b'Constitutional Limitations on Federal Government\nParticipation in Binding Arbitration\nThe Appointments Clause does not prohibit the federal government from submitting to binding arbitra\xc2\xad\ntion.\nN or does any other constitutional provision or doctrine impose a general prohibition against the federal\ngovernment entering into binding arbitration, although the Constitution does impose substantial\nlim its on the authority of the federal government to enter into binding arbitration in specific cases.\n\nSeptember 7, 1995\nM e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l\n\nYou have asked for our opinion as to whether the Constitution in any way\nlimits the authority of the federal government to submit to binding arbitration.1\nSpecifically, you have asked us to explain and expand on advice we issued on\nSeptember 19, 1994, in which we confirmed our earlier oral advice that \xe2\x80\x9c the\nOffice of Legal Counsel no longer takes the view that the Appointments Clause,\nU.S. Const, art. II, \xc2\xa72, cl. 2, bars the United States from entering into binding\narbitration.\xe2\x80\x9d Memorandum for David Cohen, Director, Commercial Litigation\nBranch, Civil Division, from Dawn Johnsen, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Binding Arbitration (Sept. 19, 1994).2 Below, we\nreiterate this conclusion and, pursuant to your request, set forth the reasoning by\nwhich we reached it. In addition, we consider, again pursuant to your request,\nthe various other constitutional provisions that may be implicated when the federal\ngovernment enters into binding arbitration. We conclude that none absolutely bars\nthe federal government from taking such action. We should point out, however,\nthat Exec. Order No. 12778 remains in effect. See Civil Justice Reform, 56 Fed.\n1 Several com ponents o f the Department o f Justice have submitted comments on the subject of binding arbitration.\n\nSee M emorandum for W alter Dellinger, Assistant Attorney General, Office o f Legal Counsel, from Carol DiBattiste,\nDirector, Executive Office for United States Attorneys, Re: Binding Arbitration Involving the Federal Government\nas a Party (M ar. 1, 1995) ( \xe2\x80\x9c EOUSA mem orandum \xe2\x80\x9d ); M emorandum for W alter Dellinger, Assistant Attorney Gen\xc2\xad\neral, O ffice o f Legal Counsel, from Frank W. Hunger, Assistant Attorney General, Civil Division, Re: Constitu\xc2\xad\ntionality o f Binding Arbitration Involving the Federal Government as a Party (Feb. 28, 1995) ( \xe2\x80\x9c Civil Division\nm em orandum \xe2\x80\x9d ); M emorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from\nLois J. Schiffer, Assistant Attorney General, Environment and Natural Resources Division, Re: Binding Arbitration\nInvolving the Federal Government as a Party (Feb. 24, 1995) ( \xe2\x80\x9c ENRD m emorandum\xe2\x80\x9d ).\n2 The O ffice o f Legal Counsel has never issued an opinion on the matter. Then Assistant Attorney General for\nthe O ffice o f Legal Counsel William Barr, however, testified that the Appointments Clause would prohibit the governm ent from entering into binding arbitration unless arbitrators were appointed by one of the methods described in\nthat Clause, which they typically are not. See Administrative Dispute Resolution Act o f 1989: Hearing Before the\nSubcomm. on Oversight o f Gov\xe2\x80\x99t Management o f the Senate Comm, on Governmental Affairs, iO lst Cong. 86 (1989)\n(statem ent o f Assistant Attorney General W illiam P. Barr); Administrative Dispute Resolution Act: Hearings on H.R.\n2497 Before the Subcomm. on Admin. Law and Gov\xe2\x80\x99t Relations o f the House Comm, on the Judiciary, 101st Cong.\n38 (1990) (statem ent o f Assistant Attorney General William P. Barr). In addition, the Civil Division has issued\na m anual entitled Guidance on the Use o f Alternative Dispute Resolution fo r Litigation in the Federal Courts (1992).\nThat m anual asserted that \xe2\x80\x9c [t]he Government cannot enter into agreements to participate in \xe2\x80\x98binding* arbitration.\xe2\x80\x9d\nId. at 4. The legal basis cited for this assertion was the Appointments Clause. Id. at 4 & n.8.\n\n208\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nReg. 55,195 (1991). That order forbids litigation counsel for federal agencies from\nseeking or agreeing to enter into binding arbitration. Id. \xc2\xa7 1(c)(3). Therefore, while\na constitutionally valid statute may compel litigation counsel to enter into binding\narbitration, litigation counsel may not voluntarily agree to binding arbitration.3\nI. Background\nNeither term in the phrase \xe2\x80\x9c binding arbitration\xe2\x80\x9d bears a settled meaning. First,\n\xe2\x80\x9c arbitration\xe2\x80\x9d may be a very different exercise in different contexts and cases\nbecause there are no universally applicable rules of practice, procedure, or evi\xc2\xad\ndence governing the conducting of arbitration. In addition, there is no standard\nas to whether arbitration is to be conducted by a single arbitrator or by a panel\nof arbitrators or as to the method for selecting the individuals who serve in that\ncapacity.4 Moreover, arbitration may be voluntary \xe2\x80\x94 in that both parties have\nagreed to resolve their dispute by this method \xe2\x80\x94 or compulsory \xe2\x80\x94 in that some\nother requirement such as a statute compels the parties to resolve their dispute\nby this method. Second, it is not at all clear what exactly is meant by referring\nto an arbitration as \xe2\x80\x9c binding.\xe2\x80\x9d We take this to mean that judicial review of the\narbitral decision is narrowly limited, as opposed to non-binding arbitration in\nwhich each party remains free to disregard any arbitral ruling. The limitation on\njudicial review could take numerous forms. It may mean that there is to be no\nreview of an arbitral decision. Alternatively, it may mean that an arbitral decision\nis reviewable only under a very limited standard, such as fraud by the arbitrator(s)\nor arbitrary and capricious decision making. Because of this indeterminacy, it is\n3The President\xe2\x80\x99s power is at its lowest ebb where the President issues an executive order that is contrary to\nother law. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). For this reason, we doubt that Exec.\nO rder No. 12778 is meant to forbid entering into binding arbitration where there is a statutory or other legal obligation\nto do so. So, for instance, if the Federal Arbitration Act, 9 U.S.C. \xc2\xa7\xc2\xa7 1-6 were to require the enforcement o f a\ncontractual binding arbitration provision, we would not interpret Exec. Order No. 12778 as attempting to override\nthis statute.\nBecause your request focuses on the constitutional issues that might arise in connection with binding arbitration,\nwe do not regard it as necessary to determine whether, setting aside Exec. Order No. 12778, the executive is author\xc2\xad\nized to enter into binding arbitration as part o f a contract. Nevertheless, we point out that the President and the\nexecutive branch have broad authority to negotiate for o r agree to contractual terms that they view as advancing\nthe federal governm ent\'s various interests. In a given case, this authority may stem from the Constitution, the specific\nstatute authorizing the President or an executive branch official to enter into a contract, or from a broader statutory\nauthorization. See generally 40 U.S.C. \xc2\xa7486; Authority to Issue Executive Order on Government Procurement, 19\nOp. O.L.C. 90(1995).\nAnother threshold inquiry is whether there is a basis for bringing a claim against the government. The United\nStates is immune from suit except where it consents to be sued. See, e.g.. United States v. Lee, 106 U.S. 196\n(1882); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821). The waiver o f sovereign immunity must be\nexpress. See, e.g., Department o f Energy v. Ohio, 503 U.S. 607 (1992). Moreover, only Congress m ay waive sovereign\nimmunity; the executive may not waive this immunity, such as through consenting to binding arbitration. See United\nStates v. Shaw, 309 U.S. 495, 501 (1940). The three most significant statutory waivers of sovereign immunity are\nthe Administrative Procedures Act, 5 U.S.C. \xc2\xa7702, the Federal Tort Claims Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(b), 2671-2680,\nand the Tucker Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(a), 1491. W hether any claim is encompassed within one of these or any\nother express waiver o f sovereign immunity depends upon the specific claim asserted.\n4Typically, arbitrators either are professional arbitrators or possess some expertise in the subject matter o f the\nspecific arbitration wherein they act. Throughout this memorandum, we assume that they are selected to arbitrate\nparticular disputes on a case-by-case basis in the manner o f independent contractors.\n\n209\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nnot possible to draw many specific conclusions. We are able, however, to offer\ngeneralizations and guidance pertaining to participation by the federal government\nin the various forms that binding arbitration may take.\nII. The Appointments Clause\nA. Whether Arbitrators Are Officers of the United States\nTo understand why the assertion that the Appointments Clause prohibits the\ngovernment from entering into binding arbitration is not well-founded, it is nec\xc2\xad\nessary first to examine the requirements of the Appointments Clause itself. The\nAppointments Clause provides that\n[the President,] shall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint Ambassadors, other public\nMinisters and Consuls, Judges of the supreme Court, and all other\nOfficers of the United States, whose Appointments are not herein\notherwise provided for, and which shall be established by Law: but\nthe Congress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the Courts\nof Law, or in the Heads of Departments.\nU.S. Const, art. II, \xc2\xa72, cl. 2. The Appointments Clause sets forth the exclusive\nmechanisms by which an officer of the United States may be appointed. See\nBuckley v. Valeo, 424 U.S. 1, 124-37 (1976) (per curiam). The first issue to be\nresolved is, who is an \xe2\x80\x9c officer\xe2\x80\x9d within the meaning of the Constitution and there\xc2\xad\nfore must be appointed by one o f the methods set out in the Appointments Clause?\nNot everyone who performs duties for the federal government is an officer\nwithin the meaning of the Appointments Clause. The requirements of the Appoint\xc2\xad\nments Clause apply only where an individual is appointed to an \xe2\x80\x9c office\xe2\x80\x9d within\nthe federal government. From the early days of the Republic, the concepts of\n\xe2\x80\x9c office\xe2\x80\x9d and \xe2\x80\x9c officer\xe2\x80\x9d have been understood to embrace the ideas of \xe2\x80\x9c tenure,\nduration, emolument, and duties.\xe2\x80\x9d United States v. Hartwell, 73 U.S. (6 Wall.)\n385, 393 (1867). Because Hartwell has long been taken as the leading statement\nof the constitutional meaning o f \xe2\x80\x9c officer,\xe2\x80\x9d 5 that statement is worth repeating in\nfull:\n5 In an opinion discussing an Appointments Clause issue. Attorney General Robert F. Kennedy referred to Hartwell\nas providing the \xe2\x80\x9c classical definition penaining to an officer.\xe2\x80\x9d Communications Satellite Corporation, 42 Op. A tt\xe2\x80\x99y\nGen. 165, 169 (1962). Hartwell itself cited several earlier opinions, including United States v. Maurice, 26 F. Cas.\n1211 (C.C.D. Va. 1823) (No. 15,747) (M arshall, Circuit Justice), see Hartwell, 73 U.S. at 393 n .f, and in turn\nhas been cited by num erous subsequent Suprem e Court decisions, mcluding United States v. Germaine, 99 U.S.\n508, 511-1 2 (1878), and Aujjfmordt v. Hedden , 137 U.S. 310, 327 (1890). These latter two decisions were cited\nwith approval by the Court in Buckley, 424 U .S. at 125-26 & n.162.\n\n210\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nAn office is a public station, or employment, conferred by the\nappointment of government. The term embraces the ideas of tenure,\nduration, emolument, and duties.\nThe employment of the defendant was in the public service of\nthe United States. He was appointed pursuant to law, and his com\xc2\xad\npensation was fixed by law. Vacating the office of his superior\nwould not have affected the tenure of his place. His duties were\ncontinuing and permanent, not occasional or temporary. They were\nto be such as his superior in office should prescribe.\nA government office is different from a government contract. The\nlatter from its nature is necessarily limited in its duration and spe\xc2\xad\ncific in its objects. The terms agreed upon define the rights and\nobligations of both parties, and neither may depart from them with\xc2\xad\nout the assent of the other.\nId. at 393.\nHartwell and the cases following it specify a number of criteria for identifying\nthose who must be appointed as constitutional officers, and in some cases it is\nnot entirely clear which criteria the court considered essential to its decision.