b'August 18, 1978\n\n78-46\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE ATTORNEY GENERAL AND THE\nDEPUTY ATTORNEY GENERAL\nVoluntary Services (31 U .S.C . \xc2\xa7 665(b),\n5 U .S.C . \xc2\xa7 3111)\xe2\x80\x94 Use o f Student Volunteers\n\nThis concerns the Civil Rights Division\xe2\x80\x99s memorandum to the Associate\nAttorney General and the Deputy Attorney General raising the issue of the\nlegality of the Department accepting the uncompensated services of student\nvolunteers. This is usually done incident to an academic program in which the\nstudent performs supervised outside work for academic credit.\nThe specific issue posed is whether 31 U.S.C. \xc2\xa7 665(b) or any other\nauthority precludes the Department from accepting uncompensated services by\nstudents who are \xe2\x80\x9c given assignments that would aid the Department in its\nmission.\xe2\x80\x9d The Office of Management and Finance believes this is not\npermissible. We agree.\nSection 665(b) provides that:\nNo officer or employee of the United States shall accept voluntary\nservice for the United States or employ personal service ip excess of\nthat authorized by law, except in cases of emergency involving the\nsafety of human life or the protection of property.\nOn its face, the statute appears to prohibit the acceptance of all nonemergency\nvoluntary service. However, an opinion of the Attorney General construing this\nprovision states:\n[I]t seems plain that the words \xe2\x80\x9c voluntary service\xe2\x80\x9d were not intended\nto be synonymous with \xe2\x80\x9c gratuitous service\xe2\x80\x9d and were not intended to\ncover services rendered in an official capacity under regular appoint\xc2\xad\nment to an office otherwise permitted by law to be nonsalaried. In\ntheir ordinary and normal meaning these words refer to service\nintruded by a private person as a \xe2\x80\x9c volunteer\xe2\x80\x9d and not rendered\npursuant to any prior contract or obligation. [30 Op. Att\xe2\x80\x99y Gen. 51,\n52(1913)]\n185\n\n\x0cThe Attorney General concluded that the prohibition was designed to prevent\n\xe2\x80\x9c the acceptance of unauthorized services not intended or agreed to be\ngratuitous and therefore likely to afford a basis for a future claim upon\nCongress.\xe2\x80\x9d Id., at55. See also 27 Comp. Gen. 194, 195 (1947). Thus \xc2\xa7 665(b)\ndoes not necessarily preclude an Agency from accepting uncompensated ser\xc2\xad\nvice where it is clear that there will be no subsequent claim for compensation.\nIt is important to note that the opinion further concludes that employees\ncannot waive statutorily fixed compensation or any part thereof. 30 Op. Att\xe2\x80\x99y\nGen., supra, at 56. See also, G lavey v. United States, 182 U.S. 595, 609-610\n(1909); United States v. Andrews, 240 U.S. 90 (1916); 27 Comp. Dec. 131,\n133 (1920).1 In G lavey , the Court quoted with approval from the opinion of\nJudge Lacombe in M iller v. United States, 103 Fed. 413, 415 (S.D.N.Y.\n1900). Judge Lacombe stated:\nIt is to be assumed that Congress fixes the salary with due regard to\nthe work to be performed, and the grade of man that such salary may\nsecure. It would lead to the grossest abuses if a candidate and the\nexecutive officer who selects him may combine together so as\nentirely to exclude from consideration the whole class of men who\nare willing to take the office on the salary Congress has fixed, but\nwill not come for less. And, if public policy prohibit such a bargain in\nadvance, it would seem that a court should be astute not to give effect\nto such illegal contract by indirection, as by spelling out a waiver or\nestoppel. [See 182 U.S. at 609.]\nReasoning from this, the Court in G lavey stated:\nIf it were held otherwise, the result would be that the Heads of\nExecutive Departments could provide, in respect of all offices with\nfixed salaries attached and which they could fill by appointments,\nthat the incumbents should not have the compensation established by\nCongress, but should perform the service connected with their\nrespective positions for such compensation as the head of a Depart\xc2\xad\nment, under all the circumstances, deemed to be fair and adequate. In\nthis way the subject of salaries for public officers would be under the\ncontrol of the Executive Department of the Government. Public\npolicy forbids the recognition of any such power as belonging to the\nhead of an Executive Department. The distribution of officers upon\nsuch a basis suggests evils in the administration of public affairs\nwhich it cannot be supposed Congress intended to produce by its\nlegislation. [Ibid.]\nThus, if a position falls under the classification provisions of 5 U.S.C.\n\xc2\xa7 1501 et seq., the compensation cannot be waived since compensation for the\n\n\'T he Attorney G eneral stated:\n\xe2\x80\x9c O f course, I do not m ean by anything I have said herein to intim ate that persons may be\nappointed without com pensation to any position to which Congress has by law attached\nco m p en satio n ."\n\n186\n\n\x0cposition is statutorily fixed. See 26 Comp. Gen. 956, 958 (1947); Chap. 311-4,\nFPM (revised July 1969). If, however, a statute authorizes appointments to\nparticular positions without regard to the civil service laws, or confers\ndiscretion in the appointing officer as to compensation, there is no bar to the\nacceptance of uncompensated services. 27 Comp. Gen. 194 (1947); 27 Comp.\nDec. 13\\, supra.