b'Constitutionality of Proposed Regulations\nof Joint Committee on Printing\nProposed regulations issued by the Jo in t Committee on Printing, which purport to regulate a\nbroad array o f printing activities o f the Executive Branch, are not authorized by statute.\nT he proposed regulations are unconstitutional on tw o grounds. First, because members of the\nJoint Com m ittee on Printing are n o t appointed in accordance with the Appointments Clause,\nart. n , \xc2\xa7 2, cl.2 o f the Constitution, they may not perform Executive functions, such as\nrulem aking, which m ay be perform ed only by properly appointed Officers of the United\nStates. Second, the delegation of legislative power to the Joint Committee on Printing violates\nthe constitutional requirements fo r legislative action, bicameral passage and presentment to\nthe President.\n\nApril 11, 1984\nM\n\nem orandum\n\nO\n\nO p in io n\n\nf f ic e o f\n\nM\n\nfor th e\n\nC o un sel\n\nanagem ent and\n\nto the\n\nD ir e c t o r ,\n\nBudget\n\nThis responds to your request for our opinion on the constitutionality, in\nlight of the Supreme Court\xe2\x80\x99s decisions in Buckley v. Valeo, 424 U.S. 1 (1976),\nand 1 N S \\. Chadha, 462U.S.919(1983),of the proposed regulations published\nby the Joint Committee on Printing on November 11, 1983. For the reasons\ndiscussed below, we conclude that the regulations are statutorily unsupported\nand constitutionally impermissible.\nThe proposed regulations would effect a significant departure from the\nhistorical role of the Joint Committee on Printing (JCP).1 Specifically, they\nwould redefine \xe2\x80\x9cprinting\xe2\x80\x9d to encompass virtually all processes by which leg\xc2\xad\nible material is created or stored, thus increasing the number of activities\npurportedly subject to JCP oversight and control. These activities include,\namong others, planning and design of government publications (defined to\nmean any textual material reproduced for distribution to government depart\xc2\xad\nments or to the public), word processing, data storage and document retrieval,\napparently subsuming the operation of every copying facility of a department.\nThe proposed regulations would require executive departments to submit an\xc2\xad\nnual plans outlining their intended activities and to seek advance approval of\nall projected goals, policies, strategies, purchases, publications, and means of\ndistribution. In addition, departments would be asked to submit plans for a\n1 This is not to say that the current role of the JCP necessarily enjoys statutory authority or constitutional\nsanction. We have not attempted to evaluate those issues in this memorandum.\n\n42\n\n\x0csecond and third year, seeking JCP approval of all projections relating to the\nexpanded concept of printing. These obligations would \xe2\x80\x9cprovide the committee\nwith a broader and better overview of all of the Federal Government\xe2\x80\x99s printing\nand publishing activities.\xe2\x80\x9d 129 Cong. Rec. 32286 (1983) (remarks of JCP\nChairman Hawkins). The revised regulations, governing storage, duplication\nand distribution of information, \xe2\x80\x9cseek to replace JCP micro-management pro\xc2\xad\ncedures with oversight and policymaking functions.\xe2\x80\x9d Id.\nThe JCP is composed of the Chairman and two members of the Committee\non Rules and Administration of the Senate and the Chairman and two members\nof the Committee on House Administration of the House of Representatives. 44\nU.S.C. \xc2\xa7 101. Vacancies are filled by the President of the Senate and the\nSpeaker of the House of Representatives. Id. \xc2\xa7 102. The authorized functions\nof the JCP are specified in various provisions of 44 U.S.C.\nThis memorandum will address, in turn, the three major legal issues sug\xc2\xad\ngested by these regulations: (1) whether there is statutory authority for the\nproposed regulations, (2) whether the regulations would involve congressional\nperformance of executive functions, and (3) whether a joint committee of\nCongress is seeking to exercise legislative power. We conclude that the pro\xc2\xad\nposed regulations fail on all three grounds.2\nI. Statutory Authority\nThe first issue we address is the statutory basis for promulgation of these\n\xe2\x80\x9clegislative\xe2\x80\x9d rules. The Printing and Documents statute, 44 U.S.C., contains\nthree sections upon which the JCP relies for its \xe2\x80\x9cregulatory\xe2\x80\x9d authority. The first\nis 44 U.S.C. \xc2\xa7 103, which allows the JCP to \xe2\x80\x9cuse any measures it considers\nnecessary to remedy neglect, delay, duplication, or waste in the public printing\nand binding and the distribution of Government publications.\xe2\x80\x9d Second, \xc2\xa7 501\nprovides that all government printing, binding, and blank book work shall be\ndone at the Government Printing Office (GPO), except: (1) work the JCP\nconsiders \xe2\x80\x9cto be urgent or necessary to have done elsewhere\xe2\x80\x9d and (2) printing\nin field plants operated by executive or independent departments, \xe2\x80\x9cif approved\nby the Joint Committee on Printing.\xe2\x80\x9d Finally, \xc2\xa7 502 provides that if the Public\nPrinter is unable to do certain printing work at the GPO, he may enter into\ncontracts to have the work produced elsewhere, \xe2\x80\x9cwith the approval of the Joint\nCommittee on Printing.\xe2\x80\x9d As far as we are aware, these statutory provisions\nconstitute the full extent to which the entire Congress might have been said to\nempower the JCP to participate in the decisionmaking process involving print\xc2\xad\ning and distribution of materials published by the Executive Branch.\nThe proposed regulations were published in the Congressional Record on\nNovember 11,1983, a gesture apparently not mandated by any existing statute.\n2 B ecause we conclude that the regulations as a w hole cannot legally be enforced against the Executive\nBranch, w e do not seek in this m emorandum to discuss the legality o f various provisions o f the regulations\nindividually. C onsequently, we have not attem pted to resolve the specific question raised in your request\nregarding the regulations\xe2\x80\x99 apparent effect o f transferring to the G PO revenues that ordinarily would be paid\ninto the accounts o f individual agencies o r the U nited States Treasury.\n\n43\n\n\x0cNor are we aware of any other procedural requirements that might apply to\npromulgation of \xe2\x80\x9cregulations\xe2\x80\x9d such as these. Although Congress has enacted\nan elaborate scheme in the Administrative Procedure Act (APA) to control the\nissuance of regulations by executive agencies and to protect the persons subject\nto them by requiring broad opportunity for public notice and comment and\navailability of an administrative record reflecting these comments, we do not\nknow of any analogous protections for those putatively subject to \xe2\x80\x9clegislative\nregulations.\xe2\x80\x9d On the one hand, for the reasons stated in Part II of this memoran\xc2\xad\ndum, \xe2\x80\x9clegislative regulations\xe2\x80\x9d can apply only internally in Congress. Therefore\none would not necessarily expect a scheme such as the APA to apply. On the\nother, it could also be assumed that had Congress contemplated or intended to\nauthorize a committee\xe2\x80\x99s issuance of broad, binding regulations that could have\nan effect on the public and on the Executive Branch, it might have enacted a\nprocedure comparable to the APA to ensure that the practice comports with the\nprinciples of due process. Thus, it could be argued that it is doubtful that\nCongress intended to authorize this committee to assume a regulatory role with\nrespect to persons outside the Legislative Branch. See INS v. Chadha, 462 U.S.\nat 951.\nAt the very least, authority to regulate in a sweeping fashion cannot be\npresumed without an express indication that Congress has specifically del\xc2\xad\negated regulatory power.3 The three statutory provisions mentioned above fall\nfar short of a clear delegation of regulating authority.\nA. 4 4 U.S.C. \xc2\xa7 103\n\nThe first, \xc2\xa7 103 was originally enacted in 1852 in the following form:\nThe Joint Committee on Printing shall have power to adopt such\nmeasures as may be deemed necessary to remedy any neglect or\ndelay in the execution of the public printing, provided that no\ncontract, agreement, or arrangement entered into by this com\xc2\xad\nmittee shall take effect until the same shall have been approved\nby that house o f Congress to which the printing belongs, and\nwhen the printing d elayed relates to the business o f both houses,\nuntil both houses shall have approved o f such contract or a r\xc2\xad\nrangement.\n\nCh. 1, 10 Stat. 35 (1852) (emphasis added).\nThe language of that section, particularly the underlined portion, manifests\nits purpose: to allow the JCP to take remedial steps with regard to problems that\nmay arise in having Congress\xe2\x80\x99 printing performed. The statute sought only to\ngovern printing work for either or both Houses of Congress. The proviso,\nrequiring one- or two-House approval for JCP remedial actions, was removed\n3 Cf. Industrial Union D ep\xe2\x80\x99t, AFL-CIO v. American Petroleum Inst., 448 U.S 607, 6 8 5 -8 6 (1980)\n(R ehnquist, J., concurring) (delegation o f regulatory authority to executive must provide \xe2\x80\x9cintelligible prin\xc2\xad\nciple\xe2\x80\x9d to gu id e exercise o f discretion).\n\n44\n\n\x0cin 1894 when Congress passed an amendment which left the JCP alone in\ncharge of curing delay in congressional printing. The reason for the amendment\nwas that \xe2\x80\x9c[i]t seemed to the committee [JCP] that this approval of their action in\neach instance by Congress would produce delay and defeat rather than advance\nefforts to prevent neglect or delay.\xe2\x80\x9d 27 Cong. Rec. 30 (1894) (conference\nreport). Congress gave no indication of any intention to change the scope of the\nJCP\xe2\x80\x99s remedial powers. Evidently, therefore, the committee\xe2\x80\x99s powers contin\xc2\xad\nued to extend only to the oversight of printing performed for either or both\nHouses of Congress.\nBy the time the JCP obtained this authority to remedy delay in the public\nprinting without approval of either or both Houses, Congress had already\npassed a resolution requiring all public printing to be done at the newly formed\ngovernment printing establishment (the precursor to \xc2\xa7 501). Res. 25, 12 Stat.\n118 (1860). Consequently, at the time Congress granted the JCP power over the\n\xe2\x80\x9cpublic printing,\xe2\x80\x9d that term applied, without exception, to the operations of the\nGPO alone. Bearing in mind this relation between the precursors to \xc2\xa7\xc2\xa7 103 and\n501, we believe the authority given the JCP to remedy delay \xe2\x80\x9cin the execution\nof the public printing\xe2\x80\x9d was intended to extend only to the operations of the\nGPO, itself an organization within the Legislative Branch.4 No subsequent\nlegislative history of which we are aware has evinced a congressional intention\nto recast \xc2\xa7 103 so that the JCP\xe2\x80\x99s remedial powers over the public printing\nwould encompass operations outside the GPO.5 That section does not supply a\nfoundation for the JCP\xe2\x80\x99s attempt to reach beyond the GPO to all related\nactivities irrespective of where they are conducted.\nB. 44 U.S.C. \xc2\xa7 501\n\nThe second provision asserted as authority for the proposed regulations\nexplicitly grants the JCP power to approve certain Executive Branch decisions\nregarding operation of field plant printing facilities. 44 U.S.C. \xc2\xa7 501(2). Sec\xc2\xad\ntion 501 also allows the JCP to approve the outside printing of other classes of\nwork when \xe2\x80\x9cnecessary\xe2\x80\x9d or \xe2\x80\x9curgent.\xe2\x80\x9d Id. \xc2\xa7 501(1). Neither the statute nor its\nhistory gives any suggestion, however, that the power to approve printing work\nwas intended to be expanded into an all-encompassing authority to regulate all\naspects of operations in the Executive Branch unrelated to the common under\xc2\xad\nstanding of \xe2\x80\x9cprinting.