Applicability of 18 U.S.C. § 208 to National Gambling Impact

Study Commission

The National Gambling Impact Study Commission is not an “ independent” agency for purposes of

a criminal conflict of interest statute, 18 U.S.C. § 208.

January 26, 1999

M e m o r a n d u m O p i n i o n f o r t h e A c t i n g G e n e r a l C o u n s e l

G e n e r a l S e r v i c e s A d m i n i s t r a t i o n

You have asked whether a criminal conflict of interest statute, 18 U.S.C. §208 

(1994), applies to the National Gambling Impact Study Commission (“ Commission” ).1 The Commission was established by the National Gambling Impact Study 

Commission Act (“ Act” ), Pub. L. No. 104—169, §3(a), 110 Stat. 1482 (1996) 

(codified as amended at 18 U.S.C. § 1955 note (Supp. IV 1998)), in order to “ conduct a comprehensive legal and factual study of the social and economic impacts 

of gambling in the United States.” Id. § 4(a)(1). The Commission consists of nine 

members, of whom six are appointed by Congress (three by the Speaker of the 

House and three by the Majority Leader of the Senate), and three are appointed 

by the President. Id. § 3(b)(l)(A)-(C). The appointing authorities are to consult 

among themselves to ensure that the Commission’s membership reflects, “ to the 

maximum extent possible, fair and equitable representation of various points of 

view” with respect to the Commission’s inquiry. Id. § 3(b)(3). The congressional 

leadership also has the predominant role in selecting the Chair of the Commission. 

Id. § 3(b)(5)(A). The Commission’s responsibilities are investigatory and advisory: 

not later than two years after its first meeting, it must submit to the President, 

Congress, State governors and Native American tribal governments “ a comprehensive report of [its] findings and conclusions, together with any recommendations” it may decide to make. Id. §4(b). The Commission has powers to hold 

hearings, issue subpoenas, secure information directly from Federal agencies, 

employ personnel and contract with the Advisory Commission on Intergovernmental Relations and the National Research Council. Id. §§5, 6, 7. Sixty days 

after submitting its final report, the Commission is to terminate. Id. § 10.

Section 208 was enacted in 1962 as part of a general revision of the conflict 

of interest laws. Pub. L. No. 87-849, §l(a), 76 Stat. 1119, 1124 (1962). In general, 18 U.S.C. § 208(a) provides that, subject to certain exceptions, “ whoever, 

being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States . . . participates personally and substantially as a Government officer or employee, . . . [in a] particular 

matter in which, to his knowledge, he . . . has a financial interest,” shall be

1 See L etter for D aw n Johnsen, A cting A ssistant Attorney G eneral, O ffice o f Legal Counsel, from Em ily C. Hew itt, 

G eneral C ounsel, G eneral Services A dm inistration (Nov. 7, 1997) ( “ G SA Letter” )

29
Opinions o f the Office o f Legal Counsel in Volume 23

subject to the criminal and civil penalties provided in §216 of title 18. We have 

previously concluded that the Commission is not within the executive branch.2 

Thus, the sole substantive question to be considered here is whether the Commission is an “ independent” agency for purposes of § 208.3

We conclude that it is not. Although the reach of §208’s reference to “ independent” agencies is not clear, and the legislative history is unhelpful (see Part

I.A below), the Commission falls outside any likely construction of that section. 

As we discuss in Part I.B below, the Commission does not resemble the agencies 

whose “ independence” from Presidential control was upheld by the Supreme 

Court in two major cases that preceded the enactment of §208 — Humphrey’s

Executor v. United Statesk, 295 U.S. 602 (1935), and Wiener v. United States,

357 U.S. 349 (1958). Nor, as we discuss in Part I.C below, do the Commissioners 

enjoy any form of protection from removal under the Act — and tenure protection 

is, for many purposes, a recognized test of “ independence.” Finally, as we discuss 

in Part II below, there is no other affirmative evidence, whether in the text of 

the Act or otherwise, that Congress intended the Commission to be regarded as 

“ independent” for purposes of § 208.

I.

Section 208 applies to “ an officer or employee of the executive branch of the 

United States Government, or of any independent agency of the United States.” 

18 U.S.C. § 208(a). There are at least two possible explanations for Congress’s 

decision to distinguish between the executive branch and “ independent” agencies 

in this context.