\nThe question of the propriety of an Agency accepting uncompensated\nservices in student intern programs involving assignment to \xe2\x80\x9c productive work,\ni.e., to the regular work of the Agency in a position which would ordinarily fall\nin the competitive service\xe2\x80\x9d was raised by the Civil Service Commission in\n1947. The Comptroller General concluded that, absent specific statutory\nauthority, an appointee to a position in the Federal service cannot legally waive\nthe compensation fixed by law for that position. 26 Comp. Gen., supra, at 961.\nIt is worthy of note that the Civil Service Commission in requesting the\nopinion on the student intern program limited its request as follows:\nThis situation, of course, is distinguishable from a college student\nserving as an \xe2\x80\x9c intern\xe2\x80\x9d in the capacity of an outside student or\ninvestigator, observing the work of a government unit, performing\ntasks which fall outside the usual functions of the unit, or utilizing its\nfacilities primarily for the benefit of his own educational advance\xc2\xad\nment. Although the results of the intern\xe2\x80\x99s work would be interesting,\nand probably useful to the agency in such a case, the work would not\nbe authorized as an official task or project and would ordinarily be\nincidental or supplemental to the intern\xe2\x80\x99s undergraduate or postgrad\xc2\xad\nuate study in the educational institution. The question does not\ninvolve the propriety of such arrangements. [Id., at 957]\nThe Civil Service Commission in its Bulletin No. 308-15, July 12, 1974, deals\nwith the subject of \xe2\x80\x9c Providing Work Experience for Students in a Nonpay\nStatus.\xe2\x80\x9d The Commission believes that, even absent statutory authority to\naccept voluntary services, such limited programs are permissible. The rationale\nis that a participant in such a program renders no service to the Government\nbecause his work does not further the Agency\xe2\x80\x99s mission. Therefore \xc2\xa7 665(b)\nhas no application.\nWe now consider the application of the above principles to the issue at hand.\nSection 665(b) is not a bar because it is understood by all concerned parties that\nno financial remuneration will be given for the students\xe2\x80\x99 services. But if the\nstudents fill positions having statutorily fixed minimum compensation, consid\xc2\xad\nerations other than \xc2\xa7 665(b) preclude the acceptance of voluntary services. See\n30 Op. Att\xe2\x80\x99y G en., supra , at 56; 26 Comp. Gen. 956, supra. It appears that the\nstudents fill such positions. Although we have been informed by the Office of\nManagement and Finance that the students are not formally appointed in the\nFederal service, it is only this technicality that distinguishes them from other\nAgency employees.2 This omission does not permit the acceptance of voluntary\n2Section 2105(a), title 5 U .S. C ode, defines an em ployee as one who ( I ) perform s a Federal\nfunction, (2) is under the supervision o f a Federal em ployee, and (3) has been appointed in the civil\nservice by an appropriate official.\n\n187\n\n\x0cservices. If it did, the prohibition against accepting voluntary services where\nthere is a fixed compensation would be no prohibition at all. Because all of the\nrequisites of employee status except formal appointment are met, a de facto\nappointment exists.3\nThe Department would prefer student programs that are both beneficial to the\nstudent and further the Department\xe2\x80\x99s mission. But those objectives can only be\naccomplished pursuant to legislative authority. The only uncompensated\nstudent services that the Department may accept are those in which student\nvolunteers do not perform productive work for the benefit of the Department.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3W e have been unable to find any statute authorizing the Departm ent to accept the services here\ninvolved w ithout com pensation. (It should be noted that by \xc2\xa7 301(a) o f the Civil Service Reform\nAct o f 1978, Pub. L. 95-454 (O ct. 13, 1978), 92 Stat. 1144, 5 U .S .C . \xc2\xa7 3111, Congress has now\nauthorized A gencies to accept uncom pensated services o f student volunteers.)\n\n188\n\n\x0c'


b'Removability of the Federal Coordinator for\nAlaska Natural Gas Transportation Projects\nThe Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the\npleasure of the President and thus may be removed at the President\xe2\x80\x99s will.\nOctober 23, 2009\n\nMEMORANDUM OPINION FOR THE\nPRINCIPAL DEPUTY COUNSEL TO THE PRESIDENT\nThis memorandum confirms oral advice about the removability of the\nFederal Coordinator for the Alaska Natural Gas Transportation Projects\n(\xe2\x80\x9cFederal Coordinator\xe2\x80\x9d or the \xe2\x80\x9cCoordinator\xe2\x80\x9d). Specifically, you asked us\nwhether the statute establishing the Office of the Federal Coordinator, 15\nU.S.C. \xc2\xa7 720d (2006), restricts the President\xe2\x80\x99s power to remove the Coordinator. As we previously explained in our oral advice and now explain in\ngreater detail, we believe that the Federal Coordinator serves at the pleasure of the President and thus may be removed at the President\xe2\x80\x99s will.\nCongress enacted the Alaska Natural Gas Pipeline Act (\xe2\x80\x9cANGPA,\xe2\x80\x9d or\n\xe2\x80\x9cthe Act\xe2\x80\x9d) to encourage the speedy construction of a pipeline carrying\nnatural gas from the Alaskan North Slope to the contiguous United States.\nSee Pub. L. No. 108-324, div. C, 118 Stat. 1220, 1255 (2004); see generally Exxon Mobil Corp. v. FERC, 501 F.3d 204, 207 (D.C. Cir. 2007). The\nAct established the Office of the Federal Coordinator for Alaska Natural\nGas Transportation Projects \xe2\x80\x9cas an independent office in the executive\nbranch.