\xe2\x80\x9d\nThe legislative history of \xc2\xa7 501 reflects an evolution, first, from a rule\npromulgated in 1860, requiring all printing to be done at the GPO, Res. 25, \xc2\xa7 5,\n12 Stat. 118 (1860), to an enactment of 1895, allowing exceptions to be\n4 See Lewis v. Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (citing \xc2\xa7 103 as\nexam ple o f congressional control over G PO in support o f conclusion that G PO is a legislative unit).\ns The section was am ended in 1919, w hen the words \xe2\x80\x9cduplication" and \xe2\x80\x9cw aste\xe2\x80\x9d and the phrase \xe2\x80\x9cand the\ndistribution o f G overnm ent publications\xe2\x80\x9d were added. Ch. 86, \xc2\xa7 11, 40 Stat. 1270 (1919). No discussion or\nexplanation o f the change appears in the legislative history. See 57 Cong. Rec. 3865 (1919); H.R. Rep. No.\n1146, 65th Cong., 3d Sess. 7 (1919).\n\n45\n\n\x0c\xe2\x80\x9cprovided by law,\xe2\x80\x9d ch. 23, \xc2\xa7 87,28 Stat. 662 (1895). That provision was altered\nin 1919, when Congress permitted certain classes of work to be done elsewhere\nthan in the District of Columbia if the JCP deemed it necessary, ch. 86, \xc2\xa7 11,40\nStat. 1270 (1919), based on an explanation that such flexibility would save\nmoney for the government, 57 Cong. Rec. 3865 (amending H.R. 14078, 65th\nCong., 3d Sess. (1919)). Finally, the two exceptions now codified in \xc2\xa7 501\nwere enacted in 1949 to save further time and expense by permitting printing to\nbe accomplished in the area where it is needed. Pub. L. No. 156, 63 Stat. 405\n(1949). The explanations of the various amendments, although brief, indicate\nthat the JCP\xe2\x80\x99s role was intended merely to ensure that the considerations of\nefficiency and economy were met in every case. H.R. Rep. No. 841, 81st\nCong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1515-16. Congress\nhas never expressed, in connection with \xc2\xa7 501, that it expected the JCP\xe2\x80\x99s\napproval power to be expanded into authority for overseeing, specifying, and\nregulating internal operations of the Executive Branch.\nC. 4 4 U.S.C. \xc2\xa7 5 0 2\n\nNor does \xc2\xa7 502, which authorizes the Public Printer to obtain certain con\xc2\xad\ntract work, expressly or impliedly endow the JCP with the power to regulate the\nactivities of the Executive Branch. By its terms that section allocates powers\nbetween the JCP and the GPO, a division of responsibilities among units\nlargely within the Legislative Branch, and does not directly affect any activities\nof Executive departments.\nNotwithstanding the absence of any express legislative authority for the\nJCP\xe2\x80\x99s assumption of the role of a regulatory commission over Executive\nBranch printing, word processing and information distribution systems, the\nICP Chairman has characterized the Committee\xe2\x80\x99s efforts as a \xe2\x80\x9cregulatory\nscheme.\xe2\x80\x9d 129 Cong. Rec. 32286 (1983). By redefining the statutory term\n\xe2\x80\x9cprinting,\xe2\x80\x9d the JCP has, in effect, attempted to control all functions related to\nthe creation of a written word or symbol, including \xe2\x80\x9call systems, processes and\nequipment used to plan . . . the form and style of an original reproducible\nimage.\xe2\x80\x9d Id. (Proposed Regulations, Title I, number 3). That attempt strays far\nfrom the JCP\xe2\x80\x99s statutory grant of authority under \xc2\xa7 103, \xc2\xa7 501, or \xc2\xa7 502.\nBecause no legal foundation can be identified in support of either the\n\xe2\x80\x9cregulatory\xe2\x80\x9d expansion of the statutory term \xe2\x80\x9cprinting\xe2\x80\x9d or the breadth of the\nentire proposed scheme over Executive Branch management decisions, estab\xc2\xad\nlished principles of administrative law compel the conclusion that the JCP has\nexceeded its statutory authority in issuing the proposed rules. Cf. 5 U.S.C.\n\xc2\xa7 706(2)(c) (agency rulemaking); City o f Overton Park v. Volpe, 401 U.S. 402,\n415 (1971); Schilling v. Rogers, 363 U.S. 666, 676-77 (1960); L. Jaffe,\nJudicial C ontrol o f Administrative Action 359 (1965).\nAlthough we believe that the proposed regulatory scheme lacks a valid\nstatutory basis, we proceed to examine the implications of the regulations for\nthe constitutional separation o f powers.\n\n46\n\n\x0cII. Legislative and Executive Functions\nIn view of the purported binding effect of the JCP\xe2\x80\x99s proposed regulations on\nExecutive Branch agencies, the question arises whether the JCP, a Legislative\nBranch entity, is seeking to exercise executive functions in a manner that\nviolates constitutional principles of the separation of powers. In Buckley v.\nValeo, 424 U.S. 1 (1976), the Supreme Court, p er curiam, struck down a\nprovision of the Federal Election Campaign Act of 1971 which gave the\nFederal Election Commission, whose members were not all appointed by the\nPresident, the power to perform broad functions, including rulemaking, for\nenforcement of the Act. Id. at 141. The Court found that the Commission, so\ncomposed, was constitutionally precluded from performing executive tasks,\nbecause of the failure to comply with the Appointments Clause, U.S. Const, art.\nII, \xc2\xa7 2, cl. 2:\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\nother Officers of the United States, whose Appointments are not\nherein otherwise provided for, and which shall be established by\nLaw: but the Congress may by Law vest the Appointment of\nsuch inferior Officers, as they think proper, in the President\nalone, in the Courts of Law, or in the Heads of Departments.\nThe pivotal term \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d was explained by the Court\nto mean \xe2\x80\x9cany appointee[s] exercising significant authority pursuant to the laws\nof the United States,\xe2\x80\x9d 424 U.S. at 126, and again as \xe2\x80\x9call appointed officials\nexercising responsibility under the public laws of the Nation.\xe2\x80\x9d Id. at 131.\nOfficials meeting these qualifications must be appointed in the manner pre\xc2\xad\nscribed in Article II of the Constitution. Id. at 126. This is because the\nLegislature \xe2\x80\x9ccannot ingraft executive duties upon a legislative office,\xe2\x80\x9d Id. at\n136 (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)); nor\ncan it insulate persons performing executive tasks from the President\xe2\x80\x99s power\nto remove them. Id. In short, the Court held that Congress may not itself\nappoint persons to perform duties that may be performed only by an officer of\nthe United States.\nIn analyzing the powers conferred on the Federal Election Commission, the\nCourt in Buckley described three types of statutory functions: \xe2\x80\x9cfunctions relat\xc2\xad\ning to the flow of necessary information \xe2\x80\x94 receipt, dissemination, and investi\xc2\xad\ngation; functions relating to the Commission\xe2\x80\x99s task of fleshing out the statute\n\xe2\x80\x94 rulemaking and advisory opinions; and functions necessary to ensure com\xc2\xad\npliance with the statute and rules \xe2\x80\x94 informal procedures, administrative deter\xc2\xad\nminations and hearings, and civil suits.\xe2\x80\x9d 424 U.S. at 137. The Court held that\n\xe2\x80\x9cinsofar as the powers confided in the Commission are essentially of an\ninvestigative and informative nature, falling in the same general category as\nthose powers which Congress might delegate to one of its own committees,\xe2\x80\x9d\n47\n\n\x0cthe Commission as then composed could constitutionally exercise them. How\xc2\xad\never, \xe2\x80\x9cwhen we go beyond this type of authority to the more substantial powers\nexercised by the Commission, we reach a different result.\xe2\x80\x9d Id. at 137-38. The\nCourt held that each of the Commission\xe2\x80\x99s functions related to rulemaking and\nrendering advisory opinions \xe2\x80\x9crepresents the performance of a significant gov\xc2\xad\nernmental duty exercised pursuant to a public law,\xe2\x80\x9d which could be performed\nonly by persons appointed in accordance with the Appointments Clause. Id.\nat 141.\nAt the same time, the Supreme Court disavowed any intention to \xe2\x80\x9cdeny to\nCongress \xe2\x80\x98all power to appoint its own inferior officers to carry out appropriate\nlegislative functions.\xe2\x80\x99\xe2\x80\x9d 424 U.S. at 128. Because, as discussed above, members\nof the JCP are not appointed in accord with Article II, we must address\nwhether, by issuing and implementing the proposed regulations, the JCP would\nbe performing functions of officers of the United States or merely carrying out\nappropriate legislative functions.\nApplying the rule of Buckley v. Valeo to the rulemaking powers arrogated to\nitself by the JCP, we conclude that those powers are not \xe2\x80\x9csufficiently removed\nfrom the administration and enforcement of public law to allow [them] to be\nperformed by\xe2\x80\x9d persons not appointed in accordance with the Appointments\nClause. 424 U.S at 141. We have described above the nature and extent of the\nJCP\xe2\x80\x99s proposed involvement in the printing operations of the Executive Branch,\nand the putatively binding nature of the JCP rules. Accordingly, like the\nrulemaking and advice-giving functions of the Federal Election Commission at\nissue in Buckley, the JCP\xe2\x80\x99s activities \xe2\x80\x9crepresent the performance of a signifi\xc2\xad\ncant governmental duty exercised pursuant to a public law.\xe2\x80\x9d Id.\nInsofar as the JCP enjoys investigative and informative powers of the type\ngenerally delegated to congressional committees, the Constitution is no bar to\nits exercise of those powers. Buckley v. Valeo, 424 U.S. at 137; McGrain v.\nDaugherty, 273 U.S. 135, 175 (1927). One might assert that the JCP\xe2\x80\x99s powers\nover the GPO are just such internal powers which allow it to control all\noperations of the GPO and that Congress may constitutionally require all\nExecutive Branch agencies to use the GPO facilities for all their printing\nneeds.6 Because certain standards and rules must necessarily be permissible in\nrunning the operations of the GPO, it might be suggested, the JCP inevitably\nexerts some powers over Executive agencies, which might then arguably be\nexpanded to other arenas to the extent printing outside the GPO is permitted.\nHowever, the proposed regulations bear no relation to the smooth operation of\nthe GPO; rather, they focus primarily on outside activities involving manage\xc2\xad\nment of information. Thus, the GPO foundation upon which to build the\nexpanded and comprehensive JCP regulatory structure is absent from the\nproposed regulatory scheme. We do not believe the constitutional demarcation\nof executive and legislative functions can be so easily eroded.\n6 The constitu tio n ality o f a statute requiring all agencies to use the G PO for their printing is not an issue\nnecessary to evaluate the validity of the proposed regulations or the existing statutes. We therefore do not\nattem pt to resolve this question.\n\n48\n\n\x0cThe most egregious and illustrative provision in this regard is the require\xc2\xad\nment that each Executive department submit annually to the JCP a plan outlin\xc2\xad\ning its printing and distribution activities anticipated for the fiscal year and the\nfollowing two years. Under the proposed regulations, the JCP would review\neach of these plans to determine its conformity with the objectives of the\n\xe2\x80\x9cFederal printing program,\xe2\x80\x9d specifically evaluating the efficiency and cost\neffectiveness of the plan and the printing and distribution requirements of the\nExecutive department. Only upon approval of the JCP could a department\nimplement its plan. This \xe2\x80\x9cFederal printing program,\xe2\x80\x9d a construct of the JCP,\nclearly involves the interpretation and implementation of policy directives that\nit is the job of the Legislature (acting as a legislature and not a committee) to\nidentify and of the Executive to fulfill. Each step in this \xe2\x80\x9cmicro-management\xe2\x80\x9d\nprocess constitutes a uniquely executive function, to execute faithfully the laws\nas constitutionally enacted by Congress.\nIn sum, administrative functions such as policymaking and rulemaking are\nquintessentially and traditionally executive duties; they are the duties of \xe2\x80\x9cOf\xc2\xad\nficers of the United States.