### Appointment of Members of the Board of Directors of the

Commission on National and Community Service

T h e u n c o n stitu tio n a l restric tio n s on the P resid e n t’s a p p o in tm e n t po w er co n ta in ed in th e N a tio n a l and C o m m u n ity S erv ice A ct o f 1990 a re severable from the re m a in d e r o f the A ct.

W ith o n e e x ce p tio n , th e p rogram s esta b lish e d u n d er title I o f the A ct m ay not be im p le m e n te d b efo re the P resid e n t has a p pointed m em bers o f the B o ard o f D ire c to rs o f the C o m m issio n on N atio n al a n d C o m m u n ity Service.

T h e re is no statu to ry pro h ib itio n a g ain st officers c u rren tly holding o th e r a d v ic e -a n d -c o n se n t p o sitio n s serv in g o n the B oard, so long as the person receiv es o n ly one salary, th e p o sitio n s are n o t “in c o m p a tib le ” from the standpoint o f public policy, and th e re is no a u g m e n ta tio n o f relev an t ap p ro p ria tio n s.

December 28, 1990

M e m o r a n d u m O p i n i o n f o r

t h e A s s o c i a t e C o u n s e l t o t h e P r e s i d e n t

This responds to your request for an opinion concerning the appointment of members of the Board of Directors of the newly-established Commission on National and Community Service (the “Commission”). See Memorandum for John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, from Nelson Lund, Associate Counsel to the President (Dec. 14, 1990). The National and Community Service Act of 1990, Pub. L. No. 101-610, 104 Stat. 3127 (codified at 42 U.S.C. §§ 12501-12862 (Supp. II 1990)) (the “Act”), which creates the Commission, contains a number ofunconstitutional restrictions on the President’s power to appoint such members. See Statement on Signing the National and Community Service Act of 1990, Pub. Papers of George Bush 1613 (Nov. 16, 1990). You have asked
whether these restrictions are severable from the remainder of the Act. In addition, you have asked whether the programs established under title I of the Act may be implemented before the President has appointed members of the Board, and whether officers currently holding other advice-and-consent positions may serve on the Board. We believe that the unconstitutional provisions are severable from the remainder of the Act, and that, with one exception, the programs established

157by title I may not be implemented before the President appoints members of

the Board. With regard to your third question, there is no problem in principle with persons having two simultaneous appointments in the executive branch. Nevertheless, dual appointments must be examined on an individual basis to assure that the offices are not incompatible from the standpoint of public policy. We would be pleased to consider the legality of any particular nominations you wish us to review. Title I of the Act establishes several grant programs to be administered by the Commission. § 190. The purpose of the grants is to enable recipients “to carry out” specified “national or community service programs.” § 102. Subtitle B authorizes the Commission, in consultation with the Secretary of Education, to make grants to States or local applicants in connection with school-aged service programs, § 111, and “to make grants to, and enter intocontracts with, institutions of higher education” and other parties in connection with community service projects. § 118. Subtitle C gives the Commission power to make grants to States, local applicants, and certain federal agencies “for the creation or expansion of full-time or summer youth corps programs.” § 121. Under subtitle D, the Commission may make grants to States “for the creation of full- and part-time national and community service programs.” § 141. Finally, subtitle E authorizes the Commission to make grants to States, Indian tribes, specified federal agencies, and other parties in connection with certain “innovative” and demonstration programs. §§ 157, 160, 165-167. The Act provides that the Commission is to be administered by a Board of Directors (the “Board”) consisting of twenty-one members appointed by the President with the advice and consent of the Senate. § 190(a), (b)(1)(A).1 Section 190(b) imposes several restrictions upon the President’s authority to make such appointments. It provides, for instance, that the Board must “be balanced according to the race, ethnicity[,] age and gender of its members,” § 190(b)(1)(A); must contain “ [n]ot more than [eleven] members of . . . the same political party,” § 190(b)(2); and must include seven members chosenfrom among persons nominated by the Speaker of the House of Representatives, and seven from among persons nominated by the Majority Leader of the Senate. § 190(b)(3). As the President explained in signing the Act, requirements such as these are unconstitutional restrictions on his authority to appoint officers of the
United States. See Pub. Papers of George Bush at 1613-14. See also Public
Citizen v. United States D ep’t o f Justice, 491 U.S. 440, 482 (1989) (Kennedy, J., concurring); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). We believe, however, that these unconstitutional provisions may be severed from
the remainder of the Act. The Act contains no severability clause. Nonetheless, even in the absence

1 In addition, the S ecretary o f Education, the Secretary o f H ealth and Human Services, the Secretary of L abor, the S ecretary o f the Interior, th e Secretary o f A griculture, and the D irector o f the A C TIO N a gency serve as ex-officio members o f th e Board. § 190(b)( 1 )(B).

