (discussing historical practice). Such senatorial action is both an 

unconstitutional attempt to remove the officer and a violation of the anti-aggrandizement principle, in that it is a legislative attempt to exercise power after the 

constitutionally prescribed role of the legislative body has been completed.124

D. Issues Involving the Boundaries of the Legislative Sphere

The Supreme Court decisions articulating the Court’s anti-aggrandizement principle make it plain that Congress’s formal authority is limited to the enactment 

of legislation and activities in aid of the legislative process such as investigation 

and oversight. The Gramm-Rudman Act’s vesting in a congressional agent of the 

power to exercise policy-making control over the post-enactment decisions of executive officials is the paradigmatic example of congressional action in violation 

of this limitation. See Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating the 

relevant provision of the Act). Respect for Congress’s legitimate and broad authority to legislate is consistent with our duty as officials of the executive branch

123 One could also describe the reasoning directly in terms o f the impeachment and removal powers. See U.S. 

Const, art. I, §2, cl. 5 (giving House the “ sole Power of Impeachment” ); id. art. I, §3, cl. 6 (giving Senate the 

“ sole Power to try all Impeachments” ); id. art. II, §4 ("President, Vice President and all civil Officers” are subject 

to impeachment and removal). These powers stem from “ (ejxplicit and unambiguous provisions of the Constitution 

[that] prescribe and define” the only means by which Congress may remove officers. INS v. Chadha, 462 U.S. 

919. 945 (1983).

124 In Smith the Supreme Court rejected a challenge to the right of one o f President Hoover’s appointees to sit 

on the Federal Power Commission, but based its holding on its construction of the Senate’s rule permitting reconsideration. The Court thus did not reach the Executive’s constitutional arguments. See 286 U.S. at 34 (“ [W]e have, 

therefore, no occasion to consider the constitutional objection.” ).

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to identify instances in which Congress transgresses the boundaries of its constitutional sphere of operations.

1. The Paradox of Congressional Agencies. From reading the bare text of the 

Constitution, one might not expect there to exist any formally separate entities 

within the legislative branch other than the two houses themselves. From an early 

date, however, Congress has created distinct agencies, under its special supervision, for various purposes. Some of these agencies, or the officers who head 

them, exercise authority that seems incompatible or at least difficult to reconcile 

with the Supreme Court’s anti-aggrandizement decisions. Of special interest are 

the Smithsonian Institution (and its subordinate bureaus, such as the John F. Kennedy Center for the Performing Arts (“ J.F.K. Center” )), the Library of Congress, 

the General Accounting Office (“ GAO” ) (headed by the Comptroller General), 

the Government Printing Office (“ GPO” ), and the Office of the Architect of the 

Capitol.125 The head of each of these agencies exercises authority with respect 

to executive officials or private persons that could be seen as problematic under 

Bowsher v. Synar, 478 U.S. 714 (1986), which held unconstitutional the Comptroller General’s exercise of controlling authority over executive branch budgeting.

We believe that many of the powers currently exercised by the presently existing 

congressional agencies may be deemed constitutionally harmless. Most of the 

functions undertaken by the Library of Congress, the basic accounting tasks of 

the GAO, and all of the duties of the Architect of the Capitol can comfortably 

be described as in aid of the legislative process. See Springer v. Philippine Islands,

277 U.S. 189, 202 (1928). The activities undertaken by the Smithsonian and its 

bureaus also seem to fit under a broad construction of that concept, a construction 

that is supported by historical practice stretching far back into the antebellum Republic. Cf. Springer, 277 U.S. at 211 (Holmes, J., dissenting) (“ Congress long 

ago established the Smithsonian Institution, to question which would be to lay 

hands on the Ark of the Covenant.” ). The GPO’s involvement in executive branch 

printing is also supported by a substantial historical pedigree, see Act of June 

23, 1860, 12 Stat. 117, but in the twentieth century the executive branch has repeatedly been compelled to resist congressional attempts to empower the GPO 

to exercise genuine discretion over executive decisions.126 The review authority 

of the Librarian of Congress over the Copyright Arbitration Royalty Panel, see

17 U.S.C. §§801-803, is permissible because the Librarian’s tenure is not protected by an explicit for-cause removal limitation, and we therefore infer that the

125 The composition o f the Smithsonian’s Board of Regents and of the Board of Trustees of the J.F.K. Center 

presents a separate problem under Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), because members of Congress 

serve on these boards through appointment by the Speaker and the President pro tempore. See 20 U.S.C. §42 (Regents 

o f Smithsonian); id. §76h(a) (Trustees of J.F.K. Center).