\xe2\x80\x9d ANGPA \xc2\xa7 106(a) (codified at 15 U.S.C. \xc2\xa7 720d(a) (2006)). The\nOffice is \xe2\x80\x9cheaded by a Federal Coordinator\xe2\x80\x9d \xe2\x80\x9cwho shall be appointed by\nthe President, by and with advice and consent of the Senate, to serve a\nterm to last until 1 year following the completion of the [natural gas\npipeline] project referred to in section 720a of this title.\xe2\x80\x9d 15 U.S.C.\n\xc2\xa7 720d(b)(1). The Act further provides that the Coordinator \xe2\x80\x9cshall be\nresponsible for\xe2\x80\x94(1) coordinating the expeditious discharge of all activities by Federal agencies with respect to an Alaska natural gas transportation project; and (2) ensuring the compliance of Federal agencies with the\nprovisions of this chapter.\xe2\x80\x9d Id. \xc2\xa7 720d(c).\nCritically, the Act does not set out any preconditions for the removal\nof the Federal Coordinator. As a general matter, \xe2\x80\x9c[i]n the absence of a\nspecific provision to the contrary, the power of removal from office is\n345\n\n\x0c33 Op. O.L.C. 345 (2009)\n\nincident to the power of appointment.\xe2\x80\x9d Keim v. United States, 177 U.S.\n290, 293\xe2\x80\x9394 (1900); cf. Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir.\n1991) (\xe2\x80\x9cWhen Congress decides purposefully to enact legislation restricting or regulating presidential action, it must make its intent clear.\xe2\x80\x9d). This\n\xe2\x80\x9crule of constitutional and statutory construction\xe2\x80\x9d recognizes that \xe2\x80\x9cthose\nin charge of and responsible for administering functions of government\nwho select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they appoint.\xe2\x80\x9d Myers v.\nUnited States, 272 U.S. 52, 119 (1926). These principles support the\ninference that an officer serves at the pleasure of the President where\nCongress has not plainly provided for it. See, e.g., The Constitutional\nSeparation of Powers Between the President and Congress, 20 Op.\nO.L.C. 124, 170 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d); see also id. at 172\xe2\x80\x9373\n(\xe2\x80\x9c[B]ecause the [officer]\xe2\x80\x99s tenure is not protected by an explicit for-cause\nremoval limitation, . . . we therefore infer that the President has at least\nthe formal power to remove the [officer] at will.\xe2\x80\x9d); Removal of Holdover\nOfficials Serving on the Federal Housing Finance Board and the Railroad Retirement Board, 21 Op. O.L.C. 135, 135 (1997) (\xe2\x80\x9cFHFB/RRB\nRemoval\xe2\x80\x9d).\nBecause Congress did not explicitly provide tenure protection to the\nFederal Coordinator, the President, consistent with the above settled\nprinciples, may remove her without cause.\nThe only two textual indications that are conceivably to the contrary\xe2\x80\x94\ni.e., the Coordinator\xe2\x80\x99s fixed term, 15 U.S.C. \xc2\xa7 720d(b)(1), and the \xe2\x80\x9cindependen[ce]\xe2\x80\x9d of the Office, id. \xc2\xa7 720d(a)\xe2\x80\x94do not undermine the above\nconclusion. First, the Supreme Court has long held fixed terms to impose\na limit on service but not to imply tenure protection. Parsons v. United\nStates, 167 U.S. 324, 338\xe2\x80\x9339 (1897) (President can remove United States\nAttorneys even during their appointed four-year terms); see also Memorandum for J. Paul Oetken, Associate Counsel to the President, from\nRandolph D. Moss, Assistant Attorney General, Office of Legal Counsel,\nRe: Displacement of Recess Appointees in Tenure-Protected Positions\n(Sept. 1, 2000) (noting that \xe2\x80\x9cstatutory term is a limit, rather than a protection of tenure.\xe2\x80\x9d). The Act\xe2\x80\x99s legislative history supports the application\nof those precedents here. A predecessor bill of the same Congress,\nS. 1005, defined the Federal Coordinator position using language nearly\nidentical to that in 15 U.S.C. \xc2\xa7 720d. Although the accompanying Senate\nReport observed that the \xe2\x80\x9cCoordinator will serve a term that lasts one year\n346\n\n\x0cRemovability of Federal Coordinator for Alaska Natural Gas Transportation Projects\n\nbeyond the completion of construction on the pipeline,\xe2\x80\x9d S. Rep. No. 10843, at 138 (2003), it explained that the Coordinator \xe2\x80\x9cwill serve at the\npleasure of the President.\xe2\x80\x9d Id.*\nSecond, that Congress established the Office of the Federal Coordinator as an \xe2\x80\x9cindependent office in the executive branch,\xe2\x80\x9d 15 U.S.C.\n\xc2\xa7 720d(a), does not imply tenure protection. As we observed with\nrespect to similar language, \xe2\x80\x9c[a]ll that should be inferred from the\nstatus of an \xe2\x80\x98independent agency\xe2\x80\x99 is that the entity is not located within\nanother department or agency.\xe2\x80\x9d FHFB/RRB Removal, 21 Op. O.L.C. at\n138 n.5; see also Memorandum for the Attorney General from Nicholas\ndeB. Katzenbach, Assistant Attorney General, Office of Legal Counsel,\nRe: Removability of Members of the Renegotiation Board (Feb. 24,\n1961) (\xe2\x80\x9cThe significance of th[e] . . . phrase [i.e., \xe2\x80\x98an independent\nestablishment in the executive branch of the Government\xe2\x80\x99] is uncertain,\nbut there is reason to believe that Congress intended to make the Board\nindependent of the Department of Defense and of other agencies in the\nexecutive branch, without necessarily intending that it be independent\nof the President as head of the executive branch.