b'Recommendation that the Department of Justice not Defend\nthe Constitutionality of Certain Provisions of the Bankruptcy\nAmendments and Federal Judgeship Act of 1984\nProvisions o f the Bankruptcy Amendments and Federal Judgeship Act o f 1984 that retroactively\nextend the appointm ents o f bankruptcy judges who were in office at the time of the expiration\nof the transition provisions of the Bankruptcy Reform Act o f 1978, as amended, violate the\nAppointments Clause o f the United States Constitution.\nThe Justice Department should not defend the constitutionality o f the reinstatem ents under the\nBankruptcy Amendments and Federal Judgeship Act o f 1984, because its general obligation\nto defend the constitutionality of laws enacted by Congress does not extend to defending laws\nthat unconstitutionally infringe upon the powers of the President.\n\nAugust 27, 1984\nM e m o r a n d u m O p in io n\n\nfor th e\n\nAttorn ey G eneral\n\nThis memorandum supplements our previous memoranda of June 29, 1984\n(to Assistant Attorney General McConnell, from Acting Assistant Attorney\nGeneral Tarr) and July 6, 1984 (to Deputy Attorney General Dinkins, from\nActing Assistant Attorney General Tarr) concerning the Bankruptcy Amend\xc2\xad\nments and Federal Judgeship Act of 1984 (1984 Act). As we indicated in our\nprevious memoranda, and as we set forth in greater detail below, we believe\nthat the provisions (Grandfather Provisions) of the 1984 Act that purport to\nreinstate all bankruptcy judges who were in office at the time of the expiration\non June 27, 1984 of the transition provisions of the Bankruptcy Reform Act of\n1978, as amended (1978 Act), are constitutionally defective. We further be\xc2\xad\nlieve that the constitutional defects are sufficiently serious and would have\nsuch a significant impact on the appointment (and, potentially, the removal)\npower of the Executive that the Department should refrain from defending their\nconstitutionality. The Department, however, should be prepared to defend the\nother provisions of the 1984 Act if they are challenged in court. We specifically\nrecommend that the Department set forth its position regarding the Grandfather\nProvisions in the case of In re Benny, Civ. No. 84120 MISC RHS BKY (N.D.\nCal.), as generally articulated in a draft brief prepared by the Civil Division and\ntransmitted to this Office on August 23, 1984.1\n1 NOTE: A fter this opinion w as issued by the O ffice o f Legal Counsel, the United States C ourt o f Appeals\nfor the Ninth C ircuit refused to hold the reinstatem ent o f bankruptcy judges unconstitutional. See In re Benny,\n812 F.2d 1133 (9th Cir. 1987). The C ourt o f A ppeals did not address the issue considered by the Office o f\nLegal Counsel \xe2\x80\x94 w hether C ongress may retroactively extend Presidential appointm ents under the G randfa\xc2\xad\nther Provisions o f the 1984 Act \xe2\x80\x94 because it construed the transition provisions o f the 1978 Act as\nprospective extensions o f the appointm ents. The C ourt o f A ppeals held that the prospective extension of the\nappointm ents was constitutional.\n\n183\n\n\x0cUnder \xc2\xa7 205 of Public Law No. 98-166, which continues the authorities\ncontained in \xc2\xa7 21 of Public Law No. 96-132, 93 Stat. 1049-50, the Attorney\nGeneral is required to \xe2\x80\x9ctransmit a report to each House of the Congress\xe2\x80\x9d in any\ncase in which he determines that the Department of Justice \xe2\x80\x9cwill refrain from\ndefending . . . any provision of law enacted by the Congress in any proceeding\nbefore any court of the United States, or in any administrative or other proceed\xc2\xad\ning, because of the position of the Department of Justice that such provision of\nlaw is not constitutional.\xe2\x80\x9d Thus, if you concur that the Department should not\ndefend the constitutionality of the Grandfather Provisions and should, as we\nrecommend, participate in the Benny litigation consistent with our views and\nthose of the Civil Division, Congress must be notified of that decision. If you\nconcur, we will, with the participation of the Civil Division, draft a proposed\nletter to Congress. We have set forth below the reasons why we believe the\nDepartment should affirmatively contest, rather than defend, the constitution\xc2\xad\nality of the Grandfather Provisions.\n\nI.\nThe 1978 Act was a comprehensive revision of the bankruptcy laws in which\nCongress made significant changes to both the substantive and procedural law\nof bankruptcy. See generally Pub. L. No. 95-598, 92 Stat. 2549 (1978). The\nprocedural changes included modifications to the jurisdiction and the method\nof appointment of bankruptcy judges (previously referees in bankruptcy) to\npreside over bankruptcy proceedings. Section 201(a) of the 1978 Act provided\nfor Presidential appointment of bankruptcy judges, who were to serve for a\nterm of 14 years. See 92 Stat. at 2657. These judges were made subject to\nremoval by the judicial council on account of \xe2\x80\x9cincompetency, misconduct,\nneglect of duty, or physical or mental disability.\xe2\x80\x9d Id. Because of their remov\xc2\xad\nability and the fixed term o f their appointments, it was clear that these bank\xc2\xad\nruptcy judges were not intended by Congress to be judges in the sense envi\xc2\xad\nsioned by Article III of the Constitution.\nThe 1978 Act provided for a transition period before the new appointment\nprocedures would take full effect on April 1,1984. See 92 Stat. at 2682-88. The\ntransition provisions provided that the previously existing bankruptcy courts\nwould continue in existence and that incumbent bankruptcy referees (who had\nbeen and would continue to be during this transition period appointed by the\ndistrict courts to serve 6 year terms) would continue after the expiration of their\nterms with no fresh appointment to be bankruptcy judges until the expiration of\nthe transition provisions. A bankruptcy referee would not be continued only if\nthe chief judge of the circuit court, after consultation with a merit screening\ncommittee, found the referee to be not qualified.\nThe 1978 Act granted broad jurisdiction to bankruptcy courts over bank\xc2\xad\nruptcy and related matters. Although the Act initially vested this jurisdiction in\nthe district courts, the bankruptcy courts (and the bankruptcy judges) were\nempowered to exercise all of the jurisdiction conferred upon the district courts\n184\n\n\x0cwith respect to bankruptcy matters. See 92 Stat. at 2668. This jurisdiction\nincluded not only civil proceedings arising under the Bankruptcy Act, but also a\nwide variety of cases that might affect the property of an estate once a bank\xc2\xad\nruptcy petition had been filed. Thus, included within the bankruptcy courts\xe2\x80\x99jurisdic\xc2\xad\ntion were various types of contract actions, including claims based on state law.