First, Congress may have intended § 208 to reach all agencies of the Government other than those within the legislative or judicial branch. “ [Independent” 

agencies on this account would be those agencies that, under the Supreme Court’s 

older jurisprudence, might have been considered to be “ hybrid” agencies, outside 

the executive branch and performing “ quasi-legislative” or “ quasi-judicial” functions.4 Under present Supreme Court doctrine, such “ independent” agencies are

2 See L etter for M s. K ay C ole James, C hairperson, N ational G am bling Im pact Study C om m ission, from R ichard 

L. Shiffrin, D eputy A ssistant A ttorney General, O ffice o f Legal C ounsel (Aug. 13, 1997). In support o f that conclusion, w e observed that the m ajority of the C om m issioners w ere congressionally appointed; that the congressional 

leadership controlled the choice o f the C om m ission’s Chair; and th at the C om m ission carried out only inform ationgathering and advisory functions, which need not be perform ed by the executive branch. Id at 1 W e further pointed 

out that “ [u]nder th e D epartm ent’s precedents, w e regard such com m issions as outside the executive branch. . . . 

Indeed, even w here the congressional leadership appoints less than a majority o f members, a com m ission such as 

[this] m ay be outside the executive branch.” Id. (citing precedents). We rem ain persuaded that the C om m ission 

is outside the executive branch.

3 T he C om m ission is undoubtedly an “ agency” w ithin the “ expansive definition” o f 18 U S.C. § 6 , which defines 

“ ag en cy ” fo r purposes o f title 18 to include “ any . . com m ission.” M em orandum O pinion fo r the C om ptroller

G eneral o f th e U nited S ta tes' C onflict o f Interest — 18 U.S C. § 2 0 7 — A pplicability to the G eneral Accounting O ffice,

3 O p. O L.C 433, 434 (1979) ( “ G A O Opinion” )

4 This has often been characterized as the view that there is “ a headless ‘fourth branch’ o f governm ent consisting 

o f independent agencies having significant duties in both the legislative and executive branches but residing not 

en tirely w ithin eith er.” Am eron, Inc v U S A rm y Corps o f Engineers, 787 F 2 d 875, 886 (3d C ir. 1986). S ee also

30
Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

considered to be parts of the executive branch, although the President’s powerto remove agency heads may be restricted in certain ways. See Morrison v. Olson, 

487 U.S. 654, 689-91 (1988) (interpreting cases on tenure protection for officials 

of independent agencies as hinging on whether protection impaired President’s 

duty to execute the laws). Congress could have understood the term “ independent 

agency” in 1962, however, to refer to agencies that we would now consider to 

be part of the executive branch. On that understanding, § 208 would apply to the 

executive branch, including agencies within the executive whose heads enjoy some 

degree of protection from presidential removal, and that may have been viewed 

in 1962 as outside the executive branch;5 but it would not apply to the legislative 

or judicial branches.

Alternatively, in referring to “ independent” agencies, Congress may have been 

recognizing the possibility that some agencies could be regarded as “ independent” even while being firmly located within a particular branch. On this 

reading, §208 would reach not only “ independent” agencies within the executive 

branch but also any such agencies within the legislative or judicial branches.6 

The pre-1962 case law had at least occasionally noted that in order to be “ independent,” an agency might need to be protected from congressional, as well as 

executive, control.7 Moreover, the cases had also suggested that an agency might 

be, for at least some purposes, “ independent,” while yet belonging to a particular 

branch.8 Consequently, in applying §208 to “ independent” agencies, Congress

id at 892 (Becker, J , concurring in part); Federal Trade C om m ‘n v R uberoid Co , 343 U S 470, 487 (1952) (Jackson, J , dissenting).

5 Thus, we have no doubt that agencies such as the Federal Trade Com m ission ( “ FTC ” ), w hich H um phrey's

Executor stated “ cannot in any proper sense be characterized as an aim or an eye o f the executive,” 295 U S. 

at 628, should now be regarded as part o f the executive branch

6 We note that the Court seem s usually to have understood “ independent” agencies — for purposes o f separation 

o f pow ers analysis— not to encom pass agencies w ithin the legislative or judicial branches T hus, the Court has 

said that “ independent” agencies are those w hose statutes “ typically specify either that . . . agency m em bers are 

rem ovable by the President for specified causes [such as the FTC] . . or else do not specify a rem oval procedure 

[such as the Federal Election C om m ission].” Bowsher v. Synar, 478 U.S. 714, 725 n.4 (1986) By contrast, a statute 

“ that provides for direct congressional involvem ent over the decision to rem ove” the agency head creates an entity 

that is not generally an “ independent agency” in the constitutional sense. See id. Thus, at least in Bow sher, the 

Court seem ed reluctant to view the C om ptroller G eneral as an “ independent agency” for constitutional purposes 

Such a view w ould not negate the possibility o f considering the C om ptroller G eneral to be “ independent” w ithin 

the meaning of §20 8 — a possibility that w e exam ine in Part I.C below. An agency might count as “ independent” 

under a particular statutory schem e without necessarily being “ independent” in the constitutional sense

7 For exam ple, W illiam s v. United States, 289 U S . 553 (1933), addressed the question w hether a judge o f the 

C ourt o f Claim s (a “ legislative” o r “ A rticle I” court) enjoyed the tenure protection afforded to constitutional courts 

by Article 111, Section 1 o f the Constitution A lthough denying that Court o f Claim s judges enjoyed such constitutional 

tenure, the Suprem e C ourt observed that “ [t]he preservation o f [the Court o f C laim s’] independence is a m atter 

o f public concern The sole function o f the court being to decide betw een the governm ent and private suitors, a 

condition, on the part o f the judges, o f entire dependence upon the legislative pleasure for the tenure o f their offices 

. . . to say the least, is not desirable.” Id. at 562 (em phasis added).