\nNevertheless, we believe that from the earliest reported decisions onward, the con\xc2\xad\nstitutional requirement has involved at least three necessary components. The\nAppointments Clause is implicated only if there is created or an individual is\nappointed to (1) a position of employment (2) within the federal government (3)\nthat is vested with significant authority pursuant to the laws of the United States.\n1. A Position o f Employment: The Distinction between Appointees and Inde\xc2\xad\npendent Contractors. An officer\xe2\x80\x99s duties are permanent, continuing, and based\nupon responsibilities created through a chain of command rather than by contract.\nUnderlying an officer is an \xe2\x80\x9c office,\xe2\x80\x9d to which the officer must be appointed.\nAs Chief Justice Marshall, sitting as circuit justice, wrote: \xe2\x80\x9c Although an office\nis \xe2\x80\x98an employment,\xe2\x80\x99 it does not follow that every employment is an office. A\nman may certainly be employed under a contract, express or implied, to do an\nact, or perform a service, without becoming an officer.\xe2\x80\x9d Maurice, 26 F. Cas.\nat 1214. Chief Justice Marshall speaks here of being \xe2\x80\x9c employed under a con\xc2\xad\ntract\xe2\x80\x9d ; in modem terminology the type of non-officer status he is describing is\nusually referred to as that of independent contractor. In Hartwell, this distinction\nshows up in the opinion\xe2\x80\x99s attention to the characteristics of the defendant\xe2\x80\x99s\nemployment being \xe2\x80\x9c continuing and permanent, not occasional or temporary,\xe2\x80\x9d as\nwell as to the suggestion that with respect to an officer, a superior can fix and\nthen change the specific set of duties, rather than having those duties fixed by\na contract. 73 U.S. at 393.\n211\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nThe Court also addressed the distinction between employees and persons whose\nrelationship to the government takes some other form in Germaine. There, the\nCourt considered whether a surgeon appointed by the Commissioner of Pensions\n\xe2\x80\x9c \xe2\x80\x98to examine applicants for pension, where [the Commissioner] shall deem an\nexamination . . . necessary,\xe2\x80\x99 \xe2\x80\x9d Germaine, 99 U.S. at 508 (quoting Rev. Stat.\n\xc2\xa7 4777), was an officer within the meaning of the Appointments Clause. The sur\xc2\xad\ngeon in question was \xe2\x80\x98\xe2\x80\x98only to act when called on by the Commissioner of Pen\xc2\xad\nsions in some special case\xe2\x80\x9d ; furthermore, his only compensation from the govern\xc2\xad\nment was a fee for each examination that he did in fact perform. Id. at 512. The\nCourt stated that the Appointments Clause applies to \xe2\x80\x9c all persons who can be\nsaid to hold an office under the government,\xe2\x80\x9d id. at 510, and, applying Hartwell,\nconcluded that \xe2\x80\x9c the [surgeon\xe2\x80\x99s] duties are not continuing and permanent and they\nare occasional and intermittent.\xe2\x80\x9d Id. at 512. The surgeon, therefore, was not an\nofficer of the United States. Id.6\n2.\nAppointment to a Position within the Federal Government. In addition,\nHartwell and the other major decisions defining \xe2\x80\x9c Officers of the United States\xe2\x80\x9d\nall reflect the historical understanding that the Appointments Clause speaks only\nto positions within the federal government. The Appointments Clause simply is\nnot implicated when significant authority is devolved upon non-federal actors. In\nHartwell the Court stated that \xe2\x80\x9c [a]n office is a public station, or employment,\nconferred by the appointment of government.\xe2\x80\x9d 73 U.S. at 393. In holding that\nthe Appointments Clause applied in that case, the Court stressed that \xe2\x80\x9c [t]he\nemployment of the defendant was in the public service of the United States.\xe2\x80\x9d\nId.; see also Germaine, 99 U.S. at 510 (founders intended appointment pursuant\nto the Appointments Clause only for \xe2\x80\x9c persons who can be said to hold an office\nunder the government about to be established under the Constitution\xe2\x80\x9d ). This\nmeans that the delegation of federal authority to state officials can present no\nAppointments Clause difficulties, because the individuals serve as state officials\nrather than as federal officials.7 It is a conceptual mistake to argue that federal\n\n6 Germaine clearly was discussing the concept o f "o ffic e r\xe2\x80\x9d in the constitutional, and not simply a generic, sense:\nthe alternative basis for the holding was that the surgeon was not an officer because he was appointed by the Commis\xc2\xad\nsioner who, as the head o f a bureau w ithin the Interior Department, could not be a \xe2\x80\x9c head o f Department,\xe2\x80\x9d with\nthe authority to appoint officers. Id. at 511.\n7 The fram ers appear to have envisioned that state officials would enforce federal law. For exam ple, Madison\nwrote,\neventual collection [of certain Federal taxes] under the immediate authority o f the Union, will generally\nbe made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely\nprobable that in other instances, . . . the officers o f the States w ill be clothed with the correspondent\nauthority o f the Union.\n\n212\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nlaws delegating authority to state officials create federal \xe2\x80\x9c offices,\xe2\x80\x9d which are then\nfilled by (improperly appointed) state officials. Rather, the \xe2\x80\x9c public station, or\nemployment\xe2\x80\x9d has been created by state law; the federal statute simply adds federal\nauthority to a pre-existing state office.8 Accordingly, the substantiality of the dele\xc2\xad\ngated authority is immaterial to the Appointments Clause conclusion.9 An analo\xc2\xad\ngous point applies to delegations made to private individuals: the simple assign\xc2\xad\nment of some duties under federal law, even significant ones, does not by itself\npose an Appointments Clause problem.10\nIn our view, therefore, the lower federal courts have been correct in rejecting\nAppointments Clause challenges to the exercise of federally-derived authority by\nstate officials,11 the District of Columbia City Council,12 qui lam relators under\nthe False Claims Act,13 and plaintiffs under the citizen suit provisions of the Clean\nThe Federalist No. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961). The framers also seem to have acted\nupon this understanding. The first Judiciary Act, enacted by the first Congress, required state magistrates and justices\nof the peace to arrest and detain any criminal offender under the laws o f the United States. Ch. XX, \xc2\xa733, 1 Stat.\n73, 91 (1789). This statute, in immaterially modified form, remains in effect. 18 U.S.C. \xc2\xa73041. At least two courts\nhave interpreted this statute to authorize state and local law enforcement officers to arrest an individual who violates\nfederal law. See United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); Whitlock v. Boyer, 77 Ariz. 334, 271\nP.2d 484(1954).\nAs discussed below, the delegation to private persons or non-federal government officials o f federal-law authority,\nsometimes incorrectly analyzed as raising Appointments Clause questions, can raise genuine questions under other\nconstitutional doctrines, such as the non-delegation doctrine and general separation o f powers principles. Compare\nConfederated Tribes o f Sileiz Indians v. United States, 841 F. Supp. 1479, 1486-89 (D. Or. 1994) (appeal pending)\n(confusing Appointments Clause with separation o f powers analysis in holding invalid a delegation to a state gov\xc2\xad\nernor) with United States v Ferry County, 511 F. Supp. 546, 552 (E.D. Wash. 1981) (correctly dismissing A ppoint\xc2\xad\nments C lause argument and analyzing delegation to county commissioners under non-delegation doctrine).\n8 This should be distinguished from the case where a federal statute creates a federal office\xe2\x80\x94 such as membership\non a federal commission that wields significant authority\xe2\x80\x94 and requires that a particular state officer occupy that\noffice. In this instance, Congress has actually created a federal office and sought to fill it, which is the prototype\nof an Appointments Clause violation.\n9 See Seattle Master Builders Ass\xe2\x80\x99n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786\nF.2d 1359, 1365 (9th Cir. 1986) (\xe2\x80\x9c because the Council members do not serve pursuant to federal law ,\xe2\x80\x9d it is \xe2\x80\x9c immate\xc2\xad\nrial whether they exercise some significant executive or administrative authority over federal activity\xe2\x80\x9d ), cert, denied,\n479 U.S. 1059(1987).\n>0One might also view delegations to private individuals as raising the same considerations as suggested by the\ndistinction drawn earlier between appointee and independent contractor\xe2\x80\x94 so long as the statute does not create such\ntenure, duration, emoluments and duties as would be associated with a public office, the individual is not the occupant\nof a constitutional office but is, rather, a private party who has assumed or been delegated some federal responsibil\xc2\xad\nities.\nn See, e.g., Seattle Master Builders, 786 F.2d at 1364-66. The particular state officials at issue were serving\non an entity created by an interstate compact established with the consent o f Congress, but that fact is not significant\nfor Appointments Clause purposes. The crucial point was that \xe2\x80\x9c [t]he appointment, salaries and direction\xe2\x80\x9d o f the\nofficials were \xe2\x80\x9c state-derived\xe2\x80\x9d : \xe2\x80\x9c the states ultimately empower the [officials] to c an y out their duties.\xe2\x80\x9d Id. at 1365.\nThe Supreme C ourt\xe2\x80\x99s decision in New York v. United States, 505 U.S. 144 (1992), which held that Congress cannot\n\xe2\x80\x9c com m andeer\xe2\x80\x9d state officials to serve federal regulatory purposes, reinforces this conclusion. W here state officials\ndo exercise significant authority under or with respect to federal law, they do so as state officials, by the decision\nand under the ultimate authority o f the state.\n12 See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 115-17 (D.D.C. 1986). Though\nthe court did not fully develop the point, we believe that the District o f Columbia stands on a special footing.\nC ongress\xe2\x80\x99s plenary authority to legislate for the District entails authority to establish a municipal government for\nthe District, the officers o f which are municipal rather than federal officers to whom the Appointments Clause simply\ndoes not apply.\n13 We believe that United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757-59 (9th Cir. 1993) (rejecting Appoint\xc2\xad\nments Clause challenge to False Claims Act), cert, denied, 510 U.S. 1140 (1994), reached the correct result but\nContinued\n\n213\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nWater Act.14 The same conclusion should apply to the members of multinational\nor international entities who are not appointed to represent the United States.15\n3.\nThe Exercise of Significant Authority. Chief Justice Marshall\xe2\x80\x99s observation\nthat \xe2\x80\x9c [although an office is \xe2\x80\x98an employment,\xe2\x80\x99 it does not follow that every\nemployment is an office,\xe2\x80\x9d Maurice, 26 F. Cas. at 1214, points to a third distinc\xc2\xad\ntion as well \xe2\x80\x94 although not one that was at issue in Maurice itself. An officer\nis distinguished from other full-time employees of the federal government by the\nextent of authority he or she can properly exercise. As the Court expressed in\nBuckley.\nWe think that the term \xe2\x80\x9c Officers of the United States\xe2\x80\x9d as used\nin Art. II, defined to include \xe2\x80\x9c all persons who can be said to hold\nan office under the government\xe2\x80\x9d in United States v. Germaine,\n[means] that any appointee exercising significant authority pursuant\nto the laws of the United States . . . must . . . be appointed in\nthe manner prescribed by [the Appointments Clause],\n424 U.S. at 125-26 (emphasis added).16 In contrast, \xe2\x80\x9c [e]mployees are lesser func\xc2\xad\ntionaries subordinate to officers of the United States.\xe2\x80\x9d Id. at 126 n.162.\nthrough an incorrect line o f analysis. See id. at 758 (Clause not violated because o f the relative modesty o f the\nauthority exercised by the relator). The better Appointments Clause analysis, in our view, is that o f the court in\nUnited States ex rel. Burch v. Piqua Eng\' g, Inc., 803 F. Supp. 1 15, 120 (S.D. Ohio 1992), which held that \xe2\x80\x9c because\nqui tam [relators] are not officers of the United States, the FCA does not violate the Appointments C lause.\xe2\x80\x9d We\ndisapprove the A ppointm ents Clause analysis and conclusion o f an earlier memorandum o f this Office, Constitu\xc2\xad\ntionality o f the Qui Tam Provisions o f the False Claims Act, 13 Op. O.L.C. 207 (1989) (arguing that the qui tam\nprovisions violate the Appointments Clause).