\xe2\x80\x9d). Thus, Congress\ngranted the Federal Coordinator a measure of free-standing authority\nfrom other executive agencies\xe2\x80\x94not from the President. Indeed, although the statute grants limited authority to the Coordinator to overrule certain terms and conditions set by other federal agencies in their\nagreements related to the pipeline project, 15 U.S.C. \xc2\xa7 720d(d)(2), it\nexpressly subjects a critical aspect of the Federal Coordinator\xe2\x80\x99s duties\nto presidential oversight. Id. \xc2\xa7 720d(e)(1) (requiring Coordinator to\nenter into a \xe2\x80\x9cjoint surveillance and monitoring agreement\xe2\x80\x9d with the\nState of Alaska that shall be subject to the President\xe2\x80\x99s approval).\nThe Supreme Court has recognized an exception to the above settled\nrule against inferring tenure protection in the face of congressional silence. That case is inapplicable here. In Wiener v. United States, the\n* As reported out of the House Committee on Energy and Commerce, a competing bill\nexplicitly provided that the Coordinator would \xe2\x80\x9chold office at the pleasure of the President.\xe2\x80\x9d H.R. 1644, \xc2\xa7 2007(b)(2); H.R. Rep. No. 108-65 (2003). We do not see this provision as significant, however, since, as we have explained, there is no requirement that a\nlaw contain an express at-will removal provision. Indeed, the Senate Report, noting that\nthe Coordinator serves at the President\xe2\x80\x99s pleasure, is consistent with the general rule that\nan express at-will removal provision need not be included in the enacted law in order to\nmake the officer subject to the President\xe2\x80\x99s plenary removal authority.\n\n347\n\n\x0c33 Op. O.L.C. 345 (2009)\n\nSupreme Court upheld restrictions on the removal of members of the War\nClaims Commission because of \xe2\x80\x9cthe intrinsic judicial character of [their]\ntask.\xe2\x80\x9d 357 U.S. 349, 355\xe2\x80\x9356 (1958); see also Separation of Powers, 20\nOp. O.L.C. at 170 ( Executive Branch should not \xe2\x80\x9cinfer the existence of a\nfor-cause limit on presidential removal,\xe2\x80\x9d \xe2\x80\x9cexcept with respect to officers\nwhose only functions are adjudicatory.\xe2\x80\x9d). Tasked by Congress with coordinating among various agencies and ensuring compliance with the Act,\nthe Federal Coordinator performs quintessentially executive\xe2\x80\x94not adjudicatory\xe2\x80\x94functions. Cf. Morrison v. Olson, 487 U.S. 654, 691 (1988)\n(stating that an officer\xe2\x80\x99s function is only one consideration in deciding\nwhether an express statutory protection of tenure is constitutional). Although Wiener concerned officers with adjudicatory functions, we are\naware that there is language in cases, often in dictum, suggesting that a\nfor-cause removal restriction may be inferred even for officers whose\nduties are not wholly adjudicatory, such as the board members of \xe2\x80\x9cindependent\xe2\x80\x9d regulatory commissions. See Swan v. Clinton, 100 F.3d 973,\n982\xe2\x80\x9383 (D.C. Cir. 1996) (Board of National Credit Union Administration); FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir.\n1993) (Federal Election Commission); SEC v. Blinder, Robinson & Co.,\n855 F.2d 677, 681 (10th Cir. 1988) (Securities and Exchange Commission); cf. Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 537\nF.3d 667, 680 (D.C. Cir. 2008) (recognizing for-cause removal restriction\nas to SEC Commissioners), cert. granted, 129 S. Ct. 2378 (2009) (No. 08861). However, these multi-member boards, the appointments to which\nare typically subject to political balance requirements and staggered\nterms, do not remotely resemble the Office of the Federal Coordinator.\nAccordingly, we do not believe these cases addressing them provide\nsupport for departing from the general rule we have identified.\nIn sum, because Congress did not explicitly confer tenure protection\nupon the Federal Coordinator, the President may remove the incumbent\nofficer at will.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n348\n\n\x0c'


b'(Slip Opinion)\n\nAppointment and Removal of Federal Reserve Bank\nMembers of the Federal Open Market Committee\nThe statutory procedures for appointing and removing Federal Reserve Bank members\nof the Federal Open Market Committee are consistent with the Constitution, and\nwould have continued to be so under proposed H.R. 6741, the Federal Reserve Reform Act of 2018.\nOctober 23, 2019\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGISLATIVE AFFAIRS\nThis memorandum memorializes our review of the constitutionality of\nan amendment in the nature of a substitute to H.R. 6741, the Federal\nReserve Reform Act of 2018, which would have expanded the authority of\nthe Federal Open Market Committee (\xe2\x80\x9cFOMC\xe2\x80\x9d) and changed its structure\nfor the first time in decades. The bill was reported as amended by the U.S.\nHouse Committee on Financial Services in the 115th Congress, but was\nnot enacted. The FOMC is part of the Federal Reserve System and directs\nU.S. monetary policy, principally by setting the target for the \xe2\x80\x9cfederal\nfunds rate\xe2\x80\x9d\xe2\x80\x94the interest rate at which banks lend money to one another\novernight. Sections 4(1)(B) and 5 of H.R. 6741 would have permitted the\nFOMC to authorize emergency lending and to set the interest rate on\ncertain reserves maintained on behalf of financial institutions. Sections 6\nand 8 would have amended the membership of the FOMC and the process\nfor selecting its members.