8 See Lathrop v. D onohue, 367 U S 820, 853 (1961) (H arlan, J , concurring in judgm ent) (Bureau o f the Budget 

is “ independent” although w ithin the executive branch). S ee also D obson v Com missioner, 320 U S 489, 497 

(1943) (Board o f Tax A ppeals was statutorily designated as “ an independent agency in the executive branch of 

the G overnm ent” ); R ailroad Retirem ent Bd. v Alton R. Co , 295 U.S 330, 344 (1935) (Railroad R etirem ent Board 

w as “ denom inated an independent agency in the executive branch of the G overnm ent” ), G oldsmith v. United States

C ontinued

31
Opinions o f the Office o f Legal Counsel in Volume 23

could have had in view those agencies, whether belonging to the executive, legislative or judicial branch, that enjoyed at least some freedom from the control 

of higher authorities within that branch by virtue of protections against the 

removal of the agencies’ heads. As discussed below, this account of Congress’s 

intent has found support in this Office’s prior opinions.

We do not believe it is necessary in this memorandum to decide between these 

alternative readings, because the Commission does not count as “ independent” 

under either of the alternatives we describe. Furthermore, as we discuss below, 

there is no evidence that Congress intended it to be considered “ independent.”

A.

We begin by reviewing the legislative history of § 208. We have found little 

relevant history on the precise point at issue, and what little history there is sheds 

almost no light on it.

“ Section 208 was modeled on the former section 434 of title 18, which 

‘disqualified] an employee of the Government who has an interest in the profits 

or contracts of a business entity from the transaction of business with such 

entity.’ ” Applicability o f 18 U.S.C. §208 to the Federal Communications

Commission’s Representative on the Board o f Directors o f the Telecommunications Development Fund, 21 Op. O.L.C. 96, 98 (1997) (citation omitted). Section 434 had made no express reference to independent agencies. That reference 

originated in the general reform o f the major federal conflict of interest statutes 

made by the Bribery, Graft and Conflicts of Interest Act of 1962, Pub. L. No. 

87-849, 76 Stat. 1119. The legislation represented Congress’s response to the 

perception of several serious inadequacies in those statutes (including §434), 

among them the fact that they were ‘ ‘drafted in unnecessarily broad and imprecise 

ways,” thus creating “ uncertainties as to proper conduct and, to a degree, inconsistent practices among the departments and agencies of the Government.” Conflict o f Interest Statutes: Intermittent Consultants or Advisers, 42 Op. Att’y Gen. 

Ill, 112 (1962) (Kennedy, A.G.).

While the reference in §208 to “ independent” agencies as well as to the 

“ executive branch” may have been designed to make the statutory coverage more 

precise, we have found no explanation of what Congress specifically intended. 

The House Report on the 1962 law describes § 207(a) (and §§208 and 209) as 

applying to officers and employees of the ‘executive branch’ or an ‘independent 

agency,’ without further elaboration. See, e.g., H.R. Rep. No. 748, 87th Cong., 

1st Sess. 11, 12, 13, 23, 24 (1961). The Senate Report describes §§207, 208 

and 209 as applying to present and former government employees only in very 

general terms. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in

Bd. o f Tax A ppeals, 270 U.S 117, 121 (1926) (Board o f Tax Appeals perform ed “ quasi ju d icial” functions and 

w as w ithin executive branch).

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Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

1962 U.S.C.C.A.N. 3852. Applicability o f Post-Employment Restrictions on

Dealing with Government to Former Employees o f the Government Printing

Office, 9 Op. O.L.C. 55, 56 n.3 (1985) (“ GPO Opinion” ). A legal commentator 

of the time (and participant in the framing of the legislation) observed that §§ 207- 

209 were to apply to officers and employees of independent agencies as well 

as of the executive branch, but offered no explanation for this innovation. See

Roswell B. Perkins, The New Federal Conflict-Of-Interest Law, 76 Harv. L. Rev. 

1113, 1123 (1963).9

B.