\xe2\x80\x9d See Springer v. Philippine Islands, 277 U.S. 189,\n202 (1928).7 Yet the JCP unequivocally acknowledges its intention \xe2\x80\x9cto replace\nJCP micro-management procedures with oversight and policymaking func\xc2\xad\ntions,\xe2\x80\x9d 129 Cong. Rec. 32285 (1983), and to establish a new \xe2\x80\x9cregulatory\nscheme,\xe2\x80\x9d id. at 32285, all with respect to putative control of the Executive\nBranch. We cannot reconcile this endeavor with the Supreme Court\xe2\x80\x99s clear\ndelineation of the functions assigned to the three Branches of the Government\nby the Constitution.8\nThis is not the first attempt at an express transformation of the JCP to a\npolicymaking executive body. In 1919, Congress attempted explicitly to pro\xc2\xad\nvide, by statute, for a broad system of JCP regulatory authority not unlike the\npresent scheme. Under the bill, passed by both Houses of Congress,\nno journal, magazine, periodical, or similar Government publi\xc2\xad\ncation shall be printed, issued, or discontinued by any branch or\nofficer of the Government service unless the same shall have\nbeen authorized under such regulations as shall be prescribed by\nthe Joint Committee on Printing . . . . [T]he foregoing provisions\nof this section shall also apply to mimeographing, multigraphing,\n1 Cf. Lewis v Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (JCP\xe2\x80\x99s order that Public\nPrinter halt furlough plans for GPO em ployees did not \xe2\x80\x9cencroach[] on another branch and thereby offend[]\nthe constitutional separation o f pow ers" only because GPO is a legislative, rather than an executive, unit).\nEach branch o f the Federal G overnm ent can conduct the hiring and firing o f em ployees within that branch, to\ncarry out the respective m ission o f that branch, w ithout treading upon the separation-of-pow ers doctrine. O f\ncourse, Congress can regulate hiring and firing o f civil servants in the Executive Branch, but only by\nlegislation, not by com m ittee fiat.\n8 This conclusion w ould seem to apply equally to the \xe2\x80\x9cJC P m icro-m anagem ent procedures" currently in\nplace as well as the establishm ent by the JC P o f a new \xe2\x80\x9cregulatory schem e." It would seem irrefutable under\nBuckley and Chadha that m icro-m anagem ent o f Executive Branch agencies is an inherently executive\nfunction, and one w hich m ust therefore be perform ed by o fficers o f the U nited States duly appointed pursuant\nto A rticle II o f the C onstitution.\n\n49\n\n\x0cand other processes used for the duplication of typewritten and\nprinted matter, other than official correspondence and office\nrecords.\nH.R. 12610, 66th Cong., 2d Sess. (1919).\nPresident Wilson vetoed the bill, voicing an adamant repudiation of any right\nCongress claimed to endow a committee \xe2\x80\x9cwith power to prescribe \xe2\x80\x98regulations\xe2\x80\x99\nunder which executive departments may operate.\xe2\x80\x9d9 This historical perspective\nhighlights an important aspect of the separation of powers issue. Following\nCongress\xe2\x80\x99 failure to accomplish its objective once through a constitutional\nprocess, the JCP may not now attempt to effect the same end by \xe2\x80\x9cregulation,\xe2\x80\x9d\ncircumventing the possible intervention of a Presidential veto. This usurpation\nof executive power is the very evil that the Supreme Court recognized when it\nquoted from The Federalist in its opinion in INS v. Chadha:\nIf even no propensity had ever discovered itself in the legislative\nbody to invade the rights of the Executive, the rules of just\nreasoning and theoretic propriety would of themselves teach us\nthat the one ought not to be left to the mercy of the other, but\nought to possess a constitutional and effectual power of selfdefence.\n462 U.S. at 947 (quoting The Federalist No. 73. at 458 (A. Hamilton) (H.\nLodge ed. 1888)).\nIII. Legislative Action\nWe next consider whether the JCP\xe2\x80\x99s proposed regulations can be treated as\nan exercise of Congress\xe2\x80\x99 constitutional power to legislate and, if so, whether\nthe JCP could by itself exercise that legislative power. In 1690, John Locke\nwrote that \xe2\x80\x9cthe Legislative can have no power to transfer their Authority of\nmaking Laws, and place it in other hands.\xe2\x80\x9d 10 Nearly three hundred years later,\nthe Supreme Court, in INS v. Chadha, restated the same principle as firmly\nembodied in the United States Constitution. The Court forcefully articulated\nthe broad constitutional principle that all exercises of legislative power must\nundergo bicameral passage and presentment to the President unless the Consti\xc2\xad\ntution specifically authorizes a departure from the standard procedure. 462\nU.S. at 946-51. Whether a particular action constitutes an exercise of legisla\xc2\xad\ntive power requiring adherence to the rules of bicameral passage and present\xc2\xad\nment depends upon whether it is legislative in character. An action by Congress\n9 V eto M essage on Legislative, Executive and Judicial A ppropriation B ill, H.R. Doc. No. 764, 66th Cong.,\n2d Sess. 2 -3 (1920). President W ilso n \'s veto message was one basis upon which, in 1933, then A ttorney\nG eneral W illiam D. M itchell concluded that a statutory provision authorizing a joint com m ittee o f C ongress\nto m ake final decisions regarding certain tax refunds w as a trespass upon the constitutional separation of\npow ers. H e reasoned that the provision \xe2\x80\x9c attem pts to entrust to mem bers o f the legislative branch, acting ex\nofficio, executive functions in the execution o f the law , and it attem pts to give a com m ittee o f the legislative\nbranch pow er to approve o r disapprove executive acts.\xe2\x80\x9d 37 Op. A tt\xe2\x80\x99y Gen. 56, 58 (1933).\n10 J. Locke, Second Treatise of Government \xc2\xa7 141, at 381 (P. Laslett ed. 1980).\n\n50\n\n\x0cis \xe2\x80\x9clegislative\xe2\x80\x9d if it purports to have \xe2\x80\x9cthe purpose and effect of altering the legal\nrights, duties and relations of persons, including . . . Executive Branch officials\n.. ., outside the legislative branch.\xe2\x80\x9d Id. at 952.\nOf the three statutory bases relied upon by the JCP for authority to issue its\nproposed regulations, only one explicitly allows the committee to approve or\ndisapprove decisions of persons outside the Legislative Branch. 44 U.S.C.\n\xc2\xa7 501(2). Section 501(2), which purports to allow the JCP unilaterally to create\nexceptions to the general rule that all printing must be accomplished through\nthe GPO, would have the effect of empowering a committee of Congress to\nforestall, regulate, revise or manage executive printing operations which have\nbeen authorized through the legislative process in the form of authorization and\nappropriations acts for the agencies involved. This action inevitably affects the\nrights, duties, and relations of members of the other branches of government,\nand appears to meet the test for legislative action.11\nThe Supreme Court has also indicated that, in determining whether an act is\nlegislative in character, it is useful to examine the nature of the congressional\naction which the committee\xe2\x80\x99s power supplants. Chadha, 462 U.S. at 962. Until\nthe predecessor to \xc2\xa7 501 was amended in 1919 to give some discretion to the\nJCP,12 all printing had been centralized in the GPO, \xe2\x80\x9cexcept in cases otherwise\nprovided by law.\xe2\x80\x9d13 This history suggests that the Committee\xe2\x80\x99s power to create\nexceptions to the statute originated as a substitute for plenary legislation \xe2\x80\x94 an\naction indubitably legislative in character.\nWe conclude that \xc2\xa7 501 improperly seeks to delegate legislative power to the\nJCP in abrogation of the constitutional requirements of bicameral passage and\npresentment. Consequently, even the bare statutory approval power \xe2\x80\x94\nunembellished by interpretative regulations \xe2\x80\x94 must fall as a compromise of\nthe constitutional requirements for legislative action.14\nUnder the other two sources of putative authority propounded by the JCP,\nthe proposed regulations fare no better. Although neither \xc2\xa7 103 nor \xc2\xa7 502\nexplicitly authorizes the JCP to affect the rights and relations of extra-legislative officials, the JCP proffers those sections as authority for placing con\xc2\xad\nstraints on the implementation of executive printing operations already sane11 Sim ilarly, \xc2\xa7 501(1) purportedly enables the JCP, by itself, to create exem ptions from the legislated rule\nthat all printing be done at the G PO. Although it does not operate expressly upon the statutory functions o f the\nExecutive Branch, it does purport to delegate a legislative function to a com m ittee of Congress, which is also\nim perm issible under Chadha. 462 U.S. at 952. Except insofar as the provision allow s the JC P to control the\ninternal printing affairs o f C ongress, id. at 955 n.21, it inevitably alters the rights, duties and relations o f\npersons outside that branch by perm itting a com m ittee to effect an exception to a legislated rule, and therefore\nis an unconstitutional exercise o f legislative power.\n12 Ch. 86, \xc2\xa7 11, 4 0 Stat. 1270 (1919) (printing to be done by GPO \xe2\x80\x9cexcept such classes o f work as shall be\ndeem ed by the Jo in t Com m ittee on Printing to be urgent o r necessary to have done elsew here than in the\nD istrict o f C olum bia fo r the exclusive use o f any field service outside o f said D istrict\xe2\x80\x9d).\n13 Ch. 23, \xc2\xa7 87, 28 Stat. 662 (1895).\n14 This O ffice recently provided an opinion devoted exclusively to the constitutionality o f the statutory\napproval pow er granted the JC P in 44 U.S.C. \xc2\xa7 501(2). The opinion concluded that this pow er is invalid under\nINS v. Chadha, and that the ability o f Executive departm ents to conduct authorized field-plant printing\nremains effective. M em orandum for W illiam H. Taft, IV, D eputy Secretary o f Defense, from Theodore B.\nO lson, A ssistant A ttorney G eneral, O ffice o f Legal Counsel 15 (Mar. 2, 1984).\n\n51\n\n\x0ctioned with budget authority and appropriated funds. Insofar as the two sec\xc2\xad\ntions can reasonably support the issuance of regulations restricting the lawful\noperations of all agencies and departments of the Federal Government, they too\nauthorize a committee\xe2\x80\x99s exercise of legislative power and therefore cannot\nsurvive under Chadha. \xe2\x80\x9cA joint committee has not [sic] power to legislate, and\nlegislative power cannot be delegated to it.\xe2\x80\x9d 37 Op. Att\xe2\x80\x99y Gen. 56, 58 (1933).\nIV. Conclusion\nThe defects in the committee approval and regulatory mechanism discussed\nhere could well have been the object of the views articulated twenty-five years\nago by then-Acting Attorney General William P. Rogers:\nLegislative proposals and enactments in recent years have re\xc2\xad\nflected a growing trend whereby authority is sought to be vested\nin congressional committees to approve or disapprove actions of\nthe executive branch. Of the several legislative devices em\xc2\xad\nployed, that which subjects executive department action to the\nprior approval or disapproval of congressional committees may\nwell be the most inimical to responsible government. It not only\npermits organs of the legislative branch to take binding actions\nhaving the effect of law without the opportunity for the Presi\xc2\xad\ndent to participate in the legislative process, but it also permits\nmere handfuls of members to speak for a Congress which is\ngiven no opportunity to participate as a whole. An arrangement\nof this kind tends to undermine the President\xe2\x80\x99s position as the\nresponsible Chief Executive.\n41 Op. Att\xe2\x80\x99y Gen. 300, 301 (1957).\nFor the reasons expressed above, we have concluded that the regulations\nproposed by the Joint Committee on Printing are without foundation in law.\nFirst, no statute grants to the JCP, with adequate specificity, authority to issue\nregulations purporting to control operations within the Executive Branch for\nwhich budget authority and appropriated funds exist. Second, the JCP\xe2\x80\x99s at\xc2\xad\ntempted performance of executive functions in administering the laws trans\xc2\xad\ngresses the rule of separation of powers set forth in Buckley v. Valeo. Finally, a\ncongressional committee\xe2\x80\x99s promulgation of rules binding on the other branches\nruns afoul of the constitutional requirement, affirmed in INS v. Chadha, that all\nlegislative actions, with a few specifically stated exceptions not relevant here,\nundergo bicameral passage and presentment to the President.\nT h eo d o r e B. O lso n\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n52\n\n\x0c'