126 Under the m odem understanding of the separation of powers, we do not think that Congress vaJidly can empower the GPO to play any role that is not purely ministerial with respect to the executive branch.

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President has at least the formal power to remove the Librarian at w ill.127 We 

note that the historical lineage of, and long-standing acquiescence of the Presidents 

in, these legislative agencies and most of their activities are important to our conclusion that those activities are constitutionally permissible: we think it highly 

doubtful that Congress constitutionally could create new legislative agencies with 

operational powers, or afford existing agencies novel powers, with respect to executive officials or private persons.

Our conclusion about the limits on Congress’s authority to create legislative 

branch agencies with powers reaching beyond the legislative branch is consistent 

with the decision in Hechinger v. Metropolitan Washington Airports Authority,

36 F.3d 97 (D.C. Cir. 1994), cert, denied, 513 U.S. 1126 (1995), where the court 

of appeals held unconstitutional Congress’s response to the Supreme Court’s decision in Metropolitan Washington Airports Authority v. Citizens fo r the Abatement

o f Aircraft Noise, Inc., 501 U.S. 252 (1991) (“ MWAA"). After MWAA struck 

down a congressionally constituted board with the power to review and reverse 

the decisions of the Airports Authority, Congress created a similar, congressionally 

controlled board of review with the power to delay, but not to control, the 

Authority’s implementation of decisions. The court rejected the argument that the 

new board’s powers were constitutional because of this distinction: the very purpose of this board was to bring congressional policy views to bear on the decisions 

of the Authority by enabling congressional agents to participate directly in the 

Authority’s decision-making processes. Under the Supreme Court’s rigorous understanding of the anti-aggrandizement principle, any such extension of legislative 

power beyond the legislative sphere is invalid. We therefore believe that Hechinger was correctly decided.

2. Reporting Requirements. Many statutes empower executive branch agencies 

to take certain actions only after a specified period following the provision of 

notice or of a report to Congress. The Department of Justice has long acknowledged the constitutionality of such report-and-wait provisions, see, e.g., Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 

63 (1933) (“ No one would question the power of Congress to provide for delay 

in the execution of . . . an administrative order.” ), and the Supreme Court in 

INS v. Chadha, 462 U.S. 919 (1983), “ specifically recognized” report-and-wait 

requirements “ as a constitutionally acceptable alternative to the legislative veto.” 

Implementation o f the B id Protest Provisions of the Competition in Contracting

Act, 8 Op. O.L.C. 236, 246 (1984); see Chadha, 462 U.S. at 935 n.9, 955 n.19. 

While individual instances of congressional investigation and oversight may be 

objectionable on policy grounds, and in certain situations may involve information

127 Formal removal authority is sufficient to render the Librarian subject to the President’s control for constitutional 

purposes. See Bowsher v. Synar, 478 U.S. 714, 726-27 (1986). We think that under Bowsher the fact that a President 

is highly unlikely to remove a Librarian is legally irrelevant. Id. at 727 n.5.

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with respect to which the President is constitutionally entitled to assert executive 

privilege, the conduct of investigation into, and oversight concerning, executive 

actions is generally well within the power of Congress. See Buckley v. Valeo,

424 U.S. 1, 137-38 (1976) (per curiam).128 Report-and-wait provisions generally 

are constitutional means of assisting Congress in carrying out these legitimate activities. 129

Simple reporting requirements, which again are sometimes objectionable on policy grounds, are clearly constitutional as a general matter. “ Congress may at all 

times call on [the heads of executive departments] for information or explanation 

in matters of official duty.” Office and Duties o f Attorney General, 6 Op. Att’y 

Gen. 326, 344 (1854); see Chadha, 462 U.S. at 955 n.19; see also Duties of the

Attorney General, 1 Op. Att’y Gen. 335, 336 (1820) (Congress could, by legislation, require the Attorney General to prepare a report on claims against the United 

States). In the past, this Office has made constitutional objections to so-called 

“ concurrent” reporting provisions that require an executive agency to submit a 

given report simultaneously to the President and Congress. See Constitutionality

o f Statute Requiring Executive Agency to Report D irectly to Congress, 6 Op.