\n14 Here, the court phrased its analysis in terms o f separation o f powers, but the challenge to the statute was,\nat its core, based on the Appointments C lause. See Chesapeake Bay Found, v. Bethlehem Steel Corp., 652 F. Supp.\n620, 624 (D. Md. 1987) (Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), \xe2\x80\x9c does not stand for the proposition\n. . . that private persons may not enforce any federal laws simply because they are not Officers o f the United\nStates appointed in accordance with Article II o f the C onstitution\xe2\x80\x9d ).\n15 A t least where these entities are created on an ad hoc o r temporary basis, there is a long historical pedigree\nfor the argum ent that even the United States representatives need not be appointed in accordance with Article II.\nSee, e.g., A lexander Hamilton, The Defence No. 37 (Jan. 6, 1796), reprinted in 20 The Papers o f Alexander Hamilton\n13, 20 (H arold C. Syrett ed., 1974)As to what respects the Commissioners agreed to be appointed [under the Jay Treaty with Great Britain],\nthey are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in\nthe Constitutions, both o f the U[nited] States and o f most o f the Individual states, a particular mode of\nappointing officers is designated, yet in practice it has not been deem ed a violation o f the provision to\nappoint C om m issioners or special Agents for special purposes in a different mode.\nThe traditional view o f the Attorneys G eneral has been that the members o f international commissions hold \xe2\x80\x9c an\noffice or em ploym ent em anating from the general treaty-making power, and created by it\xe2\x80\x9d and the foreign nation(s)\ninvolved and that m embers are not constitutional officers. Office\xe2\x80\x94 Compensation, 22 Op. A tt\xe2\x80\x99y Gen. 184, 186 (1898);\nsee generally Dames & Moore v. Regan, 453 U.S. 654 (1981); Harold H. Bruff, Can Buckley Clear Customs?,\n49 W ash. & Lee L. Rev. 1309 (1992); Jim C. Chen, Appointments with Disaster: The Unconstitutionality o f the\nBinational Arbitral Review under the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1455\n(1992); W illiam J. Davey, The Appointments Clause and International Dispute Settlement Mechanisms: A False\nConflict, 49 W ash. & Lee L. Rev. 1315 (1992); Alan B. M orrison, Appointments Clause Problems in the Dispute\nResolution Provisions o f the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1299 (1992).\n16 See Appointments in the Department o f Commerce and Labor, 29 Op. A tt\xe2\x80\x99y Gen. 116, 118-19, 122-23 (1911)\n(official authorized to perform all the duties o f the Commissioner o f Fisheries, who was appointed by the President\nand confirm ed by the Senate, was an officer, scientists, technicians, and superintendent o f mechanical plant in the\n\n214\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nThe distinction between constitutional officers and other employees is a long\xc2\xad\nstanding one. See, e.g., Burnap v. United States, 252 U.S. 512, 516\xe2\x80\x9419 (1920)\n(landscape architect in the Office of Public Buildings and Grounds was an\nemployee, not an officer); Second Deputy Comptroller o f the Currency\xe2\x80\x94 Appoint\xc2\xad\nment, 26 Op. Att\xe2\x80\x99y Gen. at 628 (Deputy Comptroller of the Currency was \xe2\x80\x9c mani\xc2\xad\nfestly an officer of the United States\xe2\x80\x9d rather than an employee). At an early point,\nthe Court noted the importance of this distinction for Appointments Clause anal\xc2\xad\nysis. See Germaine, 99 U.S. at 509.17\nThe Supreme Court relied on the officer/employee distinction in Freytag v.\nCommissioner, 501 U.S. 868 (1991). In Freytag, the Court rejected the argument\nthat special trial judges of the Tax Court are employees rather than officers\nbecause \xe2\x80\x9c they lack authority to enter a final decision\xe2\x80\x9d and thus arguably are\nmere subordinates of the regular Tax Court judges.18 Id. at 881. The Court put\nsome weight on the fact that the position of special trial judge, as well as its\nduties, salary, and mode of appointment, are specifically established by statute;19\nthe Court also emphasized that special trial judges \xe2\x80\x9c exercise significant discre\xc2\xad\ntion\xe2\x80\x9d in carrying out various important functions relating to litigation in the Tax\nCourt. Id. at 882.\nBureau of Standards were employees rather than officers), Second Deputy Comptroller o f the Currency\xe2\x80\x94 Appoint\xc2\xad\nment, 26 Op. A tt\'y Gen. 627, 628 (1908) ( \xe2\x80\x9c The officer is distinguished from the employee in the greater importance,\ndignity, and independence o f his position\xe2\x80\x9d ; official authorized to exercise powers o f the Comptroller o f the Currency\nin the absence o f the Comptroller was clearly an officer).\nWe hasten to note that the exercise o f significant authority alone is not a sufficient condition to characterizing\na position as an office within the meaning o f the Appointments Clause. To be considered a position that must\nbe filled in conformance with the Appointments Clause, the position must also be one of employment within the\nfederal government. For a discussion o f this point, see infra section D.B.\n17 The status o f certain officials traditionally appointed in modes identical to those designated by the Appointments\nClause is somewhat anomalous. For instance, low-grade military officers have always been appointed by the President\nand confirmed by the Senate and understood to be \xe2\x80\x9c Officers o f the United States\xe2\x80\x9d in the constitutional sense;\nin Weiss v. United States, 510 U.S. 163, 171 (1994), the Supreme Court recently indicated its agreement with that\nunderstanding. It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is\nso limited and subordinate that their analogues in the civil sphere clearly would be employees. There are at least\nthree possible explanations. (1) Congress may make anyone in public service an officer simply by requiring appoint\xc2\xad\nment in one o f the modes designated by the Appointments Clause. The Clause, on this view, mandates officer\nstatus for officials with significant governmental authority but does not restrict the status to such officials. This\napparently was the nineteenth-century view. See, e.g., United States v. Perkins, 116 U S . 483, 484 (1886) (cadet\nengineer at the Naval Academy was an officer because \xe2\x80\x9c Congress has by express enactment vested the appointment\nof cadet-engineers in the Secretary o f the Navy and when thus appointed they become officers and not em ploye[e]s\xe2\x80\x9d ).\n(2) Certain officials are constitutional officers because in the early Republic their positions were o f greater relative\nsignificance in the federal government than they are today. C f Buckley, 424 U.S. at 126 (postmasters first class\nand clerks o f district courts are officers). (3) Even the lowest ranking military or naval officer is a potential com\xc2\xad\nmander of United States armed forces in com bat\xe2\x80\x94 and, indeed, is in theory a potential commander o f large military\nor naval units by presidential direction or in the event o f catastrophic casualties among his or her superiors.\nIBIn fact, as the Court pointed out, the chief judge of the Tax Court can assign special trial judges to render\nfinal decisions in certain types o f cases, a power that the government conceded rendered them, in those circumstances,\n\xe2\x80\x9c inferior officers who exercise independent authority.\xe2\x80\x9d The Court rejected the argument that special trial judges\ncould be deemed inferior officers for some purposes and employees for others. Id. at 882.\n19 The text o f the Appointments Clause implies that offices in the sense o f the Clause must be established in\nthe Constitution or by statute. See U.S. Const, art. II, \xc2\xa72, cl. 2 (specifying certain officers and then referring to\n\xe2\x80\x9c all other Officers o f the United States, whose Appointments are not herein otherwise provided for, and which\nshall be established by Law \xe2\x80\x9d ).\n\n215\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIn contrast, as this Office has concluded, the members of a commission that\nhas purely advisory functions \xe2\x80\x9c need not be officers of the United States\xe2\x80\x9d because\nthey \xe2\x80\x9c possess no enforcement authority or power to bind the Government.\xe2\x80\x9d Pro\xc2\xad\nposed Commission on Deregulation o f International Ocean Shipping, 7 Op. O.L.C.\n202, 202-03 (1983). For that reason, the creation by Congress of presidential\nadvisory committees composed, in whole or in part, of congressional nominees\nor even of members of Congress does not raise Appointments Clause concerns.\nBecause employees do not wield independent discretion and act only at the\ndirection of officers, they do not in their own right \xe2\x80\x9c exercis[e] responsibility under\nthe public laws of the Nation,\xe2\x80\x9d Buckley, 424 U.S. at 131.20 Conversely, \xe2\x80\x9c any\nappointee\xe2\x80\x9d in federal service who \xe2\x80\x9c exercis[es] significant authority pursuant to\nthe laws of the United States\xe2\x80\x9d must be an officer in the constitutional sense and\nmust be appointed in a manner consistent with the Appointments Clause.21 Id.\nat 126.\nTo recapitulate, one who occupies a position o f employment within the federal\ngovernment that carries significant authority pursuant to the laws of the United\nStates is required to be an officer of the United States, and therefore to be\nappointed pursuant to the Appointments Clause. Each one of the italicized terms\nsignifies an independent condition, all three of which must be met in order for\nthe position to be subject to the requirements of the Appointments Clause. We\nnow turn to consideration of whether arbitrators occupy a position of employment\nin the federal government and exercise significant federal authority.\n4.\nArbitrators. It seems beyond dispute that arbitrators exercise significant\nauthority, at least in the context of binding arbitration involving the federal\ngovernment. However, arbitrators retained for purposes of resolving a single case\ndo not satisfy the remaining necessary conditions. They are manifestly private\nactors who are, at most, independent contractors to, rather than employees of,\nthe federal government. Arbitrators are retained for a single matter, their service\nexpires at the resolution of that matter, and they fix their own compensation.\nHence, their service does not bear the hallmarks of a constitutional office\xe2\x80\x94\ntenure, duration, emoluments, and continuing duties. Consequently, arbitrators do\nnot occupy a position of employment within the federal government, and it cannot\nbe said that they are officers of the United States. Because arbitrators are not\nofficers, the Appointments Clause does not place any requirements or restrictions\non the manner in which they are chosen.\n20That an em ployee may not exercise independent discretion does not, o f course, mean that his or her duties\nmay not encom pass responsibilities requiring the exercise o f judgm ent and discretion under the ultimate control\nand supervision o f an officer. In Steele v. United States (No. 2), 267 U.S. 505, 508 (1925), the Supreme Court\nnoted that a \xe2\x80\x9c deputy marshal is not in th e constitutional sense an officer o f the United States," yet \xe2\x80\x9c is called\nupon to exercise great responsibility and d iscretio n " in \xe2\x80\x9c the enforcement o f the peace o f the United States, as\nthat is em braced in the enforcement of federal law.\xe2\x80\x9d But deputy marshals act at the direction o f \xe2\x80\x9c the United States\nmarshal under whom they serve,\xe2\x80\x9d id, who is an officer in the constitutional sense.\n21 See Appointment and Removal of Inspectors o f Customs, 4 Op. A tt\xe2\x80\x99y Gen. 162, 164 (1843) (Congress may\nnot provide for the appointment o f \xe2\x80\x9c any em ploye[e], coming fairly within the defmition o f an inferior officer of\nthe governm ent,\xe2\x80\x9d except by a mode consistent with the Appointments Clause).\n\n216\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nAuffmordt compels this conclusion. That case involved a statute that entitled\nan importer who was dissatisfied with the government\xe2\x80\x99s valuation of dutiable\ngoods to demand a reappraisement jointly conducted by a general appraiser (a\ngovernment employee) and a \xe2\x80\x9c merchant appraiser\xe2\x80\x9d appointed by the collector\nof customs for the specific case. Despite the fact that the reappraisement decision\nwas final and binding on both the government and the importer, 157 U.S. at 329,\nthe Court rejected the argument that the merchant appraiser was an \xe2\x80\x9c inferior\nOfficer\xe2\x80\x9d whose appointment did not accord with the requirements of the Appoint\xc2\xad\nments Clause. In describing the merchant appraiser, the Court said:\nHe is selected for the special case. He has no general functions,\nnor any employment which has any duration as to time, or which\nextends over any case further than as he is selected to act in that\nparticular case. . . . He has no claim or right to be designated,\nor to act except as he may be designated. . . . His position is with\xc2\xad\nout tenure, duration, continuing emolument, or continuous duties\n. . . . Therefore, he is not an \xe2\x80\x98officer,\xe2\x80\x99 within the meaning of the\nclause.