\nCurrently, the FOMC consists of twelve members\xe2\x80\x94the seven members\nof the Federal Reserve System\xe2\x80\x99s Board of Governors, a member drawn\nfrom the Federal Reserve Bank of New York, and four members drawn\nfrom geographical groups of other regional Federal Reserve Banks, who\nserve one-year terms on the FOMC on a rotating basis. Each of the five\nReserve Bank members must be either a president or first vice president\nof a Reserve Bank. A Reserve Bank president or first vice president is\nselected by a subset of directors of the Reserve Bank, subject to the approval of the Board of Governors, and then may be designated to serve on\nthe FOMC by the full membership of the combined boards of directors of\nthe Reserve Banks in the geographical group to which the Reserve Bank\nbelongs. Like any other Reserve Bank president or first vice president,\n1\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nReserve Bank FOMC members may be removed from their Reserve Bank\npositions either by the Board of Governors or by the boards of directors of\ntheir respective Reserve Banks, which in turn would have the effect of\nremoving the president or first vice president from the FOMC.\nThe structure of the FOMC has long raised constitutional questions.\nIn 1986, a district court considered, although ultimately rejected, an\nAppointments Clause challenge to the FOMC\xe2\x80\x99s structure. See Melcher v.\nFOMC, 644 F. Supp. 510 (D.D.C. 1986), aff \xe2\x80\x99d on other grounds, 836\nF.2d 561 (D.C. Cir. 1987). But H.R. 6741 would have heightened Appointments Clause concerns with the FOMC\xe2\x80\x99s structure by increasing\nthe authority of the FOMC\xe2\x80\x99s Reserve Bank members. We thus considered the constitutionality both of the FOMC\xe2\x80\x99s basic structure as it exists\ntoday and of the changes the proposed legislation would have made to\nthat framework.\nWe concluded that Reserve Bank representatives on the FOMC are\n\xe2\x80\x9cOfficers of the United States\xe2\x80\x9d under the Appointments Clause. U.S.\nConst. art. II, \xc2\xa7 2, cl. 2. More specifically, they are \xe2\x80\x9cinferior Officers\xe2\x80\x9d\nwho are appointed to their Reserve Bank positions by the \xe2\x80\x9cHead[] of\n[their] Department[],\xe2\x80\x9d id.\xe2\x80\x94the Board of Governors of the Federal Reserve\nSystem, which approves their appointments as Reserve Bank presidents or\nfirst vice presidents. Their appointments as Reserve Bank presidents or\nfirst vice presidents make them eligible for service as members of the\nFOMC, even though the boards of directors that select them for FOMC\nmembership may not make appointments under the Appointments Clause.\nBecause the duties of Reserve Bank presidents and first vice presidents\nare germane to the duties of FOMC members, those officers may serve on\nthe FOMC on the strength of the Governors\xe2\x80\x99 approval of their earlier\nappointments.\nWe also concluded that the procedures for removing Reserve Bank\nFOMC members are constitutional. Reserve Bank FOMC members are\nsubject to plenary removal and supervision by the Board of Governors,\nwhich tracks the default rule that an officer is subject to removal at will\nby the appointing official. Under the statute, Reserve Bank FOMC members may also be removed from their underlying bank positions by the\nReserve Bank boards of directors. But this additional removal authority\ndoes not unconstitutionally interfere with the removal authority of the\nBoard of Governors, because the statute can be read and administered to\n\n2\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nrequire the Board to approve any removal of an FOMC Reserve Bank\nmember.\nFor these reasons, we concluded that the basic structure of the FOMC is\nconstitutional, both as it exists today and as it would have been amended\nby H.R. 6741. This memorandum memorializes our reasoning in support\nof those conclusions. 1\nI.\nThe Federal Reserve System consists of three overlapping entities: the\nBoard of Governors, the twelve regional Federal Reserve Banks, and the\nFOMC. The Board of Governors has seven members, who are appointed\nby the President to fourteen-year terms with the advice and consent of the\nSenate. 12 U.S.C. \xc2\xa7\xc2\xa7 241\xe2\x80\x93242. The Board oversees the operations of the\nregional Reserve Banks, including by setting policies for Reserve Banks\xe2\x80\x99\nlending of money to private banks and provision of other financial services. The Board also regulates certain private financial institutions and\nactivities. For instance, the Board imposes notice and reporting requirements, establishes capital requirements and leverage limits for financial\ninstitutions, and conducts stress tests to ensure that those institutions\nhave sufficient capital to survive under adverse economic conditions.\nSee, e.g., id. \xc2\xa7\xc2\xa7 248\xe2\x80\x93248b, 5361\xe2\x80\x935374.\nThe twelve regional Federal Reserve Banks execute the Federal Reserve System\xe2\x80\x99s policies. The Reserve Banks are owned by member commercial banks within their regional districts. Id. \xc2\xa7 341. Each Reserve\nBank is overseen by its own board of directors and operated on a day-today basis by a president and one or more vice presidents. Id. Among\nother functions, Reserve Banks review the soundness of financial institutions, including state depository institutions; serve as \xe2\x80\x9cbank[s] for banks\xe2\x80\x9d\nby offering lending and payment services to other financial institutions;\nexecute orders to buy and sell government securities; and gather information used to formulate national monetary policy. See Board of Governors of the Federal Reserve System, The Federal Reserve System:\nPurposes & Functions 13\xe2\x80\x9314 (10th ed. Oct. 2016) (\xe2\x80\x9cFederal Reserve\n\n1 In preparing this opinion, we consulted with the Office of the General Counsel of the\nDepartment of the Treasury and with the Office of the General Counsel of the Federal\nReserve System Board of Governors.