\nThe constitutionality of this broad grant of jurisdiction to the bankruptcy\njudges was challenged in a case that was decided by the Supreme Court as\nNorthern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50\n(1982). In Northern Pipeline, the Court declared that the broad grant of jurisdic\xc2\xad\ntion to bankruptcy courts, at least insofar as it included contract actions arising\nunder state law, was inconsistent with the requirements of the Constitution that\nsuch actions, if heard in federal court, must be heard by judges with the\nprotections and independence provided by Article III. The Court did not,\nhowever, apply its decision retroactively. In fact, the Court stayed the effect of\nits decision for three months in order to give Congress a chance to reconstitute\nthe bankruptcy court system. The Court subsequently extended the stay, at the\nSolicitor General\xe2\x80\x99s request, for an additional three months until December 24,\n1982, 459 U.S. 813, but it denied the Solicitor General\xe2\x80\x99s request for a further\nextension thereafter. 459 U.S. 1094 (1982).\nAlthough Congress failed to act by the deadline imposed by the Court, the\nbankruptcy court system continued to operate through various ad hoc arrange\xc2\xad\nments. Because the 1978 Act had initially granted jurisdiction of all bankruptcy\nproceedings to the district courts, the district courts resumed jurisdiction over\nall cases with respect to which bankruptcy court jurisdiction had been held\nunconstitutional under Northern Pipeline.\nThus, although the bankruptcy judges were disabled under Northern Pipeline\nfrom exercising the broad jurisdiction conferred by the 1978 Act, the district\ncourts were able to utilize these courts for the resolution of certain bankruptcy\nmatters under a temporary delegation of authority. The constitutionality of this\ninterim arrangement was upheld by several courts of appeals. See, e.g., In Re\nKaiser, 122 F.2d 1574 (2d Cir. 1983); White Motor Corp. v. Citibank, N.A., 704\nF.2d 254 (6th Cir. 1983); In Re Hansen, 702 F.2d 728 (8th Cir.), cert, denied\nsub nom. First N a t\xe2\x80\x99l Bank v. Hansen, 463 U.S. 1208 (1983).\nAfter Northern Pipeline, Congress labored for almost two years to adopt\ncorrective legislation. Under the 1978 Act, the transition provisions were to\nexpire at midnight on March 31, 1984. Congress passed four consecutive\neleventh hour extensions of the transition provisions in order to delay the\ndemise of the bankruptcy courts and the terms of the bankruptcy judges. Each\nsuch extension was passed by Congress and signed into law by the President\nbefore the expiration of the prior period. Ultimately, however, both the courts\nand the appointments expired on June 27, 1984, without Congress\xe2\x80\x99 passing\neither a new bankruptcy act or another temporary extension.2 The 1984 Act was\n2 The original transition provisions provided that the term o f a bankruptcy ju d g e serving as a referee in\nbankruptcy when the 1978 A ct was enacted would expire \xe2\x80\x9con M arch 31, 1984 or when his successor takes\nC ontinued\n\n185\n\n\x0cnot passed by both Houses of Congress until June 29; it was not presented to\nthe President until July 6, 1984; and it was not signed by the President until\nJuly 10, 1984. Thus, at the time the transition provisions expired, there were no\nbankruptcy courts and no bankruptcy judges. When the transition provisions\nexpired, the Administrative Office of the U.S. Courts implemented a system\nunder which the district courts handled bankruptcy matters with the assistance\nof the former bankruptcy judges, who performed their duties either as magis\xc2\xad\ntrates or consultants.\nThe 1984 Act, however, purported to continue in the new offices created by\nthat Act the judges whose positions and terms had gone out of existence on June\n27, 1984. Section 121(e) states that the term of any bankruptcy judge who was\nserving on that date is extended to the day of enactment of the 1984 Act (July\n10, 1984). Section 106 purports to extend the retroactive appointments so that\nthey will expire on the date \xe2\x80\x9cfour years after the date such bankruptcy judge was\nlast appointed to such office or on October 1, 1986, whichever is later.\xe2\x80\x9d\nAlthough the President decided to sign the bankruptcy bill, he included the\nfollowing language in his signing statement:\nI sign this bill with the following additional reservations. I\nhave been informed by the Department of Justice that the provi\xc2\xad\nsions in the bill seeking to continue in office all existing bank\xc2\xad\nruptcy judges are inconsistent with the Appointments Clause of\nthe Constitution. I am also advised that Administrative Office of\nthe U.S. Courts has reached the same conclusion. Therefore, I\nsign this bill after having received assurances from the Adminis\xc2\xad\ntrative Office that bankruptcy cases may be handled in the\ncourts without reliance on those invalid provisions. At the same\ntime, however, I urge Congress immediately to repeal the un\xc2\xad\nconstitutional provisions in order to eliminate any confusion\nthat might remain with respect to the operation of the new\nbankruptcy system.\nOn July 27,1984, the Director of the Administrative Office of the United States\nCourts issued a memorandum to all courts of appeals, district courts, and\nformer bankruptcy judges in which he stated that the 1984 Act \xe2\x80\x9cmay not be\nconstitutionally valid.\xe2\x80\x9d Because of the \xe2\x80\x9cinherent risk of the invalidation of\njudicial actions taken by bankruptcy judges,\xe2\x80\x9d the Director concluded:\nI have therefore decided, upon advice of my General Counsel,\nand in accordance with my responsibilities under section 604 of\n2 (. . . continued)\noffice." Pub. L. No. 9 5 -5 9 8 , \xc2\xa7 404(b), 92 Stat. 2549, 2683 (1982) (em phasis added). Thus, it is arguable that\nunder these o riginal provisions the appointm ents o f th e \xe2\x80\x9ctransition\xe2\x80\x99\' bankruptcy judges would have continued\non even a fte r the expiration of the transition provisions. All four o f the extension acts, how ever, contained\nspecific provisions that declared that th e term o f office o f the transition bankruptcy judges w ould expire at the\nconclusion o f the extension period. See, e.g., Pub. L. No. 98 -249, \xc2\xa7 2, 98 Stat. 116, 116 (1984). Thus we\nbelieve these actions by Congress m ade clear that the offices o f bankruptcy judges expired at the end o f the\nextension period.\n\n186\n\n\x0ctitle 28 of the United States Code, that I will not approve\npayment of salary to any former bankruptcy judge purporting to\nexercise judicial authority under the provisions contained in\nsection 121.