b'Liability of Contractors in Airbridge Denial Programs\nA contractor ordinarily will not be criminally liable for assisting in certain foreign government\nprograms for the aerial interdiction of illegal narcotics traffic.\n\nMarch 1, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY LEGAL ADVISER\nDEPARTMENT OF STATE\nYou have asked for our opinion about the circumstances in which a contractor\nmay be criminally liable for assisting in certain foreign government programs for\nthe aerial interdiction of illegal narcotics traffic.1 We believe that a contractor\nordinarily will not be liable for providing such assistance.2\nI.\nIn 1994, we advised the Deputy Attorney General on the lawfulness of certain\nforms of United States Government (\xe2\x80\x9cUSG\xe2\x80\x9d) assistance to the Republics of\nColombia and Peru. United States Assistance to Countries That Shoot Down Civil\nAircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994) (\xe2\x80\x9c1994 Opinion\xe2\x80\x9d). The 1994 Opinion concluded that the Aircraft Sabotage Act of 1984, which\nmakes it a crime \xe2\x80\x9cwillfully [to] destroy[] a civil aircraft registered in a country\nother than the United States while such aircraft is in service or cause[] damage to\nsuch an aircraft which renders that aircraft incapable of flight or which is likely to\nendanger that aircraft\xe2\x80\x99s safety in flight,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 32(b)(2) (1994), generally\napplies to government actors, including the police and military personnel of\nforeign governments. 1994 Opinion, 18 Op. O.L.C. at 153\xe2\x80\x9355.3 Moreover, the\ncriminal prohibition can apply even if no United States aircraft was involved and\neven if the act was not committed in this country. Id. at 152\xe2\x80\x9353.\nThe 1994 Opinion advised that there was a \xe2\x80\x9csubstantial risk that USG personnel\nwho furnish assistance to the aerial interdiction programs of those countries could\n1\nLetter for M. Edward Whelan III, Acting Assistant Attorney General, from Samuel Witten,\nDeputy Legal Adviser, Department of State (Aug. 4, 2003) (\xe2\x80\x9cState Department Letter\xe2\x80\x9d).\n2\nThe Criminal Division concurs in this analysis.\n3\nThe Opinion concluded, however, that section 32(b)(2) implicitly recognizes certain defenses that\nare presumed to be available as to criminal prohibitions generally. 18 Op. O.L.C. at 163. In particular,\nsection 32(b)(2) does not \xe2\x80\x9ccriminaliz[e] actions by military personnel that are lawful under international law and the laws of armed conflict.\xe2\x80\x9d Id. at 164. The Opinion noted that application of section\n32(b)(2) to such cases \xe2\x80\x9ccould readily lead to absurdities.\xe2\x80\x9d Id. In addition, \xe2\x80\x9ceven in cases in which the\nlaws of armed conflict are inapplicable,\xe2\x80\x9d section 32(b)(2) would not apply to actions taken by an officer\nwho \xe2\x80\x9creasonably believes that the aircraft poses a threat of serious physical harm\xe2\x80\x9d to the officer or\nanother person where the threat is \xe2\x80\x9cdirect and immediate\xe2\x80\x9d and \xe2\x80\x9cno reasonably safe alternative would\ndispel that threat.\xe2\x80\x9d 1994 Opinion, 18 Op. O.L.C. at 164\xe2\x80\x9365; cf. United States v. Bailey, 444 U.S. 394,\n409\xe2\x80\x9310 (1980).\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nbe aiding and abetting criminal violations of the Aircraft Sabotage Act.\xe2\x80\x9d Id. at 149\n(citing 18 U.S.C. \xc2\xa7 2(a)). The 1994 Opinion also cautioned that, absent certain\npreventive steps, \xe2\x80\x9cUnited States aid to Colombia and Peru might also implicate\nUSG personnel in those governments\xe2\x80\x99 shootdown policies on a conspiracy\nrationale.\xe2\x80\x9d Id. at 160\xe2\x80\x9361 (citing 18 U.S.C. \xc2\xa7 371 (1994)). To address these\nconcerns, the 1994 Opinion recommended that the USG take certain steps. The\nrisk that provision of aid to Colombia or Peru would fall within the criminal\nprohibition on aiding or abetting in 18 U.S.C. \xc2\xa7 2(a) could be averted by obtaining\na \xe2\x80\x9creliable assurance . . . that the foreign government would carry out no\nshootdowns falling within the prohibition of \xc2\xa7 32(b)(2).\xe2\x80\x9d Id. at 159. If the foreign\ngovernment refused to give such an assurance, the USG would need to insist on a\nnumber of conditions designed to ensure that, in shooting down civil aircraft, the\nforeign government would use no assistance that had come from the USG. Id. at\n160. Furthermore, the USG could \xe2\x80\x9cmake [its] disapproval of shootdowns in\nviolation of section 32(b) clear in order to eliminate any suggestion that USG\npersonnel have entered into a conspiratorial agreement with foreign officials\ninvolving unlawful shootdowns,\xe2\x80\x9d and \xe2\x80\x9cUSG agencies should specifically instruct\ntheir personnel not to enter into any agreements or arrangements with the officials\nor agents of foreign governments that encourage or condone shootdowns.\xe2\x80\x9d Id. at\n161\xe2\x80\x9362.\nIn October 1994, in response to the Executive Branch\xe2\x80\x99s articulation of the\nscope of section 32(b), as reflected in the 1994 Opinion, Congress enacted an\nexpress exception to any criminal culpability under federal law for certain lawenforcement shootdowns. National Defense Authorization Act for Fiscal Year\n1995, Pub. L. No. 103-337, \xc2\xa7 1012, 108 Stat. 2663, 2837 (1994) (codified at 22\nU.S.C. \xc2\xa7 2291-4 (1994)). This exception, as later amended, provides that employees and agents of a foreign country engaged in interdictions, under specified\ncircumstances, are not liable for shooting down civil aircraft:\nNotwithstanding any other provision of law, it shall not be unlawful\nfor authorized employees or agents of a foreign country (including\nmembers of the armed forces of that country) to interdict or attempt\nto interdict an aircraft in that country\xe2\x80\x99s territory or airspace if\xe2\x80\x94\n(1) that aircraft is reasonably suspected to be primarily engaged in\nillicit drug trafficking; and\n(2) the President of the United States has, during the 12-month\nperiod ending on the date of the interdiction, certified to Congress\nwith respect to that country that\xe2\x80\x94\n(A) interdiction is necessary because of the extraordinary\nthreat posed by illicit drug trafficking to the national security\nof that country; and\n\n14\n\n\x0cLiability of Contractors in Airbridge Denial Programs\n\n(B) the country has appropriate procedures in place to protect\nagainst innocent loss of life in the air and on the ground in\nconnection with interdiction, which shall at a minimum include effective means to identify and warn an aircraft before\nthe use of force directed against the aircraft.\n22 U.S.C. \xc2\xa7 2291-4(a) (2000 & Supp. II 2003).4 If the conditions specified as to\nforeign personnel are met, agents and employees of the United States are not liable\nfor assisting the foreign personnel who shoot down the aircraft:\nNotwithstanding any other provision of law, it shall not be unlawful\nfor authorized employees or agents of the United States (including\nmembers of the Armed Forces of the United States) to provide assistance for the interdiction actions of foreign countries authorized under subsection (a) of this section. The provision of such assistance\nshall not give rise to any civil action seeking money damages or any\nother form of relief against the United States or its employees or\nagents (including members of the Armed Forces of the United\nStates).\nId. \xc2\xa7 2291-4(b) (2000). Accordingly, when an aircraft is \xe2\x80\x9creasonably suspected to\nbe primarily engaged in illicit drug trafficking\xe2\x80\x9d and the President of the United\nStates has determined prior to the interdiction that, with respect to a country,\ninterdiction is \xe2\x80\x9cnecessary because of the extraordinary threat posed by illicit drug\ntrafficking to the national security of that country,\xe2\x80\x9d and that the country \xe2\x80\x9chas\nappropriate procedures in place to protect against innocent loss of life,\xe2\x80\x9d id. \xc2\xa7 22914(a)(1)\xe2\x80\x93(2), the employees and agents of the foreign government and the USG\nemployees and agents who assist them are guilty of no crime as a result of\ninterdicting the aircraft in that foreign country\xe2\x80\x99s territory or airspace.\nIn December 1994, the President made the requisite findings with regard to the\nRepublics of Colombia and Peru, Presidential Determination No. 95-7, 3 C.F.R.\n1046 (1995) (Colombia); Presidential Determination No. 95-9, 3 C.F.R. 1047\n(1995) (Peru). However, after the Government of Peru in April 2001 accidentally\nshot down a plane carrying missionaries, the USG suspended its assistance to both\ncountries. The program for Colombia has now been resumed, and programs for\nother countries could conceivably follow. You have asked us to examine the\npossible liability of contractors, engaged by the USG or the foreign government,\nwho offer assistance in the conduct of an \xe2\x80\x9cairbridge denial program\xe2\x80\x9d meeting the\nstandards of the exception in section 2291-4.\n\n4\nThe term \xe2\x80\x9cinterdict\xe2\x80\x9d means \xe2\x80\x9cto damage, render inoperative, or destroy the aircraft.\xe2\x80\x9d 22 U.S.C.\n\xc2\xa7 2291-4(d)(1) (Supp. II 2003).\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nII.\nWe begin with what should be the exceptional case: where the foreign government is conducting an airbridge denial program that the President has certified\nunder 22 U.S.C. \xc2\xa7 2291-4, but an employee or agent of the foreign government\nnonetheless shoots down a plane in violation of 18 U.S.C. \xc2\xa7 32(b). For example, if\na foreign government pilot willfully shoots down an aircraft that is not reasonably\nsuspected of being primarily engaged in illegal drug trafficking, the question to be\ndecided is whether a contractor who has given assistance for the interdiction (for\nexample, by supplying and maintaining the radar used in the interdiction) could be\nliable as aiding and abetting the crime or conspiring to commit it. We start with\nthe exceptional case because it allows us to set out the principles that govern the\nliability of accessories to crimes. With that background, we then will turn to the\nusual case, in which a civil aircraft is shot down but the interdiction is lawful\nbecause of the exception in 22 U.S.C. \xc2\xa7 2291-4.\nA.\nIn 1909, Congress enacted a general aiding and abetting statute, which has\nsince been amended and codified as 18 U.S.C. \xc2\xa7 2(a) (2000) and now provides:\n\xe2\x80\x9cWhoever commits an offense against the United States or aids, abets, counsels,\ncommands, induces or procures its commission is punishable as a principal.\xe2\x80\x9d\nSection 2(a) does not create an independent substantive offense, but instead\nprovides that accessories are to be treated and punished as though they were\nprincipals. In other words, it eliminates the common-law distinction between\nprincipals in the first degree, principals in the second degree, and accessories\nbefore the fact. See Standefer v. United States, 447 U.S. 10, 19 (1980); United\nStates v. Superior Growers Supply, Inc., 982 F.2d 173, 177\xe2\x80\x9378 (6th Cir. 1992).5 As\nthe Supreme Court has noted, section 2(a) declares that \xe2\x80\x9cthose who provide\nknowing aid to persons committing federal crimes, with the intent to facilitate the\ncrime, are themselves committing the crime.\xe2\x80\x9d Cent. Bank of Denver v. First\nInterstate Bank of Denver, 511 U.S. 164, 181 (1994) (citing Nye & Nissen v.