\nId. at 326-27. Not only does Auffmordt compel our conclusion, the contrary posi\xc2\xad\ntion\xe2\x80\x94 that an independent contractor or non-federal employee who exercises\nsignificant governmental authority must be appointed pursuant to the Appoint\xc2\xad\nments Clause \xe2\x80\x94 would be inconsistent with the Germaine and Hartwell cases dis\xc2\xad\ncussed above.22\nOur conclusion is consistent with the Supreme Court\xe2\x80\x99s classification of the inde\xc2\xad\npendent counsel as an inferior officer in Morrison v. Olson, 487 U.S. 654 (1988).\nThere the Court observed that \xe2\x80\x9c [i]t is clear that appellant is an \xe2\x80\x98officer\xe2\x80\x99 of the\nUnited States, not an \xe2\x80\x98employee.\xe2\x80\x99 \xe2\x80\x9d Id. at 671 n.12. Significantly, the lone\nauthority the Court cited for this proposition was \xe2\x80\x9c Buckley, 424 U.S. at 126, and\nn. 162.\xe2\x80\x9d Id. At the page cited, the Buckley Court quoted and reaffirmed Germaine,\nand in the footnote cited the Court reaffirmed both Germaine and Auffmordt.\nBuckley, 424 U.S. at 126 & n.162. This coupled with Morrison\'s express approval\nof Germaine, 487 U.S. at 670, strongly counsel against interpreting Morrison to\nhave scuttled the Auffmordt and Germaine definition of office, which treats tenure,\nduration, emoluments, and continuing duties as necessary conditions.\n22ENRD reads Auffmordt and Germaine as limited to \xe2\x80\x9c judgments o f experts on areas within their expertise, as\nopposed to policy or legal ju d g m en ts/\' ENRD memorandum at 3. Apparently, ENRD\xe2\x80\x99s position is that the negative\ninference from the Appointments Clause is to be drawn except where an expert acts within the scope of his or\nher expertise. In other words, the Appointments Clause prohibits any private actor from exercising significant\nauthority, unless the private actor is an expen who exercises significant authority within the scope o f his or her\nexpertise. While there may be strong policy reasons for wishing to restrict Auffmordt and Germaine in this way,\nthere is no basis in the Constitution for doing so. The text o f the Appointments Clause makes no reference to,\nlet alone an exception for, expen action. Furthermore, there is nothing in the Auffmordt or Germaine opinions them \xc2\xad\nselves that supports narrowing them in this way.\n\n217\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nWe believe that the factors that make it \xe2\x80\x9c clear\xe2\x80\x9d that an independent counsel\nis an officer of the United States demonstrate that an arbitrator is not. The office\nof independent counsel is created by statute. See 28 U.S.C. \xc2\xa7\xc2\xa7591-599. The inde\xc2\xad\npendent counsel\xe2\x80\x99s compensation is fixed specifically by statute at the rate set forth\nat 5 U.S.C. \xc2\xa75315 for level IV of the Senior Executive Service. Id. \xc2\xa7 594(b).\nAll of the others listed as receiving this compensation are in the full-time employ\xc2\xad\nment of the federal government and, insofar as we are aware, are in fact officers\nwithin the meaning of the Appointments Clause. See 5 U.S.C. \xc2\xa75315 (setting com\xc2\xad\npensation for, inter alia, assistant attorneys general). The independent counsel\xe2\x80\x99s\noperating and overhead expenses are fixed23 by statute and appropriation. 28\nU.S.C. \xc2\xa7 594(c) (fixing compensation of attorneys employed by an independent\ncounsel); id. \xc2\xa7 594(1) (providing for administrative support, office space, and travel\nexpenses). Significantly, Congress is the exclusive source of funding for any oper\xc2\xad\nations undertaken by the independent counsel. In this way, Congress takes some\npart in providing an ongoing definition to the office of independent counsel and\nmay exercise some degree of influence over the independent counsel. Indeed, as\nthe Court noted, Congress expressly retained oversight authority with respect to\nthe activities of independent counsels and provided for submission of reports by\nindependent counsels to congressional oversight committees. Morrison, 487 U.S.\nat 664-65. In addition, the independent counsel occupies a position that is formally\nwithin the federal government. That position is, according to the Supreme Court,\nwithin the executive branch chain of command to at least some extent and subject\nto oversight and control by the President and guidance of the Attorney General.\nId. at 685-92; 28 U.S.C. \xc2\xa7 594(e). The independent counsel also may request and\nreceive the assistance of the Department of Justice. Id. \xc2\xa7 594(d). The independent\ncounsel thus clearly occupies a position of employment within the federal govern\xc2\xad\nment. In fact, this point was so clear that Congress went out of its way expressly\nto provide that the position of independent counsel would be \xe2\x80\x9c separate from and\nindependent of the Department of Justice\xe2\x80\x9d for certain purposes. Id. \xc2\xa7594(i).\nArbitrators share none of these material qualities. The position of arbitrator is\nnot created by a congressional enactment. Arbitrators set their own fee and charge\nthe client parties, including but not limited to the government, that fee. No appro\xc2\xad\npriation is made specifically to support the operations or expenses of arbitrators.24\nAs a result, an arbitrator\xe2\x80\x99s compensation even for a case involving the government\nis not limited to the fee paid by the government and an arbitrator remains free\nto turn to other sources for funding of his or her operations and expenses, subject\n23By use o f the term \xe2\x80\x9c f ix e d /\' we mean to distinguish this schem e\xe2\x80\x94 in which Congress sets the independent\ncounsel\xe2\x80\x99s salary and overhead\xe2\x80\x94 from one in which an arbitrator\xe2\x80\x99s fee and overhead are determined by the arbitrator\nand passed on to the federal government, even though the government may ultimately pay them from a specific\nappropriation.\n24 O f course, any fee that the government pays must ultimately come from appropriated funds. Nevertheless, the\nfee is paid to an arbitrator not in the m anner o f an em ployee o f the government but rather as a non-government\nactor w ho provides services to the government.\n\n218\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nof course to conflict of interest and ethical limitations. In addition, arbitrators are\nnot subject to congressional oversight or to presidential control.\nFinally, the statute creating the office of independent counsel also defines the\nprocedures by which the office may be terminated. Morrison, 487 U.S. at 664.\nArbitrators, by contrast, serve until the matter they are retained to resolve is com\xc2\xad\npleted; there is no statutory process for termination of their \xe2\x80\x9c office.\xe2\x80\x9d This vividly\ndemonstrates that while there is an office underlying the position of independent\ncounsel, there is no similar office underlying one who acts as an arbitrator; there\nis no process for terminating the office of an arbitrator because there is no office\nto terminate.\nThis is not to say that it is impossible for a binding arbitration mechanism to\nrun afoul of the Appointments Clause. As indicated, arbitrators whose sole or\ncollective decisions are binding on the government exercise significant authority.\nIf any such arbitrator were to occupy a position of employment within the federal\ngovernment, that arbitrator would be required to be appointed in conformity with\nthe Appointments Clause. See Freytag, 501 U.S. at 880-82. Thus, if a federal\nagency were to conduct binding arbitrations and to employ arbitrators whom it\nprovided with all relevant attributes of an office, all such arbitrators would be\nrequired to be appointed in conformity with the Appointments Clause.\nB. The Appointments Clause as a Bar against Delegations to Private Actors\nWe do not understand there to be any dispute that arbitrators are private rather\nthan government actors. See Davey, supra, at 1318 (\xe2\x80\x9c no one would argue that\n[arbitrators] are\xe2\x80\x9d officers of the United States). Instead, the position that the\nAppointments Clause prohibits the government from entering into binding arbitra\xc2\xad\ntion rests on a negative inference drawn from the Appointments Clause \xe2\x80\x94 specifi\xc2\xad\ncally, that only officers of the United States appointed pursuant to the Appoint\xc2\xad\nments Clause may exercise significant federal authority. See, e.g., Civil Division,\nU.S. Dep\xe2\x80\x99t of Justice, Guidance on the Use o f Alternative Dispute Resolution fo r\nLitigation in the Federal Courts 4 n.8 (1992) (\xe2\x80\x9c Under the Appointments Clause,\n[significant governmental] duties may be performed only by \xe2\x80\x98Officers of the\nUnited States,\xe2\x80\x99 appointed in the constitutionally prescribed manner.\xe2\x80\x9d (citation\nomitted)). This negative inference lacks textual support and is contrary to the con\xc2\xad\nsistent interpretations of the Clause by the Supreme Court.\nBy its own terms, the Appointments Clause addresses only the permissible\nmethods by which officers may be appointed. The term officer has been defined\nto mean one who occupies a position of employment within the federal govern\xc2\xad\nment that carries significant authority pursuant to the laws of the United States.\nThe Appointments Clause\xe2\x80\x99s text says nothing about whether or what limits exist\non the government\xe2\x80\x99s power to devolve authority on private or other non-federal\nactors.\n219\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nInstead, what limits exist on the ability to delegate governmental authority to\nprivate actors are encompassed within the non-delegation doctrine.25 The very\nexistence of the non-delegation doctrine strongly suggests that looking to the\nAppointments Clause for limits on the federal government\xe2\x80\x99s ability to delegate\nauthority to non-federal actors is a misguided enterprise. If the Appointments\nClause prohibited all delegations of significant federal governmental authority to\nnon-federal actors, there would be no need for a separate non-delegation doctrine\nin that context. While some o f the most notable controversies under the non-dele\xc2\xad\ngation doctrine have involved delegations from the federal legislature to the fed\xc2\xad\neral executive, see, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S. 212\n(1989); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935), the doctrine has by no\nmeans been limited to this context. The Supreme Court and the lower federal\ncourts have reviewed the delegation of significant federal governmental authority\nto non-federal actors under the non-delegation doctrine. Moreover, the courts,\nincluding the Supreme Court, have upheld such delegations without even hinting\nthat the Appointments Clause might be implicated. See, e.g., Thomas v. Union\nCarbide Agric. Prods. Co., 473 U.S. 568 (1985) (upholding delegation to private\narbitrators); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)\n(upholding delegation of regulatory authority to private industry group); Kentucky\nHorseman\xe2\x80\x99s Benevolent & Protective Ass\xe2\x80\x99n v. Turfway Park Racing Ass\xe2\x80\x99n, 20\nF.3d 1406 (6th Cir. 1994) (upholding delegation of regulatory authority to a state\nand to private industry group); Nance v. EPA, 645 F.2d 701 (9th Cir. 1981)\n(upholding delegation of authority under Clean Air Act to Indian tribe); First\nJersey Sec., Inc. v. Bergen, 605 F.2d 690 (3d Cir. 1979) (upholding delegation\nof adjudicative authority to private industry group); Crain v. First Nat\xe2\x80\x99l Bank,\n324 F.2d 532, 537 (9th Cir. 1963) (\xe2\x80\x9c While Congress cannot delegate to private\ncorporations or anyone else the power to enact laws, it may employ them in an\nadministrative capacity to carry them into effect.\xe2\x80\x9d ); cert, denied, 454 U.S. 108\n(1981); R.H. Johnson & Co. v. SEC, 198 F.2d 690 (2d Cir.) (upholding delegation\nof adjudicative authority to private industry group), cert, denied, 344 U.S. 855\n(1952).26\nThe Supreme Court\xe2\x80\x99s interpretations of the Appointments Clause actually refute\nthe negative inference that is sometimes asserted. The Court\xe2\x80\x99s decision in\nAuffmordt is especially compelling. There, the Court held that because the mer\xc2\xad\n25 The application o f the non-delegation doctrine to binding arbitration is discussed more fully infra at section\n\nW.C.