\nAlthough the Administrative Office subsequently decided not to" withhold the\npay of the former bankruptcy judges, its position on the constitutionality of the\nprovision has not been altered. It was the apparent intent of the Administrative\nOffice that the bankruptcy system continue to operate with the prior bank\xc2\xad\nruptcy judges\xe2\x80\x99 functioning in the manner of magistrates or consultants to assist\nthe district courts until remedial legislation could be obtained when Congress\nreturned from its recess, or until the courts of appeals could exercise their\nauthority under the 1984 Act to appoint new bankruptcy judges to 14 year\nterms. The latter process, because of the appointment procedures imposed upon\nthe courts, was expected to take at least two months.\n\nn.\nIt is beyond dispute that Congress could not constitutionally appoint bank\xc2\xad\nruptcy judges. The Appointments Clause of the Constitution, art. II, \xc2\xa7 2, cl. 2,\nprovides that the President:\nshall nominate, and by and with the Advice and Consent of the\nSenate, shall appoint Ambassadors, other public Ministers and\nConsuls, Judges of the Supreme Court, and all other Officers of\nthe United States, whose Appointments are not herein otherwise\nprovided for, and which shall be established by Law: but the\nCongress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the\nCourts of Law, or in the Heads of Departments.\nIn Buckley v. Valeo, 424 U.S. 1 (1976), the Court held that \xe2\x80\x9cany appointee\nexercising significant authority pursuant to the laws of the United States\xe2\x80\x9d is an\nofficer of the United States who must be appointed in accordance with the\nAppointments Clause. Id. at 126. The Court also explicitly held that neither\nCongress nor its officers may appoint officers of the United States. Id. at 127.\nThis prohibition is not altered by Congress\xe2\x80\x99 plenary power to establish\n\xe2\x80\x9cuniform laws on the subject of Bankruptcies throughout the United States\xe2\x80\x9d\nunder Article 1, \xc2\xa7 8 of the Constitution. Thus, the Court in Buckley held:\nThe position that because Congress has been given explicit\nand plenary authority to regulate a field of activity, it must\ntherefore have the power to appoint those who are to administer\nthe regulatory statute is both novel and contrary to the language\nof the Appointments Clause. Unless their selection is elsewhere\nprovided for, all Officers of the United States are to be appointed\nin accordance with the Clause.\n187\n\n\x0cId. at 132. Likewise, the Court ruled that the Necessary and Proper Clause of\n\nthe Constitution cannot authorize Congress to do what the Appointments\nClause forbids. Id. at 134\xe2\x80\x9435.\nHowever, Congress did not purport in the Grandfather Provisions to make\nappointments, but rather only to extend the terms of persons previously ap\xc2\xad\npointed in accordance with the Constitution. Had Congress extended the terms\nbefore they expired on June 27, 1984, a different and more difficult issue would\nbe presented. See Myers v. United States, 272 U.S. 52, 128-29 (1926) (Con\xc2\xad\ngress may prescribe duties, terms and compensation for public offices); Shoe\xc2\xad\nm aker \\ . United States, 147 U.S. 282 (1893) (Congress may add new duties that\nare germane to the functions already performed by a current officer of the\nUnited States). Thus, while a congressional extension of the term of an appoint\xc2\xad\nment could well raise constitutional questions, it would be qualitatively differ\xc2\xad\nent than what Congress did in the 1984 Act. Here it is clear that both the terms\nof bankruptcy judges and their offices expired on June 27, 1984, two days\nbefore Congress enacted the Grandfather Provisions and nearly two weeks\nbefore the President signed them into law. Thus, the effect of Congress\xe2\x80\x99 action\nwas to reinstate and recreate officers of the United States whose status as such\nhad terminated, albeit only for a short period. The critical issue, therefore, is\nwhether Congress may constitutionally achieve this result by purporting to\nextend retroactively the offices and terms of the bankruptcy judges who were\nsitting on June 27. While credible arguments can be made in favor of the\nvalidity of Congress\xe2\x80\x99 action, we conclude that this aspect of the 1984 Act\nviolates the Appointments Clause.\nThe Supreme Court has recognized that the Appointments Clause is a direct\nlimitation on Congress\xe2\x80\x99 power and essential to the operation of the separation of\npowers established by the Framers of the Constitution. Buckley v. Valeo, 424\nU.S. at 118-19. Thus, the Court has held that the limitations imposed by the\nAppointments Clause must be strictly construed, stating:\nthat Article II excludes the exercise of legislative power by\nCongress to provide for appointments and removals, except only\nas granted therein to Congress in the matter of inferior offices\n. . . and that the provisions of the second section of Article II,\nwhich blend action by the legislative branch, or by part of it,\nSenate advice and consent in the work of the executive, are\nlimitations to be strictly construed and not to be extended by\nimplication . . . .\nM yers v. United States, 272 U.S. at 164.\n\nThe Court\xe2\x80\x99s decisions concerning efforts to reinstate former officers of the\nUnited States reflect this strict construction. In Mimmack v. United States, 97\nU.S. 426 (1878), for example, the President accepted the resignation of an army\ncaptain on November 8,1868, but attempted to revoke his acceptance about one\nmonth later, on December 11, 1868. The Court held that the attempted revoca\xc2\xad\ntion was invalid, stating:\n188\n\n\x0cOfficers of this kind are nominated by the President and con\xc2\xad\nfirmed by the Senate; and if the petitioner ceased to be such an\nofficer when notified that his resignation had been accepted, it\nrequires no argument to show that nothing could reinstate him in\nthe office short of a new nomination and confirmation.\nId. at 437. It is noteworthy that in this context the attempted action would have\n\nconstituted a Presidential evasion of legislative prerogatives. The 1984 Act\nreflects an attempted Legislative Branch encroachment into authority lodged in\nother Branches.\nThe Court considered an analogous situation in United States v. Corson , 114\nU.S. 619 (1885). In that case, President Lincoln dismissed a military officer\nfrom the service on March 27, 1865. Shortly thereafter, on June 9, 1865,\nPresident Johnson revoked the order of dismissal and restored the officer to his\nformer position. The Court found that as a result of President Lincoln\xe2\x80\x99s order,\nthe officer \xe2\x80\x9cwas disconnected from that branch of the public service as com\xc2\xad\npletely as if he had never been an officer of the army.\xe2\x80\x9d Id. at 621. Accordingly,\nthe Court held that the Appointments Clause barred President Johnson from\nreinstating the officer save with the advice and consent of the Senate, stating:\nThe death of the incumbent could not more certainly have made\na vacancy than was created by President Lincoln\xe2\x80\x99s order of\ndismissal from the service. And such vacancy could only have\nbeen filled by a new and original appointment, to which, by\nthe Constitution, the advice and consent of the Senate were\nnecessary . . . .