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 of 

unconstitutional 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

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by 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 into 

contracts 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 chosen 

from 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).

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of 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) (discussing 

m 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).

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

implemented before the President appoints members of the Board. We do 

not 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 “Executive 

Director,” 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 have 

explained 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 and 

d 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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