22

Centralizing Border Control Policy Under the 

Supervision of the Attorney General

In general, the President may not transfer the functions of an agency statutorily created within one 

Cabinet department to another Cabinet department without an act of Congress.

The President may not delegate his presidential authority to supervise and control the executive 

departments to a particular member of the Cabinet where no statutory authority exists to do so.

The President may exercise his own power to establish a comprehensive border control policy for the 

federal government and direct a single Cabinet member to lead and coordinate the efforts of all 

Cabinet agencies to implement that policy.

March 20, 2002

LETTER OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

You have asked us to provide our views concerning what actions the President 

can take unilaterally and without congressional consent towards centralizing 

border control policy for the United States Government under the supervision of 

the Attorney General of the United States.

Under current law,*

In general, the President may not transfer the functions of an agency statutorily 

created within one Cabinet department to another Cabinet department without an 

act of Congress. We likewise believe that the President may not effectuate that 

very same transfer simply by delegating his presidential authority to supervise and 

control the executive departments to a particular member of the Cabinet, at least 

where no statutory authority exists to do so. However, the President may exercise 

his own power to establish a comprehensive border control policy for the federal 

the federal government’s control over the flow of people 

and goods into and out of the United States is divided among several agencies in 

different Cabinet departments, rather than centralized in a single department. The 

Immigration and Naturalization Service (“INS”) is statutorily housed in the 

Department of Justice, the U.S. Customs Service in the Department of the 

Treasury, and the U.S. Coast Guard in the Department of Transportation. Thus, 

each agency is headed by a different Cabinet secretary, each of whom, as principal 

officers of the federal government, reports directly to the President.

* Editor’s Note: The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, established the Department of Homeland Security (“DHS”) as a Cabinet-level department and reorganized 

the allocation of statutory duties respecting border control policy that were the subject of this opinion. 

See 6 U.S.C. § 111(a) (Supp. II 2002) (establishing DHS); id. § 202(2)-(6) (listing DHS’s border 

control responsibilities); id. § 211(a) (establishing within DHS the United States Customs Service); id.

§ 251 (transferring to DHS certain functions of the Immigration and Naturalization Service); id.

§ 291(a) (abolishing the Immigration and Naturalization Service); id. § 468(b) (transferring to DHS the 

functions of the Coast Guard).

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government, and then direct a single Cabinet member to lead and coordinate the 

efforts of all Cabinet agencies to implement that policy.

I.

The Constitution expressly provides that “[t]he executive Power shall be vested 

in a President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. He 

alone is charged with the power to nominate the principal officers, id. art. II, § 2, 

cl. 2, and to “take Care that the Laws be faithfully executed,” id. art. II, § 3. It is 

thus well established that the President is “not only the depositary of the executive 

power, but the responsible executive minister of the United States.” Relation of the 

President to the Executive Departments, 7 Op. Att’y Gen. 453, 463 (1855).

The scope of the President’s executive power is limited, however, by the terms 

of all valid acts of Congress. Under the Constitution, it is Congress, not the 

President, that “make[s] all Laws which shall be necessary and proper for carrying 

into Execution . . . all . . . 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.

Accordingly, Congress may prescribe that a particular executive function may 

be performed only by a designated official within the Executive Branch, and not 

by the President. The executive power confers upon the President the authority to 

supervise and control that official in the performance of those duties, but the 

President is not constitutionally entitled to perform those tasks himself. It has long 

been established that, “[i]f the laws . . . require a particular officer by name to 

perform a duty, not only is that officer bound to perform it, but no other officer 

can perform it without a violation of the law; and were the President to perform it, 

he would not only be not taking care that the laws were faithfully executed, but he 

would be violating them himself.” The President and Accounting Officers, 1 Op. 