\nId. at 622. See also Blake v. United States, 103 U.S. 227, 237 (1880) (\xe2\x80\x9cHaving\n\nceased to be an officer in the army, he could not again become a post chaplain,\nexcept upon a new appointment, by and with the advice and consent of the\nSenate.\xe2\x80\x9d).\nThese precedents teach that from the moment an incumbent loses his status\nas an officer of the United States, he cannot be restored to office save by a new\nappointment in accordance with the Appointments Clause. While these particu\xc2\xad\nlar cases protect the Senate\xe2\x80\x99s right under the Appointments Clause to consent to\nappointments, we see no principled basis for finding the President\xe2\x80\x99s appoint\xc2\xad\nment power to be entitled to less protection in the context of an attempt by\nCongress to exercise that power. In fact, these cases show that the Court has been\nsensitive to erosion of the separation of powers principles at stake, which principles\nact neutrally to protect the process rather than any particular office holder.\nIndeed, Congress by its actions has acknowledged that it lacks power to\nreappoint an officer of the United States. Thus, Congress has on occasion\nchanged the retirement pay of military officers by retroactively changing their\nrank as of the date of their retirement, but has recognized that it cannot place an\nofficer who was discharged from service on the retired list without first provid\xc2\xad\ning for his reappointment:\n189\n\n\x0cCongress has frequently exercised the power of changing the\nmere rank of officers without invoking the constitutional power\nof the Executive to appoint the incumbents to new offices. But\nwhen it has been the purpose to place on the retired list one who\nhas been discharged from service, who no longer holds any\noffice in the Army, Congress has provided for his restoration or\nreappointment in the manner pointed out by the Constitution, gener\xc2\xad\nally by the President alone, and then has authorized his retirement.\nWood v. United States, 15 Ct. Cl. 151, 161 (1879), a ffd , 107 U.S. 414 (1882).\nSee, e.g., Collins v. United States, 14 Ct. Cl. 568, 15 Ct. Cl. 22 (1879).\nA much more recent case, United States v. Will, 449 U.S. 200 (1980), also\n\nsupports the conclusion that direct constitutional limitations on congressional\npower will be strictly enforced. In that case, the Court considered a statute\nrepealing a scheduled cost of living salary increase forjudges. One of the four\nseparate measures under consideration in Will became law when signed by the\nPresident on October 1,1976, hours after the increase took effect. Although no\njudge ever received the increased salary, and although the statute would have\nbeen constitutional if it had been signed by the President a few hours earlier, the\nCourt held that the statute violated the Compensation Clause because it pur\xc2\xad\nported to repeal a salary increase technically already in force. 449 U.S. at 225.\nIn reaching this result, the Court noted, \xe2\x80\x9c \xe2\x80\x9c\xe2\x80\x98[w]henever it becomes important to\nthe ends of justice, or in order to decide upon conflicting interests, the law will\nlook into fractions of a day, as readily as into fractions of any other unit of\ntime.\xe2\x80\x99\xe2\x80\x9d \xe2\x80\x9d Id. at 225 n.29 (quoting Louisville v. Savings Bank, 104 U.S. 469,474\xe2\x80\x94\n75 (1881) (quoting G rosvenor\\. Magill, 37 111. 239, 24041 (1865))).\nThis principle that direct constitutional limitations on the powers of a Branch\nof Government, here Congress, must be strictly enforced distinguishes the cases\nin which the Court has upheld retroactive statutes. E.g., Pension Benefit Guar\xc2\xad\nanty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984); United States v. Darusmont,\n449 U.S. 293 (1981). These cases concern the limits on retroactive economic\nlegislation imposed by the Due Process Clause, not an explicit constitutional\nlimitation on congressional power central to the separation of powers. We are\nnot aware of any case in which the Court has allowed Congress to accomplish\nby indirection, through the guise of retroactive legislation, what it could not do\ndirectly under the Constitution.\nWhile the conclusion that the moment an officer of the United States loses his\nstatus as such he cannot be reinstated except in accordance with the Appoint\xc2\xad\nments Clause is admittedly a technical one, it is no more technical than the Will\nCourt\xe2\x80\x99s holding that a judicial salary increase is fully protected by the Compen\xc2\xad\nsation Clause the moment it takes effect. Moreover, the Court embraced pre\xc2\xad\ncisely this construction of the Appointments Clause with respect to limitations\non Presidential power in Mimmack, Corson and Blake. The Supreme Court has\nnot hesitated to enforce structural provisions of the Constitution in their techni\xc2\xad\ncal sense, undoubtedly because it is extremely difficult to locate a stopping\n190\n\n\x0cpoint once the initial erosion is permitted. Here, if a two-week hiatus were to be\ntolerated, where would the line be drawn? A great deal of uncertainty and\nlitigation would undoubtedly follow. On the other hand, requiring Congress to\nact, if it wishes to do so, before legislation expires, is not unduly burdensome.\nHere, for example, Congress extended the terms of the bankruptcy judges four\ntimes before it finally failed to meet its own deadline.\nOne could argue against this reading of the Appointments Clause that the\nvalues protected by that provision are not implicated by Congress\xe2\x80\x99 action at\nissue here. In this regard, it is significant that the persons whose terms were\nextended were initially appointed in accordance with the Appointments Clause,\nand that Congress extended the terms of all sitting bankruptcy judges without\nattempting to evaluate the wisdom of retaining any particular individual. More\xc2\xad\nover, Congress acted on an emergency basis in the face of perceived potential\ndisruption of the bankruptcy system. However, the fact that the initial appoint\xc2\xad\nments were made in accordance with the Constitution does not distinguish Mimmack,\nCorson and Blake. Furthermore, an emergency cannot create powers not afforded a\nparticular branch of Government under the Constitution. Youngstown Sheet and\nTube Co. v. Sawyer, 343 U.S. 579 (1952) (President\xe2\x80\x99s seizure of steel mills during\nKorean War held unconstitutional as violation of separation of powers).\nFor these reasons, we conclude that once the terms and offices of the\nbankruptcy judges expired on June 27, 1984, those officers could not be\nreinstated except by a new appointment made in accordance with the Appoint\xc2\xad\nments Clause. Congress could not evade this requirement through the fiction of\nretroactively extending the terms of the judges who were sitting on that date.