Given that the legislative history of § 208 is unilluminating, we have considered 

an interpretative approach that draws on the Supreme Court’s pre-1962 jurisprudence. This approach is based on the rule of construction that “ [w]hen Congress 

codifies a judicially defined concept, it is presumed . . . that Congress intended 

to adopt the interpretation placed on that concept by the courts.” Davis v. 

Michigan D ep’t o f Treasury, 489 U.S. 803, 813 (1989).

At the time of §208’s enactment in 1962, two major Supreme Court cases on 

“ independent” agencies, Humphrey’s Executor and Wiener, had addressed the 

constitutionality of statutory limitations on the power of the President to remove 

agency heads or commissioners. Those cases could serve to explain how §208’s 

reference to “ independent agencies” should be construed.

In Humphrey's Executor, the Court upheld a statute restricting the President’s 

power to remove a Commissioner of the FTC on grounds of “ inefficiency, neglect 

of duty, or malfeasance in office.” 295 U.S. at 619. The Court held that the 

constitutionality of such removal restrictions turned on “ the character of the 

office.” Id. at 631. The Court viewed the FTC as “ an administrative body created 

by Congress to carry into effect legislative policies embodied in the statute in 

accordance with the legislative standard therein prescribed, and to perform other 

specified duties as a legislative or as a judicial aid.” Id. at 628. Such an agency 

was not “ an arm or an eye of the executive” ; rather, its Commissioners were 

expected to discharge their functions “ without executive leave and . . . free from 

executive control.” Id. The powers of the FTC were not “ purely” executive,

9 W e note also that, in 1989, Congress enacted 18 U S C § 202(e)(1) (1994), which provided a definition of 

“ executive branch” applicable to § 2 0 8 Ethics Reform Act o f 1989, Pub. L N o 101-194, § 4 0 1 , 103 Stat. 1716, 

1748. The definition reaches any “ entity o r adm inistrative unit in the executive branch,” but does not specifically 

mention “ independent agency,” which is not otherw ise defined. A rguably, some entities previously covered by § 208 

as “ independent agenc[ies]” were, after the am endm ent, covered (in addition o r instead) by the reference to the 

“ executive branch ” W e do not believe that the am endm ent requires giving the term “ independent ag en cy ” in 

§ 20 8 a broader m eaning than in our analysis, on the ground that otherw ise all “ independent agenc[ies]” w ould 

com e w ithin the reference to the “ executive branch” and the term “ independent agency” w ould be redundant 

First, there is no evidence indicating that, by defining “ executive b ranch,” Congress intended to enlarge the extent 

to which § 2 0 8 reaches entities outside the executive branch. Second, if the reference is redundant, that m ay m erely 

reflect C ongress’s appreciation o f the changes in the Suprem e C o u rt’s jurisprudence marked by its 1987 decision 

in M orrison Third, as we discuss in Part I.C below, som e entities outside the executive branch could be covered 

as “ independent agencfies] ”

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Opinions o f the Office o f Legal Counsel in Volume 23

but were “ quasi-legislative or quasi-judicial.” Id. Insofar as the FTC conducted 

investigations and reported its findings to Congress, it was acting in a quasi-legislative capacity; insofar as the statute required it to function as a master in chancery, it was acting quasi-judicially. Id.10

Wiener followed Humphrey’s Executor’s “ sharp line of cleavage between officials who were part of the executive establishment” and “ those who are members 

of a body ‘to exercise its judgment without the leave or hindrance of any other 

official or any department of the government,’ 295 U.S., at 625-626, as to whom 

a power of removal exists only if Congress may fairly be said to have conferred 

it.” 357 U.S. at 353. The Court applied that distinction to the President’s removal 

of a member of the War Claims Commission.11 Although the statute creating that 

body said nothing about removal, the Court inferred that “ Congress provided for 

a tenure defined by the relatively short period of time during which the War 

Claims Commission was to operate.” Id. at 352. Looking to “ the nature of the 

function that Congress vested in the War Claims Commission” to decide whether 

such an implied removal restriction was valid, id. at 353, the Court found that 

that agency had been created as “ an adjudicating body with all the paraphernalia 

by which legal claims are put to the test of proof, with finality of determination 

‘not subject to review by any other official of the United States or by any court 

by mandamus or otherwise.’ ” Id. at 354-55 (citation omitted). Because the intent 

of Congress was to vest the War Claims Commissioners “ with adjudicatory 

powers that were to be exercised free from executive control,” Morrison, 487 

U.S. at 688, the implied statutory removal restrictions were constitutional.