Att’y Gen. 624, 625 (1823). Instead the President may control the officer through 

various means such as the threat of removal. See, e.g., The Jewels of the Princess 

of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (although the President “could only 

act through his subordinate officer . . . who is responsible to him, and who holds 

his office at his pleasure,” the power of “removal of the disobedient officer, and 

the substitution of one more worthy in his place, would enable the President, 

through him, faithfully to execute the law”).

We therefore conclude that the President may not transfer the statutory duties 

and functions of a bureau in one Cabinet department to another Cabinet department without an act of Congress. This Office has long held that transfers of 

statutory authority from one department to another “may normally be accomplished only by legislation or by executive reorganization under the Reorganization Act.” Litigating Authority of the Office of Federal Inspector, Alaska Natural 

Gas Transportation System, 4B Op. O.L.C. 820, 823 (1980); see also Department 

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of Labor Jurisdiction to Investigate Certain Criminal Matters, 10 Op. O.L.C. 130, 

132 (1986) (same). The Reorganization Act, 5 U.S.C. §§ 901 et seq., once 

provided the President with a mechanism for instituting “executive reorganization”

plans, subject to congressional veto, but Congress retired that authority at the end 

of 1984, see 5 U.S.C. § 905(b).

II.

It has been suggested that the President might reorganize government operations without running afoul of the law simply by delegating to a particular 

individual the President’s own constitutionally based executive power to supervise 

and control certain executive functions. Under this theory, the President could 

effectively transfer power over a particular matter from one Cabinet department to

another by delegating to the head of that department the President’s power to 

supervise and control the actions of a subCabinet official in another department, 

and to enforce that control through the removal power.

We believe that courts could well decide, however, that the President’s delegation powers do not extend so far because some “specific things must be done by 

the President himself.” Executive Departments, 7 Op. Att’y Gen. at 464. Moreover, we caution that an unlawful delegation of power could present serious 

consequences for law enforcement in future cases. See, e.g., United States v. SotoSoto, 598 F.2d 545, 549-50 (9th Cir. 1979) (where FBI agent was not authorized 

by statute to search trucks at border, customs authority had not been delegated to 

agent, and agent conducted search to discover if truck was stolen rather than to 

enforce importation law, agent’s warrantless search of truck was improper and 

evidence seized from search was inadmissible under exclusionary rule).

With regard to the President’s statutory duties, “it is well settled that there 

exists in the President an inherent right of delegation.” Memorandum for the Files, 

Office of Legal Counsel, Re: Delegation of Presidential Functions at ii (Sept. 1, 

1955) (“1955 Memo”). As stated in Myers v. United States, 272 U.S. 52 (1926), 

“[t]he vesting of the executive power in the President was essentially a grant of the 

power to execute the laws. But the President alone and unaided could not execute 

the laws. He must execute them by the assistance of subordinates.” Id. at 117; see 

also 3 U.S.C. § 301 (authorizing President to delegate “any function which is 

vested in the President by law” or “any function which [an] officer is required or 

authorized by law to perform only with or subject to the approval, ratification, or 

other action of the President”).

Generally speaking, however, “acts performable by the President[] as prescribed by the Constitution are not susceptible of delegation.” 1955 Memo at ii

(emphasis added). As the Supreme Court has noted,

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[t]here are, undoubtedly, official acts which the Constitution and 

laws require to be performed by the President personally, and the 

performance of which may not be delegated to heads of departments, 

or to other officers in the executive branch of the Government.

McElrath v. United States, 102 U.S. 426, 436 (1880). Thus, the Executive Branch 

has always understood that the President may not delegate his pardon power to 

“another man, the Attorney General or anybody else.” Executive Departments,

7 Op. Att’y Gen. at 464-65. Nor can the President delegate his power to appoint 

and remove Executive Branch officials. See id. at 465; 1955 Memo at 1-2 (listing 

“[o]rders removing Government Officials from office” among those “actions not 

delegable”).

To be sure, “[w]hether a particular act belongs to one or the other of these 

classes may sometimes be very difficult to determine.” McElrath, 102 U.S. at 436.