\nUnited States, 336 U.S. 613, 619 (1949)). As this formulation suggests, and as the\nplain terms of section 2(a) require, an accessory is culpable under section 2(a) only\nif the government proves that the underlying offense was, in fact, committed\n(although the government need not prove the actual identity of the principal).6\n\n5\n\nUnder 18 U.S.C. \xc2\xa7 3 (2000), accessories after the fact are guilty of a separate offense and suffer\nlesser punishment.\n6\nSee, e.g., United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996); United States v. Hill, 55 F.3d\n1197, 1204\xe2\x80\x9305 (6th Cir. 1995); Superior Growers, 982 F.2d at 178; United States v. Horton, 921 F.2d\n540, 543\xe2\x80\x9344 (4th Cir. 1990); United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).\n\n16\n\n\x0cLiability of Contractors in Airbridge Denial Programs\n\nThe critical question for present purposes is the type of scienter that section 2(a)\nrequires for accessory culpability. \xe2\x80\x9cIn order to aid and abet another to commit a\ncrime it is necessary that a defendant \xe2\x80\x98in some sort associate himself with the\nventure, that he participate in it as in something that he wishes to bring about, that he\nseek by his action to make it succeed.\xe2\x80\x99\xe2\x80\x9d Nye & Nissen, 336 U.S. at 619 (quoting\nUnited States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)); see also 1994 Opinion, 18\nOp. O.L.C. at 156.7 The accessory must provide the assistance with the specific\nintent of aiding the commission of the offense. Because, as we said in 1994, \xe2\x80\x9c[t]he\ncontours of this element in the definition of aiding and abetting are not without\nambiguity,\xe2\x80\x9d id. at 157, and because the Department has addressed the issue of aider\nand abettor culpability in its Report on the Availability of Bombmaking Information,\nthe Extent to Which Its Dissemination is Controlled By Federal Law, and the Extent\nto Which Such Dissemination May Be Subject to Regulation Consistent With the\nFirst Amendment to the United States Constitution, Submitted to the United States\nHouse of Representatives and the United States Senate at 20\xe2\x80\x9321 (April 29, 1997)\n(\xe2\x80\x9cBombmaking Information Report\xe2\x80\x9d), available at http://cryptome.org/abi.htm (last\nvisited June 6, 2013), we believe that further elaboration upon the discussion we\noffered in the 1994 Opinion is appropriate.\nIn its discussion of culpability under section 2(a) in connection with the provision of bombmaking information, the Department\xe2\x80\x99s Bombmaking Information\nReport explained:\n[T]he aider must not only know that her assistance will be in the service of a crime; she also must share in the criminal intent. The defendant must \xe2\x80\x9c\xe2\x80\x98participate in [the venture] as in something that he\nwishes to bring about, that he seek by his action to make it succeed.\xe2\x80\x99\xe2\x80\x9d Nye & Nissen, 336 U.S. at 619 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). As Judge Hand explained in\nthe seminal Peoni case, the intent standard for criminal aiding and\nabetting is not the same as the \xe2\x80\x9cnatural consequences of one\xe2\x80\x99s act\xe2\x80\x9d\ntest that is the touchstone for \xe2\x80\x9cintent\xe2\x80\x9d in the civil tort context; criminal intent to aid the crime has \xe2\x80\x9cnothing whatever to do with the\nprobability that the forbidden result [will] follow upon the accessory\xe2\x80\x99s conduct.\xe2\x80\x9d Peoni, 100 F.2d at 402. Rather, the aider must have a\n\xe2\x80\x9cpurposive attitude\xe2\x80\x9d toward the commission of the offense. Id.\n\n7\nThe question of an accessory\xe2\x80\x99s scienter may be somewhat different where the underlying offense\ndoes not require purposive conduct, such as where the necessary state of mind for commission of the\nunderlying offense is recklessness or negligence, or where the statute imposes strict liability. See 2\nWayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law \xc2\xa7 6.7(e), at 149\xe2\x80\x9352 (1986); see\ngenerally Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within the\nConstraints of Intent, 31 Loy. L.A. L. Rev. 1351 (1998). Because section 32(b)(2) is not such an\noffense, we need not here consider such questions.\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nBombmaking Information Report at 19 (footnote omitted). The report accordingly\nconcluded that section 2(a) \xe2\x80\x9cgenerally would not prohibit or punish the dissemination of bombmaking information in the case where the disseminator does not have\nthe specific purpose of facilitating a crime but nevertheless knows that a particular\nrecipient thereof intends to use it for unlawful ends.\xe2\x80\x9d Id. at 26. The following conclusions regarding the scienter element of aiding and abetting liability are consistent with the Bombmaking Information Report:\n(i) the scienter element requires that the aider actually \xe2\x80\x9cseek by his\naction to make [the crime] succeed,\xe2\x80\x9d id. at 19;\n(ii) while the aider\xe2\x80\x99s knowledge (or suspicion) that aid will be (or is\nlikely to be) used to commit crimes may be relevant to the evidentiary question of whether the actor purposively assisted the crime,\nsuch knowledge is not dispositive of the question of shared purpose,\nid.; and\n(iii) it should not, for purposes of section 2(a), automatically be presumed that an aider \xe2\x80\x9cintends\xe2\x80\x9d the \xe2\x80\x9cnatural consequences\xe2\x80\x9d of his acts,\nid.\nAs the Department explained in the Bombmaking Information Report, before\nthe Court\xe2\x80\x99s decision in Nye & Nissen there had been a growing debate in the lower\ncourts on whether section 2(a) required purposive assistance, particularly in the\ncase where a person knows, or strongly suspects, that aid he or she provides in the\nordinary course of conduct or business will be used to commit a criminal offense.8\nIt was the view of Judge Learned Hand that \xe2\x80\x9cpurposive attitude\xe2\x80\x9d was essential, and\nthat aiding and abetting under section 2(a) has \xe2\x80\x9cnothing whatsoever to do with the\nprobability that the forbidden result would follow upon the accessory\xe2\x80\x99s conduct.\xe2\x80\x9d\nPeoni, 100 F.2d at 402; accord id. (arguing that the \xe2\x80\x9cnatural consequence of\n[one\xe2\x80\x99s] . . . act\xe2\x80\x9d principle, although germane to a civil case, is not the rule of\ncriminal aiding and abetting culpability). As Judge Hand elaborated in United\nStates v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff\xe2\x80\x99d, 311 U.S. 205 (1940):\n8\n\nAs the Model Penal Code notes, \xe2\x80\x9cthere are many and important cases\xe2\x80\x9d in this category, for exam-\n\nple:\nA lessor rents with knowledge that the premises will be used to establish a bordello. A\nvendor sells with knowledge that the subject of the sale will be used in the commission of a crime. A doctor counsels against an abortion during the third trimester but, at\nthe patient\xe2\x80\x99s insistence, refers her to a competent abortionist. A utility provides telephone or telegraph service, knowing it is used for bookmaking. An employee puts\nthrough a shipment in the course of his employment though he knows the shipment is\nillegal. A farm boy clears the ground for setting up a still, knowing that the venture is\nillicit.\nModel Penal Code \xc2\xa7 2.06 cmt. 6(c), at 316 (Official Draft & Revised Comments 1985).\n\n18\n\n\x0cLiability of Contractors in Airbridge Denial Programs\n\nIn [Peoni] we tried to trace down the doctrine as to abetting and conspiracy, as it exists in our criminal law, and concluded that the seller\xe2\x80\x99s knowledge was not alone enough. Civilly, a man\xe2\x80\x99s liability extends to any injuries which he should have apprehended to be likely\nto follow from his acts. If they do, he must excuse his conduct by\nshowing that the interest which he was promoting outweighed the\ndangers which its protection imposed upon others; but in civil cases\nthere has been a loss, and the only question is whether the law shall\ntransfer it from the sufferer to another. There are indeed instances of\ncriminal liability of the same kind, where the law imposes punishment merely because the accused did not forbear to do that from\nwhich the wrong was likely to follow; but in prosecutions for conspiracy or abetting, his attitude towards the forbidden undertaking\nmust be more positive. It is not enough that he does not forego a\nnormally lawful activity, of the fruits of which he knows that others\nwill make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome.\nThat view was challenged, most prominently by Judge John J. Parker in Backun\nv. United States, 112 F.2d 635 (4th Cir. 1940). In dicta in that case, Judge Parker\nwrote:\nGuilt as an accessory depends, not on \xe2\x80\x9chaving a stake\xe2\x80\x9d in the outcome of crime. . . . The seller may not ignore the purpose for which\nthe purchase is made if he is advised of that purpose, or wash his\nhands of the aid that he has given the perpetrator of a felony by the\nplea that he has merely made a sale of merchandise. One who sells a\ngun to another knowing that he is buying it to commit a murder,\nwould hardly escape conviction as an accessory to the murder by\nshowing that he received full price for the gun.\nId. at 637.\nIn Nye & Nissen, the Court, quoting Peoni, 100 F.2d at 402, held that \xe2\x80\x9c[i]n\norder to aid and abet another to commit a crime it is necessary that a defendant \xe2\x80\x98in\nsome sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.\xe2\x80\x99\xe2\x80\x9d\n336 U.S. at 619 (emphasis added). More recently, in Central Bank of Denver v.\nFirst Interstate Bank, 511 U.S. 164 (1994), the Court reaffirmed Nye & Nissen. In\nCentral Bank, the government argued that section 2(a) was pertinent authority for\napplying a \xe2\x80\x9crecklessness\xe2\x80\x9d standard for civil aiding and abetting liability under\nsection 10(b) of the Securities and Exchange Act, 15 U.S.C. \xc2\xa7 78j(b) (1994). The\nCourt rejected that argument, in part on the ground that the government\xe2\x80\x99s reliance\non section 2(a) was \xe2\x80\x9cinconsistent\xe2\x80\x9d with its argument that a recklessness standard\nshould govern:\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nCriminal aiding and abetting liability under \xc2\xa7 2(a) requires proof that\nthe defendant \xe2\x80\x9cin some sort associate[d] himself with the venture,\nthat he participate[d] in it as in something that he wishe[d] to bring\nabout, that he [sought] by his action to make it succeed.\xe2\x80\x9d Nye & Nissen, 336 U.S., at 619 (internal quotation marks omitted). But recklessness, not intentional wrongdoing, is the theory underlying the\naiding and abetting allegations in the case before us.\n511 U.S. at 190.9\nWith respect to culpability for aiding and abetting under section 2(a), then, the\ngeneral question under the Peoni test is whether an individual \xe2\x80\x9c[sought] by his\naction to make [the crime] succeed,\xe2\x80\x9d Nye & Nissen, 336 U.S. at 619 (internal\nquotation marks and citation omitted), i.e., whether the individual \xe2\x80\x9cknowingly did\nsome act for the purpose of [aiding] . . . the commission of that crime,\xe2\x80\x9d and\nwhether the defendant \xe2\x80\x9cacted with the intention of causing the crime charged to be\ncommitted.\xe2\x80\x9d 1 Edward J. Devitt et al., Federal Jury Practice & Instructions\n\xc2\xa7 18.01, at 693 (4th ed. 1992) (brackets in original).\nA portion of our 1994 Opinion states a rule that appears to go beyond the scienter requirement of section 2(a) as analyzed above. The 1994 Opinion suggests that\n\xe2\x80\x9cUSG agencies and personnel may not provide information (whether \xe2\x80\x98real-time\xe2\x80\x99 or\nother) or other USG assistance (including training and equipment) to Colombia or\nPeru in circumstances in which there is a reasonably foreseeable possibility that\n9\nMoreover, the Court\xe2\x80\x99s use of the Peoni standard in Nye & Nissen has led the courts of appeals to\nadopt that standard. See, e.g., United States v. Teffera, 985 F.2d 1082, 1086 (D.C. Cir. 1993); United\nStates v. de la Cruz-Paulino, 61 F.3d 986, 998 (1st Cir. 1995); United States v. Campa, 679 F.2d 1006,\n1010 (1st Cir. 1982); United States v. Best, 219 F.3d 192, 199\xe2\x80\x93200 (2d Cir. 2000); United States v.