\n\n3\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nSystem\xe2\x80\x9d), https://www.federalreserve.gov/aboutthefed/files/pf_complete.\npdf.\nThe FOMC, in turn, oversees the Federal Reserve System\xe2\x80\x99s \xe2\x80\x9copen market operations\xe2\x80\x9d\xe2\x80\x94that is, \xe2\x80\x9cthe purchase and sale of Government securities\nin the domestic securities market,\xe2\x80\x9d through which the Federal Reserve\nSystem expands or contracts the supply of money in the United States.\nFOMC v. Merrill, 443 U.S. 340, 343 (1979); see 12 U.S.C. \xc2\xa7 263; Federal\nReserve System at 15\xe2\x80\x9317, 20\xe2\x80\x9332. To increase the money supply, the\nFOMC directs purchases of federal securities from banks; the proceeds of\nthose purchases increase the banks\xe2\x80\x99 cash reserves. Merrill, 443 U.S. at\n343. Conversely, to decrease the money supply, the FOMC directs sales\nof securities, thereby decreasing banks\xe2\x80\x99 reserves. Id. at 343\xe2\x80\x9344. This\nchange in reserve volume affects the amounts of money that banks may\nloan and invest. When banks have more money to loan, the interest rates\non loans become lower and borrowers enjoy cheaper access to capital.\nWhen banks have less money, the interest rates on loans become higher.\nThis ease or difficulty of access to capital has a \xe2\x80\x9csubstantial impact\xe2\x80\x9d on\n\xe2\x80\x9cinvestment activity in the economy as a whole,\xe2\x80\x9d id., which is why these\n\xe2\x80\x9copen market operations . . . are the most important monetary policy\ninstrument of the Federal Reserve System,\xe2\x80\x9d id. at 343; see also Federal\nReserve System at 32\xe2\x80\x9338.\nThe FOMC directs open-market operations primarily by setting the target for the federal funds rate. The FOMC executes that decision by directing the Federal Reserve Bank of New York to purchase or sell government securities until the federal funds rate meets the target. See Federal\nReserve System at 32\xe2\x80\x9338; David Zaring, Law and Custom on the Federal\nOpen Market Committee, 78 Law & Contemp. Probs. 157, 163 (2015). In\nresponse to the financial crisis that began in 2007, the FOMC also employed other, less traditional monetary policy tools, such as directing the\npurchase of longer-term securities to place downward pressure on longterm interest rates. See Federal Reserve System at 21\xe2\x80\x9322. H.R. 6741\nwould have expanded the FOMC\xe2\x80\x99s authority further. It would have required decisions of the Board of Governors to authorize emergency lending to be approved by a two-thirds vote of the FOMC (as well as the\nSecretary of the Treasury) and would have authorized the FOMC to set\nthe interest rate on balances held by Reserve Banks as part of commercial\nbanks\xe2\x80\x99 required reserves. H.R. 6741, sec. 4(1)(B), \xc2\xa7 343(3)(A); id. sec. 5,\n\xc2\xa7 461(b)(12)(A).\n4\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nThe FOMC consists of the Board of Governors and representatives of\nthe regional Reserve Banks. The seven Governors of the Federal Reserve\nSystem hold positions on the FOMC for their entire fourteen-year terms\nas Governors. 12 U.S.C. \xc2\xa7\xc2\xa7 241\xe2\x80\x93242, 263. The remaining five FOMC\nmembers are the president of the New York Federal Reserve Bank and the\npresidents of four other regional Reserve Banks, each of whom serves a\none-year term on the FOMC. Id. \xc2\xa7 263(a).2 Each Reserve Bank president\nis initially selected to his Reserve Bank position by two classes of the\ndirectors of that Reserve Bank, with the approval of the Board of Governors, for a five-year term. Id. \xc2\xa7\xc2\xa7 304, 305, 341. The full membership of\nthe combined boards of directors of the Reserve Banks in each regional\ngroup, see supra note 2, then selects the FOMC member who will represent that regional group, 12 U.S.C. \xc2\xa7 263(a). H.R. 6741 would have\namended the membership of the FOMC to include the presidents of all\ntwelve Reserve Banks, bringing the FOMC\xe2\x80\x99s total membership to nineteen. H.R. 6741, sec. 6, \xc2\xa7 263(a). H.R. 6741 would also have amended the\nunderlying method of appointment to the position of Reserve Bank president. Under the proposed legislation, the president of each Reserve Bank\nwould have been selected by the Reserve Bank\xe2\x80\x99s entire board of directors\ninstead of by only two classes of its directors. Id., sec. 8, \xc2\xa7 341. Each\nappointment of a Reserve Bank president would have remained subject to\nthe approval of the Board of Governors. Id.\nThere are two methods of removing Reserve Bank presidents. First, the\nBoard of Governors may \xe2\x80\x9csuspend or remove any officer or director of\nany Federal reserve bank,\xe2\x80\x9d so long as it communicates \xe2\x80\x9cthe cause of such\nremoval . . . in writing . . . to the removed officer or director and to said\nbank.\xe2\x80\x9d 12 U.S.C. \xc2\xa7 248(f ). Second, the board of directors of an individual\n2\n\nThe remaining four Reserve Bank members typically include, on a rotating basis, one\nof the presidents of the Reserve Banks of Boston, Philadelphia, and Richmond; one of the\npresidents of the Reserve Banks of Cleveland and Chicago; one of the presidents of the\nReserve Banks of Atlanta, Dallas, and St. Louis; and one of the presidents of the Reserve\nBanks of Minneapolis, Kansas City, and San Francisco. See 12 U.S.C. \xc2\xa7 263(a). In\naddition to the Reserve Bank presidents, the statute provides that the first vice president\nof each Reserve Bank is also eligible for appointment to the FOMC, id., and H.R. 6741\nwould have continued to render them eligible to represent the Reserve Banks on the\nFOMC, H.R. 6741, sec. 6, \xc2\xa7 263(a). Because the first vice presidents are appointed and\nremoved in the same way as the Reserve Bank presidents, see 12 U.S.C. \xc2\xa7 341, there is no\ndifference in the relevant constitutional analysis, so we refer in this opinion simply to\nReserve Bank presidents, the officials who typically serve on the FOMC.