O.L.C. 632 (1982); Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977). 

The argument is that such provisions interrupt the lines of responsibility within 

the executive branch and interfere with a presidential prerogative to control the 

presentation of the executive branch’s views to Congress. On the other hand, advocates of such provisions might argue that a concurrent reporting provision does 

not, as a formal matter, enlarge congressional powers at the expense of the Executive, because the power to require information is well within Congress’s legitimate 

legislative authority.

We think that concurrent reporting requirements are best analyzed under the 

general separation of powers principle. That principle first requires an inquiry into 

“ the extent to which” a given reporting provision “ prevents the Executive Branch 

from accomplishing its constitutionally assigned functions.” Nixon v. Adminis128 The Constitution presupposes that all executive branch action is taken under the legal authority of officers 

o f the United States and that it is those officers (and not their subordinates) who are constitutionally responsible 

for those actions. See U.S. Const, an. n, § 4 (civil officers may be impeached). It is our view, therefore, that the 

executive branch is generally entitled to resist congressional demands that employees be questioned about their actions 

and that as a matter of constitutional comity Congress ordinarily is obligated to respect an executive decision to 

send a superior officer to present testimony and answer questions about the actions of a subordinate officer. (This 

does not apply to congressional investigations connected with impeachment or with other legitimate investigations 

into the actions of specific officers.). Although the details o f executive responses to congressional demands for information have changed somewhat, the general principle that Congress ought not employ its powers of investigation 

to disrupt the lines of responsibility and authority within the executive branch is very old. See Thomas Jefferson, 

Opinion of the Cabinet (Apr. 2, 1792), in 1 The Writings o f Thomas Jefferson 304 (Andrew A. Lipscomb ed., 

1903) (advising President Washington “ that neither the committee nor [the] House [of Representatives] had a right 

to call on the Head of a Department, who and whose papers were under the President aJone, but that the committee 

should instruct their chairman to move the House to address the President").

129 This is not to say that an unconstitutional report-and-wait provision cannot be imagined. A provision that 

imposed so lengthy a delay as to in effect nullify the Executive’s power to take action substantively authorized 

by the Constitution or a statute might be invalid as a violation of the anti-aggrandizement or general separation 

o f powers principle.

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trator o f Gen. Servs., 433 U.S. 425, 443 (1977) (citation omitted). Many conceivable concurrent reporting requirements, particularly ones touching on the President’s responsibility for the conduct of foreign affairs and for national defense, 

would have a serious negative impact on the President’s performance of his “ constitutionally assigned functions.” A statutory requirement that the Secretary of 

State report simultaneously to the President and Congress on the status of United 

States relations with a given foreign power, for instance, would fall within that 

description.130 Similarly, legislation that attempted to impose concurrent reporting 

requirements across a broad spectrum of executive branch activities might well 

constitute so serious an interference with the President’s fulfillment of his obligations under the Take Care Clause, U.S. Const, art. II, §3, that it should be deemed 

invalid. The courts, however, might uphold the validity of a concurrent reporting 

requirement imposed for a legitimate congressional purpose on a specific agency 

with limited, domestic, and purely statutory duties.

As a practical political matter, concurrent reporting requirements clearly weaken 

the President’s control over the executive branch and by doing so increase congressional leverage on the President and other officials of the executive branch. 

By doing so they impair the Constitution’s “ ‘great principle of unity and responsibility in the Executive department.’ ” Myers v. United States, 272 U.S. 52, 131 

(1926) (quoting James Madison in 1 Annals of Congress 499 (Joseph Gales ed., 

1789)). For this reason, we think the presumption should be that the executive 

branch will object to any concurrent reporting provision in proposed legislation.

3. Congressional Agents in Non-Legislative Contexts. The Supreme Court’s decisions make it clear that legislation placing members or agents of Congress on 

a board or commission that is outside the legislative branch is immediately suspect. The constitutional “ location” of a given entity is not a matter of congressional fiat; Congress cannot define away an anti-aggrandizement problem simply 

by declaring that a given entity is within or without the legislative branch.131 

The question is, we think, a matter of the relationship between the entity’s functions and the formal powers Congress can assert over and through it. In M etropolitan Washington Airports Authority v. Citizens fo r the Abatement of Aircraft Noise,

Inc., 501 U.S. 252 (1991), for example, the board at issue was the board of review 

of an entity, the Airports Authority, created by a compact between Virginia and 

the District of Columbia, and the review board members were appointed by the

130 Moreover, such a provision ought to fail the courts' final test under general separation of powers analysis — 

whether (he statute’s impact on the executive “ is justified by an overriding need to promote objectives within the 

constitutional authority of Congress.” Administrator o f Gen. Servs., 433 U.S. at 443. The hypothesized reporting 

requirement could seriously impair the President’s ability to formulate foreign policy and conduct negotiations and 

addresses an area in which Congress’s constitutional authority is limited.