\n26 It is theoretically possible that the courts have upheld these delegations because the parties challenging them\nhave repeatedly failed to raise the Appointments Clause. Compare White v. Massachusetts Council o f Constr.\nEmployers, 460 U.S. 204 (1983) (upholding residency requirement for public works project against dormant Com\xc2\xad\nmerce Clause challenge) with United Bldg. and Constr. Trades v. Camden, 465 U.S. 208 (1984) (striking down\nresidency requirem ent for public svorks projects as violation o f Privileges and Immunities Clause). We would be\nreluctant to place the numerous delegations so upheld on such a capricious footing absent a clear indication in\nthe C ourt\xe2\x80\x99s Appointments Clause jurisprudence. While not all non-delegation litigants have raised Appointments\nClause challenges, som e have and, as we detailed in the preceding section, those challenges consistently have been\nrejected.\n\n220\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nchant appraiser\xe2\x80\x94 who stands formally and functionally in the same position as\nan arbitrator in a binding arbitration involving the federal government\xe2\x80\x94 was a\nprivate actor, the Appointments Clause did not apply and so upheld the statutory\ndelegation of arbitral authority to the merchant appraiser. In other words,\nAuffmordt held that the Appointments Clause does not prohibit delegating signifi\xc2\xad\ncant federal authority to private actors. The Court employed the same reasoning\nto reject the Appointments Clause challenges in Germaine and Hartwell.\nThe argument asserting the negative inference from the Appointments Clause\nrelies on Buckley. We believe, however, that under its best reading Buckley reflects\nand endorses our view that the Appointments Clause simply does not apply to\nnon-federal actors, and that the negative inference argument misreads the opinion.\nFirst, Buckley cites both Germaine and Auffmordt approvingly. See 424 U.S. at\n125-26 & n.162. Second, in several of its statements of the definition of \xe2\x80\x9c offi\xc2\xad\ncers,\xe2\x80\x9d Buckley, sometimes citing Germaine explicitly, says that the term applies\nto appointees or appointed officials who exercise significant authority under fed\xc2\xad\neral law, thus recognizing the possibility that non-appointees might sometimes\nexercise authority under federal law. See, e.g., id. at 131 (\xe2\x80\x9c Officers\xe2\x80\x9d are \xe2\x80\x9c all\nappointed officials exercising responsibility under the public laws.\xe2\x80\x9d ).\nIt is true that, at other points in its opinion, the Buckley Court used language\nthat, taken in isolation, might suggest that the Appointments Clause applies to\npersons who, although they do not hold positions in the public service of the\nUnited States, exercise significant authority pursuant to federal law. See id. at\n141. However, we think such a reading of Buckley is unwarranted. So understood,\nBuckley must be taken to have overruled, sub silentio, Germaine and Auffmordt\xe2\x80\x94\ncases upon which it expressly relies in its analysis, see id. at 125-26 & n.162 \xe2\x80\x94\nand its repeated quotation of the Germaine defmition of \xe2\x80\x9c officer\xe2\x80\x9d as \xe2\x80\x9c all persons\nwho can be said to hold an office under the government\xe2\x80\x9d would make no sense.\nNot only does such a reading render Buckley internally inconsistent, it fails to\nexplain the Supreme Court\xe2\x80\x99s continuing and unqualified citations to and reliance\nupon Germaine. See Freytag, 501 U.S. at 881; Morrison, 487 U.S. at 672.\nThe apparently unlimited language of some passages in Buckley has a simpler\nexplanation: there was no question that the officials at issue in Buckley held posi\xc2\xad\ntions of \xe2\x80\x9c employment\xe2\x80\x9d under the federal government, and thus the question of\nthe inapplicability of the Appointments Clause to persons not employed by the\nfederal government was not before the Court.27 The post-Buckley Supreme Court\n27 The weight o f scholarship that has considered the interplay o f Buckley with Hartwell, Germaine, and Auffmordt\naccords with our approach. As one commentator has asserted:\nThe Buckley Court\xe2\x80\x99s entire analysis is predicated upon its construction o f the appointments clause in the\ncontext o f its \xe2\x80\x98cognate\xe2\x80\x99 separation-of-powers provisions. The decision, as in Germaine and the other\nappointments clause cases, was concerned with determining the status o f an individual who w as employed\nby the United States. The Court\xe2\x80\x99s definition thus was employed to distinguish between classes o f federal\nemployees; it was not used to distinguish between federal and nonfederal employees. Since the two ques\xc2\xad\ntions differ radically, it is hardly surprising that a standard helpful in resolving one leads to absurd results\nwhen applied to the other.\nContinued\n\n221\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nhas often assessed the validity of statutes that would starkly pose Appointments\nClause issues if, in fact, the Court had adopted the position that wielding signifi\xc2\xad\ncant authority pursuant to the laws of the United States, without more, requires\nappointment in conformity with that Clause. In none of these cases has the Court\neven hinted at the existence of an Appointments Clause issue. It is especially\ntelling that two of these decisions have involved forms of binding arbitration.\nSee Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985) (upholding\nstatutory requirement that registrants under a federal regulatory scheme submit\nto binding arbitration conducted by a panel of arbitrators who are not appointed\nby one of the methods specified in the Appointments Clause and are subject only\nto limited judicial review); Schweiker v. McClure, 456 U.S. 188 (1982) (upholding\nsubmission of dispute to binding, unreviewable determination by a single arbiter\nwho is a private actor); see also FERC v. Mississippi, 456 U.S. 742 (1982)\n(upholding requirement that states enforce federal regulatory scheme relating to\nutilities); Lake Carriers\xe2\x80\x99 Ass\xe2\x80\x99n v. Kelley, 456 U.S. 985 (1982) (mem.), a jf g 527\nF. Supp. 1114 (E.D. Mich. 1981) (three-judge panel) (upholding statute that\ngranted states authority to ban sewage emissions from all vessels); Train v.\nNational Resources Defense Council, Inc., 421 U.S. 60 (1975) (construing provi\xc2\xad\nsion of Clean Air Act that gave states authority to devise and enforce plans for\nachieving congressionally defined, national air quality standards).28 The Supreme\nCourt\xe2\x80\x99s decision in Buckley, we conclude, did not modify the long-settled principle\nthat a person who is not an officer under Hartwell need not be appointed pursuant\nto the Appointments Clause.\nPrior writings of this Office have read Buckley more broadly as standing for\nthe proposition disavowed here \xe2\x80\x94 that is, that all persons exercising significant\nfederal authority, by virtue of that fact alone, must be appointed pursuant to the\nAppointments Clause. We are aware of four instances in which our disagreement\nwith this understanding of Buckley would cause us to reach a different conclusion\non the Appointments Clause question presented. See Constitutionality o f Sub\xc2\xad\nsection 4117(b) o f Enrolled Bill H.R. 5835, the \xe2\x80\x9cOmnibus Budget Reconciliation\nAct o f 1990," 14 Op. O.L.C. 154, 155 (1990) (statutory scheme under which\ncongressional delegations and physicians\xe2\x80\x99 organizations of certain states exercise\nDale D. Goble, The Council and the Constitution: An Article on the Constitutionality o f the Northwest Power Plan\xc2\xad\nning Council, 1 J. Hnvtl. L. & Litig. 11, 53 (1986); see also Harold J. Krent, Fragmenting the Unitary Executive:\nCongressional Delegations o f Administrative Authority Outside the Federal Government, 85 Nw. U. L. Rev. 62,\n7 2 -7 3 n.26 (1990) (w hether one who exercises governmental authority is an officer is determined by looking to\nthe factors set out in Hartwell, Germaine, and Auffmordt).\n28 It is sometimes asserted that the Supreme Court in Bowsher v. Synar, 478 U.S. 714 (1986), adopted the negative\ninference from the Appointments Clause. W e see no basis for this proposition. That case simply did not involve\nthe A ppointm ents Clause. W hile the Court m akes a passing reference to the Appointments Clause, id. at 722-23,\nwe can find no passage in which the Court even appears to contemplate construing the Appointments Clause. The\nquestion in Bowsher pertained to the limits o n the authority that the Comptroller General could exercise. The Comp\xc2\xad\ntroller General is appointed by the President and confirmed by the Senate, see 31 U.S.C. \xc2\xa7703. This method o f\nappointm ent conform s to the letter of the Appointments Clause. See U.S. C onst, art. II, \xc2\xa7 2 , cl. 2. We cannot conceive\no f a reasonable reading o f Bowsher as eith er explicitly o r implicitly affirm ing\xe2\x80\x94 or, for that matter, rejecting\xe2\x80\x94\nthe negative inference from the Appointments Clause.\n\n222\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\n\xe2\x80\x9c significant authority\xe2\x80\x9d violates Appointments Clause); Constitutionality o f the\nQui Tam Provisions o f the False Claims Act, 13 Op. O.L.C. 207, 222 (1989)\n(provisions of False Claims Act authorizing qui tam suits by private parties violate\nAppointments Clause because qui tam relators exercise \xe2\x80\x9c significant governmental\npower\xe2\x80\x9d ); Representation o f the United States Sentencing Commission in Litiga\xc2\xad\ntion, 12 Op. O.L.C. 18, 26-28 (1988) (private party acting as counsel for United\nStates agency must be appointed pursuant to Appointments Clause); Proposed\nLegislation to Establish the National Indian Gaming Commission, 11 Op. O.L.C.\n73, 74 (1987) (Appointments Clause problems raised where state and local offi\xc2\xad\ncials given authority to waive federal statute). We now disavow the Appointments\nClause holdings of those precedents. To the extent that our reading of Buckley\nis inconsistent with the Appointments Clause reasoning of other prior precedents\nof this office, that reasoning is superseded. See Common Legislative Encroach\xc2\xad\nments on Executive Branch Authority, 13 Op. O.L.C. 248, 248-49 (1989). We\ndo not disavow these precedents lightly. These more recent citations, however,\nare inconsistent and in some cases irreconcilable with prior opinions of the Attor\xc2\xad\nneys General. Moreover, the Supreme Court has not overruled but has reaffirmed\nAuffmordt, Hartwell, and Germaine, and we are bound to follow them.\nIII. The Take Care Clause\nIt has been suggested that the Take Care Clause prohibits the federal govern\xc2\xad\nment from entering into binding arbitration, because that clause requires all power\nexercised by the executive branch to be exercised in a manner that the President\njudges to be \xe2\x80\x9c faithful.\xe2\x80\x9d This approach forbids the President\xe2\x80\x99s judgment from\nbeing subordinated to the judgment of an arbitrator. This suggestion misconstrues\nthe Take Care Clause. The Constitution establishes that \xe2\x80\x9c [t]he executive power\nshall be vested in a President of the United States of America,\xe2\x80\x9d U.S. Const, art.\nII, \xc2\xa7 I, cl. 1; and that the President \xe2\x80\x9c shall take Care that the Laws be faithfully\nexecuted,\xe2\x80\x9d id. art. II, \xc2\xa73. The Supreme Court and the Attorneys General have\nlong interpreted the Take Care Clause as standing for the proposition that the\nPresident has no inherent constitutional authority to suspend the enforcement of\nthe laws, particularly of statutes. See, e.g., INS v. Chadha, 462 U.S. 919, 953\nn.16 (1983); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 60913 (1838); The Attorney General\xe2\x80\x99s Duty to Defend and Enforce Constitutionally\nObjectionable Legislation, 4A Op. O.L.C. 55, 59 (1980) (opinion of Attorney Gen\xc2\xad\neral Civiletti) (\xe2\x80\x9c The President has no \xe2\x80\x98dispensing power.\xe2\x80\x99 \xe2\x80\x9d ). See generally Chris\xc2\xad\ntopher N. May, Presidential Defiance o f \xe2\x80\x9cUnconstitutional\xe2\x80\x9d Laws: Reviving the\nRoyal Prerogative, 21 Hastings Const. L.Q. 865, 869-74 (1994).\nThe Supreme Court\xe2\x80\x99s decision in Kendall is illuminating. A dispute between\nthe postmaster general and several contractors had arisen. Congress passed a law\ndirecting the Solicitor of the Department of the Treasury to resolve the dispute\n223\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nand requiring the postmaster general to pay whatever sum the Solicitor determined\nwas due. The postmaster general refused to comply with the Solicitor\xe2\x80\x99s decision,\narguing that he \xe2\x80\x9c was alone subject to the direction and control of the President,\nwith respect to the execution of the duty imposed upon him by this law; and\nthis right of the President is claimed, as growing out of the obligation imposed\nupon him by the constitution, to take care that the laws be faithfully executed.