We think it likely, however, that the President’s authority to control and supervise 

Executive Branch officials in one Cabinet department could not be delegated to a 

separate Cabinet department. After all, such authority rests substantially on the 

President’s removal power, a power that has long been understood not to be 

delegable. In addition, further support for our conclusion is found in our earlier 

opinion in which we raised doubts about the President’s ability to delegate his 

power to issue “Directives and Memorandums to Heads of Executive Departments 

and Agencies.” In that opinion, we stated that “[i]t is certainly questionable 

whether any one [sic] but the President personally could issue such a directive.”

1955 Memo at *65-66. Likewise, we have opined that, where “the head of a 

department or agency is authorized to take [a particular action] by law but . . . does 

not wish to take the action . . . without the President’s approval or advice[,] the 

situation is one that normally calls for the personal attention of the President” and 

is therefore nondelegable. Id. at *67.*

III.

We see no meaningful difference between 

these presidential authorities and the supervisory power over executive departments sought to be delegated in the present circumstance.

We believe that there are other ways, however, for the President to take steps to 

centralize and coordinate the border control policy of the United States or to direct 

* Editor’s Note: We refer here to star pages in the 1955 Memo because the original memo preserved 

in our day books is missing some pages at the end. The star pages that we cite in text are from a 

digitized copy that we used to replace the missing pages in our day books.

It should be noted that the 1955 Memo does not appear to have been a formal opinion or advice 

issued to a client but an internal reference. The Memo was also equivocal in its bottom-line assessment 

of whether the head of a department could actually delegate a statutory authority to the President. The

question, the Memo said, was “too indefinite in nature to permit any conclusion to be made.” Id.

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the Attorney General to lead that effort. That the President’s constitutional 

authority to supervise all Executive Branch agencies engaged in border control 

operations is probably not subject to delegation does not necessarily mean that the 

President may not formally and publicly designate certain Cabinet officers to assist 

him in that effort.

The President may tap advisers within the White House or even outside the 

Executive Office of the President to work on his behalf. See Memorandum for 

Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, 

Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers at 2 (Aug. 11, 1977) (“1977 Memo”) (unlike “heads of departments 

or agencies,” who “have statutory obligations” and “can and do act independently”

of the President, the “sole function” of certain White House advisers “is to advise 

the President relative to his statutory and constitutional responsibilities,” and such 

advisers only “act at the direction of the President”). Although they carry no 

formal legal authority, in practice such advisers may exercise substantial authority 

over Executive Branch officials if it is well understood that they speak on behalf

of the President. Cf. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 

898, 905 (D.C. Cir. 1993) (recognizing “[t]he President’s implicit authority to 

enlist his spouse in aid of the discharge of his federal duties”).

The President similarly may designate Cabinet officers to advise him on his 

execution of nondelegable presidential duties. We have previously noted that 

individuals “who . . . have statutory obligations” as “heads of departments or 

agencies” may also be called upon to “advise the president and act at his direction.” 1977 Memo at 2. See also Am. Physicians, 997 F.2d at 908 (noting that 

“Presidents have created advisory groups composed of . . . Government officials . . . to meet periodically and advise them . . . on matters such as the conduct 

of a war”).

Thus, the President may designate the Attorney General to serve as his chief 

adviser on issues relating to border control and instruct all other departments that 

the Attorney General speaks for him with respect to such policies. To be sure, the 

Attorney General could not exercise any nondelegable, presidential legal power 

over such agencies. For example, an official of that agency would not be subject to 

removal by the Attorney General. But the President could inform the heads of 

relevant agencies that he has directed the Attorney General to coordinate the 

implementation of specific border policies that the President has developed upon 

the advice of the Attorney General.