The Supreme Court’s recent case law casts doubt on the viability of the doctrinal 

categories used in Humphrey's Executor and Wiener. In particular, the Court now 

recognizes the “ difficulty of defining such categories of ‘executive’ or ‘quasilegislative’ officials,” Morrison, 487 U.S. at 689 n.28.12 Moreover, this Office 

has found the rationale of Wiener “ questionable.” 13 Nonetheless, the question 

here is what Congress intended in 1962 when enacting §208, not whether the

10See also M orrison, 487 U .S. at 687 (explaining H um phrey's Executor) ; P ow er o f the President to Remove

M em bers o f the Tennessee Valley Authority From O ffice, 39 O p A tt’y Gen. 145, 146 (1938) (Jackson, A cting A.G.) 

(H u m p h rey’s E xecu to r rested on facts that th e F T C “ exercises quasi-legislative and quasi-judicial functions and 

is not a part o f the executive b ran ch ” , Court also stressed legislative history “ m dicaung a purpose o f the Congress 

to secure the m axim um independence of the C om m ission from Executive interference and co n tro l” ).

11 T he W ar C laim s C om m ission was established by the W ar C laim s Act o f 1948, Pub. L. N o 80-896, 62 Stat 

1240 Its responsibility w as to hear and adjudicate certain claim s arising out o f enem y conduct dunng the Second 

W orld W ar.

]2See also R uberoid C o , 343 U .S at 487-88 (Jackson, J , dissenting)

l3 77ie C onstitutional Separation o f Powers betw een the President and C ongress, 20 O p O .L.C 124, 168 n 115 

(1996) ( “ D ellinger M em orandum ” ). Specifically, w e said that “ [t]he rationale o f Wiener, w hich is essentially that 

C ongress m ust have im plied a for-cause rem oval restriction w hen the Court believes that the functions o f the agency 

dem and such tenure protection, 357 U.S at 3 5 3 -5 6 , seem s questionable. There w ould be nothing illogical in a 

legislative decision, for exam ple, to protect ag ain st review o r revision o f the decisions o f the agency, see id. 3 5 4 - 

55, w hile placing the ag en cy ’s decisionm akers w ithin the control o f the President. . . T o the extent that Wiener

assum es that control is and ought to be a b in ary m atter— either plenary o r non-existent — its reasoning is difficult 

to reconcile w ith m ore recent separauon of pow ers decisions that reject such an either/or approach to presidential 

control. Id. W e noted, how ever, that Wiener “ continues to be follow ed” in the low er courts Id.

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Applicability o f 18 U.S C. § 208 to National Gambling Impact Study Commission

Constitution admits the possibility of “ hybrid” agencies not belonging to any 

of the three branches. We think it plausible to suppose that in 1962, Congress 

would have understood a statutory reference to “ independent agencies” to mean 

agencies such as the FTC or the War Claims Commission, i.e., agencies that were 

not then considered to be part of the executive branch, or indeed of any of the 

three branches.

Assuming that such was Congress’s intent, we find that the Commission would 

not be an “ independent” agency under the standards of Humphrey’s Executor

or Wiener. First, unlike the FTC or the War Claims Commission, the Commission 

exercises no functions that under Humphrey’s Executor and Wiener were considered to be adjudicatory in nature. Second, the Commission exists solely to conduct 

a-study and to report its findings and recommendations to Congress, the President, 

and State and tribal governments.14 Its responsibilities are “ essentially of an investigative and informative nature, falling in the same general category as those

powers which Congress might delegate to one o f its own committees." Buckley

v. Valeo, 424 U.S. 1, 137 (1976) (emphasis added). We think that the Commission 

functions much as a congressional committee does when conducting an investigation or drafting a legislative proposal based on the information it has gathered; 

indeed, it seems to us that, given its overall statutory structure, the Commission 

is a part of the legislative branch.15 It is therefore unlike the “ headless fourth 

branch” regulatory agency that Humphrey’s Executor took the FTC to be.

In summary: because Humphrey’s Executor and Wiener were assuredly “ within 

the lively knowledge of Congress” when §208 was enacted. Wiener, 357 U.S. 

at '353, we think that they provide a plausible test of what Congress intended 

when referring in that section to “ independent agenc[ies].” If that test is applied, 

then the Commission cannot be counted as “ independent.”

C.

The paucity of relevant legislative history relating to § 208 leaves open a second 

possibility: that an agency could be considered independent under the statute if, 

and only if, its head (or, in cases where the agency has a collective head, the 

members of that body) enjoys at least some degree of protection against removal 

from superior officials, whatever the branch to which the agency belongs. In other 

words, the Congress that enacted § 208 may have perceived some agencies as 

“ independent” even if they were located in a particular branch (rather than in 

a putative “ headless fourth branch” ), provided that they resembled the paradig14 “ This com m ission does not have the pow er to regulate, only to make recom m endations It is a study com m ission, 

not a regulatory body ” 142 Cong. Rec. 17,421 (1996) (statement o f Sen Glenn).