131 The result in Bowsher v. Synar, 478 U.S. 714 (1986), for example, would not be changed by a statute providing 

that the General Accounting Office is an executive branch agency. Through (he Comptroller General, an official 

removable by Congress, (he legislature would still be exercising ultimate authority over executive decisions. In fact, 

(he Compiroller General does have obligations to the executive branch as well as to Congress. See Bowsher, 478 

U.S. at 746 (Stevens, J., concurring in judgment).

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Authority. However, by federal legislative mandate, the Authority was compelled 

to appoint a review board made up exclusively of members of Congress selected 

from a pool determined by Congress. See id. at 268-69. Congress’s agents on 

the board thus were able to exercise ultimate control over important operational 

decisions of the Airports Authority, in violation of the Constitution’s constraints 

on the exercise of congressional power. Id. at 275-77.

The Court of Appeals for the D.C. Circuit recently came to a similar conclusion 

in FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 (1994), in striking down part of a section of the Federal 

Election Campaign Act, 2 U.S.C. §437c(a)(l). That section provides that the Secretary of the Senate and Clerk of the House or their designees are to be members 

of the Federal Election Commission “ ex officio and without the right to vote.” 

The Secretary and the Clerk are self-evidently agents of Congress, but the Commission argued that their presence was constitutionally harmless because their only 

formal role was informational and advisory. The court rejected the argument, reasoning that the very point of placing the Secretary and Clerk on the Commission 

was to influence the Commission’s actions and that

Congress must limit the exercise of its influence, whether in the 

form of advice or not, to its legislative role. . . . What the Constitution prohibits Congress from doing, and what Congress does 

in this case, is to place its agents “ beyond the legislative sphere” 

by naming them to membership on an entity with executive powers.

6 F.3d at 827 (citation omitted). We believe that NRA Political Victory Fund was 

correctly decided: however modest the ability of Congress’s agents to influence 

the Commission’s actions may have been formally, the statute placed the agents 

intended to communicate that influence within the very heart of an agency charged 

with enforcing federal law. The anti-aggrandizement principle properly can be interpreted to forbid even modest attempts by Congress to intervene in the enforcement of the laws once “ its participation [in the passage of legislation] ends.” 

Bowsher v. Synar, 478 U.S. 714, 733 (1986).

E. The General Separation of Powers Principle

The proper application of the general separation of powers principle is highly 

specific to context, and thus few generalizations are possible. For example, in 

the past we have expressed concern that legislation delegating federal authority 

to state or local officials or private persons could undermine the executive 

branch’s ability to carry out its functions and thereby violate the principle. See,

e.g.. Constitutional Limits on “ Contracting Out” Department o f Justice Functions

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The Constitutional Separation o f Powers Between the President and Congress

under OMB Circular A -76, 14 Op. O.L.C. 94, 99-101 (1990).132 We continue 

to believe that such delegations can raise questions with respect to the constitutional separation of powers,133 and that in certain circumstances, a congressional 

delegation of authority to non-federal officials or to private parties might have 

a significant impact on the executive branch’s ability to fulfill its constitutional 

functions. If so, the delegation might be invalid under the general separation of 

powers principle.134

132 The delegation question actually at issue in our 1990 opinion concerned OMB requirements to contract out 

governmental work. Executive branch delegations to non-federal entities, we now think, are properly analyzed as 

raising issues about the Executive's statutory authority to delegate.

133 In theory, Congress’s authority to delegate law-making authority to anyone, including the President, is limited 

by the non-delegation doctrine, which prohibits standardless grants of legislative power. That doctrine is, however, 

essentially moribund in the courts. See, e.g., Yakus v. United States, 321 U.S. 414 (1944) (upholding broad delegation). In any event, the problem of delegation in the separation o f powers context is not, or not primarily, one 

o f congressional failure to specify the limits and standards relevant to the delegated authority, but rather the interference with executive (or judicial) branch functions created by the bestowal of federal-law authority on non-federal 

entities. Cf. Currin v. Wallace, 306 U.S. 1, 15-16 (1939) (upholding statute requiring supermajority vote by participants in regulated activity before executive branch could take certain action).

