The President’s Power to Remove Members of the Federal

Council on the Aging

The text and legislative history of the statute creating the Federal Council on the Aging 

indicate that Congress did not intend to restrict the President’s power to remove his 

appointees to the Council. Neither the Council’s “independence” in terms of its membership and staff, nor its function of providing advice to Congress necessarily suggest 

that Congress intended to restrict the President’s power of free removal which is 

ordinarily incident to his power of appointment.

Because the structure and functions of the Federal Council on the Aging establish that it 

is a purely executive body, Congress could not constitutionally limit the President’s 

power to remove its members.

November 13, 1981

MEMORANDUM OPINION FOR THE COUNSEL TO THE

PRESIDENT

You have asked for our opinion whether the President has the power 

to remove the members of the Federal Council on the Aging (the 

Council). In the absence of any evident congressional intent to limit the 

President’s power of removal, and on the basis of well-settled principles 

of constitutional law, we conclude, for reasons set forth below, that the 

President does have the power to remove Council members.

I. The Council

The Council is established pursuant to 42 U.S.C. § 3015 (1976 & 

Supp. Ill 1979). Its fifteen members are appointed by the President with 

the advice and consent of the Senate to serve three-year terms. Id.

§ 3015(a). According to the statute, members “shall be appointed so as 

to be representative of rural and urban older Americans, national organizations with an interest in aging, business, labor, and the general 

public. At least five of the members shall themselves be older individuals.” Id. § 3015(a). Since 1978 amendments, no full-time officer or 

employee of the federal government may be appointed as a member of 

the Council, id. 42 U.S.C. § 3015(a) (Supp. Ill 1979); and the Secretary 

of Health and Human Services and the Commissioner on Aging are no 

longer ex officio members of the Council. The statute does not expressly 

provide for removal of Council members, nor does it expressly insulate 

them from removal at the pleasure of the President.

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Because the nature of the functions performed has come to be the 

focus of the removal power as a matter of determining both congressional intent and the limits of congressional power to restrict the President’s power to remove his appointees, we set out the Council’s duties 

in full. As prescribed by statute, the Council shall:

(1) advise and assist the President on matters relating to 

the special needs of older Americans;

(2) assist the Commissioner [on Aging] in making the 

appraisal of [personnel] needs [in the field of aging] required by section 3032 . . .;

(3) review and evaluate, on a continuing basis, Federal 

policies regarding the aging and programs and other activities affecting the aging conducted or assisted by all 

Federal departments and agencies for the purpose of appraising their value and their impact on the lives of older 

Americans;

(4) serve as a spokesman on behalf of older Americans 

by making recommendations to the President, to the Secretary [of Health and Human Services], the Commissioner, and to the Congress with respect to Federal policies regarding the aging and federally conducted or assisted programs and other activities relating to or affecting them;

(5) inform the public about the problems and needs of 

the aging, in consultation with the National Information 

and Resource Clearing House for the Aging, by collecting 

and disseminating information, conducting or commissioning studies and publishing the results thereof, and by issuing publications and reports; and

(6) provide public forums for discussing and publicizing 

the problems and needs of the aging and obtaining information relating thereto by conducting public hearings, 

and by conducting or sponsoring conferences, workshops, 

and other such meetings.

42 U.S.C. § 3015(d) (1976 & Supp. Ill 1979).

The Council is further directed to undertake a thorough study and 

evaluation of federal and federally assisted programs for older Americans, including

(A) an examination of the fundamental purposes of such 

programs, and the effectiveness of such programs in attaining such purposes;

(B) an analysis of the means to identify accurately the 

elderly population in greatest need of such programs; and

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(C) an analysis of numbers and incidence of low-income 

and minority participants in such programs.

42 U.S.C. § 3015(g)(2) (Supp. Ill 1979). The study may also include

(A) an exploration of alternative methods for allocating 

funds under such programs to States, State agencies on 

aging, and area agencies on aging in an equitable and 

efficient manner, which will accurately reflect current 

conditions and insure that such funds reach the areas of 

greatest current need and are effectively used for such 

areas;

(B) an analysis of the need for area agencies on aging to 

provide direct services within the planning and service 

area; and

(C) an analysis of the number of nonelderly handicapped-in need of home delivered meal services.