\n\n5\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nReserve Bank may dismiss the Reserve Bank\xe2\x80\x99s officers \xe2\x80\x9cat pleasure.\xe2\x80\x9d Id.\n\xc2\xa7 341. Because the Reserve Bank presidents participate on the FOMC as\nrepresentatives of their regional banks, removal from their positions as\nReserve Bank presidents strips them of their duties on the FOMC as well.\nSee id. \xc2\xa7 263(a) (Reserve Bank FOMC members \xe2\x80\x9cshall be presidents or\nfirst vice presidents of Federal Reserve banks\xe2\x80\x9d).\nII.\nThe Appointments Clause of the Constitution, U.S. Const. art. II, \xc2\xa7 2,\ncl. 2, provides the exclusive means of appointing \xe2\x80\x9cOfficers of the United\nStates.\xe2\x80\x9d Principal officers must be nominated and appointed by the President with the advice and consent of the Senate. Id. Inferior officers must\nbe appointed in the same manner, unless Congress by law vests their\nappointment in the President, the head of a department, or a court of law.\nId. We conclude that Reserve Bank presidents serving on the FOMC are\ninferior officers of the United States. Congress has constitutionally provided for their appointments by requiring the approval of the selection of\na Reserve Bank president by the Board of Governors, the constitutional\nhead of the Federal Reserve System.\nA.\nFOMC members, including Reserve Bank members, have authority that\nmay be exercised only by officers of the United States who are appointed\nin conformity with the Appointments Clause. That is because each member (1) \xe2\x80\x9c\xe2\x80\x98exercis[es] significant authority pursuant to the laws of the\nUnited States\xe2\x80\x99\xe2\x80\x9d and (2) \xe2\x80\x9coccup[ies] a \xe2\x80\x98continuing position\xe2\x80\x99 established by\nlaw.\xe2\x80\x9d Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018) (quoting United States\nv. Germaine, 99 U.S. (9 Otto) 508, 511 (1879); Buckley v. Valeo, 424 U.S.\n1, 126 (1976) (per curiam)); see also Officers of the United States Within\nthe Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 122 (2007)\n(\xe2\x80\x9cOfficers of the United States\xe2\x80\x9d) (\xe2\x80\x9c[A]n individual who will occupy a\nposition to which has been delegated by legal authority a portion of the\nsovereign powers of the federal government, and which is \xe2\x80\x98continuing,\xe2\x80\x99\nmust be appointed pursuant to the Appointments [C]lause.\xe2\x80\x9d).\nThe members of the FOMC satisfy the first aspect of the test for officer status because they exercise significant authority pursuant to t he\nlaws of the United States. See Lucia, 138 S. Ct. at 2051; Officers of the\n6\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nUnited States, 31 Op. O.L.C. at 78. The FOMC sets the government\xe2\x80\x99s\nmonetary policy by ordering open-market transactions on the government\xe2\x80\x99s behalf, which is \xe2\x80\x9cthe most important monetary policy instrument\xe2\x80\x9d\nof the United States. Merrill, 443 U.S. at 343. To implement that policy,\nthe FOMC is empowered to order the Federal Reserve Bank of New York\nto buy or sell government securities. In addition, the FOMC exercises\nanother form of sovereign authority: the power to make binding rules.\nSee Buckley, 424 U.S. at 141; 12 U.S.C. \xc2\xa7 263(b) (authorizing the FOMC\nto promulgate regulations that bind Reserve Banks). The FOMC has\nissued regulations governing the Reserve Banks\xe2\x80\x99 open-market operations,\n12 C.F.R. \xc2\xa7\xc2\xa7 270.1\xe2\x80\x93.4, regulations regarding public access to information\nabout FOMC proceedings, id. \xc2\xa7\xc2\xa7 271.1\xe2\x80\x93.9, and rules of procedure, id.\n\xc2\xa7\xc2\xa7 272.1\xe2\x80\x93.5. Such authority reflects \xe2\x80\x9cpower lawfully conferred by the\ngovernment to bind third parties, or the government itself, for the public\nbenefit.\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C. at 87.\nThe FOMC\xe2\x80\x99s members satisfy the second aspect of the test for officer\nstatus because they occupy continuing positions established by law. See\nLucia, 138 S. Ct. at 2051; Officers of the United States, 31 Op. O.L.C. at\n100. A \xe2\x80\x9ccontinuing\xe2\x80\x9d position is one that is either a \xe2\x80\x9cpermanent\xe2\x80\x9d position\nor a temporary position that is \xe2\x80\x9cnot personal, \xe2\x80\x98transient,\xe2\x80\x99 or \xe2\x80\x98incidental.\xe2\x80\x99\xe2\x80\x9d\nOfficers of the United States, 31 Op. O.L.C. at 100. The FOMC is a permanent body with statutorily defined powers and duties. See Banking Act\nof 1933, Pub. L. No. 73-66, \xc2\xa7 8, 48 Stat. 162, 168. Although the FOMC\xe2\x80\x99s\nReserve Bank members serve on the FOMC for only one-year terms, 12\nU.S.C. \xc2\xa7 263(a), each Reserve Bank position on the FOMC is still permanent because the position itself, as opposed to its occupant, \xe2\x80\x9cis not limited\nby time or by being of such a nature that it will terminate by the very fact\nof performance.\xe2\x80\x9d Officers of the United States, 31 Op. O.L.C. at 111\n(internal quotation marks omitted).