\xe2\x80\x9d\n37 U.S. at 612. The Court emphatically rejected this argument.29 Instead the Court\nruled that the Congress had waived sovereign immunity and submitted to whatever\nresolution the Solicitor ordered. \xe2\x80\x9c The terms of the submission was a matter resting\nentirely in the discretion of congress; and if they thought proper to vest such\na power in any one, and especially as the arbitrator was an officer of the govern\xc2\xad\nment, it did not rest with the postmaster general to control congress, or the solic\xc2\xad\nitor, in that affair.\xe2\x80\x9d Id. at 611 (emphasis added). Thus, Kendall stands for the\nproposition that the Executive must comply with the terms of valid statutes and\nthat if a statute requires the Executive to submit to binding arbitration, the Execu\xc2\xad\ntive must do so.\nThe Take Care Clause itself has no bearing on the question of whether the\nConstitution permits the federal government to enter into binding arbitration; in\nthis context, it simply requires the President to \xe2\x80\x9c take Care\xe2\x80\x9d that whatever valid\nlegal requirements might exist are followed.30 It is necessary to consider the\napplication of this principle in three situations. First, where a statute or other law\noperates to require the government to submit to binding arbitration, the govern\xc2\xad\nment must submit. Kendall, 37 U.S. at 611. Second, where a statute or other law\nforbids submission to binding arbitration, such as where it expressly vests discre\xc2\xad\ntion in a particular government officer, submission to binding arbitration is forbid\xc2\xad\nden. See Establishment of a Labor Relations System fo r Employees o f the Federal\nLabor Relations Authority, 4B Op. O.L.C. 709, 715-16 (1980).31 Finally, where\nthe statutes and other laws are silent, the Take Care Clause simply has nothing\nto say about whether the government may submit to binding arbitration.\n29 \xe2\x80\x9c This is a doctrine that cannot receive the sanction o f this court. . . . To contend that the obligation imposed\non the President to see the laws faithfully executed, implies a pow er to forbid their execution, is a novel construction\no f the constitution, and entirely inadmissible.\xe2\x80\x9d Id.\n30 In the above-cited opinion. Attorney G eneral Civiletti did not ignore his power, and indeed obligation, to decline\nto enforce o r decline to defend an unconstitutional statute, especially one violating the Constitution\xe2\x80\x99s separation\no f legislative and executive powers. See The Attorney General\'s Duty to Defend and Enforce Constitutionally\nObjectionable Legislation , 4A Op. O.L.C. at 56 (in such a situation, the Attorney General \xe2\x80\x9c would be untrue to\nhis office if he w ere to do otherwise\xe2\x80\x9d ); Presidential Authority to Decline to Execute Unconstitutional Statutes , 18\nOp. O.L.C. 199, 199 (1994) (\xe2\x80\x9c there are circumstances in which a President may appropriately decline to enforce\na statute that he view s as unconstitutional\xe2\x80\x9d ).\n3 \xe2\x80\x98 W here a statute vests final decisionmaking authority in an executive branch official, that official must make\nthe decision and m ay n o t\xe2\x80\x94 absent congressional authorization\xe2\x80\x94 delegate that authority to another official or to\na private actor such as an arbitrator. See id. This case must be distinguished from the situation where the final\ndecision o f an executive official is subject to judicial review. Here, the official must make the decision in the first\ninstance. I f a challenge is subsequently brought, then absent som e specific statutory bar or other legal impediment,\nthere is nothing in the Take Care Clause th at would prohibit such an official from opting for binding arbitration\nrather than adjudication before an Article in court. Currently, Exec. Order No. 12778 imposes an absolute prohibition\non opting for binding arbitration where litigation counsel is not otherwise compelled to submit to it.\n\n224\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nIV. Other Article II Issues\nIn addition to recognizing the mandatory nature of the processes \xe2\x80\x94 such as the\nAppointments Clause \xe2\x80\x94 that the Constitution expressly ordains, the Supreme\nCourt\xe2\x80\x99s decisions have identified broader structural principles that separate and\nlimit the powers of the three branches of government. One important principle\nis that Congress may not vest itself, its members, or its agents with \xe2\x80\x98\xe2\x80\x98 \xe2\x80\x98either\nexecutive power or judicial power,\xe2\x80\x99 \xe2\x80\x9d Metropolitan Wash. Airports Auth. v. Citi\xc2\xad\nzens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252, 274 (1991) (citation\nomitted), and that Congress therefore may not intervene in the decision making\nnecessary to execute the law. Bowsher, 478 U.S. at 733-34; FEC v. NRA Political\nVictory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), af f d on other grounds, 513\nU.S. 88(1994).\n\xe2\x80\x9c The structure of the Constitution does not permit Congress to execute the laws;\nit follows that Congress cannot grant to an officer under its control what it does\nnot possess.\xe2\x80\x9d Bowsher, 478 U.S. at 715, 726. Therefore, any scheme whereby\nCongress \xe2\x80\x94 whether itself or through one of its committees, members, or agents \xe2\x80\x94\nappoints, retains removal authority over, or otherwise exercises any type of con\xc2\xad\ntinuing authority over an arbitrator32 violates the constitutional anti-aggrandize\xc2\xad\nment principle. This principle extends to non-voting members. NRA Political Vic\xc2\xad\ntory Fund, 6 F.3d at 827. Consequently, we do not believe that Congress could\nmake one of its members or agents an ex officio non-voting member of an arbitral\npanel. Id.\nLegislation that is consistent with the Constitution\xe2\x80\x99s express procedures and with\nthe Bowsher principle may nonetheless affect the constitutional separation of\npowers by invading the constitutional roles of the executive or judicial branches.\n\xe2\x80\x9c [I]n determining whether [such an] Act disrupts the proper balance between the\ncoordinate branches, the proper inquiry focuses on the extent to which it prevents\nthe Executive Branch from accomplishing its constitutionally assigned functions.\xe2\x80\x9d\nNixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977); cf. CFTC v.\nSchor, 478 U.S. 833, 856-57 (1986) (\xe2\x80\x9c the separation of powers question presented\nin this litigation is whether Congress impermissibly undermined . . . the role of\nthe Judicial Branch\xe2\x80\x9d ). An affirmative answer to the question of whether Congress\nhas prevented the executive or judiciary from accomplishing its functions, further\xc2\xad\nmore, would not lead inexorably to the judicial invalidation of the statute: in that\ncase, the Court has stated, it would proceed to \xe2\x80\x9c determine whether that impact\nis justified by an overriding need to promote objectives within the constitutional\nauthority of Congress.\xe2\x80\x9d Nixon, 433 U.S. at 443.\n32 Buckley and NRA Political Victory Fund establish that Congress violates the anti-aggrandizement principle if\nit retains control over any member o f a nonlegislative body, even though a single member cannot alone take any\ndispositive action. Thus, in .the arbitration setting, it would not matter for purposes of separation o f powers analysis\nthat Congress exercises control over only a single member of, for example, a three-member arbitral panel. Such\nan arrangement would violate the anti-aggrandizement principle.\n\n225\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIn the context of binding arbitration, concerns under this general separation of\npowers principle would arise if an arbitral panel were given authority that is con\xc2\xad\nstitutionally committed to the executive. For example, the Supreme Court has held\nthat the President must retain at least some ability to control the exercise of federal\ncriminal prosecutorial power. See Morrison v. Olson, 487 U.S. 654 (1988). Thus,\nwe believe the general separation of powers principle would stand as a bar to\nvesting an arbitration panel with unreviewable authority to direct or control the\nprosecution or conduct of federal litigation by the executive branch\xe2\x80\x99s attorneys.\nWhere, on the other hand, a dispute over the exercise of executive authority\nis submitted to binding arbitration, the general separation of powers principle has\nlittle force. The principle prohibits incursions that \xe2\x80\x9c preventf] the Executive\nBranch from accomplishing its constitutionally assigned functions.\xe2\x80\x9d Nixon, 433\nU.S. at 443 (emphasis added), quoted in Morrison v. Olson, 487 U.S. 654, 695\n(1988). The Constitution does not, however, assign to the executive branch exclu\xc2\xad\nsive responsibility for resolving disputes over the exercise of its authority. The\nvery language of Article III providing for federal court jurisdiction over disputes\ninvolving \xe2\x80\x9c the United States\xe2\x80\x9d demonstrates that the Constitution does not require\nthat the authority to resolve such disputes over executive action be vested in the\nexecutive branch itself. Resolution of such disputes by private arbitrators, there\xc2\xad\nfore, does not in itself disturb the separation of powers that the Constitution\nordains.\nIn addition, the Constitution\xe2\x80\x99s text and structure grant the President a number\nof powers that are not, as such, subject to the general separation of powers prin\xc2\xad\nciple; examples include the commander in chief and foreign affairs powers. The\nPresident may not be bound to the decision of an arbitrator in the exercise of\nthese constitutional powers, whether by statute or by purported agreement of the\nPresident. Congress may not, for example, require the President to exercise the\nPresident\xe2\x80\x99s pardon power pursuant to the dictates of an arbitrator. See generally\nUnited States v. Klein, 80 U.S. 128, 148 (1871); Ex Parte Garland, 71 U.S. (4\nWall.) 333, 380 (1866).\nV. Article III\nArticle III of the Constitution, which establishes the federal judicial branch,\nplaces at least some limitations on the ability of the federal government to submit\nto binding arbitration. Article III provides that \xe2\x80\x9c [t]he judicial Power of the United\nStates, shall be vested in one supreme Court, and in such inferior Courts as the\nCongress may from time to time ordain and establish.\xe2\x80\x9d U.S. Const, art. Ill, \xc2\xa7 1.\nThis \xe2\x80\x9c judicial power\xe2\x80\x9d does not refer to all federal adjudications, however. See,\ne.g., Freytag, 501 U.S. at 909 (Scalia, J., concurring) (\xe2\x80\x9c there is nothing \xe2\x80\x98inherently\njudicial\xe2\x80\x99 about \xe2\x80\x98adjudication\xe2\x80\x99 \xe2\x80\x9d ). The Supreme Court has long wrestled with the\nmandatory scope of the Article III vesting clause \xe2\x80\x94 that is, what federal adjudica\xc2\xad\n226\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\ntions must be committed to an Article III tribunal.33 It is clear, however, that\nArticle III prohibits at least some matters from being submitted to binding arbitra\xc2\xad\ntion.\nEarly on, the Supreme Court settled on a general approach for resolving ques\xc2\xad\ntions regarding Article Ill\xe2\x80\x99s scope:\nwe do not consider congress can either withdraw from judicial cog\xc2\xad\nnizance any matter which, from its nature, is the subject of a suit\nat the common law, or in equity, or admiralty; nor, on the other\nhand, can it bring under the judicial power a matter which, from\nits nature, is not a subject for judicial determination. At the same\ntime there are matters, involving public rights, which may be pre\xc2\xad\nsented in such form that the judicial power is capable of acting\non them, and which are susceptible of judicial determination, but\nwhich congress may or may not bring within the cognizance of\nthe courts of the United States, as it may deem proper.\nMurray\xe2\x80\x99s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,\n284 (1855). In its generalities, this statement remains an accurate description of\nthe Court\xe2\x80\x99s approach to Article III: there are three categories of determinations \xe2\x80\x94\nthose that must be submitted to an Article III tribunal, those that may be submitted\nto such a tribunal, and those that may not be submitted to such a tribunal.\nThe statement in Murray\xe2\x80\x99s Lessee, however, has been taken further to establish\na so-called public rights doctrine. Under that doctrine, all federal adjudication\nwould be required to be conducted in an Article in forum except adjudication\ninvolving a public right.34 Public rights adjudication could presumably take what\xc2\xad\never form Congress prescribed. Use of this doctrine reached its highwater mark\nin Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)\n(plurality opinion), which defined public rights as \xe2\x80\x9c matters arising \xe2\x80\x98between the\nGovernment and persons subject to its authority in connection with the perform\xc2\xad\nance of the constitutional functions of the executive or legislative departments\xe2\x80\x99 \xe2\x80\x9d\nand private rights as \xe2\x80\x9c \xe2\x80\x98the liability of one individual to another under the law\nas defined.