The President’s Power to Remove the Board of Directors of

the Pennsylvania Avenue Development Corporation

In the absence of a clear legislative intent to the contrary, the President may remove his 

appointees at will. The Pennsylvania Avenue Development Corporation Act of 1972, 40 

U.S.C. §§ 871 et seq., provides for appointment o f a board of directors by the President, but is 

silent on removal.

Although the Act provides for a six-year term of office, a provision for a term, by itself, is not a 

restriction on the President’s removal authority, but rather, is a limitation on the period for 

which an appointee may serve without reappointment.

Nothing in the statutory scheme, legislative history, or in the nature of the Board’s functions, 

indicates an intent to restrict the President’s removal power. Therefore, the board of directors 

may be removed by the President at will.

May 18, 1983

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

This memorandum responds to your request for our opinion whether the 

President has the power to remove the directors of the Pennsylvania Avenue 

Development Corporation (PADC). We assume that your inquiry is directed to 

those directors who are appointed by the President pursuant to 40 U.S.C. 

§ 872(c)(8), as opposed to those who serve ex officio. We conclude that the 

President does have the power to remove the directors of the PADC appointed 

by him under § 872(c)(8).

I. The Board

• The Board was established pursuant to the provisions of the Pennsylvania 

Avenue Development Corporation Act of 1972, Pub. L. No. 92-578, 86 Stat. 

1266 (codified at 40 U.S.C. §§ 871 et seq. (1976)) (Act). Section 872 creates 

the Corporation as a wholly owned government corporation, and vests its 

powers and management in a Board of Directors consisting of the Secretaries 

of the Interior, Treasury, Housing and Urban Development, and Transportation, the Administrator of General Services, the Mayor of the District of 

Columbia, the Chairman of the Council of the District of Columbia, and “eight 

[additional members], at least four of whom shall be residents and who are 

registered voters of the District of Columbia, appointed by the President from 

private life, who shall have knowledge and experience in one or more fields of

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history, architecture, city planning, retailing, real estate, construction, or government.” 40 U.S.C. § 872(c)(8).

Section 872(e) provides in part that each member appointed pursuant to 

§ 872(c)(8) “shall serve for a term of six years from the expiration of his 

predecessor's term.” Subsection (e) also provides for staggered terms, and for 

the appointment of directors to serve out the remainder of terms. Directors may 

continue to serve until their successors are qualified. Subsection (f) provides 

that the President is to designate a Chairman and Vice Chairman from among 

the private members. Subsection (g) provides for eight ex officio non-voting 

members. The Act contains no provision concerning the removal of directors.1

II. Statutory Interpretation

The determination whether the President has the power to remove a Presidential appointee presents initially a question of statutory interpretation. If the 

statute is interpreted to reflect an intention to restrict the President’s removal 

power, it is then necessary to reach the constitutional question whether the 

Congress had the power to do so. Here, we find it unnecessary to reach the 

constitutional question because we conclude that there is no persuasive evidence of a congressional intent to restrict the President’s power to remove the 

directors of the PADC.

A. Governing Law

In the absence of a provision to the contrary, the power to appoint carries 

with it the power to remove.2 Accordingly, if a statute provides for appointment by the President, but is silent on the subject of removal, the President may 

remove an appointee unless the statutory scheme and legislative history demonstrate that Congress intended implicitly to limit the President’s removal 

power. A statute is silent on the subject of removal if it contains neither an 

express provision restricting removal nor other provisions relating to the 

appointee’s tenure in office or terms of removal which must be interpreted as 

intended to restrict the removal power. Provisions for a term, such as the 

provision for a six-year term in the PADC Act, by themselves, have not been 

interpreted as intended to restrict the removal power, but rather as limitations 

on the period for which an appointee can serve without reappointment.3 A 

provision for a term, coupled with a provision setting forth the bases for

1 The bylaws o f the Corporation, which appear at 36 C.F.R. §§ 901.1-901.7 (1982), also contain no 

provision concerning the removal of directors.