\nJenkins, 90 F.3d 814, 821 (3d Cir. 1996); United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984); Rice\nv. Paladin Enters., 128 F.3d 233, 251 (4th Cir. 1997) (dictum) (quoting Peoni, 100 F.2d at 402, and\ncharacterizing Nye & Nissen as \xe2\x80\x9cadopting Judge Hand\xe2\x80\x99s view of the criminal intent requirement\xe2\x80\x9d);\nUnited States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990); United States v. Richeson, 825 F.2d 17, 21\n(4th Cir. 1987); United States v. Branch, 91 F.3d 699, 730 (5th Cir. 1996); United States v. Jaramillo,\n42 F.3d 920, 923\xe2\x80\x9324 (5th Cir. 1995); Rattigan v. United States, 151 F.3d 551, 557\xe2\x80\x9358 (6th Cir. 1998);\nUnited States v. Hill, 55 F.3d 1197, 1201\xe2\x80\x9302 (6th Cir. 1995); United States v. Sewell, 159 F.3d 275,\n278 (7th Cir. 1998); United States v. Simpson, 979 F.2d 1282, 1288 (8th Cir. 1992); United States v.\nCarranza, 289 F.3d 634, 642 (9th Cir.), cert. denied, 537 U.S. 1037 (2002); United States v. VasquezChan, 978 F.2d 546, 552 (9th Cir. 1992); United States v. Sanchez-Mata, 925 F.2d 1166, 1169 (9th Cir.\n1991); United States v. McMahon, 562 F.2d 1192, 1195 (10th Cir. 1977); United States v. Howard, 13\nF.3d 1500, 1502 (11th Cir. 1994); cf. Model Penal Code \xc2\xa7 2.06(3)(a)(ii) & cmt. 6(c), at 296, 313\xe2\x80\x9319\n(recommending the adoption of the equivalent of the Peoni standard in criminal codes). Some panel\ndecisions of the Seventh Circuit analyze the scienter requirement of section 2(a) in a manner that could\nbe construed to be in tension with one or more aspects of the Nye & Nissen/Peoni rationale, see United\nStates v. Fountain, 768 F.2d 790, 797\xe2\x80\x9398 (7th Cir. 1985); United States v. Zafiro, 945 F.2d 881, 887\xe2\x80\x93\n88 (7th Cir. 1991), aff\xe2\x80\x99d on other grounds, 506 U.S. 534 (1993); United States v. Ortega, 44 F.3d 505,\n508 (7th Cir. 1995); see also United States v. Irwin, 149 F.3d 565, 569\xe2\x80\x9376 (7th Cir. 1998); but an en\nbanc decision of the Seventh Circuit indicates that the Peoni rule is the governing law in that circuit as\nwell. See United States v. Pi\xc3\xb1o-Perez, 870 F.2d 1230, 1235 (7th Cir. 1989) (en banc) (\xe2\x80\x9cWe and other\ncourts have endorsed Judge Learned Hand\xe2\x80\x99s definition of aiding and abetting . . . .\xe2\x80\x9d).\n\n20\n\n\x0cLiability of Contractors in Airbridge Denial Programs\n\nsuch information or assistance will be used in shooting down civil aircraft,\nincluding aircraft suspected of drug trafficking.\xe2\x80\x9d 18 Op. O.L.C. at 162. As far as\nsection 2(a) is concerned, however, a person could be culpable as an aider and\nabettor only if he provided aid to a foreign nation with the purpose of helping an\nunlawful shootdown succeed.10\nApplying the test for aiding and abetting liability, we turn to the question\nwhether a contractor could be liable when the government it has assisted engages\nin an unlawful shootdown. Under the applicable test, a contractor would aid and\nabet a violation of section 32(b)(2) only if he sought by his aid to make the\nunlawful interdiction succeed.11\nThere is no definitive test for determining when circumstantial evidence would\nwarrant an inference of the requisite scienter. The nature of the assistance and its\nrelation to the underlying crime, as well as the gravity of the crime, may be\npertinent in determining whether the aider sought to make the unlawful shootdown\nsucceed. For example, if the crime is particularly grave, the assistance is essential\n(in the sense that without it the crime could not be committed and the principal\ncould not readily obtain the assistance from another source), and the particular\ntype of assistance cannot easily be (and is not typically) put to lawful use, it may\nbe reasonable to infer that the facilitator harbored the necessary intent to satisfy\n\n10\nIt is unclear whether the language in the 1994 Opinion regarding any \xe2\x80\x9creasonably foreseeable\npossibility\xe2\x80\x9d of the unlawful use of the aid could be understood in light of the particular factual\nbackground presented there and the concomitant risk that the relevant facts might have been susceptible\nto an inference of purposive facilitation. See 18 Op. O.L.C. at 162. In particular, the 1994 Opinion\nobserved that certain \xe2\x80\x9cUSG personnel [had] been fully engaged in the air interdiction operations of\neach country, providing substantial assistance that . . . contributed in an essential, direct and immediate\nway\xe2\x80\x9d to the ability of the countries at issue \xe2\x80\x9cto shoot down civil aircraft.\xe2\x80\x9d Id. at 158. Under certain\nfactual scenarios, a finder of fact might have been warranted in finding the requisite scienter for\npurposes of section 2(a). Moreover, we concluded in the 1994 Opinion that in the shootdown context,\nbecause the issue is an individual\xe2\x80\x99s intent, aiding and abetting culpability could not definitively be\nnegated simply by virtue of an official announcement that the USG was opposed to any violations of\nsection 32(b)(2), and, in particular, that the USG was opposed to the use of USG aid in unlawful\nshootdowns. Id. at 157\xe2\x80\x9358. To be sure, such clear statements, combined with unambiguous instructions\nto USG personnel never to provide aid for the purpose of facilitating unlawful shootdowns, would have\nhelped to minimize the likelihood of a judicial finding of impermissibly motivated facilitation where\naid provided by USG personnel did, in fact, assist a foreign nation in an unlawful shootdown. Cf. id. at\n161\xe2\x80\x9362 (advice concerning mitigation of risk of prosecution for unlawful conspiracy). But in particular\ncases, circumstantial evidence might still have permitted an inference that particular USG personnel,\ncontrary to announced government policy, had provided aid for the purpose of facilitating unlawful\nshootdowns. Occasionally, \xe2\x80\x9caid rendered with guilty knowledge [that it will be used unlawfully]\nimplies purpose since it has no other motivation.\xe2\x80\x9d Model Penal Code \xc2\xa7 2.06 cmt. 6(c), at 316. We need\nnot try to resolve such issues here.\n11\nWe should stress, however, that this test does not depend upon the accessory\xe2\x80\x99s ultimate motive. If\nthe person sought by his actions to increase the likelihood that an unlawful shootdown succeed, it does\nnot matter why he wished to facilitate the shootdown\xe2\x80\x94for instance, because of a desire to retain\namicable relations with the foreign country.\n\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe Peoni standard.12 See Direct Sales Co. v. United States, 319 U.S. 703, 711\n(1943) (\xe2\x80\x9cWhile [intent to further the unlawful scheme] is not identical with mere\nknowledge that another purposes unlawful action, it is not unrelated to such\nknowledge.\xe2\x80\x9d).\nParticularly as to lawful uses of assistance, there is a critical difference between\nthe circumstances of the 1994 Opinion and the circumstances in which a contractor would act now. Now, under specified conditions, the foreign government can\nlawfully interdict civil aircraft reasonably suspected of being primarily engaged in\nillegal drug trafficking, whereas in 1994 it could not do so. The circumstances,\ntherefore, do not naturally suggest the possibility that those providing assistance\nfor the airbridge denial program share the purpose of conducting illegal interdictions. On the contrary, the more natural inference, absent particular facts indicating\notherwise, is that the contractor intends the assistance to be used in accordance\nwith the rules of the program that the President has certified under 22 U.S.C.\n\xc2\xa7 2291-4. Given such an intent, the contractor would not be guilty of aiding and\nabetting under 18 U.S.C. \xc2\xa7 2(a).\nB.\nThe general conspiracy statute, 18 U.S.C. \xc2\xa7 371 (2000), provides a criminal\npenalty \xe2\x80\x9c[i]f two or more persons conspire . . . to commit any offense against the\nUnited States . . . and one or more of such persons do any act to effect the object\nof the conspiracy.\xe2\x80\x9d As the Supreme Court has explained, \xe2\x80\x9cagreement remains the\nessential element of the crime [of conspiracy under 18 U.S.C. \xc2\xa7 371], and serves to\ndistinguish conspiracy from aiding and abetting which, although often based on\nagreement, does not require proof of that fact.\xe2\x80\x9d Iannelli v. United States, 420 U.S.\n770, 777 n.10 (1975). In the 1994 Opinion, we considered whether a court\n\xe2\x80\x9cmight . . . construe ongoing USG assistance [used to shoot down civil aircraft] as\nevidence of an agreement\xe2\x80\x9d that would amount to a conspiracy. 18 Op. O.L.C. at\n161. We recommended that the USG \xe2\x80\x9cmake [its] disapproval of shootdowns in\n12\nSee, e.g., Hill, 55 F.3d at 1201, discussing who could be culpable under section 2(a) for aiding\nand abetting an unlawful gambling business:\n\n[I]t is quite obvious that bettors should not be held criminally liable either under the\n[substantive] statute or under \xc2\xa7 2 and that local merchants who sell the accounting paper or the computers on which bets are registered are not sufficiently connected to the\nenterprise to be included even if they know that their goods will be used in connection\nwith the work of the business. On the other hand, it seems similarly obvious that the\nseller of computer hardware or software who is fully knowledgeable about the nature\nand scope of the gambling business would be liable under \xc2\xa7 2 if he installs the computer, electronic equipment and cables necessary to operate a \xe2\x80\x9cwire shop\xe2\x80\x9d or a parimutuel betting parlor, configures the software programs to process betting information\nand instructs the owners of the gambling business on how to use the equipment to\nmake the illegal business more profitable and efficient. Such actions would probably\nbe sufficient proof that the seller intended to further the criminal enterprise.\n\n22\n\n\x0cLiability of Contractors in Airbridge Denial Programs\n\nviolation of \xc2\xa7 32(b) clear in order to eliminate any suggestion that USG personnel\nhave entered into a conspiratorial agreement with foreign officials.\xe2\x80\x9d Id. at 161\xe2\x80\x9362.\nWe also recommended that \xe2\x80\x9cUSG agencies should specifically instruct their\npersonnel not to enter into any agreements or arrangements with the officials or\nagents of foreign governments that encourage or condone shootdowns.\xe2\x80\x9d Id. at 162\n(citation omitted).\nOnce again, the significant difference between the present circumstances and\nthose in 1994 is that, under 22 U.S.C. \xc2\xa7 2291-4, a foreign government may\nmaintain a lawful program in which certain civil aircraft are shot down. A\ncontractor who supplies assistance for interdictions, but does not agree to the use\nof the assistance for unlawful shootdowns, is not guilty of conspiracy. Ordinarily,\nmoreover, if a contractor is providing assistance for a lawful program, and a pilot\nor other participant in the foreign government\xe2\x80\x99s chain of command in that program\ncommits an act that leads to an illegal shootdown, there will be no reason for a\nfinder of fact to infer that the contractor had agreed to assist in that unlawful act.\nThe reasonable inference, absent facts to the contrary, would be that the contractor, far from agreeing to an illegal use of its assistance, intended that the assistance\nwould be used in accordance with the program that has been certified.13\nIII.\nWe now turn to, and can briefly dispose of, what should be the more usual case,\nin which a contractor\xe2\x80\x99s assistance is used for lawful interdictions.\nSection 2291-4 declares that, when the conditions of a Presidential determination and reasonable suspicion of drug trafficking have been met, \xe2\x80\x9cit shall not be\nunlawful for authorized employees or agents of a foreign country . . . to interdict\nor attempt to interdict an aircraft in that country\xe2\x80\x99s territory or airspace,\xe2\x80\x9d and \xe2\x80\x9cit\nshall not be unlawful for authorized employees or agents of the United States . . .