15 As discussed above, we have previously concluded that the Com m ission is not w ithin the executive branch. 

See supra note 2 W hat branch a com m ission may fall in depends on a num ber of factors W e do not m ean to 

suggest here that w henever a com m ission’s m ission is to conduct a study and to report its findings and recom m endations to Congress that it is necessarily legislative rather than executive

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Opinions o f the Office o f Legal Counsel in Volume 23

matic independent agencies with respect to tenure protection. Accordingly, agencies in the legislative or judicial branches, as well as in the executive, could be 

counted as “ independent” under §208. In fashioning this interpretation, we again 

consult the Supreme Court’s pre-enactment case law. We also find support for 

it in several of this Office’s precedents.

As construed by the Supreme Court only a year before § 208 was enacted, its 

precursor statute, 18 U.S.C. §434 (Supp. II 1946), was said to be designed “ to 

insure honesty in the Government’s business dealings by preventing federal agents 

who have interests adverse to those of the Government from advancing their own 

interests at the expense of the public welfare.” United States v. Mississippi Valley

Generating Co., 364 U.S. 520, 548 (1961). The individual with whose conflicted 

activities the Court was most concerned in Mississippi Valley was a part-time 

consultant to the Bureau of the Budget (the precursor of the Office of Management 

& Budget). At the time, the Bureau of the Budget was apparently considered to 

be in some sense “ independent.” See Lathrop v. Donohue, 367 U.S. at 853 

(Harlan, J., concurring in judgment); National Fed’n o f Federal Employees v. 

Cheney, 883 F.2d 1038, 1045 (D.C. Cir. 1989) (Bureau of Budget was “ quasiindependent” entity within Treasury Department), cert, denied, 496 U.S. 936 

(1990). Nonetheless, the Bureau of the Budget could not have been “ independent” in the sense indicated by Humphrey’s Executor and Wiener, if only 

because the Treasury Department, where the Bureau had been lodged, was plainly 

within the executive branch.16 It is at least conceivable, therefore, that Congress 

intended § 208 to apply to certain agencies that were acknowledged to belong 

to a particular branch, provided that they had a sufficient resemblance to the constitutional paradigms of “ independence.” In particular, since protection against 

removal has figured in the cases as the key element in defining agency “ independence,” an agency in the legislative or judicial branch could be “ independent” 

within the meaning of § 208 if its head enjoyed some form of tenure protection. 

Cf. Williams, 289 U.S. at 562.

Several of this Office’s opinions have reflected this possibility, finding that particular agencies were to be considered “ independent” for purposes of §208, 

despite the fact that they were situated within the legislative or judicial branches. 

To be sure, § 208 does not ordinarily apply to officers or employees of the legislative and judicial branches.17 Nevertheless, although an agency is within the legislative or judicial branch, we have thought that it might still be considered ‘ ‘independent” for purposes of § 208. Our opinions in this line are relevant to the status 

of the Commission under § 208, insofar as it might be argued that the Commission

16 See P ow er o f the President to Remove M em bers o f the Tennessee Valley A uthority From O ffice, 39 O p A tt’y 

G en at 146 (under H u m p h rey’s Executor, o n ly an agency “ not a part o f the executive branch” could be considered 

independent for separation o f pow ers analysis).

17 See G PO O pinion, 9 Op. O .L C at 56 (discussing legislative history); G A O O pinion, 3 Op. O .L C . at 435 

(§ 2 0 8 and com panion statutes “ do not by th eir term s and w ere not intended to apply to officers and em ployees 

o f th e legislative and judicial branches” ).

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Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

is an “ independent” agency in the legislative branch. As further discussed below, 

however, that suggestion ultimately lacks merit.

Three OLC opinions are relevant. First, in the GAO Opinion, we found that 

the GAO was, under §208, an “ independent” body not within the executive 

branch and arguably within the legislative branch. See GPO Opinion, 9 Op. O.L.C. 

at 57-58 (citing GAO Opinion, 3 Op. O.L.C. 433). The Comptroller General is 

removable “ not only by impeachment but also by joint resolution of Congress,” 

Bowsher v. Synar, 478 U.S. at 728, and consequently he or she is an officer of 

the legislative branch who “ may not be entrusted with executive powers.” Id.

at 732. Nonetheless, it remains the case that the governing statute provides that 

Congress may remove that officer only for a cause such as inefficiency, neglect 

of duty, or malfeasance. Id. at 728—29. In the GAO Opinion, we analyzed the 

effect of the tenure protection enjoyed by the Comptroller General, together with 

other statutory provisions of title 31, on the status of that officer under §208. 