2 James M adis6n announced this rule during the first session o f the First Congress. 1 Annals o f Cong. 479 

(J. Gales ed. 1789). The courts have consistently upheld the applicability of the rule. Matter o f Hennen, 38 

U.S. (13 Pet.) 230, 259-60 (1839); Blake v. United States, 103 U.S. 227, 231 (1880); Myers v. United States,

272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367 U.S. 886, 896-97 (1961); Sampson v. M urray,

415 U.S. 61, 70 n.17 (1974); National Treasury Employees Union v. Reagan, 663 F.2d 239, 246-48 (D.C. 

Cir. 1981); Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983).

>See e.g., Parsons v. United States, 167 U.S. 324, 338 (1897); Martin v Tobin, 451 F.2d 1335, 1336 (9th 

Cir. 1971).

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removal for cause, may be interpreted as a restriction on the President’s 

removal power.4

1. Quasi-judicial or Quasi-legislative Functions

If it is concluded that a statute providing for Presidential appointment is 

silent on the subject of removal, it is necessary next to determine whether 

Congress intended implicitly to restrict the President’s removal power. The 

starting point in making this determination is an examination of the functions 

of the appointee’s office. For example, the performance primarily of quasijudicial functions will support the inference that Congress intended to restrict 

the President’s removal power. See Wiener v. United States, 357 U.S. 349 

(1958); cf. Humphrey’s Executor v. United States, 295 U.S. 602 (1935).5 The 

Wiener case involved a challenge to the removal of a member of the War 

Claims Commission. The statute which created the Commission provided for 

appointment by the President with the advice and consent of the Senate, but 

was silent on the subject of removal. The Court said that “the most reliable 

factor for drawing an inference regarding the President’s power of removal in 

our case is the nature of the function that the Congress vested in the War 

Claims Commission.” 357 U.S. at 353. The Court referred to “the sharp line of 

cleavage” it had drawn in Humphrey’s Executor “between officials who were 

part of the Executive establishment. . . and those who are members of a body 

‘to exercise its judgment without the leave or hindrance of any other official or 

any department of the government’ ....” Id. at 353. In Wiener, the Court relied 

on the War Claims Commission’s performance of adjudicative functions to 

infer that Congress intended to restrict the President’s power to remove its 

members. 357 U.S. at 356. Because the Commission was established to adjudi4 In H um phrey's Executor v. United States, 295 U.S. 602 (1935), the provision for a term was coupled with 

a provision for removal for cause; the Court also em phasized legislative history indicating that Congress 

intended the Federal Trade Commission to be independent o f executive control

5 The Suprem e Court cases addressing the President’s pow er to remove persons appointed by him consists 

of the trilogy o f M yers v. United States, 272 U.S. 52 (1926); H um phrey's Executor, 295 U.S. 602 (1935); and 

W iener v. U nited States, 357 U.S. 349 (1958). Myers held that Congress cannot limit the President’s power to 

rem ove the persons appointed by him by and with the advice and consent o f the Senate. Humphrey's Executor

held that Congress can lim it the President's power to rem ove quasi-judicial and quasi-legislative officers, 

restricted the scope of M yers to purely executive officers, and left open the question whether and to what 

extent C ongress can lim it the President’s power to remove those of his appointees who perform neither quasijudicial, quasi-legislative, nor purely executive functions: ‘T o the extent that, between the decision in the 

M yers case, which sustains the unrestrictable power of the President to remove purely executive officers, and 

our present decision that such power does not extend to an office such as that here involved, there shall 

remain a field o f doubt, we leave such cases as may fall w ithin it for future consideration and determination as 

they may arise.” 295 U.S. at 632. Finally, Wiener sustained the restriction on the President’s removal power 

which it held could be inferred from the W ar Claims C om m issioner’s performance of adjudicative functions

The M yers case is lim ited to officers appointed by the President by and with the advice and consent of the 

Senate. United States v. Perkins, 116 U .S. 483 (1886) held that where Congress vests the appointment power 

in a D epartm ent head under Article II, § 2 of the Constitution, it may limit the removal power. Myers did not 

decide w hether Perkins applies where the power o f appointm ent is vested in the President alone, because the 

issue was not before it. It strongly suggested, however, that the question was to be answered in the negative. 

272 U.S. at 161-62. In M artin v. Reagan, 525 F. Supp. 110 (D. Mass. 1981), the Court held that an officer 

appointed by the President alone may be removed by the President at will.

