Applicability of Appointment Provisions of the Anti-Drug Abuse

Act of 1988 to Incumbent Officeholders

Provisions of the Anti-Drug Abuse Act o f 1988 requiring appointment by the President with the advice and consent o f the Senate for certain positions within the Department of Justice do not affect 

the tenure o f incumbent officeholders who were appointed by the Attorney General.

December 12, 1988

M e m o r a n d u m O p i n io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l

f o r A d m i n i s t r a t i o n

Introduction and Summary

This memorandum responds to your request of November 30, 1988, for the 

opinion of this Office on the effect of provisions in the Anti-Drug Abuse Act of 

1988 (“Act”) requiring appointment by the President with the advice and consent of the Senate for certain positions within the Department of Justice.1 Specifically, you would like our opinion on the effect of the new advice and consent 

requirement on those persons currently holding those positions under appointments from the Attorney General. For the reasons set forth in this memorandum, 

we believe that the tenure of the incumbent officeholders is unaffected by this 

legislation. Congress has not indicated an intention to apply the advice and consent requirements retroactively to the officers currently holding the affected positions. Moreover, we believe that any attempt by Congress to, in effect, remove 

an executive officer by the retroactive application of new requirements for appointment would be unconstitutional.

While we thus are confident that as a matter of law these incumbent officeholders have full authority to act, we recognize that this authority may be challenged. In order to avoid any risk that litigation would cast doubt on the validity 

of any action taken by incumbent officeholders, you may wish to recommend 

that the Attorney General issue a conditional designation of the incumbent officeholders as acting officials— a designation that would be employed only in the 

event that a vacancy were determined to exist in a judicial proceeding adverse to 

our conclusion. In this manner the Department would both preserve its position

1 The affected positions are the Director o f the Bureau o f Justice Assistance, the Director o f the Office for Victim s o f Crime, and the D irector of the U nited States Marshals Service.

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that the incumbent officeholders continue to occupy their offices and yet validate 

their actions in the unlikely event a court disagrees with this position.

Analysis

As part of the Anti-Drug Abuse Act, Congress changed the method of appointment of three officers of the Department of Justice. These officers, the Director of the Bureau of Justice Assistance, the Director of the Office for Victims 

of Crime, and the Director of the United States Marshals Service, previously were 

appointed by the Attorney General. Under sections 6071, 7123, and 7608 of the 

Act respectively these officers are to be appointed by the President, by and with 

the advice and consent of the Senate.2 Although each of the provisions purports 

to “establish” an office, in point of fact the offices already exist either by explicit 

statutory enactment or by a delegation from the Attorney General pursuant to 28 

U.S.C. § 510 and these provisions do not in any way purport to change the functions of these offices. Moreover, neither the language nor legislative history of 

these provisions suggests that Congress intended to abolish the existing offices 

and instantaneously replace them with “new” offices bearing the same titles and 

performing the same functions.3 Accordingly, we believe that these provisions 

are not to be construed to effect a removal of incumbent officeholders and thus 

that the new advice and consent requirements do not apply retroactively to these 

officials, but only to their successors.

Moreover, a construction of the provisions that would effect a removal of the 

incumbent officeholders would raise the most serious constitutional questions. 

The Department has consistently maintained that Congress cannot terminate the 

terms of incumbent officeholders. See, e.g., Letter for Senator William V. Roth, 

Jr., from Robert A. McConnell, Assistant Attorney General, Office of Legislative Affairs (June 20, 1984) (legislation that would have required the reconfirmation of incumbent officeholders upon the election of a President was unconstitutional); Letter for David A. Stockman, Director, Office of Management and 

Budget, from Robert A. McConnell, Assistant Attorney General, Office of Legislative Affairs (June 27,1983) (legislation terminating terms of certain directors

2 Section 6091 o f the Anti-Drag Abuse Act of 1988,134 Cong. Rec. 33,194 (1988), amends 42 U.S C. § 3741(b), 

which provided for the appointment o f the Director of the Bureau of Justice Assistance by the Attorney General, 

by requiring that the Director “be appointed by the President, by and with the advice and consent of the Senate.” 

Section 7123 of the Act, 134 Cong. Rec. 33,307 (1988), establishes within the Department of Justice an Office for 

Victims of Cnm e, to be headed by a Director “who shall be appointed by the President, by and with the advice and 

consent of the Senate.” Section 7608 o f the Act, 134 Cong Rec. 33,251 (1988), establishes the United States M arshals Service as a bureau within the Department o f Justice. The Marshals Service is to be headed by a Director, 

“who shall be appointed by the President, by and with the advice and consent o f the Senate.”

3 The only reference in the legislative history to Congress’ intent regarding these provisions concerns the Director o f the United States Marshals Service. A section-by-section analysis of the U.S Marshals Service Act of 

1988, which eventually became section 7608 of the Anti-Drug Abuse Act of 1988, indicates that appointment of 

the Director was m ade subject to the advice and consent of the Senate because it was “consistent with the similar 

status accorded Assistant Attorneys General and heads o f other major Department of Justice divisions.” 134 Cong. 

Rec. 27,422 (1988). In addition, it was thought anomalous to have “an Attorney General appointee supervising the 

activities o f 93 Presidentially appointed Marshals.” Id

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of Export Import Bank was unconstitutional). In particular, the Department has 

indicated that the retroactive application of an advice and consent requirement 

to an incumbent officeholder would unconstitutionally effect removal of that officer. See Memorandum for Fred F. Fielding, Counsel to the President, from 

Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel (Nov. 