134A common form of “ delegation” — the grant of authority to state, local, or tribal officials or to private parties 

to stop federal action by declining to consent to it — is unlikely to present a constitutional problem. Such legislation 

merely sets a condition on the executive branch’s exercise of authority that the Executive would not possess at 

all in the absence of the legislation. In upholding a statute requiring a supermajority of regulated farmers to agree 

before the Secretary of Agriculture could exercise certain powers, the Supreme Court rejected the argument that 

the statute impermissibly delegated legislative power, reasoning that such legislation does not, strictly speaking, involve a delegation o f authority to the farmers at all. See Currin v. Wallace, 306 U.S. 1, 15-16 (1939). By requiring 

the Secretary, as one of the prerequisites to the exercise of power granted him by statute, to ascertain the agreement 

of a certain percentage o f those who would be affected, the statute at issue in Currin had done nothing but add 

another condition to the availability of the power. Id. at 15 (“ Congress has merely placed a restriction upon its 

own regulation by withholding its operation as to a given market 'unless two-thirds of the growers voting favor 

it.*” ).

A recent district court opinion that reached the opposite conclusion illustrates, in our judgment, the fallacy involved 

in attempting to discern a separation of powers problem in this sort of legislation. See Confederated Tribes o f Siletz

Indians v. United States, 841 F. Supp. 1479 (D. Or. 1994), a ffd on other grounds, 110 F.3d 688 (9th Cir.), cert,

denied, 522 U.S. 1027 (1997). The statute at issue prohibits the location of gaming establishments on land acquired 

by the Department of the Interior in trust for the benefit of a Native American tribe when the land in question 

is off-reservation. The statute permits the Secretary to grant a waiver of the prohibition, but requires him or her 

to obtain the concurrence of the relevant state governor before finally approving the waiver. The district court denied 

that the act was similar for constitutional purposes to the legislation upheld in Currin or the False Claims Act 

provisions sustained in the qui tam cases: “ Instead we have a statute in which Congress delegates to a state official 

the power to veto a favorable determination by an official o f the Executive Branch who was legislatively charged 

with making that determination.” 841 F. Supp. at 1488. Therefore, the court concluded, the provision requiring 

the governor’s concurrence violated the Appointments Clause and the general separation of powers principle. Id.

at 1489. We think that the district court went wrong in its description o f the legislation it was reviewing: the only

final determination the Secretary is “ legislatively charged with making” under 25 U.S.C. §27l9(b)(l)(A ) is a determination that the statutory conditions — inter alia, that the relevant governor concurs in the Secretary’s findings 

that granting the waiver will be beneficial to the tribe and harmless to its neighbors— have been satisfied. The 

governor’s concurrence, from the Secretary’s perspective, is as much a fact about the world as the predicted effects 

of the casino (or the concurrence of the supermajority of farmers at issue in Currin)', it is one more condition 

that must be met before the Secretary can exercise the waiver power Congress has provided, albeit a condition 

that the Secretary may be able to satisfy using different methods (persuasion, for example) than those employed 

in satisfying other conditions (economic forecasts of the impact of a casino, for example).

For somewhat similar reasons, there is no separation of powers problem with legislation that defines a federal 

role of law by reference to state or foreign law. The Supreme Court held in United States v. Sharpnack, 355 U.S. 

286 (1958), that the Constitution permits Congress to provide for the application, as bases for federal prosecution, 

of subsequently enacted state criminal laws in federal enclaves. The Court concluded that such a prospective congressional adoption of “ future state legislative action in connection with the exercise o f federal legislative power” does 

not involve “ a delegation by Congress of its legislative authority to the States” at all. Id. at 294. On the basis

Continued

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F. Statutory Construction

Issues involving the constitutional separation of powers between the President 

and Congress most often arise in the context of a statute that raises or proposed 

legislation that would raise questions under one of the three headings we have 

identified. For this reason, it is worth recalling the “ cardinal principle” of statutory interpretation that statutes be construed to avoid raising serious constitutional 

questions, where such a construction is reasonably available. See, e.g., Crowell

v. Benson, 285 U.S. 22 (1932).