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cate according to law, and “one must take for granted” that the statute “precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang 

over the Commission the Damocles’ sword of removal by the President.” Id. In 

Humphrey’s Executor, the Court stated that “the very nature of the Federal 

Trade Commission duties” require it to “act with entire impartiality .... Its 

duties are neither political nor executive, but predominantly quasi-judicial and 

quasi-legislative.” 295 U.S. at 624. Humphrey’s Executor rested its conclusion 

that Congress intended to restrict the President’s power to remove the Commissioners only in part on the Commission’s performance of those functions.

The opinions in Wiener and Humphrey’s Executor do not attempt to define 

the terms “adjudicatory” or “quasi-judicial and quasi-legislative” with any 

precision. However, some functions are clearly within the scope of those terms. 

In Wiener, the Court characterized the War Claims Commission’s function as 

“adjudication] according to law,” “that is, on the merits of each claim, supported by evidence and governing legal considerations.” 357 U.S. at 355. In 

Humphrey's Executor, the Court pointed to the FTC’s function to “exercise the 

trained judgment of a body of experts ‘appointed by law and informed by 

experience,”’ its “duties as a legislative or as a judicial aid,” and its responsibilities for “investigations and reports thereon” to Congress. 295 U.S. at 624, 

628. The Court also discusses the FTC’s adjudicative functions. Id. at 628. 

Thus, the assignment to an official of the performance of quasi-judicial and 

quasi-legislative functions, at least including “adjudication] according to law,” 

supports an inference that Congress intended to restrict the President’s removal 

power. Performance of quasi-legislative functions, including substantive 

rulemaking, cf. id. at 624, may not by itself support such an inference, but is 

some evidence of intent to restrict.

2. Presumption that Officer is Removable

If the statute is silent on removal and the officer performs neither quasijudicial nor quasi-legislative functions as those terms are used in Wiener and 

Humphrey's Executor, the presumption that the President may remove him at 

will controls. Only strong and unambiguous evidence of congressional intent is 

an adequate basis for concluding that Congress intended implicitly to restrict 

the President’s removal power. As the Court said in Shurtleff\. United States,

189 U.S. 311 (1903):

It cannot now be doubted that in the absence of constitutional 

or statutory provision the President can by virtue of his general 

power of appointment remove an officer, even though appointed 

by and with the advice and consent of the Senate. . . . To take 

away this power of removal in relation to an inferior office 

created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate,

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would require very clear and explicit language. It should not be 

held to be taken away by mere inference or implication.

Id. at 314-15.6

Legislative history suggesting that Congress looked favorably on the concept that a particular official would be “independent” of executive control 

ordinarily will not be enough. The concept of “independence,” in the abstract, 

has connotations that are appealing, and the term is often used in floor debates 

and legislative history without any specificity as to what precisely is intended. 

However, “independence” is less attractive if it comes at the cost of accountability. Congress presumably recognizes that an official who is not removable 

may act beyond the control of elected officials. Perhaps for this reason, the 

discussion of “independence” during legislative debates often goes no further 

than the abstract concept and seldom ripens into a clear specification of a 

legislative intent to make an appointed official non-removable.

Because Congress knows how to provide expressly for restrictions on removal if it chooses,7 the serious constitutional questions raised by congressional attempts to restrict Presidential removal of such appointees should be 

avoided unless it is clear that Congress intended squarely to face the constitutional issue and affirmatively desires that an official be independent of and not 

accountable to the President. The burden of demonstrating intent to restrict the 

President’s removal power is heaviest when the officer performs “purely 

executive” functions, and an attempt to restrict the power to remove such an 

officer would be unconstitutional under Myers. The burden is also heavy when 

an officer performs a mixture of executive and other functions, and his functions cannot be described as “predominantly quasi-judicial and quasi-legislative,” or where his functions fall in the “field of doubt” between purely 

executive and quasi-judicial and quasi-legislative functions. A restriction on 

the President’s power to remove such an officer would raise serious and 

unsettled questions of constitutional law under Myers, Humphrey’s Executor

and Wiener. See supra note 5.

B. Application o f the Governing Law

The application of these principles to the PADC Board is straightforward. 