42 U.S.C. § 3015(g)(3) (Supp. Ill 1979).

The statute also authorizes staff personnel for the Council and requires the head of each federal department and agency to provide the 

Council with information and other assistance. 42 U.S.C. § 3015(e) 

(Supp. Ill 1979). At least annually, and more often as the Council 

deems advisable, the Council is required to report its findings and 

recommendations to the President, who then transmits the report to 

Congress, with his comments and recommendations. Id. § 3015(f).

II. Statutory Interpretation

In the context of a statute that is silent on the issue of the President’s 

removal power, it is sometimes difficult to separate the statutory analysis from the constitutional analysis. Nevertheless, we focus initially on 

the statutory scheme and the legislative history because of the familiar 

injunction that decision on constitutional grounds should be avoided if 

a statutory ground is sufficient. See Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The 

statute itself, as we have noted, is silent on the question of removal. 

Nevertheless, the history of the Council indicates that Congress could 

not have intended that its members would not be freely removable by 

the President.

The Council is the most recent successor to various presidential 

advisory commissions on the aging. National conferences on aging were 

held in 1950 and 1952. On March 21, 1956, President Eisenhower 

summarized recent and proposed actions of the federal government 

affecting older citizens and announced his intention to create a federal 

council on aging. Established in April 1956, this first council was 

composed of representatives of various government agencies. The 

council called for another conference on aging, which was held in June

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1956. Following two congressionally authorized studies of problems 

related to the aging, the White House Conference on Aging Act of 

1958 (Pub. L. No. 85-908, 72 Stat. 1746) was passed to provide for a 

White House Conference on Aging, to be called by the President in 

1961. The Conference made recommendations for continuing and expanding federal and state programs for the elderly, including establishment of a federal coordinating agency. See generally S. Rep. No. 247, 

89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Ad. News 

1884.

As a follow-up to the Conference, President Kennedy established the 

President’s Council on Aging in May 1962. Exec. Order No. 11,022, 3

C.F.R. 602 (1959-1963 Comp.). This Council was also composed of 

Cabinet officers and other federal officials and was directed to study 

the problems of the aging and make recommendations to the President 

for policies and programs.

The first statutory authority for an advisory council on aging was 

provided by the Older Americans Act of 1965, 42 U.S.C. § 3001 et seq.

(1976 & Supp. Ill 1979) which established an Advisory Committee on 

Older Americans comprised of the Commissioner on Aging and fifteen 

members appointed by the Secretary of Health, Education, and Welfare 

(HEW). The Committee was to advise the Secretary on matters bearing 

on his responsibilities under the Act and related activities of the Department of HEW. Members were selected with experience in the field 

of interest in the particular problems of aging. See generally, H.R. Rep. 

No. 1203, 92d Cong., 2d Sess. 8 (1972); H.R. Rep. No. 1150, 95th 

Cong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Ad. News 3388, 

3392. In 1967, the Secretary was authorized to provide staff for the 

Advisory Committee.

By 1972, Congress noted that the problems, issues, and recommendations of the White House Conference on Aging went far beyond the 

activities of the Department of HEW. The House Committee on Education and Labor accordingly recommended the establishment of a 

presidential advisory committee. The bill, H.R. 15657, 92d Cong., 2d 

Sess. (1972), would have replaced the Advisory Committee with a 

national advisory council to “advise and assist the President on matters 

relating to the special needs of older Americans.” The Senate version 

of the bill would have established the Older Americans Advocacy 

Commission, “charged with the duty of advocating the interests of 

older Americans throughout the whole range of federal activities.” See

H.R. Rep. No. 43, 93d Cong., 1st Sess. 10, reprinted in 1973 U.S. Code 

Cong. & Ad. News 1327, 1336. The Commission would also have been 

empowered to evaluate existing programs to inform the public about 

the needs and concerns of the aging and the relevant federal activities. 