\nto provide assistance for the interdiction actions.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2291-4(a), (b).\nWhen these provisions apply, they rule out a contractor\xe2\x80\x99s liability for aiding and\nabetting. The statute on aiding and abetting provides: \xe2\x80\x9cWhoever commits an\noffense against the United States or aids, abets, counsels, commands, induces or\nprocures its commission, is punishable as a principal.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2(a). As the\nSupreme Court has explained, and as we noted above, section 2(a) declares that\n\xe2\x80\x9cthose who provide knowing aid to persons committing federal crimes, with the\nintent to facilitate the crime, are themselves committing a crime.\xe2\x80\x9d Central Bank,\n511 U.S. at 181 (citing Nye & Nissen, 336 U.S. at 619). An accessory thus may be\nculpable under section 2(a) only if the government proves that the underlying\noffense was, in fact, committed. See, e.g., United States v. Branch, 91 F.3d 699,\n732 (5th Cir. 1996); United States v. Hill, 55 F.3d 1197, 1204\xe2\x80\x9305 (6th Cir. 1995);\n13\nWe do not address any possible application of 18 U.S.C. \xc2\xa7 2339A, which deals with the provision\nof material support in connection with a variety of offenses, including 18 U.S.C. \xc2\xa7 32.\n\n23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nSuperior Growers, 982 F.2d at 178; United States v. Horton, 921 F.2d 540, 543\xe2\x80\x93\n44 (4th Cir. 1990); United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).\nHere, however, under section 2291-4, the action that the contractor has assisted\n\xe2\x80\x9cshall not be unlawful,\xe2\x80\x9d and there is no underlying offense that the contractor\ncould aid and abet.14\nNor would the lawful interdiction of a civil aircraft create any liability for a\ncontractor under 18 U.S.C. \xc2\xa7 371. Because there would be no agreement \xe2\x80\x9cto\ncommit any offense against the United States,\xe2\x80\x9d the contractor could not be guilty\nof an unlawful conspiracy under 18 U.S.C. \xc2\xa7 371.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n14\nIn some circumstances, a contractor might be an \xe2\x80\x9cagent\xe2\x80\x9d of the United States or the foreign\ngovernment and thus covered directly by the language in 22 U.S.C. \xc2\xa7 2291-4 declaring that the\nspecified actions by \xe2\x80\x9cauthorized employees or agents\xe2\x80\x9d are not unlawful. In view of our discussion in\nthe text, we need not resolve the question of the circumstances under which a contractor would be an\n\xe2\x80\x9cagent.\xe2\x80\x9d\n\n24\n\n\x0c'


b'Authority of the President to Designate Another Member\nas Chairman of the Federal Power Commission\nWhile a substantial argument can be made to support the President\xe2\x80\x99s the authority to change the\nexisting designation of the Chairman of the Federal Power Commission and to designate another\nmember of that agency as Chairman, sufficient doubt exists so as to preclude a reliable prediction as\nto the result should the matter be judicially tested.\nApparently the only remedies the present Chairman would have, if his designation should be recalled\nand another member of the Commission designated as Chairman, would be to bring an action in the\nnature of quo warranto or sue for the additional $500-a-year annual salary of the Chairman in the\nCourt of Claims. Since the Chairman has no functions additional to those of any other commissioner\naffecting parties appearing before the Commission, their rights could not be affected even if he\nshould win such a suit.\n\nFebruary 28, 1961\n\nMEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL\nTO THE PRESIDENT\nThis memorandum examines the President\xe2\x80\x99s authority to change the existing\ndesignation of the Chairman of the Federal Power Commission and to designate\nanother member of that agency as Chairman. It concludes that, while a substantial\nargument can be made to support the President\xe2\x80\x99s authority to do so, sufficient\ndoubt exists so as to preclude a reliable prediction as to the result should the\nmatter be judicially tested. Nevertheless, it should be emphasized that apparently\nthe only remedies the present Chairman would have, if his designation should be\nrecalled and another member of the Commission designated as Chairman, would\nbe to bring an action in the nature of quo warranto or sue for the additional $500a-year annual salary of the Chairman in the Court of Claims. Since the Chairman\nhas no functions additional to those of any other commissioner affecting parties\nappearing before the Commission, their rights could not be affected even if he\nshould win such a suit.\nI.\nSection 3 of Reorganization Plan 9 of 1950, 3 C.F.R. 166 (Supp. 1950), 64 Stat.\n1265, relating to the Federal Power Commission, provides:\nDesignation of Chairman.\xe2\x80\x94The functions of the Commission with\nrespect to choosing a Chairman from among the commissioners\ncomposing the Commission are hereby transferred to the President.\nPlan 9 was submitted to the Congress by President Truman on March 13, 1950,\nalong with six others relating to six of the regulatory boards and commissions. The\nplans were \xe2\x80\x9cdesigned to strengthen the internal administration of these bodies,\xe2\x80\x9d\n\n206\n\n\x0cAuthority of the President to Designate Another Member as Chairman of the FPC\n\nand a feature was to vest in the President the function of designating the Chairman\n\xe2\x80\x9cin those instances where this function is not already a Presidential one.\xe2\x80\x9d H.R.\nDoc. No. 81-504, at 4 (1950).\nAt the time Plan 9 was transmitted, section 1 of the Federal Water Power Act,\nas amended, provided for election of the Chairman \xe2\x80\x9cby the commission itself,\xe2\x80\x9d and\npermitted \xe2\x80\x9ceach chairman when so elected to act as such until the expiration of his\nterm of office.\xe2\x80\x9d Pub. L. No. 65-280, \xc2\xa7 1, 41 Stat. 1063 (June 10, 1920), as amended by Pub. L. No. 71-412, 46 Stat. 797 (June 23, 1930).\nThe President explained, in his transmittal message, with respect to Plans 7\xe2\x80\x9313:\nIn the plans relative to four commissions\xe2\x80\x94the Interstate Commerce Commission, the Federal Trade Commission, the Federal\nPower Commission, and the Securities and Exchange Commission\xe2\x80\x94\nthe function of designating the Chairman is transferred to the President. The President by law now designates the Chairmen of the other\nthree regulatory commissions covered by these plans. The designation of all Chairmen by the President follows out the general concept\nof the Commission on Organization for providing clearer lines of\nmanagement responsibility in the executive branch.\nH.R. Doc. No. 81-504, at 5.1 No mention was made in the message of the statutory\nprovision relating to the term of service of the Chairman of the Federal Power\nCommission until the expiration of his term of office. Nor was it mentioned by\nBudget Director Frederick J. Lawton, when he supported Plan 9 in hearings before\nthe Senate Committee which considered it along with others. Mr. Lawton testified:\nThe plans affecting the Interstate Commerce Commission, the\nFederal Trade Commission, and the Federal Power Commission provide that the President shall designate a Commissioner to serve as\nChairman. These provisions will vest uniformly in the President the\nfunction of designating Commission Chairmen. At present he\nalready designates the Chairmen in the Federal Communications\nCommission, the National Labor Relations Board, and the Civil Aeronautics Board. . . .\n....\n\n1\nFor a further discussion of the concept of the Commission on Organization of the Executive\nBranch of the Government in this area, see Commission on Organization of the Executive Branch of\nthe Government, The Independent Regulatory Commissions, Rep. No. 12, at 5\xe2\x80\x936 (1949), reprinted in\nH.R. Doc. No. 81-116, at 5\xe2\x80\x936 (1949), which emphasized the desirability of the Chairman exercising\nadministrative control.\n\n207\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nSince the President now designates some Chairmen and does not\ndesignate others, and since Presidential designation has . . . advantages pointed out by the task force, these plans authorize Presidential designation of Chairmen in all cases.\nReorganization Plans Nos. 7, 8, 9, and 11 of 1950: Hearings on S. Res. 253, 254,\n255, and 256 Before the S. Comm. on Expenditures in the Executive Departments,\n81st Cong. 30\xe2\x80\x9331 (1950) (\xe2\x80\x9cReorganization Hearings\xe2\x80\x9d). Because the President at\nthat time had the power to designate the Chairman of each of the three regulatory\nbodies referred to,2 it could be inferred that the intent to produce uniformity in this\nrespect extended to the Federal Power Commission. However, the fact that Plan 9\ndealt only with the designation of the Chairman, and left his term, as fixed by the\nFederal Water Power Act, untouched was expressly called to the attention of the\nSenate Committee on Expenditures in the Executive Departments, the only\ncongressional body which held a hearing on the plan. 3 That Committee had before\nit comments, submitted at its request, by the Federal Power Commission. A\nseparate statement was also submitted by one of its commissioners.\nThe Commission commented favorably on the plan and observed that, although\nit had \xe2\x80\x9crecommended that the present statutory provision that a Chairman be\nelected and retain office for the balance of his term be amended, so as to provide\nthat the Chairman be elected annually,\xe2\x80\x9d it saw \xe2\x80\x9cno serious objection to the\nproposed designation of the Chairman by the President.\xe2\x80\x9d Reorganization Hearings\nat 215.\nIn his separate statement, Commissioner Thomas C. Buchanan took sharp issue\nwith the provision for choosing a Chairman. He stated:\nThe provision for the selection of the Chairman by the President\nchanges only the method of \xe2\x80\x9cchoosing\xe2\x80\x9d and does not affect the term\nof the Chairman so selected under existing law.\nThe term of a Federal Power Commissioner is presently 5 years,\ntherefore, a President in the fourth year of his term might select as\nChairman the member of the Commission nominated by him and\nconfirmed by the Senate during that year. Under the terms of plan 9\nas applied to the old law, the Chairman so selected would serve as\nsuch not only during the fourth year of the Presidential term in which\n\n2\nThe Federal Communications Act, Pub. L. No. 73-416, \xc2\xa7 4, 48 Stat. 1064, 1066 (1934), and the\nNational Labor Relations Act, Pub. L. No. 74-198, \xc2\xa7 3, 49 Stat. 449, 451 (1935), provided no fixed\nterm for the Chairmen. However, the Civil Aeronautics Act, Pub. L. No. 75-706, \xc2\xa7 201, 52 Stat. 973,\n980 (1938), provided for designation of the Chairman annually by the President.\n3\nNo resolution for disapproval of Plan 9 was introduced in the House of Representatives. Consequently, there were no hearings or discussion on the floor in that branch of the Congress.\n\n208\n\n\x0cAuthority of the President to Designate Another Member as Chairman of the FPC\n\nhe was appointed, but likewise 4 years of the succeeding term even\nthough there may be a change in the Presidential office.\nThe provision of plan 9 relating to appointment might better carry\nout the intent of the administration if it provided that . . . chairmen\nshall be appointed annually by the President.\nId. at 215\xe2\x80\x9316.\nDespite the Buchanan observations, the Senate Committee reported favorably\nand recommended that the Congress approve Plan 9. It reported:\nThe designation of the Federal Power Commission Chairman by\nthe President would provide an entirely normal channel of communication to the Commission without impairing its independence in any\nway. The alleged \xe2\x80\x9cinherent dangers\xe2\x80\x9d which some witnesses projected\ninto the future simply do not exist in fact as was proved conclusively\nduring the committee hearings when witnesses were unable to cite\nany evidence whatsoever of Presidential domination of the chairmen\nof the five regulatory agencies which he presently appoints.