158of such a clause, there exists a presumption in favor of the severability of

unconstitutional provisions so long as what remains of the statute is capable of functioning independently. See Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion); Alaska Airlines v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir. 1985), aff'd sub nom. Alaska Airlines v. Brock, 480 U.S. 678 (1987). As the Supreme Court has explained on numerous occasions, “ ‘[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’”
Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley, 424 U.S. at 108). This presumption may be overcome by evidence that, absent the unconstitutional provisions, the statute will not function “in a manner consistent with the intent of Congress,” id. at 685, that is, by evidence that Congress would not have enacted the statute without the unconstitutional provisions. Such evidence may be gleaned from the language and structure of the statute as well as its legislative history. Id. at 687. We do not believe that the presumption of severability may be overcome in this case. The Commission and the grant programs it administers would remain fully operative in the absence of the unconstitutional provisions. In addition, the Act does not suggest that the provisions were so important to Congress that it would not have passed the Act without them. Manifestly, Congress thought it necessary to have a federal entity administer the title I programs. There is no evidence, however, that the precise composition of the board administering that entity was also essential to Congress’ plan. Indeed, in order to assure that the Commission would administer the various grant programs in accordance with congressional intent, Congress placed substantive limitations on the Commission’s discretion.2 In comparison with these substantive limitations, restrictions on the composition of the Board are of only minor significance. There is nothing in the legislative history of the Act to support a different conclusion.3

‘ See, e.g , § 115(a), (b) (specifying priorities for certain grants under subtitle B); § 122 (specifying requirem ents for allocation o f funds for grants under subtitle C ); § 129 (directing that the C om m ission give preference to certain program s under subtitle C); § 142 (specifying criteria for aw arding o f gran ts under subtitle D); § 157 (specifying criteria for awarding o f grants for certain program s under subtitle E); § 171 (placing lim it on num ber o f grants to be m ade by the C om m ission during each fiscal year); § 179 (specifying criteria for evaluation o f program s by the Com m ission). ’ The relevant legislative history m ay be sum m arized briefly as follows. A s introduced by S enator Kennedy, the Act initially provided for a nonprofit ‘“ C orporation for N ational S e rv ice'” to be directed by an eleven-m em ber “N ational Service B oard" appointed by the President w ith the advice and consent o f the Senate. S. 1430, 101st C ong., 1st Sess. §§ 402(a), 403(a), 135 C ong. Rec. 16,708 (1989). T his version o f the Act also contained unconstitutional restrictions on the President’s authority to appoint
officers o f the U nited States. Id. See also S. Rep. No. 176, 101st C ong., 1st Sess 64 (1989) (discussingm em bership of the proposed N ational Service Board). On the Senate floor, Senator K ennedy su b stituted another version o f the Act that replaced the C orporation w ith the C om m ission, explaining that the substitute contained “som e technical changes” m ade at the behest of the A dm inistration. 136 C ong. Rec. 2731 (1990) (statem ent o f Sen. Kennedy). See also id. at 2732 (statem ents o f S ens. Hatch and Kennedy). Section 190 took its final form in conference; the only relevant statem ent in the C onference Report indicates that the House insisted on a provision adding the secretaries o f certain departm ents
and the D irector o f A C TIO N to the B oard as ex-officio mem bers. See H.R. C onf. Rep. N o. 893, 101st C ong., 2d Sess. 69 (1990).

159You also ask whether the grant programs established by title I may be

implemented before the President appoints members of the Board. We donot believe so. Section 190 makes clear that the Commission, or more precisely the Board, is responsible for administering such programs, or for delegating that responsibility to other federal agencies. See § 190(c)(2), (4). In addition, section 190 provides that the Board must appoint an “ExecutiveDirector,” who in turn may appoint up to ten “technical employees to administer the Committee [sic].” § 190(d)(1), (e). Until the President appoints members of the Board, then, the Commission is inoperative, and the grant programs cannot be implemented.4 Finally, you ask whether the President may appoint as Board members persons who currently serve as full-time federal employees. As we haveexplained in the past, there is no statutory prohibition against a person holding two offices within the executive branch, so long as the person receives only one salary, the positions are not “incompatible” from the standpoint of public policy,3 and there is no augmentation of relevant appropriations. See Dual Office o f Chief Judge of Court o f Veterans Appeals and Director o f the Office o f Government Ethics, 13 Op. O.L.C. 241 (1989); Intrater Memorandum. Nonetheless, determinations of the legality of dual appointments must be made on an individual basis. Of course, we would be pleased to consider the propriety of any specific nominations you wish us to review.

JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel

'T h e re is an exception. Section 182(a) provides that “ [tjhe head o f each Federal agency and departm ent shall design and im plem ent a com prehensive strategy to involve em ployees o f such agencies andd epartm ents in partnership programs w ith elem entary schools and secondary schools." These “Partnerships W ith S chools” program s may be im plem ented absent the appointm ent of B oard mem bers. 5 "The operative principle is that two offices are incom patible if public policy w ould make it im proper fo r one person to perform both functions. Exam ples o f incom patibility are where the official interests of the po sitio n s conflict, w here one office adjudicates m atters in w hich the other is a party, or w here C o n g ress intended that one office serve as a check on the other. A pplication o f this standard thus d epends on the statutory or constitutional duties o f the offices involved.” M em orandum for A rnold Intrater, G eneral C ounsel, Office of W hite House A dm inistration, from John O. M cG innis, D eputy A ssistan t A ttorney G eneral, Office of L egal Counsel at 3-4 (M arch 1, 1988) (citation om itted) (“Intrater M em o ran d u m ” ). 

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