b'Septem ber 12, 1977\n\n77-49\n\nMEMORANDUM OPINION FOR THE\nUNITED STATES ATTORNEY FOR THE\nDISTRICT OF COLUMBIA\nProposed District of Columbia Uniform Controlled\nSubstances Act\n\nThis is in response to your request for our opinion whether, under\nDistrict of Columbia (D.C.) Code \xc2\xa7 l-147(a)(3), the District of Colum\xc2\xad\nbia Council has the authority to enact \xc2\xa7 503 of the subject bill. D.C. bill\n2-53 provides for forfeiture of narcotics and other property to the\nDistrict. It is suggested that \xc2\xa7 503 would conflict with the right of the\nUnited States under 21 U.S.C. \xc2\xa7 881 to property forfeited on controlledsubstances grounds. After careful consideration of the question, we\nbelieve that D.C. Code \xc2\xa7 l-147(a)(3) denies to the Council that\nauthority.\nSection 602(a)(3) of the District of Columbia Self-Government and\nReorganization Act, 87 Stat. 754, D.C. Code \xc2\xa7 l-147(a)(3), restricts the\nlegislative authority of the District of Columbia Council as follows:\n(a) The Council shall have not authority to pass any act contrary\nto the provisions of this Act except as specifically provided in this\nAct, or to\xe2\x80\x94\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n(3) enact any act, or enact any act to amend or repeal any A ct of\nCongress, which concerns the functions or property of the United\nStates or which is not restricted in its application exclusively in or\nto the District.\nUnder the Comprehensive Drug Abuse Prevention and Control Act\nof 1970, 21 U.S.C. \xc2\xa7 881(a), all controlled substances manufactured,\ndispensed, distributed, or acquired in violation of the Act, all raw\nmaterials and equipment used in manufacturing these substances, all\ncontainers for the substances, certain conveyances used to transport\ncontrolled substances, raw materials, or equipment, and all books and\nrecords used in violation of the Act are subject to forfeiture to the\n199\n\n\x0cA ttorney General. The procedure followed is the same as for the\ncustoms laws: notice, suit for condemnation by the United States on\nshowing of probable cause, and judicial hearing with the burden of\nproof on the claimant. 21 U.S.C. \xc2\xa7 881(d); see 19 U.S.C. \xc2\xa7\xc2\xa7 1595-1615.\nThe A ttorney General may retain such forfeited property for official\nuse, transfer it to the General Services Administration, or forward it to\nthe D rug Enforcement Administration for medical or scientific use. 21\nU.S.C. \xc2\xa7 881(e).\nUnder a District of Columbia law enacted in 1956, all unlawfully\npossessed narcotics and dangerous drugs seized by the District are\nforfeited to the Secretary o f the Treasury pursuant to \xc2\xa7 4733 of the\nInternal Revenue Code of 1954. D.C. Code \xc2\xa7\xc2\xa7 33-417, 33-711; see 26\nU.S.C. \xc2\xa74733 (1964 ed.). The forfeiture now runs to the Attorney\nGeneral. Reorganization Plan No. 1 of 1968, \xc2\xa7 1, 82 Stat. 1367, 21\nU.S.C. \xc2\xa7 881. The District o f Columbia Code does not currently pro\xc2\xad\nvide for forfeiture o f raw materials, equipment containers, conveyances,\nand books and records connected with the violation of the controlled\nsubstances laws. Thus, under the law in force in the District when the\nSelf-Government and Reorganization A ct took effect in 1973, all of the\nitems enumerated in 21 U.S.C. \xc2\xa7 881(a) became property of the United\nStates even though seized by District officers.\nSection 503(a) of the bill would subject to forfeiture to the District\nexactly the same types of property covered by 21 U.S.C. \xc2\xa7 881(a), if\nused in violation of the District of Columbia Controlled Substances\nAct. M oreover, the bill\xe2\x80\x99s penal provisions cover the same conduct as\nthe Federal \xe2\x96\xa0statute. As a result, the bill would give the District a\ncompeting claim to property in which the United States now possesses\nthe sole right o f forfeiture.\nTherefore, it is our opinion that \xc2\xa7 503 \xe2\x80\x9cconcerns the functions or\nproperty of the United States,\xe2\x80\x9d a matter subject to the prohibition in\nD.C. Code \xc2\xa7 1 -147(a)(3).\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n200\n\n\x0c'