\nS. Rep. No. 81-1563, at 5\xe2\x80\x936 (1950).\nWhen the Plan reached the floor of the Senate, the matter of presidential designation of the Chairman was an important subject of debate. Strong objection was\nvoiced by Senator Long to permitting the President \xe2\x80\x9cto name the chairman.\xe2\x80\x9d 96\nCong. Rec. 7380 (May 22, 1950). Senator Capehart likewise opposed the Plan \xe2\x80\x9cfor\nthe simple reason that under it the President will be given authority to name the\nChairman.\xe2\x80\x9d Id. Senator Johnson called attention of the Senate to the peculiar\napplication of the presidential designation provisions to the Federal Power\nCommission, quoting the statement filed with the Senate Committee by Commissioner Buchanan, and noted that none had \xe2\x80\x9cfound any fault with Mr. Buchanan\xe2\x80\x99s\nfacts\xe2\x80\x9d in regard to the proposal. Id. at 7381. Senator Johnson\xe2\x80\x99s reference was not\npursued. Objections to presidential designation did not prevail and the resolution\nto disapprove the Plan was defeated by a vote of 37 to 36. Id. at 7383 (disapproving S. Res. 255, 81st Cong.). As a result Plan 9 became effective\xe2\x80\x94pursuant to the\nprovisions of the Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203\n(codified at 5 U.S.C. \xc2\xa7\xc2\xa7 133z et seq. (1958))\xe2\x80\x94on May 24, 1950. 64 Stat. 1265.\nII.\nIn light of the foregoing history a substantial argument can be made that approval of Plan 9 by the Congress resulted in vesting in the President the authority\nto designate the Chairman of the Federal Power Commission and to change that\ndesignation from time to time without limitation. The argument would rest on the\n\n209\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nreasoning that the purpose of the plans, as described in the presidential message\nand executive testimony, was to bring uniformity into the designation arrangements for all seven of the regulatory commissions for which plans were submitted.\nSince Congress was aware of the existing right of the Chairman to serve as such\nthroughout his term in the Federal Power Commission, it might be assumed that in\nthe interest of uniformity it was meant to substitute for that arrangement an\nunlimited authority in the President with respect to the designation and removal of\nthe Chairman of the Federal Power Commission and that this was accomplished\nby Plan 9.\nMoreover, the power to remove an officer is traditionally regarded as an incident of the power to designate or choose him, cf. Myers v. United States, 272 U.S.\n52, 161 (1926), and it seems it would be logical to conclude that, in context, the\npower to choose a Chairman conferred on the President by Plan 9 was intended to\nbe broad enough to cover the incidental power of replacing him. This is made\nplain by the President\xe2\x80\x99s statement that the purpose of the plans was to give the\nPresident the same powers with respect to the Federal Power Commission as he\nalready had with respect to at least two other regulatory commissions and by the\ntestimony of the Budget Director emphasizing the need for uniformity. In other\nwords, the function of \xe2\x80\x9cchoosing a chairman\xe2\x80\x9d was intended to include all the\npowers incident thereto, including removal as Chairman, and therefore the plan,\nwhen it became effective, operated as subsequent legislation repealing previous\ninconsistent legislation.\nIt is true that Commissioner Buchanan had presented to the Committee his\nview that once a commissioner had been designated as Chairman the designation\ncould not be changed during that commissioner\xe2\x80\x99s term. However, there is no\nevidence that the Committee adopted this view, the report being silent in this\nrespect. Similarly, it can be argued that the fact that Commissioner Buchanan\xe2\x80\x99s\nview was also brought to the attention of the Senate is no indication that this was\nthe view the Senate took of the matter. Further, if Plan 9 had been enacted in the\ncourse of the removal legislative process, greater weight might have to be given to\nCongress\xe2\x80\x99s failure to adopt an appropriate amendment to meet the problem raised\nby the contention that Plan 9 dealt only with the method of designating the\nChairman as provided in the Federal Water Power Act, and not with his term. But\nthe process of adoption of a reorganization plan differs markedly from the normal\nlegislative process, and less weight must, therefore, be afforded to the failure to\namend. Under section 6 of the Reorganization Act of 1949 (5 U.S.C. \xc2\xa7 133z-4\n(1958)) Congress had no opportunity to amend. A plan could either be permitted\nto take effect or be rejected by a resolution of either House expressing disfavor.\nFinally, it appears clear that the President intended to place the Federal Power\nCommission in a situation similar to the other regulatory agencies. The House\npermitted the plan to go into effect on his recommendation without discussion,\nthereby adopting his view of the matter. Furthermore, in the absence of an\n\n210\n\n\x0cAuthority of the President to Designate Another Member as Chairman of the FPC\n\nopportunity to amend, the Senate discussion should not be regarded as establishing\na different intention.\nOn the other hand, Plan 9 literally refers only to \xe2\x80\x9c[t]he functions of the Commission with respect to choosing a Chairman\xe2\x80\x9d (emphasis supplied). It does not\npurport to deal with his term. This interpretation gains strength from the fact that\nthe Chairman of the Civil Aeronautics Board, one of the agencies to which the\nPresident pointed as a model, had a fixed term of one year. 49 U.S.C. \xc2\xa7 1321(a)(2)\n(1958). It can, therefore, be contended that the intent was actually to deal only\nwith designation and that, even if broader powers to replace had been intended to\nbe conferred upon the President, the language simply failed to effectuate this\nresult. It may be of significance in this respect that, as it now appears in the United\nStates Code, section 1 of the Federal Water Power Act, which incorporates both\nthe original provisions of the Federal Water Power Act and Plan 9, states that the\nPresident shall designate the Chairman and that \xe2\x80\x9c[e]ach Chairman, when so\ndesignated, shall act as such until the expiration of his term of office.\xe2\x80\x9d 16 U.S.C.\n\xc2\xa7 792 (1958). Thus, rather than repealing prior legislation, the language of Plan 9\ncan be read consistently with section 1 of the Federal Water Power Act.\nRemoval of the limitation can, of course, be effected through amending legislation. It is not altogether clear that the reorganization method (if lapsed reorganization authority is reinstated as presently proposed) would be an available means for\naction which only alters the statutory term of the Chairman. Section 4(2) of the\nReorganization Act of 1949 provides that any plan transmitted by the President,\npursuant to section 3, \xe2\x80\x9cmay include provisions for the appointment and compensation of the head\xe2\x80\x9d of an agency. 5 U.S.C. \xc2\xa7 133z-2(2). The term of office of the\nhead of the agency so provided for \xe2\x80\x9cshall not be fixed at more than four years.\xe2\x80\x9d\nHowever, section 4(2) appears to limit the President\xe2\x80\x99s authority to provide for the\nappointment of the head of an agency only to circumstances in which \xe2\x80\x9cthe\nPresident finds, and in his message transmitting the plan declares, that by reason\nof a reorganization made by the plan such provisions are necessary.\xe2\x80\x9d The implication, therefore, is that the authority conferred by section 4(2) may be used only in\nsupport of a reorganization plan containing other provisions. It would follow that,\nunless the provision relating to the Chairman were part of a reorganization plan\naffecting other operations of the Federal Power Commission, the authority\ncontained in the section would not be available.\nEven if the President should designate a new Chairman and it should ultimately\nbe decided by the courts that the President was not authorized to do so, the\ndecision would not appear appreciably to affect the operations of the Commission\nin the interim. The provisions of the statute which created the Federal Power\nCommission (Pub. L. No. 66-280), the legislation which reorganized the Commission in 1930 (Pub. L. No. 71-412), and its rules and regulations have been examined, and nothing therein indicates that the powers of the Commission are to be\nexercised other than by the Commission as a whole. There are no unique powers\nvested in the Chairman which are any different from those vested in other\n\n211\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nmembers of the Commission. The Commission is authorized and empowered to\nact as a body no matter which of its members is Chairman. 16 U.S.C. \xc2\xa7 797\n(1958).\nThe provisions of Reorganization Plan 9 did not change this statutory pattern.\nThe plan transferred administrative functions to the Chairman, but it was intended,\nas the President explained in his message transmitting the plan, that the changes\naffected only \xe2\x80\x9c[p]urely executive duties.\xe2\x80\x9d H.R. Doc. No. 81-504, at 4 (1950) (quotation omitted). It was made clear that the plan vested\nin the Chairman . . . responsibility for appointment and supervision\nof personnel employed under the Commission, for distribution of\nbusiness among such personnel and among administrative units of\nthe [Federal Power] Commission, and for the usage and expenditure\nof funds.\nId. The Senate Committee found that the Plan did not \xe2\x80\x9cderogate from the statutory\nresponsibilities placed upon the other members of the Commission. They remain\nexactly as they are . . . .\xe2\x80\x9d S. Rep. No. 81-1563, at 3 (1950) (quotation omitted).\nAccordingly, it is difficult to see how a change in the chairmanship could affect\nthe Commission or the rights of third parties. The possibility exists that administrative actions, e.g., employments, discharge, etc., taken by a Chairman, later\ndetermined to have been improperly designated, could be challenged, but this is\nbelieved to be of minimal consideration.\nIII.\nEven if it were to be assumed that the Chairman had functions which were\nunique to his office, the authority of his successor to act as Chairman probably\ncould not be challenged by third parties under the \xe2\x80\x9cwell-recognized rule that the\ntitle of one holding a public office is not subject to collateral attack and that his\ntitle can only be inquired into in some direct proceeding instituted for that\npurpose.\xe2\x80\x9d Annotation, Habeas Corpus on Ground of Defective Title to Office of\nJudge, Prosecuting Attorney, or Other Officer Participating in Petitioner\xe2\x80\x99s Trial\nor Confinement, 58 A.L.R. 529, 529 (1945); see also Ex parte Henry Ward, 173\nU.S. 452 (1899); McDowell v. United States, 159 U.S. 596 (1895).\nIt is assumed, however, that if the present Chairman were replaced his remedy\nwould be either to sue in the Court of Claims for the additional salary ($500 per\nyear) of which he would be deprived, for the period between the date of the\nchange and the date on which his term of office expires, or to bring an action in\nthe nature of quo warranto. Such an action was initiated by a member of the War\nClaims Commission upon his removal by President Eisenhower. The action was\ndismissed on the merits in the District Court, and in the Court of Appeals the\nappeal was dismissed as moot by stipulation of the parties. See Wiener v. United\n\n212\n\n\x0cAuthority of the President to Designate Another Member as Chairman of the FPC\n\nStates, 357 U.S. 349, 351 n.* (1958), cf. Newman v. United States ex rel. Frizzell,\n238 U.S. 537 (1914).\nAs pointed out above, even if the present Chairman should prevail in any such\nsuit, this would not affect the actions of the Federal Power Commission in the\ninterim.\nNICHOLAS deB. KATZENBACH\nAssistant Attorney General\nOffice of Legal Counsel\n\n213\n\n\x0c'