\nWhile this conclusion may appear to some to be technical and restricts a\nconvenient and efficient mechanism for dealing with an emergency, we believe\nthat it is correct in light of the language and intent of the Constitution as\ninterpreted by the Supreme Court. As the Court stated in INS v. Chadha, 462\nU.S. 919(1983):\nThe choices we discern as having been made in the Constitu\xc2\xad\ntional Convention impose burdens on governmental processes\nthat often seem clumsy, inefficient, even unworkable, but those\nhard choices were consciously made by men who had lived\nunder a form of government that permitted arbitrary governmen\xc2\xad\ntal acts to go unchecked. There is no support in the Constitution\nor decisions of this Court for the proposition that the cumber\xc2\xad\nsomeness and delays often encountered in complying with ex\xc2\xad\nplicit Constitutional standards may be avoided, either by the\nCongress or by the President.\nId. at 959.\n\nIII.\nThe Supreme Court has consistently held that whether an unconstitutional\nprovision may be severed from a statutory scheme is a matter of congressional\n191\n\n\x0cintent, and that the invalid portions of a statute should be severed \xe2\x80\x9cunless it is\nevident that the legislature would not have enacted those provisions that are\nwithin its power, independently of that which is not.\xe2\x80\x9d Champlin Refining Co. v.\nCorporation C om m \xe2\x80\x99n , 286 U.S. 210, 234 (1932). See, e.g., Buckley v. Valeo,\n424 U.S. at 108. In reaffirming these principles in INS v. Chadha, the Court\nidentified three basic principles with respect to severability. First, the Court\nreiterated the basic rule, stating:\nOnly recently this Court reaffirmed that the invalid portions of\na statute are to be severed \xe2\x80\x98\xe2\x80\x9c unless it is evident that the Legisla\xc2\xad\nture would not have enacted those provisions which are within\nits power, independently of that which is not.\xe2\x80\x99\xe2\x80\x9d Buckley v. Valeo,\n424 U.S. 1, 108 (1976), (quoting Champlin Refining Co. v.\nCorporation Comm\xe2\x80\x99n, 286 U.S. 210, 234 (1932)).\n462 U.S. at 931-32. Second, the Court stated that a severability clause is strong\nevidence that Congress did not intend for the entire statute to fall when one of\nits provisions is held to be unconstitutional. Accordingly, the presence of such a\nclause in the statutory scheme reinforces the presumption of severability. Id.\nFinally, the Court held that \xe2\x80\x9ca provision is further presumed severable if what\nremains after severance is \xe2\x80\x98fully operative as a law.\xe2\x80\x99 Champlin Refining Co. v.\nCorporation C om m \xe2\x80\x99n, supra, 286 U.S. at 234.\xe2\x80\x9d 462 U.S. at 934,\nApplying these principles, we conclude that the Grandfather Provisions of\nthe 1984 Act are severable. We have been unable to locate anything in the\nlanguage of the 1984 Act or its legislative history tending to rebut the usual\npresumption of severability. To the contrary, \xc2\xa7 119 provides:\nIf any provision of this Act or the application thereof to any\nperson or circumstance is held invalid, the remainder of this Act,\nor the application of that provision to persons or circumstances\nother than those as to which it is held invalid, is not affected\nthereby.\nThis severability clause is, as noted above, persuasive evidence of congres\xc2\xad\nsional intent.\nFinally, the remaining provisions of the 1984 Act would be \xe2\x80\x9cfully operative\nas a law\xe2\x80\x9d in the absence of the Grandfather Provisions. Under \xc2\xa7 104 of the 1984\nAct, bankruptcy judges are to be appointed by the courts of appeals for the\ncircuits in which the judgeships are located. The Grandfather Provisions are\ndesigned to facilitate the transition to appointments by the court of appeals by\nproviding a temporary starting corps of judges. If the Grandfather Provisions\nare invalidated, the courts of appeals could appoint bankruptcy judges in\naccordance with the appointment scheme created by the 1984 Act. The courts of\nappeals would determine whether to reappoint some or all of the bankruptcy\njudges who were sitting on June 27,1984. But whatever the courts\xe2\x80\x99 decisions in\nthis regard, the bankruptcy court structure and the substantive provisions of\nbankruptcy law established by the 1984 Act would remain in place. Moreover,\n192\n\n\x0cbecause \xc2\xa7 101 of the 1984 Act assigns plenary jurisdiction over bankruptcy\nmatters to the federal district courts, they will be able to establish suitable\narrangements for handling bankruptcy cases pending appointment of bank\xc2\xad\nruptcy judges by the courts of appeals. Thus, the 1984 Act could operate fully\nwithout the Grandfather Provisions. For these reasons, we conclude that the\nGrandfather Provisions are severable.\nIV.\nThe President and his subordinates have a constitutionally imposed duty \xe2\x80\x9cto\ntake Care that the Laws be faithfully executed.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3. Attor\xc2\xad\nneys General have generally construed this obligation to include the enforce\xc2\xad\nment and the defense in court of laws enacted by Congress irrespective of\nquestions that have been or might be raised regarding their constitutionality:\n[I]t is not within the province of the Attorney General to declare\nan Act of Congress unconstitutional at least, where it does not\ninvolve any conflict between the prerogatives of the legislative\ndepartment and those of the executive department and that when\nan act like this, of general application, is passed it is the duty of\nthe executive department to administer it until it is declared\nunconstitutional by the courts.\n31 Op. Att\xe2\x80\x99y Gen. 475, 476 (1919). See also , e.g., 40 Op. Att\xe2\x80\x99y Gen. 158\n(1942); 39 Op. Att\xe2\x80\x99y Gen. 11 (1937); 38 Op. Att\xe2\x80\x99y Gen. 252 (1935); id. at 136\n(1934); 36 Op. Att\xe2\x80\x99y Gen. 21 (1929).\nLike the courts, the Executive should (and does) apply a presumption in favor\nof the constitutionality of a federal statute. E.g., INS v. Chadha, 462 U.S. 919,\n944 (1983). Members of Congress take an oath to uphold the Constitution, and\nthe Executive should presume that, in passing legislation, Members of Congress\nhave acted with due regard for their responsibilities to the Constitution. See\nRostker v. Goldberg, 453 U.S. 57, 64 (1981).\nThe Executive\xe2\x80\x99s duty faithfully to execute the law and recognition of the\npresumption of constitutionality generally accorded duly enacted statutes result\nin all but the rarest of situations in the Executive\xe2\x80\x99s enforcing and defending\nlaws enacted by Congress. United States v. Lee, 106 U.S. 196,220 (1882) (\xe2\x80\x9cNo\nofficer of the law may set that law at defiance with impunity. All the officers of\nthe government, from the highest to the lowest, are creatures of the law, and are\nbound to obey it.\xe2\x80\x9d).