b'Designation of Acting Director of the Office of\nManagement and Budget\nThe President\xe2\x80\x99s designation of an employee to act as Director of OMB under the Vacancies Reform\nAct, 5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349d, is itself the appointment of an inferior officer and satisfies the\nAppointments Clause, U.S. Const. art. II, \xc2\xa7 2, cl. 2, even if the employee had not earlier been an\n\xe2\x80\x9cOfficer of the United States.\xe2\x80\x9d\n\nJune 12, 2003\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked us to memorialize our advice that the President may designate,\nas the Acting Director of the Office of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d), an\nofficial serving as the Executive Associate Director of OMB.\nI.\nThe Director of OMB is appointed by the President, with the advice and consent of the Senate. 31 U.S.C. \xc2\xa7 502(a) (2000). When the position of Director is\nvacant, the Deputy Director is authorized to act in that position. Id. \xc2\xa7 502(b)(2). At\npresent, both positions are vacant, and your question is whether the President,\nunder the Vacancies Reform Act, 5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349d (2000), may designate\nOMB\xe2\x80\x99s Executive Associate Director to act as Director.1\nThe Vacancies Reform Act provides three means by which a Senate-confirmed\nposition may be temporarily filled on an acting basis. First, the \xe2\x80\x9cfirst assistant to\nthe office\xe2\x80\x9d may act. 5 U.S.C. \xc2\xa7 3345(a)(1). Second, the President may designate,\nas the acting official, a Senate-confirmed officer from any agency. Id.\n\xc2\xa7 3345(a)(2). Third, the President may designate any \xe2\x80\x9cofficer or employee\xe2\x80\x9d who\n1\nUnder 31 U.S.C. \xc2\xa7 502(f), if the positions of Director and Deputy Director are both vacant, \xe2\x80\x9cthe\nPresident may designate an officer of [OMB] to act as Director.\xe2\x80\x9d Because the various officials\nidentified in section 502 are described as \xe2\x80\x9cofficers,\xe2\x80\x9d id. \xc2\xa7 502(e), and those appointed under the\nDirector\xe2\x80\x99s general hiring authority are described as \xe2\x80\x9cemployees,\xe2\x80\x9d id. \xc2\xa7 521, the President\xe2\x80\x99s authority to\nname \xe2\x80\x9can officer\xe2\x80\x9d of OMB as Acting Director under section 502(f) appears limited to the OMB\nofficials identified in section 502. We understand that the Executive Associate Director is not one of\nthe \xe2\x80\x9cofficers\xe2\x80\x9d under that provision. Section 502(f), however, is not the exclusive statutory authority for\ntemporarily filling the office of Director. Under 5 U.S.C. \xc2\xa7 3347, the Vacancies Reform Act is itself the\nexclusive statutory means for temporarily filling vacancies in Senate-confirmed offices, except where\nanother statute specifically provides for the President, a court, or the head of an executive department\nto name an acting officer, as 31 U.S.C. \xc2\xa7 502(f) does. The Vacancies Reform Act does not provide,\nhowever, that where there is another statute providing for a presidential designation, the Vacancies\nReform Act becomes unavailable. The legislative history squares with the conclusion that, in such\ncircumstances, the Vacancies Reform Act may still be used: \xe2\x80\x9cIn any event, even with respect to the\nspecific positions in which temporary officers may serve under the specific statutes this bill retains, the\nVacancies Act would continue to provide an alternative procedure for temporarily occupying the\noffice.\xe2\x80\x9d S. Rep. No. 105-250, at 17 (1998).\n\n121\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nhas served in the agency for at least 90 days in the preceding 365 days, in a\nposition for which the rate of pay is GS-15 or higher. Id. \xc2\xa7 3345(a)(3).2\nWe are informed that the Executive Associate Director would meet the statutory standards for designation under 5 U.S.C. \xc2\xa7 3345(a)(3): namely, he has served in\nOMB for at least 90 of the 365 days preceding the vacancy in the office of\nDirector, and his position during that time was one for which the pay was at least\nequal to a GS-15 rate. Thus, so far as the statute is concerned, the current Executive Associate Director of OMB is fully qualified to be designated as Acting\nDirector.