Id.

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The bill as it emerged from the conference committee was the origin 

of the present Federal Council on the Aging. The committee adopted 

that name and consolidated the functions as provided in the House and 

Senate bills. The bill was later vetoed by the President, but it provided 

the basis for the 1973 amendments to the Older Americans Act of 1965, 

which did establish the Council. The House committee in 1973 repeated 

the conference statement that “ ‘[i]t is the intention of the conferees that 

this body function as more than a passive advisory body, and that it 

work to actively promote the interests of older Americans throughout 

the whole range of federal policies and programs affecting them.’ ” 

1973 U.S. Code Cong. & Ad. News, supra, at 1336. The Council was 

further charged with undertaking three studies of benefit programs, 

taxes, and transportation needs.

The Older Americans Act was amended again in 1978. The House 

report explained that “[a]s a spokesman and advocate on behalf of the 

elderly, the committee believes that the Council should have a greater 

degree of independence.” 1978 U.S. Code Cong. & Ad. News, supra, at 

3398. The changes that were made “to strengthen the independence of 

the Council,” ibid., were precluding full-time employees of the federal 

government from membership on the Council and specifically authorizing staff for the Council. The first change was intended “to eliminate 

the potential for conflicts of interest” and thereby improve the Council’s objectivity in making recommendations. Id. at 3398. The second 

change was designed to relieve the Council’s dependence for staff on 

the Administration on Aging in the belief that the Council “could be 

more effective in obtaining information on advising the President and 

the Congress.” Id. at 3399.

At no time in the long evolution of the present Council did Congress 

express any intent to limit presidential control, including removal, over 

the membership. Prior to the statutory authorization in 1965, of course, 

there could have been no serious contention whatsoever that the presidential appointees were not freely removable. And at no time in the 

course of enacting the various statutes creating or affecting the Council 

did Congress ever express a contrary belief or intent.

We do not regard the latest House report’s use of the word “independence” as requiring a different conclusion.1 The report specifically 

explains that the “independence” desired for the Council would affect 

its relationship to other federal agencies, especially the Commission on 

Aging, and not the President. This “independence,” in terms of Council 

membership and staff, would avoid conflicts of interest and improve the 

objectivity and efficiency of the Council. Recognizing the President’s

‘The concept of “independence” also appears in the context of the description of the Older 

Americans Advocacy Commission as created by the Senate version of the 1972 bill. W hatever was 

meant by the reference, however, the structure did not prevail in the conference committee, which 

adopted the House version. See S. Conf. Rep. No. 1287, 92d Cong., 2d Sess. 46 (1972). The bill, in any 

event, was vetoed.

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power to remove creates no conflict of interest. Successor appointees 

must still exclude full-time federal employees. Nor does removal of the 

Council’s members directly affect its staff. In any event, “independence” was desired with the specific intent to improve the Council’s 

ability to perform its duty of advising the President. The relationship 

and responsiveness of the Council to the President was strengthened, 

not weakened. The removal power is consistent with this relationship.2

III. Constitutional AasAysis

We examine briefly the relevant principles of constitutional law by 

way of reinforcing our conclusion that the statute does not limit the 

President’s power to remove Council members.3

We start with the long established rule that “[i]n the absence of all 

constitutional provision or statutory regulation, it would seem to be a 

sound and necessary rule, to consider the power of removal as incident 

to the power of appointment.” In re Hennen, 38 U.S. (13 Pet.) 230, 259 

(1839); see also Myers v. United States, 272 U.S. 52 (1926); Sampson v. 

Murray, 415 U.S. 61, 70 n.17 (1974). The mere specification of a term of 

office is not such a specific provision. See Parsons v. United States, 167 

U.S. 324 (1897); Martin v. Tobin, 451 F.2d 1335 (9th Cir. 1971). Under 

the general rule, the President’s power to appoint the Council members 

empowers him to remove them.4

Exceptions to this rule are narrowly defined. Congress can constitutionally restrict the President’s power to remove a federal officer only 

if he or she is a member of a so-called “independent” agency, not part 

of the Executive Branch, and the agency’s primary functions are quasilegislative or quasi-judicial and “require absolute freedom from Executive interference.” Wiener v. United States, 357 U.S. 349, 353 (1958); see

Humphrey's Executor v. United States, 295 U.S. 602 (1935).