24,1982); Letter for Representative Chet Holifield from Joseph T. Sneed, Deputy 

Attorney General (Mar. 5,1973). Indeed President Nixon vetoed legislation that 

would have applied a new advice and consent requirement to the incumbent Director and Deputy Director of the Office of Management and Budget on the 

ground such retroactive application would amount to a “forced removal by an 

unconstitutional procedure.” Veto Message of May 18, 1973, Pub. Papers o f

Richard Nixon 539 (1973).

We agree with this precedent and believe that retroactive application of AntiDrug Abuse Act’s advice and consent requirements would unconstitutionally effect a Congressional removal of officers of the United States who had been validly 

appointed by the Attorney General. Myers v. United States, 272 U.S. 52, 122 

(1926), makes clear that the removal of officers of the United States prior to the 

expiration of their terms is vested exclusively in the President or in subordinate 

executive branch officials acting under his supervision. Indeed, the square holding of Bowsher v. Synar, 478 U.S. 714 (1986), is that Congress cannot remove 

officers of the United States by means other than impeachment.4 Unless and until Congress chooses to invoke its impeachment power, it cannot interfere with 

the tenure of a validly-appointed executive officer.5

It is, of course, a cardinal principle of statutory construction that statutes should 

be construed, if possible, so as to avoid constitutional questions. Association of

Machinists v. Street, 367 U.S. 740,749 (1961); Ashwander v. TV A, 297 U.S. 288, 

347 (1936). In the absence of any indication of a legislative intent to apply these 

provisions retroactively, and mindful of the serious constitutional objections that 

would be raised by a contrary reading, we conclude that the advice and consent 

provisions have prospective effect only and thus do not apply to the incumbent 

officeholders.

Although we have full confidence in the foregoing analysis, we note also that 

the de facto officer doctrine, as least as traditionally understood, would place the 

acts of these officers beyond legal challenge regardless of defects in their titles.

4 Congress can, o f course, enact legislation permanently abolishing an office, in which case the incumbent would 

no longer have a position to occupy.

5 The fact that two o f these offices (the D irector of the United States Marshals Service and the Director of the 

Office for Victims o f Crim e) were created by order of the Attorney General rather than by specific statutory enactm ent does not change our analysis. See A tt’y Gen. Order No. 516-73, 38 Fed. Reg. 12,917 (1973); A tt’y Gen. 

O rder No. 1079-84. Congress has by statute vested the Attorney General with the authonty to take certain measures, including the creation o f inferior offices within the Departm ent of Justice, to carry out the functions o f his 

office. 28 U.S.C. § 510. Congress has now chosen to give these offices a more explicit statutory basis. The fact remains, however, that these offices were ongm ally created pursuant to statutory authority Moreover, Congress has 

not changed the functions of these offices* the Director of the United States Marshals Service and the Director of 

the Office for the Victim s o f Crime, have essentially the same tasks as they had before the enactment of the AntiDrag A buse Act Accordingly, these offices are analytically indistinguishable, for purposes of the retroactive application of the advice and consent requirement, from any office created explicitly by statute.

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The courts have traditionally held that “[a] person actually performing the duties 

of an office under color of title is an officer de facto, and his acts as such officer 

are valid so far as the public or third parties who have an interest in them are concerned.” National Ass’ n o f Greeting Card Publishers v. United States Postal Service, 569 F.2d 570, 579 (D.C. Cir. 1976) (quoting United States ex rel. D oss v.

Lindsley, 148 F.2d 22,23 (7th Cir.), cert, denied, 325 U.S. 858 (1945)), vacated

and remanded on other grounds, 434 U.S. 884 (1977). There is doubt, however, 

about the continued viability of the traditional understanding of the doctrine, at 

least in the D.C. Circuit, as a result of Judge Wright’s opinion in Andrade v. 

Lauer, 729 F.2d 1475 (D.C. Cir. 1984). There the court permitted a challenge to 

the acts of allegedly improperly appointed officers, holding that the purpose of 

the de facto officer doctrine (which the court identified as avoidance of wholesale invalidation of past actions through collateral attacks by third parties) could 

be served by requiring the plaintiff (1) to bring his suit at or around the time that 

the challenged government action is taken, and (2) to prove that the agency or 

department involved has had reasonable notice of the claimed defect in the officer’s title. Id. at 1496-97, 1499.

Accordingly, in the event that our legal analysis is rejected the Department can 

no longer absolutely rely on the de facto officer doctrine to preclude legal challenges to actions taken by these officials. Although we believe the risk that a court 

would reject our analysis is slight, it may be determined that even this level of 

risk is unacceptable. In that event we recommend that the Attorney General, pursuant to his authority under 28 U.S.C. § 510, also designate the incumbent officeholders as acting officers. Because of our conclusion that the tenure of these 

incumbents has not been (and could not be) disturbed by the Anti-Drug Abuse 

Act, we stress that any designation of acting officer should be made conditional 

upon the existence of a vacancy in that office as determined by a final court order.

Conclusion

We conclude that the Anti-Drug Abuse Act of 1988 does not affect the tenure 

of the incumbent directors of the Marshals Service, the Bureau of Justice Assistance, and the Office for Victims of Crime and that these officeholders continue 

to have full authority to take any action necessary to fulfill their duties. We believe, however, that the Attorney General may wish to consider issuing a conditional designation of the incumbents as acting officers in the unlikely event that 

a final court order determines that the Anti-Drug Abuse Act has removed these 

officials.

D o u g l a s W . K m ie c

Assistant Attorney General

Office o f Legal Counsel

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