Without denying that the Comptroller General and the GAO are “ subservient to 

Congress,” 478 U.S. at 730,18 we found that the statute gave the Comptroller 

General some measure of “ independence” from Congress, so that GAO officers 

and employees were properly considered subject to § 208. We said:

The establishment of a fixed tenure of office, subject to removal 

for cause, has generally been regarded as intended to promote an 

element of independence of action. Cf, Humphrey’s Executor v.

United States, 295 U.S. 602, 624—26 (1935). Thus, while the Comptroller General and GAO are independent of the executive branch, 

they apparently are expected to be somewhat independent of the 

legislative branch as well. I therefore am led to conclude that whatever their status for other purposes, the Comptroller General and 

officers and employees of the GAO are officers and employees of 

an “ independent agency of the United States” for purposes of 18 

U.S.C. § 207 — §§ 208 and 209 as well.

GAO Opinion, 3 Op. O.L.C. at 436.19

Second, in the GPO Opinion, we concluded that the GPO is not “ independent” 

for purposes of § 208. We reached that conclusion despite the fact that the Public 

Printer is presidentially appointed. Our analysis tracked the judicial view that the 

GPO is an entity within the legislative branch, whose primary function is to provide support for Congress. See GPO Opinion, 9 Op. O.L.C. at 57.20 The question

[* See also id. at 746 n .l 1 (Stevens, J., concurring in judgm ent) (C om ptroller Genera) and G A O “ have a fundam entally different relationship with Congress than do independent agencies like the Federal Trade C om m ission” )

19In addition, we note that form er 31 U S C §41 (a) (1921) (now 31 U .S.C. §702(a) (1994)),-specifically declared 

the G A O to be “ independent” o f the executive. See GAO O pinion, 3 Op. O .L.C . at 436

20 W e have subsequently review ed the status o f the G PO at som e length, and have again found that it is an 

agency w ithin the legislative branch See Involvem ent o f the G overnm ent Printing Office in Executive Branch Printing

C ontinued

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of the Public Printer’s tenure of office was not considered in this opinion, although 

our conclusion would have been fortified if it had been. The GPO’s statute, 44 

U.S.C. §§301-317, vests appointment power of the Public Printer in the President 

(subject to Senate advice and consent), but is silent as to the Public Printer’s 

removal. By inference, therefore, the Public Printer can be removed at will by 

the appointing authority (i.e., the President), and does not enjoy tenure protection. 

See Dellinger Memorandum, 20 Op. O.L.C. at 172-73 (because the Librarian of 

Congress — like the GPO, a congressional agency — “ is not protected by an 

explicit for-cause removal limitation, . . . we therefore infer that the President 

has at least the formal power to remove the Librarian at will” ). Our conclusion 

as to the GPO can thus be read to provide some (indirect) support for the view 

that an agency in the legislative (or judicial) branch is ‘ ‘independent’ ’ for purposes 

of § 208 if, but only if, its head enjoys a degree of tenure protection.

A third opinion addressing the United States Sentencing Commission falls 

within this line. See Memorandum for Jamie Gorelick, Deputy Attorney General, 

from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of 

Legal Counsel, Re: Sentencing Commission/Conflict Rules at 14 (July 21, 1994) 

(“ Sentencing Commission Opinion” ). There we found the Sentencing Commission, which had been established by statute as “ an independent commission in 

the judicial branch of the United States,” 28 U.S.C. § 991(a) (1994), to be an 

“ independent” agency under §208; see also Mistretta v. United States, 488 U.S. 

361, 384—85, 390, 393 (1989) (Sentencing Commission held an independent 

agency within judicial branch). Like the GAO and unlike the GPO, the Sentencing 

Commissioners enjoy some degree of tenure protection: the statute “ grants the 

President authority to remove members of the Commission, although ‘only for 

neglect of duty or malfeasance in office or for other good cause shown.’ 28 U.S.C. 

§ 991(a).” Mistretta, 488 U.S. at 409. Here, too, an agency that was located outside the executive branch was found to be “ independent” under §208, and here 

again the agency head enjoyed tenure protection.

In the present case, this test of “ independence” is not met. Nothing in the 

Act creating the Commission states or implies that Commissioners are to enjoy 

any form of tenure protection. On this reading of the statute (which, like the 

reading outlined in Part I, seems to us a plausible construction), the Commission 

is not subject to § 208.

Of the three OLC precedents considered in this Part, the GPO Opinion, holding 

§ 208 inapplicable, closely fits the circumstances of the Commission. Moreover, 

the conclusion that the Commission is not ‘ ‘independent’ ’ for purposes of § 208 

under the test considered here harmonizes with our precedents in another respect: 

it accords with our past view that the section does not cover those who are ‘ ‘properly regarded as officers or employees of the Congress or one of its Houses or

a n d D u p lica tin g , 20 Op. O .L.C . 214 (1996) M ore recently still, we reaffirm ed the analysis o f the latter m em orandum . 