An important subset of these questions relate to statutes that do not plainly 

state that they apply to the President. The Supreme Court and this Office have 

adhered to a plain statement rule: statutes that do not expressly apply to the President must be construed as not applying to the President, where applying the statute 

to the President would pose a significant question regarding the President’s constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800- 

01 (1992); Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal

Judges, 19 Op. O.L.C. 350 (1995). This principle has two sources in the constitutional context within which the Congress drafts statutes. The first is the interpretive canon of avoiding serious constitutional questions. See, e.g., Edward J.

D eBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 

568, 575 (1988).

The second source is the constitutional principle of separation of powers. The 

purpose of the constitutional separation of powers is to prevent an excessive accumulation of authority in any of the three branches of the federal government. 

The plain statement safeguards “ the ‘usual constitutional balance’ ” of power. 

W ill v. Michigan Dept, of State Police, 491 U.S. 58, 65 (1989) (quoting 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)); see Franklin, 505 

U.S. at 800-01. Given the central position that the separation of powers doctrine 

occupies in the Constitution’s design, this rule also serves to “ assure! ] that the 

legislature has in fact faced, and intended to bring into issue, the critical matters” 

of the balance of power among the three branches of the federal government. 

See United States v. Bass, 404 U.S. 336, 349 (1971).

This plain statement rule has been applied frequently by the Supreme Court 

as well as this Office with respect to statutes that might otherwise be susceptible 

of an application that would affect the President’s constitutional prerogatives, were 

one to ignore the constitutional context. For instance, in Franklin the Court was 

called upon to determine whether the Administrative Procedure Act (“ APA” ),

5 U.S.C §701, authorized “ abuse of discretion” review of final actions by the

o f Sharpnack's reasoning, we think that no special separation of powers issues are raised by the role of the states 

under such legislation. The courts of appeals have applied the rationale o f Sharpnack to a variety o f federal statutes 

that require consideration o f state or foreign laws in determining the application of federal law. See, e.g.. United

Stales v. Rioseco, 845 F.2d 299, 302 (11th Cir. 1988) (“ Congress has delegated no power, but has itself set out 

its policies and has implemented them.” ).

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The Constitutional Separation o f Powers Between the President and Congress

President. The APA authorizes review of final actions by an “ agency,” which 

it defines as “ each authority of the Government of the United States.” 5 U.S.C. 

§701(b)(1). From this definition, the APA expressly exempts Congress, the courts, 

the territories, and the District of Columbia government.

Even though the statute defined “ agency” in a way that could include the President and did not list the President among the express exceptions to the APA, 

Justice O’Connor wrote for the Court,

[t]he President is not explicitly excluded from the APA’s purview, 

but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express 

statement by Congress before assuming it intended the President’s 

performance of his statutory duties to be reviewed for abuse of discretion.

505 U.S. at 800-01 (emphasis added). To amplify, she continued, “ [a]s the APA 

does not expressly allow review of the President’s actions, we must presume that 

his actions are not subject to its requirements.” Id. at 801. Numerous other Supreme Court decisions employ this approach. See, e.g.. Public Citizen v. United

States D ep’t o f Justice, 491 U.S. 440 (1989) (holding that the Federal Advisory 

Committee Act does not apply to committees that advise the President on the 

discharge of his exclusive constitutional functions because doing so would raise 

serious separation of powers questions); Sale v. Haitian Centers Council, Inc.,

509 U.S. 155 (1993) (refusing to give the Refugee Act extraterritorial application 

because doing so could conflict with the President’s constitutionally committed 

authority); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the President immune from suit because Congress had failed to create a cause of action expressly 

against the President of the United States).

In addition to the Supreme Court precedents, this Office has frequently applied 

the plain statement rule in the context of the separation of powers between the 

executive and legislative branches. For example, we were asked whether the Age 

Discrimination in Employment Act (“ ADEA” ), 29 U.S.C. §§621-634, prohibits 

the President from considering the age of judicial candidates when determining 

whom to nominate for federal judgeships. See Judges—Appointment— Age Factor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be read 

to apply to the presidential appointment of federal judges:

The power to appoint Federal judges, who hold office on good behavior, is by tradition and design one of the most significant powers 

given by the Constitution to the President. It provides one of the

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few administrative mechanisms through which the President can 

exert a long-term influence over the development and administration of law in the courts. The President’s present power to exert 

that influence to the fullest by preferring candidates for appointment 

who are likely to have long, rather than short, careers on the bench 

is therefore a matter of constitutional significance. Whether Congress could deny the President that power by requiring him to disregard utterly the age of candidates for appointment has never been 

considered by the courts, but because of the gravity of the constitutional questions it raises, we would be most reluctant to construe 

any statute as an attempt to regulate the President’s choice in that 

way, absent a very clear indication in the [statute].