\nII.\nUse of the Vacancies Reform Act in these circumstances could raise the question whether someone who is not already an \xe2\x80\x9cOfficer[] of the United States\xe2\x80\x9d could\ntemporarily fill a position that is an \xe2\x80\x9cOffice\xe2\x80\x9d under the Appointments Clause of the\nConstitution.3 U.S. Const. art. II, \xc2\xa7 2, cl. 2. It is possible that the Executive\nAssociate Director, although not an \xe2\x80\x9cofficer\xe2\x80\x9d for purposes of 31 U.S.C. \xc2\xa7 502, is\nalready an \xe2\x80\x9cOfficer of the United States\xe2\x80\x9d for purposes of the Appointments Clause,\nbut we assume arguendo that he is not. The potential problem is that \xe2\x80\x9cany appointee exercising significant authority pursuant to the laws of the United States is an\n\xe2\x80\x98Officer of the United States,\xe2\x80\x99\xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1, 126 (1976), see also\nEdmond v. United States, 520 U.S. 651, 662 (1997), and therefore must have been\nappointed in compliance with the Appointments Clause. The employees who serve\nin acting positions would appear to exercise such authority, see Andrade v.\nRegnery, 824 F.2d 1253, 1256 (D.C. Cir. 1987) (an Acting Administrator of a\nDepartment of Justice component had authority to discharge employees because\nhe was properly appointed as the Deputy Administrator, a statutory office), and\nwould therefore be subject to this requirement.\nIn our view, the President\xe2\x80\x99s designation of an employee of OMB to act as\nDirector under the Vacancies Reform Act would itself be the appointment of an\ninferior officer and would satisfy the Appointments Clause. Although the Appointments Clause provides generally that \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d must be\nappointed by the President, with the advice and consent of the Senate, it further\n\n2\nAn employee serving under the Vacancies Reform Act would be subject to the time limits in that\nstatute, 5 U.S.C. \xc2\xa7 3346, while an officer serving under 31 U.S.C. \xc2\xa7 502(f) would not be so limited and\ncould serve as long as is reasonable under the circumstances. See Status of the Acting Director, Office\nof Management and Budget, 1 Op. O.L.C. 287 (1977).\n3\nThis question does not arise for anyone who is already an \xe2\x80\x9cOfficer of the United States\xe2\x80\x9d and who\nwas appointed after the enactment of the Vacancies Reform Act, as any duties arising under the\nVacancies Reform Act can be regarded as part and parcel of the office to which he was appointed. See\nWeiss v. United States, 510 U.S. 163, 174 (1994). (The same would be true for anyone who was\nappointed before enactment of the Vacancies Reform Act and whose acting duties pursuant to that Act\nwere germane to his office. See id. at 174\xe2\x80\x9376.)\n\n122\n\n\x0cDesignation of Acting Director of the Office of Management and Budget\n\nprovides that \xe2\x80\x9cCongress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the Courts of Law, or in\nthe Heads of Departments.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 2. To assess the constitutionality of the proposed designation, we must answer two questions: first, whether\nthe Acting Director of OMB is a principal officer, who must have been appointed\nby the President with the advice and consent of the Senate, or whether he is an\ninferior officer who could be appointed by the President alone; and second, if he is\nan inferior officer, whether he has been \xe2\x80\x9cappoint[ed]\xe2\x80\x9d as such by the President,\nwithin the meaning of the Appointments Clause. Id.\nA.\nUnder the principles of the Supreme Court\xe2\x80\x99s decisions in Morrison v. Olson,\n487 U.S. 654, 671\xe2\x80\x9372 (1988), and Edmond, 520 U.S. at 662, 663, the Director of\nOMB is a principal officer. He is subject to removal by no one except the President. See Keim v. United States, 177 U.S. 290, 293 (1900) (\xe2\x80\x9c[i]n the absence of\nspecific provision to the contrary, the power of removal from office is incident to\nthe power of appointment\xe2\x80\x9d). His responsibilities cover a wide range of fiscal and\nmanagement matters, reach throughout the Executive Branch, and permit him to\nmake policy of the greatest importance. See, e.g., 31 U.S.C. \xc2\xa7 502(a) (Director\xe2\x80\x99s\nauthority over subordinates in OMB whose responsibilities are set out in 31 U.S.C.