\nThere are sound reasons of policy for this general practice. Our constitutional\nsystem is delicately balanced by the division of power among the three Branches\nof the Government. Although each Branch is not \xe2\x80\x9chermetically\xe2\x80\x9d sealed from the\nothers, Buckley v. Valeo, 424 U.S. at 121, and certain areas of overlapping\nresponsibility may be identified, the quintessential functions of each Branch\nmay be easily stated. It is axiomatic that the Legislature passes the laws, the\nExecutive executes the laws, and the Judiciary interprets the laws. Any decision\n193\n\n\x0cby the Executive that a law is not constitutional and that it will not be enforced\nor defended tends on the one hand to undermine the function of the Legislature\nand, on the other, to usurp the function of the Judiciary. It is generally inconsis\xc2\xad\ntent with the Executive\xe2\x80\x99s duty, and contrary to the allocation of legislative\npower to Congress, for the Executive to take actions that have the practical\neffect of nullifying an Act of Congress. It is also generally for the courts, and\nnot the Executive, finally to decide whether a law is constitutional. Any action\nof the President that precludes, or substitutes for, a judicial test and determina\xc2\xad\ntion would at the very least appear to be inconsistent with the allocation of\njudicial power by the Constitution to the courts.\nExceptions to this general rule, however rare, do and must exist. These arise\nwhenever the role of enforcing and defending a federal statute may not suffi\xc2\xad\nciently discharge the Executive\xe2\x80\x99s constitutional duty. The President\xe2\x80\x99s veto\npower will usually be adequate to express and implement the President\xe2\x80\x99s\njudgement that an act of Congress is unconstitutional. By exercising his veto\npower, the President may fulfill his responsibility under the Constitution and\nalso impose a check on the power of Congress to enact statutes that violate the\nConstitution. On some occasions, however, the exercise by the President of his\nveto power may not be feasible. For example, an unconstitutional provision\nmay be a part of a larger and vitally necessary piece of legislation. The Supreme\nCourt has held that the President\xe2\x80\x99s failure to veto a measure does not prevent\nhim subsequently from challenging the Act in court, nor does Presidential\napproval of an enactment cure constitutional defects. National League o f Cities\nv. Usery, 426 U.S. 833, 841 n.12 (1976); Myers v. United States, 272 U.S. 52\n(1926).\nCases in which the Executive has chosen not to defend an Act of Congress\nmay be placed in one of two categories. One category of cases involves statutes\nbelieved by the Executive to be so clearly unconstitutional as to be indefensible\nbut which do not trench on separation of powers. Refusals to execute or defend\nstatutes based upon a determination that they meet these criteria are exceed\xc2\xad\ningly rare.3\n3 O ur research has uncovered only three docum ented situations o f this nature, although we cannot be sure\nthere are not o thers, because informal (or e v en formal) decisions not to execute statutes would not necessarily\nbe recorded in such a w ay as to make them accessible to us. And, if the Executive refused to enforce or defend\nthe statute, the m atter may never have co m e to the courts, o r if it did, would have been unlikely to leave a\nprom inent mark.\nThe first instance o f refusal to defend su ch a statute that we have located occurred in 1962 in the context o f\na private civil rights action contesting th e constitutionality o f a federal law that provided federal funds for\nhospitals having \xe2\x80\x9cseparate but equal facilities.\'* In that case, Simpkins v. Moses H. Cone Memorial Hospital,\n211 F. Supp. 628, 640 (M .D .N .C. 1962), rev\'d, 323 F.2d 959 (4th C ir. 1963), cert, denied, 376 U.S. 938\n(1964), the U nited States intervened an d took the position that the statute in question, then 42 U.S.C.\n\xc2\xa7 299e(f), w as unconstitutional.\nO n O cto b er 11, 1979, form er Attorney G eneral C iviletti, over the strong objection o f this O ffice, notified\nC ongress by identical letters to the S peaker o f the H ouse and the President pro tempore of the Senate that the\nD epartm ent w ould not defend \xc2\xa7 399(a) o f the Public Broadcasting Act o f 1967, 47 U.S.C. \xc2\xa7 399(a). That\ndecision w as reversed by you in your le tte r to C hairm an Thurm ond and Senator Biden o f the Senate\nC om m ittee on the Judiciary o f April 6, 1981. The Suprem e C ourt subsequently struck down, by a narrow 5 C ontinued\n\n194\n\n\x0cThe other category involves statutes that the Executive believes are uncon\xc2\xad\nstitutional (although not necessarily so clearly unconstitutional as statutes\nfalling in the first category) and that usurp executive authority and therefore\nweaken the President\xe2\x80\x99s constitutional role. The following statement of Presi\xc2\xad\ndent Andrew Johnson\xe2\x80\x99s counsel in an early recorded statement addresses the\nPresident\xe2\x80\x99s responsibilities with respect to the second of these categories:\nIf the law be upon its very face in flat contradiction of plain\nexpressed provisions of the Constitution, as if a law should\nforbid the President to grant a pardon in any case, or if the law\nshould declare that he should not be Commander-in-Chief, or if\nthe law should declare that he should take no part in the making\nof a treaty, I say the President, without going to the Supreme\nCourt of the United States, maintaining the integrity of his\ndepartment, which for the time being is entrusted to him, is\nbound to execute no such legislation; and he is cowardly and untrue\nto the responsibility of his position if he should execute it.\n2 Trial o f Andrew Johnson 200 (Washington 1868). This statement, of course,\nwas made in the context of the attempt to impeach President Johnson for, inter\nalia , having refused to obey the Tenure in Office Act, an act \xe2\x80\x9cwhich he\nbelieved with good reason . . . to be unconstitutional.\xe2\x80\x9d 38 Op. Att\xe2\x80\x99y Gen. 252,\n255 (1935).\nThis early statement anticipated a practice that has subsequently been fol\xc2\xad\nlowed by the Executive under which the President need not blindly execute or\ndefend laws enacted by Congress if such laws trench on his constitutional\npower and responsibility. Of course, under that practice the President is obli\xc2\xad\ngated to respect and follow the decisions of the courts as the ultimate arbiters of\nthe Constitution.