The Act provides for appointment by the President, but is silent on the subject 

of removal: there is no express restriction on removal nor is there any legislative history on the subject of removal, and the only provision relating to tenure 

in office is the provision for a six-year term.8 As noted, a provision for a term,

6 In S h u rtleff the C ourt concluded that a provision for removal for cause did not constitute such language. In 

H um phrey's Executor, the Court distinguished Shurtleff on the ground that the statute there contained no 

provision for a term . 295 U.S. at 621-23.

7 See, e.g., 42 U.S.C. § 2996c(e) (Board o f the Legal Services Corporation).

8 The House Report, the only Committee R eport submitted with the 1972 legislation, makes no mention of 

rem oval o f m em bers o f the Board. See H.R. Rep. No. 1445, 92d Cong., 2d Sess. (1972).

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by itself, is not a restriction on removal. Thus, nothing in the Act or its 

legislative history suggests an intent to restrict the removal power.

Having concluded that the statute is silent on removal, we turn next to an 

examination of the functions of the PADC Board to determine whether it 

performs quasi-judicial or quasi-legislative functions. It does neither. In establishing the PADC, Congress found “that it is in the national interest that the 

area adjacent to Pennsylvania Avenue between the Capitol and the White 

House,” which has been designated a national historic site, “be developed, 

maintained, and used in a manner suitable to its ceremonial, physical, and 

historic relationship to the legislative and executive branches of the Federal 

Government and to the governmental buildings, monuments, memorials, and 

parks in or adjacent to the area.” 40 U.S.C. § 871(a). Congress further found 

“that to insure suitable development, maintenance, and use of the area and the 

elimination of blight, it is essential that there be developed and carried out as an 

entirety plans for this area which will specify the uses, both public and private, 

to which property is to be put, the programming and financing of necessary 

acquisitions, construction, reconstruction, and other activities.” Id. § 871(c). 

The two chief functions of the PADC under the statute are to develop such a 

plan and to carry it out. Section 874 governs the content of the redevelopment 

plan and the procedures for its preparation, approval and revision.9 Section 875 

sets forth the powers conferred on the corporation to carry out the development 

plan, including the powers to acquire land by, inter alia, condemnation proceedings, id. § 875(6); to establish by covenants, regulation and otherwise 

“such restrictions ... as are necessary to assure development, maintenance, and 

protection of the development area in accordance with the development plan,” 

id. § 875(8); to “borrow money from the Treasury of the United States” as 

authorized in appropriations acts, id. § 875(10); to “contract for and accept 

gifts or grants or property or other financial aid . . . from any source,” 

governmental or other, id. § 875(13); and “utilize or employ the services of 

personnel of any agency . . . of the Federal Government.” Id. § 875(21).

As the foregoing review demonstrates, the functions of the Board are neither 

quasi-judicial nor quasi-legislative within the meaning of Humphrey’s Executor and Wiener. Because there is nothing in the statutory scheme or legislative 

history to overcome the presumption that the President has authority over such 

officials whom he appoints, and that the directors are therefore removable at 

will, we conclude that the President may remove the directors of the PADC.

HI. Conclusion

The Act provides for appointment of the directors of the PADC Board by the 

President, but is silent on the subject of removal: no provision in the Act

9 The plan must include, inter alia, the types o f uses permitted, criteria for design of buildings and open 

spaces, an estimate o f the re-use values o f the properties to be acquired, a determination o f the marketability 

of the development, and the procedures for insuring continuing conformance to the development plan. Id. at 

§ 874(a).

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expressly restricts the President’s removal power, nor is there any provision 

bearing on the directors’ tenure in office or terms of removal which must be 

interpreted as intended to restrict the President’s removal power. Moreover, 

because the PADC Board’s functions are neither quasi-judicial nor quasilegislative as those terms are used in the Supreme Court cases addressing the 

President’s removal power, no inference can be drawn from the functions 

assigned to the Board that Congress intended implicitly to restrict the removal 

power. In these circumstances, a presumption arises that the President may 

remove his appointees at will. As our discussion of the PADC Act and its 

legislative history have demonstrated, there is nothing in either that history or 

the statutory scheme to overcome this presumption. We therefore conclude that 

the directors of the PADC may be removed by the President at will.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office o f Legal Counsel

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