\n\xc2\xa7\xc2\xa7 503, 504). His tenure is not limited in time to the completion of any particular\ntask. And he is to administer OMB \xe2\x80\x9c[u]nder the direction of the President,\xe2\x80\x9d rather\nthan some official below the President. Id. \xc2\xa7 502(a).4\nAlthough the position of Director is a principal office, we believe that an Acting Director is only an inferior officer.5 In United States v. Eaton, 169 U.S. 331\n(1898), the Supreme Court held that Congress could vest the appointment of a\n\xe2\x80\x9cvice consul\xe2\x80\x9d in the President alone and could provide that the vice consul would\nact for the consul, even though the consul was a principal officer: \xe2\x80\x9cBecause the\n4\nWhen Congress first passed a bill to subject the Director of OMB to Senate confirmation, President Nixon vetoed it, principally on the ground that the bill would unconstitutionally have removed the\nincumbent appointed by the President alone, but also on the ground that the \xe2\x80\x9cnature of the position[],\xe2\x80\x9d\ninvolving \xe2\x80\x9cadvice and staff support in the performance of [the President\xe2\x80\x99s] budgetary and management\nresponsibilities,\xe2\x80\x9d conflicted with making the position Senate-confirmed. Pub. Papers of Pres. Richard\nM. Nixon at 539\xe2\x80\x9340 (1973). The history of the position before it was Senate-confirmed, along with the\nconsiderations about its \xe2\x80\x9cnature,\xe2\x80\x9d might be argued to show that the office is not a \xe2\x80\x9cprincipal\xe2\x80\x9d one.\nHowever, although appointment with Senate confirmation would not refute this argument (since that\nmode of appointment is the default for all officers, principal and inferior), President Nixon wrote before\nthe decisions in Morrison and Edmond, and we therefore do not question here that the Director of OMB\nis a principal officer.\n5\nArguably, an acting official is not an \xe2\x80\x9cofficer\xe2\x80\x9d because of the temporary nature of his duties. See,\ne.g., Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); Appointment of Department of Interior Associate\nDeputy Secretary, No. B-290,233, 2002 WL 31388352, at *3 (Oct. 22) (General Counsel, GAO). However, such an argument seems problematic, especially where the acting official is temporarily the head\nof an agency and otherwise occupies a permanent full-time position in the United States government.\n\n123\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nsubordinate officer is charged with the performance of the duty of the superior for\na limited time, and under special and temporary conditions, he is not thereby\ntransformed into the superior and permanent official. To so hold would render\nvoid any and every delegation of power to an inferior to perform under any\ncircumstances or exigency the duties of a superior officer, and the discharge of\nadministrative duties would be seriously hindered.\xe2\x80\x9d Id. at 343 (quoted with\napproval in Morrison, 487 U.S. at 672\xe2\x80\x9373). This conclusion, we believe, is not\ncalled into question by the Court\xe2\x80\x99s statement in Edmond that \xe2\x80\x9c\xe2\x80\x98inferior officers\xe2\x80\x99\nare officers whose work is directed and supervised at some level by others who\nwere appointed by Presidential nomination with the advice and consent of the\nSenate.\xe2\x80\x9d 520 U.S. at 663. The Court held only that \xe2\x80\x9c[g]enerally speaking\xe2\x80\x9d an\ninferior officer is subordinate to an officer other than the President. Id. at 662.\nMoreover, Edmond did not deal with temporary officers and cited Eaton with\napparent approval. Id. at 661. Under Eaton, we believe, the Acting Director of\nOMB is an inferior officer.\nB.\nUnder the Vacancies Reform Act, the President \xe2\x80\x9cmay direct an officer or employee of [an] Executive agency to perform the functions and duties of [a] vacant\noffice,\xe2\x80\x9d provided that the officer or employee has served, for at least 90 days\nduring the year before the vacancy, in a position for which the pay is at least the\nlevel of GS-15. 