\nThis category of cases exists because, in addition to the duty of the President\nto uphold the Constitution in the context of the enforcement of Acts of Con\xc2\xad\ngress, the President also has a constitutional duty to protect the Presidency from\nencroachment by the other Branches. He takes an oath to \xe2\x80\x9cpreserve, protect and\ndefend\xe2\x80\x9d the Constitution. An obligation to take action to resist encroachments\non his institutional authority by the Legislature may be implied from that oath,\nespecially where he may determine it prudent to present his point of view in\ncourt. In this regard, we believe that the President must, in appropriate circum\xc2\xad\nstances, resist measures which would impermissibly weaken the Presidency:\n\xe2\x80\x9cThe hydraulic pressure inherent within each of the separate Branches to\n3 ( . . . continued)\n4 vote, that aspect o f \xc2\xa7 399(a) w hich had been view ed by this O ffice in 1979 as least susceptible to a credible\ndefense, in contrast to the other provisions which we believed to be clearly defensible. See FCC v. League o f\nWomen Voters o f California, 468 U.S. 364 (1984).\nFinally, on January 13, 1981 form er A ttorney General C iviletti, with the concurrence o f this O ffice,\ninform ed Congress by identical letters to the Speaker o f the House and the President pro tempore o f the\nSenate that the D epartm ent w ould not prosecute, under 18 U.S.C. \xc2\xa7 1461 and 39 U.S.C. \xc2\xa7 3001(e), the\nmailing o f truthful, oon-deceptive advertising regarding legal abortions.\n\n195\n\n\x0cexceed the outer limits of its power, even to accomplish desirable objectives,\nmust be resisted.\xe2\x80\x9d INS v. Chadha, 462 U.S. at 951 (emphasis added).\n\nThis duty to preserve the institution of the Presidency, captured above in the\nwords of President Andrew Johnson\xe2\x80\x99s counsel, was articulated eloquently and\nsomewhat more authoritatively by Chief Justice Chase, who presided over the\ntrial in the Senate of President Johnson. Chief Justice Chase declared that the\nPresident had a duty to execute a statute passed by Congress which he believed\nto be unconstitutional \xe2\x80\x9cprecisely as if he held it to be constitutional.\xe2\x80\x9d However,\nhe added, the President\xe2\x80\x99s duty changed in the case of a statute which\ndirecdy attacks and impairs the executive power confided to\nhim by [the Constitution]. In that case it appears to me to be the\nclear duty of the President to disregard the law, so far at least as\nit may be necessary to bring the question of its constitutionality\nbefore the judicial tribunals.\n*\n\n*\n\n*\n\nHow can the President fulfill his oath to preserve, protect, and\ndefend the Constitution, if he has no right to defend it against an\nact of Congress, sincerely believed by him to have passed in\nviolation of it?\nR. Warden, A n Account o f the Private Life and Public Services o f Salmon\nPortland Chase 685 (1874) (emphasis in original).4 If the President does not\nresist intrusions by Congress into his sphere of power, Congress may not only\nsuccessfully shift the balance of power in the particular case but may succeed\nin destroying the Presidential authority and effectiveness that would otherwise\nact as a check on Congress\xe2\x80\x99 exercise of power in other circumstances.\nThe major historical examples of refusal by the Executive to enforce or\ndefend an Act of Congress have been precipitated by Congress\xe2\x80\x99 attempt to alter\nthe distribution of constitutional power by arrogating to itself a power that the\nConstitution does not confer on Congress but, instead, reposes in the Executive.\nIn such situations, a fundamental conflict arises between the two Branches, and\nthis conflict has generally resulted in Attorneys General presenting to the\ncourts the Executive\xe2\x80\x99s view of what the Constitution requires. The potential for\nsuch a conflict\xe2\x80\x99s arising was expressly recognized by Attorney General Palmer\nin 1919 when he issued the opinion, quoted above, that the general duty of the\nAttorney General to enforce a statute did not apply in the case of a conflict\nbetween the Executive and the Legislature. See 31 Op. Att\xe2\x80\x99y Gen. 475, 476\n(1919).\nSeven years later, this caveat to the general rule was applied when the\nPresident acted contrary to a statute prohibiting the removal of a postmaster.\nThat act led to litigation in which the Executive challenged, successfully, the\n4 C h ie f Ju stice C h a se \'s comments w ere m ade in a letter w ritten the day after the Senate had voted to exclude\nevidence that the entire cabinet had advised President Johnson that the Tenure of O ffice Act w as unconstitu\xc2\xad\ntional. Id. See M. B enedict, The Impeachment and Trial o f Andrew Johnson 154-55 (1973). U ltim ately, the\nS enate did adm it evidence that the President had desired to initiate a court test of the law. Id. at 156.\n\n196\n\n\x0cconstitutionality of that statute in litigation brought by the removed postmaster.\nMyers v. United States, 272 U.S. 52 (1926). Myers appears to be the first case\n\nin which the Executive acted contrary to and then directly challenged the\nconstitutionality of a federal statute in court:\nIn the 136 years that have passed since the Constitution was\nadopted, there has come before this Court for the first time, so\nfar as I am able to determine, a case in which the government,\nthrough the Department of Justice, questions the constitutional\xc2\xad\nity of its own act.\nId. at 57 (summary of oral argument of counsel for appellant Myers).5\n\nAlmost a decade later, the Executive argued, unsuccessfully, that \xc2\xa7 1 of the\nFederal Trade Commission Act would be unconstitutional if interpreted to\nprohibit the President\xe2\x80\x99s removal of a member of the Federal Trade Commission.\nHumphrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602 (1935). A similar argu\xc2\xad\nment was advanced, again unsuccessfully, by the Executive with respect to an\nanalogous removal issue in the case of Wiener v. United States, 357 U.S. 349\n(1958). Between these two cases, the Executive carried out, but then refused to\ndefend when sued, and indeed successfully challenged the constitutionality of, a\nstatute that directed that the salaries of certain federal employees not be paid.\nUnited States v. Lovett, 328 U.S. 303 (1946).6 In 1976, the Appointments\nClause was once again at issue when the Executive challenged, successfully,\nthe appointment of members of the Federal Election Commission by officers of\nCongress. Buckley v. Valeo, 424 U.S. 1 (1976).\nIn addition to these examples, there have been and continue to be a number\nof cases involving the constitutionality of so called legislative veto devices in\nwhich the Executive has successfully challenged the constitutionality of legisla\xc2\xad\ntive vetoes. Representative of this class of cases is, of course, INS v. Chadha,\n462 U.S. 919 (1983). As is true of the other cases discussed above, the Court has\nnever suggested that there has been any impropriety in the Executive\xe2\x80\x99s conduct.7\n5 It is perhaps notew orthy that this summary o f the argum ent o f appellant M yers\' counsel goes on to record\ncounsel\'s view that as to the appearance o f the D epartm ent o f Justice in opposition to the statute, \xe2\x80\x9cI have no\ncriticism to offer; I think it is but proper." Further, that summary o f the oral argum ent does not record any\nobservations w hatsoever on this point by Senator G eorge W harton Pepper, who appeared as counsel for the\nSenate and H ouse o f R epresentatives as amicus curiae See 272 U.S. at 65-77.