Id. at 389. >35

HI. Constitutional Requirements and Policy Concerns

The conclusion that a particular provision of proposed legislation probably 

would not be held unconstitutional by the courts is not equivalent to a determination that the legislation is constitutional per se. The judiciary is limited, properly, 

in its ability to enforce the Constitution, both by Article Ill’s requirements of 

jurisdiction and justiciability and by the obligation to defer to the political 

branches in cases of doubt or where Congress or the President has special constitutional responsibility.136 In such situations, the executive branch’s regular obligation to ensure, to the full extent of its ability, that constitutional requirements 

are respected is heightened by the absence or reduced presence of the courts’ 

ordinary guardianship of the Constitution’s requirements. Furthermore, even where 

on any view the letter of the Constitution is satisfied, the Constitution’s intention 

to separate the federal government’s powers can appropriately be invoked as a 

sound reason for objecting to legislation that undermines or imperils that separa135 See also Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges, 19 Op. O.L.C. 350 

(1995); Constraints Imposed by 18 U.S.C. §1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-05 (1989); Prosecution for Contempt o f Congress o f an Executive Branch Official Who Has Asserted a Claim o f Executive Privilege,

8 Op. O.L.C. 101 (1984); Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman, 

Deputy Attorney General, Re: Conflict o f Interest Problems Arising out o f the President's Nomination o f Nelson

A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974); 

Memorandum for Egil Krogh, Staff Assistant to the Counsel to the President, from William H. Rehnquist, Assistant 

Attorney General, Re: Closing o f Government Offices in Memory of Former President Eisenhower (Apr. 1, 1969).

136This last point is true not only with respect to true “ political questions,” i.e., constitutional issues the resolution 

o f which is committed by the Constitution to (one of) the political branches, but also as to areas which, although 

not absolutely insulated from judicial review, demand extraordinary judicial respect for the decisions of a coordinate 

branch. See, e.g.. United States v. Butenkot 494 R 2d 593, 603, 605 (3d Cir.) (en banc) (broad presidential power 

to order covert surveillance for foreign affairs and national security purposes does not “ justify completely removing” 

judicial enforcement o f the Fourth Amendment; however, the “ strong public interest” in "the efficient operation 

o f the Executive's foreign policy-making apparatus” should make a court “ wary of interfering” ), cert, denied, 419 

U.S. 881 (1974).

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The Constitutional Separation o f Powers Between the President and Congress

tion. The constitutional separation of powers, to make the point in a different 

way, is a political as well as a legal principle.137

The Constitution demands of the executive and legislative branches alike an 

“ ethic of institutional responsibility” in defending their respective roles in the 

overall constitutional structure.138 For example, legislation that attempts to structure the very details of executive decision making, or that imposes onerous and 

repetitive reporting requirements on executive agencies, is troubling from a separation of powers standpoint even if the individual statutes could not easily be described in themselves as unconstitutional. The overall effects of such micromanagement for the constitutional separation of powers obviously can be tremendous, and yet it is unlikely that judicial intervention can or would preserve the 

constitutional balance. The executive branch thus has the primary responsibility 

for presenting, in as forceful and principled a way as possible, the separation of 

powers problems with all legislation that has such effects. In carrying out this 

Office’s various roles in the Executive’s review of existing and proposed legislation, we intend to bear this obligation in mind, and we are pleased to be of assistance to other components of the executive branch in their efforts to analyze, from 

a policy standpoint as well as from a strictly legal perspective, the impact of 

legislation on the constitutional separation of congressional and presidential powers.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

137 Justice Robert Jackson once wrote that “ [i]t is hard to conceive a task more fundamentally political than 

to maintain amidst changing conditions the balance between the executive and legislative branches of our federal 

system. ” Robert H. Jackson, The Supreme Court in the American System o f Government 62 (1955).

138 See Richard A. Champagne, Jr., The Separation o f Powers, Institutional Responsibility, and the Problem o f

Representation, 75 Marq. L. Rev. 839, 844 (1992).

181