5 U.S.C. \xc2\xa7 3345(a)(3). By its express terms, this provision can\nenable an \xe2\x80\x9cemployee\xe2\x80\x9d to act in the vacant position of a Senate-confirmed officer.\nIn our view, an \xe2\x80\x9cemployee\xe2\x80\x9d so empowered is, temporarily, a properly appointed\ninferior Officer of the United States.6\nUnder the Appointments Clause, \xe2\x80\x9cthe Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone.\xe2\x80\x9d U.S.\nConst. art. II, \xc2\xa7 2, cl. 2. Under the provision of the Vacancies Reform Act that\nwould be used here, 5 U.S.C. \xc2\xa7 3345(a)(3), Congress has vested in \xe2\x80\x9cthe President\n(and only the President)\xe2\x80\x9d the power to name an employee who will be an acting\nofficer. Congress thus has employed one of the modes by which it may provide for\nappointment of an inferior officer.\nWe recognize, of course, that the Vacancies Reform Act does not use the language of appointment. Under 5 U.S.C. \xc2\xa7 3345(a)(3), the President \xe2\x80\x9cdirect[s]\xe2\x80\x9d an\nemployee to perform duties. We recognize, too, that the Supreme Court\xe2\x80\x99s decision\nin Weiss placed considerable stress on Congress\xe2\x80\x99s use of the terms \xe2\x80\x9cdetail\xe2\x80\x9d and\n\xe2\x80\x9cassign\xe2\x80\x9d in statutes governing military officers when it held that Congress had not\nrequired a separate appointment for military judges to serve on courts martial:\n\xe2\x80\x9cCongress repeatedly and consistently distinguished between an office that would\n6\nWe do not address whether any official who becomes an acting officer pursuant to 5 U.S.C.\n\xc2\xa7 3345(a)(1) has thereby been appointed to hold a temporary office.\n\n124\n\n\x0cDesignation of Acting Director of the Office of Management and Budget\n\nrequire a separate appointment and a position or duty to which one could be\n\xe2\x80\x98assigned\xe2\x80\x99 or \xe2\x80\x98detailed\xe2\x80\x99 by a superior officer.\xe2\x80\x9d 510 U.S. at 172.\nWe nonetheless believe that the \xe2\x80\x9cdirects\xe2\x80\x9d language of the Vacancies Reform\nAct should be understood to provide the means for an appointment of an employee\nas an acting officer. The principle of constitutional avoidance requires a construction of the statute that removes serious constitutional doubt: \xe2\x80\x9c[W]here an otherwise acceptable construction of a statute would raise serious constitutional\nproblems, the Court will construe the statute to avoid such problems unless such\nconstruction is plainly contrary to the intent of Congress.\xe2\x80\x9d Edward J. DeBartolo\nCorp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575\n(1988) (citation omitted). The Vacancies Reform Act, by its plain terms, allows an\n\xe2\x80\x9cemployee\xe2\x80\x9d to carry out the \xe2\x80\x9cfunctions and duties\xe2\x80\x9d of an \xe2\x80\x9cofficer of an Executive\nagency\xe2\x80\x9d who \xe2\x80\x9cdies, resigns, or is otherwise unable to perform the functions and\nduties of the office.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a). By understanding the President\xe2\x80\x99s \xe2\x80\x9cdirect[ion]\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 3345(a)(3) to involve an appointment of an employee as\nan inferior officer, we avoid the serious constitutional issue that could be raised by\na mere employee\xe2\x80\x99s \xe2\x80\x9cexercising significant authority pursuant to the laws of the\nUnited States.\xe2\x80\x9d Buckley, 424 U.S. at 126. For similar reasons, we believe that\nWeiss does not foreclose our conclusion here. The Court\xe2\x80\x99s discussion was in the\ncontext of establishing that the appointment of military judges did not violate the\nAppointments Clause. We would not readily extend that analysis to a different\ncontext, where it would raise a question about the constitutionality of a statute.\nFurthermore, because the Vacancies Reform Act, unlike the statute at issue in\nWeiss, aims at maintaining the continuity of government, including in emergencies, we would not impute to Congress any intent to make the efficacy of its\nstatute depend on the characterization of the President\xe2\x80\x99s action, as between an\nassignment of duties and an appointment.\nM. EDWARD WHELAN III\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n125\n\n\x0c'