\xe2\x80\x99 \xe2\x80\x9d Id. at 67-68, 69-70 (quoting Crowell v. Benson, 285 U.S. 22, 50,\n51 (1932)); see Thomas, 473 U.S. at 585 (characterizing Northern Pipeline).\nMore recently the Court has eschewed the public rights doctrine as set forth\nin Northern Pipeline. The Court no longer accepts either the proposition that all\nfederal adjudications of private disputes must be submitted to an Article III tri\xc2\xad\n33 Congress may, however, have power to decline to provide for any federal adjudication o f som e matters. See\ngenerally Henry M. Hart, Jr., The Power o f Congress to Limit the Jurisdiction o f Federal Courts: An Exercise\nin Dialectic, 66 Harv. L. Rev. 1362 (1953). If Congress has such a power, one notable exception would be the\nSupreme C ourt\'s original jurisdiction, which we do not believe that Congress could eliminate. See U.S. Const, art.\nHI, \xc2\xa7 2 , cl. 2.\n34 The genera] rule did not apply to courts for the territories or the District o f Columbia, which arguably perform\nfederal adjudication, or to the courts martial. Northern Pipeline Constr. Co., 458 U.S. at 64-70.\n\n227\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nbunal or that Article III has no force in cases between the government and an\nindividual. Thomas, 473 U.S. at 585-86. The Supreme Court dismissed the public\nrights doctrine approach35 as formalistic and admonished that \xe2\x80\x9c practical attention\nto substance rather than doctrinaire reliance on formal categories should inform\napplication of Article III.\xe2\x80\x9d Id. at 587 (construing Crowell v. Benson, 285 U.S.\n22 (1932)). The Court has thus directed that \xe2\x80\x9c the constitutionality of a given\ndelegation of adjudicative functions to a non-Article III body . . . be assessed\nby reference to the purposes underlying the requirements of Article III.\xe2\x80\x9d Schor,\n478 U.S. at 847. The Court has identified two such purposes: the first is to fulfill\na separation of powers interest\xe2\x80\x94 protecting the role of an independent judiciary\xe2\x80\x94\nwhile the second is to protect an individual right\xe2\x80\x94 the right to have claims\ndecided by judges who are free of domination by other branches. Id. at 848.36\nUnder the separation of powers rubric, the Court has resisted adopting a for\xc2\xad\nmalistic approach in favor of one that looks to the actual effects on the constitu\xc2\xad\ntional role of the Article III judiciary. The most significant factor is whether the\nadjudication involves a subject matter that is part of or closely intertwined with\na public regulatory scheme. We consider the implications of the purposes of\nArticle III first in the context of a statute that mandates binding arbitration and\nthen in the context of consensual submission to binding arbitration.37\nA. Statutorily Mandated Binding Arbitration\n1. Separation o f Powers. The separation of powers purpose served by Article\nIII, Section 1 was explained in Schor: that vesting clause \xe2\x80\x9c safeguards the role\nof the Judicial Branch in our tripartite system by barring congressional attempts\n\xe2\x80\x98to transfer jurisdiction [to non-Article III tribunals] for the purpose of emascu\xc2\xad\n35 W hile the Court has abandoned the public rights doctrine , it occasionally uses the term \xe2\x80\x9c public rights** as\na shorthand reference to matters that need not be vested in an Article III tribunal, particularly in the context of\nthe Seventh Am endm ent. See, e.g., Granfinanciera, SA . v. Nordberg, 492 U.S. 33 (1989); Schor, 478 U.S. at 853\n( \xe2\x80\x9c this C ourt has rejected any attempt to m ake determinative for Article lH purposes the distinction between public\nrights and private rights\xe2\x80\x9d ).\n36 For the purposes o f this inquuy. Article HI also defines the scope o f another individual right, the Seventh\nA m endm ent right to a jury trial. If an adjudication may be vested in a non-Article in tribunal, the Seventh Amend\xc2\xad\nment does not prohibit non-jury fact-finding:\n[T]f [an] action must be tried under th e auspices o f an Article III court, then the Seventh Amendment\naffords the parties a right to a jury trial whenever the cause o f action is legal in nature. Conversely, if\nC ongress m ay assign the adjudication o f a statutory cause o f action to a non-Article III tribunal, then\nthe Seventh A m endm ent poses no independent bar to the adjudication o f that action by a nonjury factfinder.\nGranfinanciera, 492 U.S. at 63-64.\n37 The EN R D m emorandum refers to a third category\xe2\x80\x94 court-ordered binding arbitration. We believe that a court\nm ay order binding arbitration only if it is specifically authorized to do so. W hen Congress expressly commits jurisdic\xc2\xad\ntion to resolve cases o f a particular type to the Article m judiciary, the Article m judiciary may not rewrite the\njurisdictional statute to provide for final resolution by some other agent\xe2\x80\x94 any more than the executive may refuse\nto carry out a valid statutory duty. Cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50\n(1982); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); In re United States, 816 F.2d 1083 (6th\nCir. 1987). If a statute grants a court authority to order binding arbitration, the scheme is properly analyzed as\nan exam ple o f statutorily mandated binding arbitration. See, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7651-658 (authorizing federal district\ncourts to refer m atters to arbitration), 28 U .S.C. \xc2\xa7\xc2\xa7631, 636 (authorizing appointment of and establishing powers\no f U nited States M agistrate Judges).\n\n228\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nlating\xe2\x80\x99 constitutional courts and thereby preventing \xe2\x80\x98the encroachment or\naggrandizement of one branch at the expense of the other.\xe2\x80\x99 \xe2\x80\x9d Id. at 850 (quoting,\nrespectively, National Ins. Co. v. Tidewater Co., 337 U.S. 582, 644 (1949) (Vin\xc2\xad\nson, C.J., dissenting), and Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)).\nIn reviewing assertions that a particular delegation to a non-Article III tribunal\nviolates Article III, the Court applies a general separation of powers principle;\nthat is, the Court looks to whether the practical effect of a delegation outside\nArticle III is to undermine \xe2\x80\x9c the constitutionally assigned role of the federal\njudiciary.\xe2\x80\x9d Schor, 478 U.S. at 851; see Thomas, 473 U.S. at 590 (looking to\nwhether a delegation outside Article III \xe2\x80\x9c threatens the independent role of the\nJudiciary in our constitutional scheme\xe2\x80\x9d ).\nIt is not possible to draw a broad conclusion regarding the validity of statutory\nschemes that mandate binding arbitration, except to observe that some conceivable\nschemes would not violate Article HI while other schemes could. See Thomas,\n473 U.S. at 594. The Court has listed three factors that it will examine to deter\xc2\xad\nmine whether a particular adjudication by a non-Article III tribunal, such as an\narbitration panel, impermissibly undermines the constitutional role of the judiciary.\nThe Court looks first to the extent to which essential attributes of judicial power\nare reserved to Article III courts and the extent to which the non-Article HI forum\nexercises the range of jurisdiction and powers normally vested in Article III courts;\nsecond to the origin and importance of the right to be adjudicated; and third to\nthe concerns that drove Congress to place adjudication outside Article III. Schor,\n478 U.S. at 851.\nThe first factor focuses on whether the subject matter entrusted to the nonArticle III tribunal is restricted to a \xe2\x80\x9c particularized area of [the] law\xe2\x80\x9d or instead\nis relatively broad-ranging. Id. at 852. The more broad-ranging the tribunal\xe2\x80\x99s\nauthority, the greater the likelihood of an Article III conflict. Where a tribunal\nhas a particularized jurisdiction, however, granting the tribunal authority to enter\xc2\xad\ntain additional matters in the nature of counterclaims is unlikely to yield an\nimpermissibly broad jurisdiction. Broadening the scope to reach pendant and\nancillary claims would raise serious concerns. Id. Also relevant is the range of\nremedies that the tribunal is empowered to issue. The closer that range approxi\xc2\xad\nmates the full range that might be issued by an Article III tribunal, the more\nsuspect the non-Article in tribunal appears. Most significantly, this factor requires\nexamination of the standard under which the determination of an arbitration panel\nis reviewable. Id. at 853. In Thomas the statute that mandated binding arbitration\npermitted judicial review only for \xe2\x80\x9c fraud, misconduct, or misrepresentation.\xe2\x80\x9d 473\nU.S. at 592. The Court held that this limited review \xe2\x80\x9c preserves the \xe2\x80\x98appropriate\nexercise of the judicial function\xe2\x80\x99 \xe2\x80\x9d because it \xe2\x80\x9c protects against arbitrators who\nabuse or exceed their powers or willfully misconstrue their mandate under the\ngoverning law.\xe2\x80\x9d Id. (quoting Crowell v. Benson, 285 U.S. 22, 54 (1932)).\n229\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nThe second factor is the nature and importance of the right to be adjudicated\nby the non-Article III tribunal. First and foremost, the Supreme Court has stated\nthat any attempt by Congress or the Executive to vest the final adjudication of\nquestions of constitutional law outside Article III courts38 would raise serious\nconstitutional concerns, see Thomas, 473 U.S. at 592, although we acknowledge\nthat the Court has never resolved this question. In any event, this is not to say\nthat constitutional claims may not ever be submitted to arbitration as an initial\nmatter. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). Rather, the\nserious constitutional concerns that the Court has raised are avoided only if matters\nof constitutional law must ultimately be subject to judicial review even if the\nmatter may not have initially been submitted to an Article III tribunal.39 To avoid\nruling unnecessarily on the difficult constitutional question, the Supreme Court\nhas required that Congress\xe2\x80\x99s intent to preclude judicial review of constitutional\nclaims be clear before the Court will entertain the validity of such preclusion.\nSee, e.g., Webster v. Doe, 486 U.S. 592 (1988); Weinberger v. Salfi, 422 U.S.\n749 (1975); Johnson v. Robison, 415 U.S. 361, 373-74 (1974). Without such clear\ncongressional intent, a statute that simply purports to prohibit judicial review will\nnot prohibit judicial review of constitutional questions.40\nIn addition to constitutional issues, there are other rights the Court views as\nbeing \xe2\x80\x9c at the \xe2\x80\x98core\xe2\x80\x99 of matters normally reserved to Article III courts.\xe2\x80\x9d Schor,\n478 U.S. at 853. This category was set forth as far back as Murray\xe2\x80\x99s Lessee and\nincludes \xe2\x80\x9c suit[s] at common law, or in equity, or admiralty,\xe2\x80\x9d Murray\xe2\x80\x99s Lessee,\n59 U.S. at 284, as well as claims of a \xe2\x80\x9c state-law character,\xe2\x80\x9d see Northern Pipe\xc2\xad\nline, 458 U.S. at 100. Because these matters historically have been perceived to\nlie at the core of Article HI, attempts to withdraw them from \xe2\x80\x9c judicial cog\xc2\xad\nnizance\xe2\x80\x9d are subject to \xe2\x80\x9c searching\xe2\x80\x9d scrutiny. Schor, 478 U.S. at 854. The Court,\nhowever, has rejected the contention that Article III works a blanket proscription\non entrusting the resolution of such matters to non-Article III tribunals. See id.\nat 853 (separation of powers principles do not support \xe2\x80\x9c according] the state law\ncharacter of a claim talismanic power in Article III inquiries\xe2\x80\x9d ). Instead, we are\nto examine the specific adjudication vested outside Article III, focusing on whether\n\xe2\x80\x9c Congress has . . . attempted to withdraw from judicial cognizance\xe2\x80\x9d the deter\xc2\xad\n380 f course, som e constitutional issues m ay arise that are not justiciable by an Article III court. See, e.g., Goldwater v. Carter, 444 U.S. 996 (1979). This does not mean that no government actor wiJl make a determination\nbased on constitutional interpretation as to how to proceed. We would not, however, regard this as an "adjudication."\n39 We do not mean to indicate that a party may never waive a constitutional claim or be b aned from asserting\na constitutional claim for procedural reasons such as failure to exhaust a statutory remedy, mcluding submission\nto arbitration.