There is precedent for formalizing such informal arrangements through the 

issuance of an executive order. Such orders make no explicit delegations of legal 

power, but instead implicitly announce allocations of authority by designating a 

particular Cabinet official as a presidential adviser or leader and coordinator of 

presidential policy. Executive Order 12250 of November 2, 1980, styled “Leadership and Coordination of Nondiscrimination Laws,” delegated certain statutory 

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presidential powers to the Attorney General. Id. § 1-1. But the Order also directed 

the Attorney General to “coordinate the implementation and enforcement by 

Executive agencies of various nondiscrimination provisions” contained in federal 

law, in order to further the President’s policy of “consistent and effective implementation of various laws prohibiting discriminatory practices in Federal programs 

and programs receiving Federal Financial assistance.” Id. § 1-201, pmbl. The 

Order further directed all agencies to cooperate with the Attorney General and to 

issue only regulations that are “consistent with the requirements prescribed by the 

Attorney General pursuant to this Order” to the extent permitted by law. Id.

§ 1-402.

Another model is Executive Order 13228 of October 8, 2001, which established 

the Office of Homeland Security within the Executive Office of the President.

Although that office has no statutory approval, the President directed the office to 

“develop and coordinate the implementation of a comprehensive national strategy 

to secure the United States from terrorist threats or attacks” and to “work with 

executive departments and agencies, State and local governments, and private 

entities to ensure the adequacy of the national strategy.” Id. §§ 2, 3(a). Moreover, 

the order expressly states that it “does not alter the existing authorities of United 

States Government departments and agencies.” Id. § 7. These orders thus merely 

create informal arrangements through which presidential policies are developed; 

they do nothing to disturb the statutory allocation of authorities amongst different 

agencies. Cf. Proposed Executive Order Entitled “Federal Regulation,” 5 Op. 

O.L.C. 59, 63 (1981) (approving executive order authorizing Director of the Office 

of Management and Budget to take certain oversight actions with regard to the 

administrative process and noting that “[t]he order does not empower the Director . . . to displace the relevant agencies in discharging their statutory functions or 

in assessing and weighing the costs and benefits of proposed actions”).

Accordingly, the President could issue an executive order that announces the 

President’s intention to develop a comprehensive national strategy to control the 

flow of people and goods across United States borders. This order would be 

undertaken to protect the national security and promote enforcement of federal 

law. The order could state the President’s intention to develop and maintain his 

border control policy only in close consultation with the Attorney General. The 

order could further require the Attorney General to lead and coordinate the effort 

of all federal agencies to comply with the President’s evolving policy, and direct 

all agencies to cooperate with the Attorney General.

Such an order would not vest the Attorney General with legal authority to 

control the actions of, for example, the Customs Service. The Customs Service 

would still take its orders from the Secretary of the Treasury, who in turn would 

receive policy direction from the President, acting through the Attorney General. If 

the Commissioner of the Customs Service or the Treasury Secretary were to refuse 

to carry out a specific directive from the Attorney General, the Attorney General 

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would have no authority to remove them or otherwise compel their acquiescence.

At the same time, however, they would be contravening a presidential order and 

could be subject to presidential removal or other sanction. We believe that if the 

Commissioner or the Treasury Secretary disagreed with a policy communication 

from the Attorney General, the more likely course of action would be to appeal to 

the President to seek a clarification or modification of policy.

Finally, we note the existence of certain statutory authorities for improving 

coordination between border control agencies which the order might direct the 

Attorney General to utilize. For example, under 8 U.S.C. § 1103(a)(6), the 

Attorney General may, with the consent of the head of another department, use an 

employee of that department to assist in performing the border control functions of 

the INS. The order thus could direct certain agencies to consent to such an 

arrangement. Similarly, 14 U.S.C. § 141 authorizes the Coast Guard both to lend 

its services and facilities to other agencies, and to avail itself of the resources of 

other agencies. The order might direct such cooperation between the Coast Guard 

and the Attorney General. We are not aware of any such authorities with respect to 

the Customs Service, however.

JOHN C. YOO

Deputy Assistant Attorney General

Office of Legal Counsel

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