\n6 The Suprem e C ourt decided that the statute in question was unconstitutional as a bill o f attainder, a\nconstitutional defect not necessarily suggesting a clash between legislative and executive pow er. Because the\nstatute w as directed at subordinates o f the President, however, the case took on that characteristic both as\nregards the bill o f attainder issue and, more specifically, with respect to the argum ent advanced by the\nem ployees and jo in ed in by the Solicitor General that the statute at issue constituted an unconstitutional\nattem pt by Congress to exercise the pow er to remove Executive B ranch em ployees See B rief for the U nited\nStates at 10, 56, United States v. Lovett. 328 U.S. 303 (1946) (No. 809). Thus, Lovett falls squarely w ithin the\nsecond category o f cases as representing a clash betw een legislative and executive power.\n7 On July 30, 1980 Attorney General Civiletti transm itted to Chairman Baucus of the Subcom m ittee on\nLim itations o f C ontracted and D elegated A uthority o f the Senate Com m ittee on the Judiciary a detailed\nexplanation o f this D epartm ent\'s policy with regard to defending federal statutes against constitutional\nchallenges. It is perhaps notew orthy that in his letter to the Attorney General, as observed by the Attorney\nGeneral in his response, Chairman B aucus had excluded from his broad inquiry \xe2\x80\x9cthose situations where the\nContinued\n\n197\n\n\x0cThe general policy outlined above was rearticulated during this Administra\xc2\xad\ntion in your letter of April 6, 1981, to Chairman Thurmond and Senator Biden\nof the Senate Committee on the Judiciary in response to their request that the\nDepartment reconsider its decision not to defend a provision of the Federal\nCommunications Act being challenged in a case brought by the League of\nWomen Voters in 1979. See supra note 2. That letter stated your view that\nthe Executive \xe2\x80\x9cappropriately refuses to defend an Act of Congress only in the\nrare case when the statute either infringes on the constitutional power of the\nExecutive or when prior precedent overwhelmingly indicates that the statute is\ninvalid.\xe2\x80\x9d\nAs indicated by our discussion of the merits of the constitutionality of\n\xc2\xa7\xc2\xa7 106 and 121 of the Bankruptcy Amendments and Federal Judgeship Act of\n1984 in part II above, the practical and legal effect of those provisions is to\ngrant Congress the power to appoint officers of the United States. It is true that\nunder the 1984 Act the power to make fresh appointments is vested in the\ncourts rather than in the President or a head of a department. It is also true that\nbankruptcy referees whose terms were purportedly retroactively extended by\nthe 1984 Act were themselves appointed by the district courts both prior to\n1978 and under the transition provision of the 1978 Act. Thus, an argument\ncould be made that the action o f Congress in this situation does not infringe so\ndirectly on the power of the President as to place this particular enactment in\nthe category of statutes thought to invade the prerogatives of the Executive.\nThat argument is, however, untenable.\nThere can be no doubt that in the 1984 Act Congress could have placed the\nappointment power in the President, with or without the advice and consent of\nthe Senate, the Heads of Departments, or the Courts pursuant to the Appoint\xc2\xad\nments Clause. If it were established that Congress could indeed make appoint\xc2\xad\nments in the manner they are made by the 1984 Act, there surely would be no\nprincipled basis upon which that power could be limited under the Appoint\xc2\xad\nments Clause to the appointment of officers whose appointments were gener\xc2\xad\nally assigned to the courts as opposed to the President or Heads of Depart\xc2\xad\nments. Thus, the principle of constitutional law involved squarely implicates\nthe constitutional prerogatives of the Executive and warrants a challenge to the\n1984 Act on this point by the Executive under the precedent discussed with\nrespect to the second category of situations in which the Executive has histori\xc2\xad\ncally refrained from defending the constitutionality of an Act of Congress. The\ninescapable fact is that if Congress may, as Congress would have it, retroac\xc2\xad\ntively extend the term of an officer of the United States whose term has expired,\nCongress presumptively could do so as regards any officer, thereby depriving\n\n7 ( . . . continued\nA cts them selves touch on constitutional separation o f pow ers between Executive and Legislative Branches.\xe2\x80\x9d\nG iven the otherw ise broad nature of C hairm an B aucus\xe2\x80\x99 inquiry and the pendency o f Chadha in the United\nStates C ourt o f A ppeals for th e Ninth C irc u it, it would be reasonable to infer from his request an absence of\nconcern as regards the A ttorney G eneral\'s challenge to the constitutionality o f such devices\n\n198\n\n\x0cthe President or his subordinates of the important control they exercise through\nthe appointment process.8\nWe would add that this is not a case in which the Department\xe2\x80\x99s refusal to\nenforce or defend might produce a nullification of the Act of Congress which no\nprivate person could prevent nor Congress effectively challenge. Although it is\nnot necessary to conclude that the obligation to defend the statute would be\ndifferent in the absence of a lawsuit previously filed by private persons, given\nthe fact that such a lawsuit has been filed, and that the courts will determine the\nconstitutional issue, we believe that the constitutional system will be better\nserved by early rather than delayed resolution of the issue.\nTherefore, we believe that this is a case in which the Department, amply\nsupported by prior precedent, should depart from its usual practice of defending\nthe constitutionality of federal statutes. We recommend that an appropriate\nletter be sent to the President of the Senate and the Speaker of the House to\ninform them of the Department\xe2\x80\x99s decision to defend the constitutionality of the\n1984 Act as a whole, but to refrain from defending the constitutionality of the\nGrandfather Provisions.\nT h eo do re B. O lson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n8 Indeed, if C ongress could retroactively extend the term s o f officers w hose terms have expired. Congress\ncould arguably not only arrogate to itself, as it does here, the pow er to appoint, but could exercise that pow er\neven in the context o f an o ffice\xe2\x80\x99s having been filled in the interim by the President pursuant to his authority to\nm ake recess appointm ents; on such a hypothetical set o f facts. C ongress would not only have purported to\nappoint one o fficer but would, in doing so, have purported to remove another.\n\n199\n\n\x0c'