\n40 The Supreme Court has held questions relating only to \xe2\x80\x9c the interpretation or application o f a particular provision\no f [a] statute to a particular set o f facts** are not themselves constitutional questions and that Congress may bar\njudicial review o f such claims. See Robison, 415 U.S. at 367. The courts have been vigilant in rejecting attempts\nby litigants to characterize as constitutional claim s, especially under the Due Process Clause, what are in fact chal\xc2\xad\nlenges to \xe2\x80\x9c the interpretation o r application o f a particular provision o f [a] statute to a particular set o f facts."\nId.; see, e.g., Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (holding claimants cannot obtain judicial review\no f \xe2\x80\x9c benefits determinations merely because those challenges are cloaked in constitutional term s\xe2\x80\x9d ), cert, denied,\n515 U.S. 1102(1995).\n\n230\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nmination of these core claims. Id. at 854. Here, we will look to the scope of\nthe non-Article III tribunal\xe2\x80\x99s jurisdiction over core Article III claims, the extent\nto which the scope of that jurisdiction is tailored to \xe2\x80\x9c valid and specific legislative\nnecessities,\xe2\x80\x9d and the extent to which determinations made by the non-Article III\ntribunal are subject to Article III review. Id. at 855.\nOn the other hand, when Congress creates rights outside Article I ll\xe2\x80\x99s core, most\nof the matters that arise in connection with these rights can be \xe2\x80\x9c conclusively\ndetermined by the Executive and Legislative Branches.\xe2\x80\x9d Thomas, 473 U.S. at 569,\n589. The prototype of such non-core matters are rights created by statute as part\nof or intertwined with a complicated regulatory scheme. See Schor, 478 U.S. at\n853-54; Thomas, A12> U.S. at 589-90. Where this is the case, \xe2\x80\x9c the danger of\n[Congress or the executive] encroaching on the judicial powers is reduced.\xe2\x80\x9d Id.\nat 589. Statutes mandating binding arbitration to resolve disputes that arise in\nconnection with these rights are unlikely to contravene Article III. That is not\nto say that such schemes cannot run afoul of Article III. But see Gordon G. Young,\nPublic Rights and the Federal Judicial Power: From Murray\xe2\x80\x99s Lessee through\nCrowell to Schor, 35 Buff. L. Rev. 765, 792, 842 n.360 (1986). While the\nSupreme Court has observed that the threat of encroachment is \xe2\x80\x9c reduced,\xe2\x80\x9d in\nsuch circumstances, it has rejected the contention that Article III has no force\nin these cases. See Thomas, 473 U.S. at 589.\nThe third factor, the purpose underlying the departure from Article III adjudica\xc2\xad\ntion, has little independent force. That factor looks to whether Congress has\nattempted to \xe2\x80\x9c emasculate\xe2\x80\x9d the judiciary by enacting a particular binding arbitra\xc2\xad\ntion requirement. Thus, Article III prohibits Congress from \xe2\x80\x9c creat[ing] a phalanx\nof non-Article III tribunals equipped to handle the entire business of the Article\nIII courts without any Article III supervision or control.\xe2\x80\x9d Schor, 478 U.S. at 855.\nAbsent such a purpose, however, this factor alone would not limit Congress\xe2\x80\x99s\nauthority to enact a mandatory binding arbitration scheme. See Thomas, 473 U.S.\nat 590; Crowell, 285 U.S. at 46.\nThe factors listed above should not be considered in isolation from one another.\nSee, e.g., Thomas, 473 U.S. at 592 (holding limit on judicial review permissible\n\xe2\x80\x9c in the circumstances\xe2\x80\x9d of that statutory scheme). For instance, the limited review\nupheld in Thomas applied to adjudication of a right that was \xe2\x80\x9c closely integrated\ninto a public regulatory scheme.\xe2\x80\x9d Id. at 594. If the right at issue had been closer\nto the core with which Article III is particularly concerned, such limited review\nmight not have been approved. All of this is by way of demonstration that Article\nin does not draw bright lines and so does not permit more specific guidance\nthan we have set forth. Whether a particular statutory scheme impermissibly\n\n231\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nundermines the constitutional role of the judiciary can only be determined by\nreviewing the facts and context of each such scheme.41\n2.\nIndividual Rights. Article III also safeguards the right of litigants to have\nclaims decided by \xe2\x80\x9c judges who are free from potential domination by other\nbranches of government.\xe2\x80\x9d Schor, 478 U.S. at 848. It is doubtful that the govern\xc2\xad\nment possesses this individual right.42 Even if it does, this individual right may\nbe waived. See id. at 850-51; Thomas, 473 U.S. at 592-93. Where Congress\nenacts a statute that requires the government to submit to binding arbitration, that\nstatute \xe2\x80\x94 as in the context of sovereign immunity \xe2\x80\x94 acts as a waiver of whatever\nright the government might have to litigate in an Article III tribunal. The extent\nto which private litigants may be statutorily compelled to submit to binding\narbitration is beyond the scope of the present inquiry.43\nB. Consensual Binding Arbitration\nWhere there is no statute requiring parties to enter into binding arbitration, the\nparties may nevertheless agree to do so. The same may be said of the government\nwhen it is a party. Absent a statute to the contrary and assuming the availability\nof authority to effect any remedy that might result from the arbitration, we per\xc2\xad\nceive no broad constitutional prohibition on the government entering into binding\narbitration. Such arrangements, however, are still technically subject to scrutiny\nfor conformity to the purposes underlying Article III. See Schor, 478 U.S. at 85051 (separation of powers violation may occur even though parties have consented).\nIt is difficult to see how the executive\xe2\x80\x94 litigating on behalf of the government\xe2\x80\x94\nimpermissibly undermines the role of the judicial branch by agreeing to resolve\na particular dispute through binding arbitration. See Thomas, 473 U.S. at 591\n(danger of encroachment is at a minimum where parties consent to arbitration).44\nAs to Article I ll\xe2\x80\x99s purpose of safeguarding the individual right to independent\nadjudication, it is sufficient, where the parties consent, if the agreement preserves\nArticle HI review of constitutional issues and permits an Article III tribunal to\n41 As the Supreme Court instructed in Schor, "d u e regard must be given in each case to the unique aspects\no f the congressional plan at issue and its practical consequences in light o f the larger concerns that underlie Article\nE L \xe2\x80\x9d 478 U.S. at 857.\n42 G overnm ental interests are generally view ed under the heading of separation of powers. The assertion that Con\xc2\xad\ngress im perm issibly invades the executive by compelling the executive to subm it to binding arbitration, for example,\nis in essence an argument that Congress has violated the separation o f powers. We assessed these arguments in\nsections III and IV.\n43 W e note that in Thomas, the Court seem ed to indicate that private parties could be required to submit to binding\narbitration as long as the arbitration process satisfied the requirements o f due process. 473 U.S. at 592-93. The\nC ourt had no occasion to define the specific requirements o f due process in the binding arbitration context because\nthe parties had w aived their due process objections. In addition, a requirement that private parties submit to binding\narbitration could not be imposed in such a way as to work an unconstitutional condition. See Martin H. Redish,\nLegislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L.J. 197, 212-14; see\nalso Thomas, 473 U.S. at 596 n .l (Brennan, J., concurring).\n44 If, how ever, the executive branch w ere to adopt and pursue a policy o f entering into binding arbitration in\na system atic m anner designed to undermine the judiciary\'s constitutional role, a serious constitutional question would\narise.\n\n232\n\n\x0cConstitutional Limitations on Federal Government Participation in Binding Arbitration\n\nreview the arbitrators\xe2\x80\x99 determinations for fraud, misconduct, or misrepresentation.\nId. at 592. Such agreements should also describe the scope and nature of the\nremedy that may be imposed and care should be taken to insure that statutory\nauthority exists to effect the potential remedy.\nC. The Non-Delegation Doctrine\nThe previous discussion demonstrates that, at least in some instances, a nonArticle III tribunal may conduct federal adjudication. It might still be contended\nthat the constitutional non-delegation doctrine prohibits federal arbitral power from\nbeing vested in private actors. The Supreme Court\xe2\x80\x99s decisions in Auffmordt and\nKendall, however, strongly implied that there is no per se proscription on placing\narbitral authority in private actors. We view the Supreme Court\xe2\x80\x99s opinion in\nThomas as finally rejecting the argument that the Constitution prohibits the delega\xc2\xad\ntion of adjudicative authority in a private party. In Thomas the Court found no\nparticular relevance in the fact that the adjudication was to be performed by\n\xe2\x80\x9c civilian arbitrators, selected by agreement of the parties\xe2\x80\x9d as long as the cir\xc2\xad\ncumstances do not indicate that this mechanism would \xe2\x80\x9c diminish the likelihood\nof impartial decisionmaking, free from political influence.\xe2\x80\x9d 473 U.S. at 590. As\nwith all delegations, there must be standards to guide the determination of the\nrecipient of the delegated adjudicative authority, but this is not an exacting require\xc2\xad\nment. See id. at 593; see generally Yakus v. United States, 321 U.S. 414 (1944).\nAs long as these two criteria\xe2\x80\x94 impartiality and discemable standards \xe2\x80\x94 are\npresent, the non-delegation doctrine does not represent a blanket prohibition of\nfinal and binding resolution of a dispute by private actors.\nVI. Due Process\nThe Due Process Clause, U.S. Const, amend. V, does not prohibit the final\nresolution of claims, including claims involving the government, through binding\narbitration. For instance, claims for reimbursement through Part B of the Medicare\nprogram, 42 U.S.C. \xc2\xa7\xc2\xa7 1395j to 1395w-4, are subject to the final and unreviewable\ndetermination of a hearing officer who is hired by the insurance carrier with which\nthe federal government contracts for administration of the program. See United\nStates v. Erika, Inc. 456 U.S. 201 (1982). The Supreme Court rejected the conten\xc2\xad\ntion \xe2\x80\x9c that due process requires an additional administrative or judicial review by\na Government rather than a carrier-appointed hearing officer.\xe2\x80\x9d Schweiker, 456\nU.S. at 198 (1982). The Due Process Clause does not establish bright-line require\xc2\xad\nments or prohibitions; rather, \xe2\x80\x9c due process is flexible and calls for such procedural\nprotections as the particular situation demands.\xe2\x80\x9d Morrissey v. Brewer, 408 U.S.\n471,481 (1972).\n233\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nWhether an arbitrator with authority to issue a final, binding decision may be\na private actor or must be a government official, or whether any other facet of\nan arbitration proceeding is consistent with the Due Process Clause, is determined\nby reference to three relevant factors. Those factors are: the private interest that\nwill be affected by the official action; the risk of erroneous deprivation through\nthe procedures used and the probable value of additional or substitute safeguards;\nand the government\xe2\x80\x99s interest, including the function involved and the fiscal and\nadministrative burdens that the additional or substitute procedural requirement\nwould entail. See Schweiker, 456 U.S. at 198-200; Matthews v. Eldridge, 424\nU.S. 319, 335 (1976). The precise requirements of these factors will vary\ndepending on the facts and circumstances of each specific arbitration. While they\nmay in some instance combine to require that a final, binding decision be vested\nin a government official, Schweiker stands for the proposition that the Due Process\nClause does not per se prohibit vesting such a decision in a private actor.\nVII. Conclusion\nWe reaffirm our conclusion that the Appointments Clause does not prohibit the\nfederal government from submitting to binding arbitration. In addition, we do not\nview any other constitutional provision or doctrine as imposing a general prohibi\xc2\xad\ntion against the federal government entering into binding arbitration. Nevertheless,\nwe do recognize that the Constitution imposes substantial limits on the authority\nof the federal government to enter into binding arbitration in specific cases.\nWALTER DELLINGER\nAssistant Attorney General\nOffice of Legal Counsel\n\n234\n\n\x0c'