Although closely allied to the Commission on Aging, which is established in the Office of the Secretary of Health and Human Services, see

42 U.S.C. §3011(a) (1976 & Supp. I ll 1979), the Council is not expressly lodged within an executive department. The Council’s func2 W e attribute very little significance to the fact that the Council, as recently as 1978, was thought 

to be a source of advice to Congress itself. Congress may, of course, utilize its own committees for the 

gathering of information, or it may, through its own offices, appoint advisory committees to assist it in 

the performance of its legislative functions. If, however, Congress creates by statute an advisory body 

whose primary responsibility is to advise the Executive and, in doing so, Congress places the power of 

appointment in the President, we believe that Congress must be assumed to have been aware that as a 

practical matter, the appointees would be dependent on the President as appointing authority, rather 

than Congress, and that as a constitutional matter, the power of free removal would inhere in the 

structure chosen.

3 The statute, of course, must be construed to avoid an unconstitutional result. International Ass’n o f

Machinists v. Street, 367 U.S. 740, 749 (1961); Crowell v. Benson, 285 U S. 22, 62 (1932).

4 The requirement under the statute of Senate advice and consent to the presidential appointees does 

not in and of itself limit the President’s power of removal. C f Myers v. United States, 272 U.S. 52, 

119-25 (1926).

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tions, however, leave no doubt that it is executive in nature. We 

examine both what the Council does and what it does not do.

By congressional intent expressed in the legislative history and by 

design embodied in the statute, the Council is an advisory body. It was 

intended, and its duties as prescribed by statute effectuate the intent, 

that the Council advise, assist, review, evaluate, advocate, inform, and 

study. The recipients of the Council’s advice, assistance, and recommendations are primarily the President, the Secretary of Health and 

Human Services, and the Commissioner on Aging; 5 and generally, the 

advice, assistance, and recommendations are intended to enhance the 

recipient’s own performance of statutory responsibilities. In the context 

of examining the nature of the functions of another advisory body 

created to advise an executive department, the District Court for the 

District of Massachusetts recently recognized that giving advice and 

making recommendations “fall into the category of ‘purely executive.’ ” 

Martin v. Reagan, 525 F. Supp. 110, 113 (D. Mass. 1981) (National 

Institute of Justice Advisory Board). See also Patino v. Reagan, Civil 

No. S-81-469 MLS (E.D. Cal. Sept. 29, 1981) (same).

If the executive nature of the Council’s duties left any doubt regarding the inability of Congress to limit the President’s power to remove 

its members, any such doubt is overcome by the fact that the Council 

performs no quasi-legislative or quasi-judicial functions as those functions are described in the cases. See Humphrey’s Executor v. United

State, supra;6 Wiener v. United States, supra.7 In short, there is no basis 

for concluding that the Council’s functions “require absolute freedom 

from Executive interference.” Wiener, 357 U.S. at 353.

In sum, the text and history of the statute, as interpreted in light of 

the relevant constitutional principles, impose no limitation on the President’s power to remove members of the Council. The President, therefore, has authority to remove them at his pleasure.

L a r r y L . S im m s

Deputy Assistant Attorney General

Office o f Legal Counsel

* Reports to Congress are passed first to the President for his comments and recommendations. See

42 U.S.C. § 3015(0-

‘ Members of the Federal Trade Commission were held to be protected from removal because the 

Commission was "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.” 295 U.S. at 628.

’ Members of the War Claims Commission were held to be protected from removal because they 

had the responsibility to adjudicate claims against the United States “according to the law,” Le., “on 

the merits of each claim, supported by evidence and governing legal considerations." 357 U.S. at 355.

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