See G overnm ent Printing O ffice Involvem ent in Executive Branch Printing, 20 Op. OLC. 282 (1996).

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Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

agencies and who are responsible in some immediate sense to the Congress,” 

such as “ those officers and employees appointed by the Congress or one House 

thereof to perform functions in aid of the legislative process.” GAO Opinion, 

3 Op. O.L.C. at 435-36.

II.

We find no other reason to believe that Congress intended to subject the 

Commission to §208. On the contrary, our conclusion that the Commission is 

not “ independent” for purposes of §208 is well supported by the language and 

legislative history of the Act.

First, nothing in the language of the Act itself designates the Commission as 

“ independent.” As noted above, this distinguishes the Commission from other 

bodies that we have found to be subject to § 208, such as the GAO and the Sentencing Commission.

Second, the language of the Act assumes that the nine Commissioners will represent a variety of distinct and incompatible points of view with respect to gambling, and that some Commissioners will be associated with the gambling industry. 

Thus, section 3(b)(2) of the Act states that “ [t]he [Commission] members may 

be from the public or private sector, and may include . . . members of . . . 

industry.” In addition, section 3(b)(3) states that the appointing authorities are 

to consult together “ to achieve, to the maximum extent possible, fair and equitable 

representation of various points of view” on the Commission. That the Commission membership was intended to include representatives of different points of 

view — some of whom could be expected to have financial interests in the 

Commission’s recommendations — does not in itself mean that §208 is inapplicable, see Office of Government Ethics Informal Opinion 82 x 22 (1989 ed.). 

Nonetheless, the statutory criteria for Commission membership clearly indicates 

that Congress was not attempting to insulate the Commission from outside influences in order to ensure its “ independence.”

The legislative history confirms that understanding. The House Judiciary 

Committee’s Report on the legislation, H.R. 497, stated:

the Committee expects that the [appointing] authorities may consider for appointment representatives of various interested groups 

including, gambling proponents and opponents, state gambling 

regulators, federal and state prosecutors, Indian gambling operators, 

professionals who treat compulsive gamblers, casino operators, 

activists who have opposed gambling referenda, state lottery officials, and representatives of non-gambling businesses in areas 

around gambling operations.

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H.R. Rep. No. 104—440, pt. 1, at 8 (1995), reprinted in 1996 U.S.C.C.A.N. 1192, 

1197.

In the House debate, Representative Hyde, Chairman of the House Judiciary 

Committee that reported out the bill, sought to answer charges that the Commission might be skewed against the gambling industry. He said:

I believe that this Commission can do the most good if its study 

is as neutral, objective, and comprehensive as possible — considering the views of all sides o f this issue. In that spirit, I proposed 

a committee amendment in the nature of a substitute to H.R. 497, 

which the Judiciary Committee adopted on a voice vote.

My substitute included the vast majority of the provisions contained in H.R. 497 as originally introduced, but it added language 

so as to assure that all points of view would be represented on 

the Commission. Specifically, the bill now requires that the 

appointing authorities consult together to ensure that the overall 

makeup of the Commission fairly and equitably represents] various 

points of view.

142 Cong. Rec. 3642-43 (1996).21

Thus, instead of seeking to promote public confidence in the Commission’s 

study by requiring that the Commission be “ independent” of outside influence, 

Congress preferred an approach in which at least some Commissioners could have 

open and avowed interests, biases and commitments that would check and balance 

those of other Commissioners. From this (partly) “ adversarial” system, it was 

hoped that a balanced and objective study would be more likely to result. Plainly, 

a Commission so conceived would be very likely to include members whose personal stakes in the outcome of the Commission’s work would be disqualifying 

under § 208, if that statute were to apply. Given Congress’s careful decisions about 

the nature of the Commission, the statute gives no indication that §208 was 

intended to apply to this advisory body.

21 S im ilarly, in th e S enate debate. Senator C oats, a supporter, stated:

O pponents o f this com m ission have raised m any charges against it. T h ey have claim ed that the com m ission is a tool o f the religious right. They h ave claim ed that the com m ission w ill becom e a w itch hunt 

against the gam bling industry.

M r. President, these claim s are unfounded. T he appointm ent o f com m issioners w ill be equally divided 

betw een the executive branch and the tw o H ouses o f C ongress, ensuring that no faction may dom inate 

th e w ork o f the com m ission.

142 C ong. Rec. 17,425, 17,426 (1996).

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Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

Conclusion

For all of the above reasons, we conclude that the Commission should not be 

considered an “ independent” agency within the meaning of §208, whichever 

meaning of that term is adopted, and hence is not subject to that statute.

BETH NOLAN 

Deputy Assistant Attorney General

Office of Legal Counsel

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