\nIn reaching this conclusion, we disagree with the district court in\nMelcher v. FOMC, which held that Reserve Bank members of the FOMC\nare not officers of the United States because they are \xe2\x80\x9cotherwise private\nindividuals.\xe2\x80\x9d 644 F. Supp. at 520. Melcher reasoned that Reserve Banks\nare private corporations and Reserve Bank FOMC members are \xe2\x80\x9cnot\nappointed by or beholden to either branch of government.\xe2\x80\x9d Id. at 518, 520.\nBut we have rejected the premise that the Appointments Clause does not\napply to appointments outside the federal government of officials who\nexercise permanently delegated federal statutory functions in continuing\n7\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\npositions. See Officers of the United States, 31 Op. O.L.C. at 121. But see\nThe Constitutional Separation of Powers Between the President and\nCongress, 20 Op. O.L.C. 124, 145\xe2\x80\x9348 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d)\n(concluding that the Appointments Clause does not apply to private entities). And even if the Appointments Clause applies only to positions\nwithin the federal government, Reserve Bank presidents are assuredly\nfederal officials in their role as FOMC members.3 The FOMC, after all, is\nthe statutorily created monetary-policy-making arm of the federal government. And Reserve Bank FOMC members are appointed (and may be\nremoved at will) by the Board of Governors, see infra Parts II.B.2 and III,\nand therefore are \xe2\x80\x9cappointed by\xe2\x80\x9d and \xe2\x80\x9cbeholden to\xe2\x80\x9d an establishment of\nthe federal government. Melcher, 644 F. Supp. at 520. We thus think that\nthe FOMC\xe2\x80\x99s Reserve Bank members serve in the federal government for\nconstitutional purposes. They are officers of the United States who must\nbe appointed under the Appointments Clause.\nThe fact that Reserve Bank members currently constitute only a minority on the FOMC does not bear on this conclusion. When federal sovereign\nauthority is delegated to a body, all voting members of that body share in\nthe authority; the officer status of some members does not turn on the\npresence of others who may outvote them. Otherwise, no single member\nwould be an officer, despite the power of that body to collectively exercise significant authority. We have accordingly \xe2\x80\x9cviewed the power to cast\n3 We need not address whether the duties that Reserve Bank presidents perform, apart\nfrom membership on the FOMC, are otherwise so significant as to make them officers of\nthe United States, or the constitutional status of the Reserve Banks more broadly. Although the Reserve Banks are established as private corporations, a statutory \xe2\x80\x9cdisclaimer\nof . . . governmental status\xe2\x80\x9d does not control for constitutional purposes if the \xe2\x80\x9cpractical\nreality\xe2\x80\x9d is that the entity \xe2\x80\x9cis not an autonomous private enterprise.\xe2\x80\x9d Dep\xe2\x80\x99t of Transp. v.\nAss\xe2\x80\x99n of Am. R.R., 135 S. Ct. 1225, 1232\xe2\x80\x9333 (2015); see also Lebron v. Nat\xe2\x80\x99l R.R. Passenger Corp., 513 U.S. 374, 392\xe2\x80\x9399 (1995). Reserve Banks exhibit some features of\nprivate enterprises, but they are fiscal agents of the United States empowered by delegation from the Board of Governors\xe2\x80\x94an establishment of the federal government\xe2\x80\x94to\nsupervise financial institutions and activities. 12 U.S.C. \xc2\xa7 248(k). Some courts thus have\ndescribed Reserve Banks as \xe2\x80\x9cplainly and predominantly fiscal arms of the federal government.\xe2\x80\x9d Fed. Reserve Bank of Boston v. Comm\xe2\x80\x99r of Corps. & Taxation, 499 F.2d 60, 62\n(1st Cir. 1974); see Fed. Reserve Bank of St. Louis v. Metrocentre Imp. Dist., 657 F.2d\n183, 186 (8th Cir. 1981). But cf. Scott v. Fed. Reserve Bank of Kansas City, 406 F.3d 532\n(8th Cir. 2005) (considering Reserve Banks private entities for certain statutory purposes);\nLewis v. United States, 680 F.2d 1239 (9th Cir. 1982) (same). We need not address these\nquestions to conclude that members of the FOMC are officers of the United States.\n\n8\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\na vote on executive functions, even if that vote itself is not decisive, as the\nexercise of significant authority.\xe2\x80\x9d Memorandum for Daniel J. Bryant,\nAssistant Attorney General, Office of Legislative Affairs, from Sheldon\nBradshaw, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Secure Transportation for America Act of 2001, H.R. 3150, at 3 (Oct.\n19, 2001) (noting that \xe2\x80\x9cthe fact that the improperly appointed member of\nthe Board would constitute a minority of the [Transportation Security\nOversight] Board members would [not] cure any Appointments Clause\nconcerns\xe2\x80\x9d). Moreover, H.R. 6741 would have increased the role of Reserve Bank members and made them the majority of the FOMC. The\nproposed legislation would have also required a two-thirds vote of the\nFOMC to approve a decision by the Board of Governors to authorize\nemergency lending. H.R. 6741 thus put the constitutional status of Reserve Bank FOMC members into stark relief.\nB.\nReserve Bank FOMC members are inferior officers under the Appointments Clause because they are subordinates of the Board of Governors. And the appointments of Reserve Bank FOMC members comport\nwith the Appointments Clause. Their selections as Reserve Bank presidents are approved by the Board of Governors, which is the head of the\nFederal Reserve System and therefore may appoint inferior officers of the\nUnited States. U.S. Const. art. II, \xc2\xa7 2, cl. 2. Although Reserve Bank\nFOMC members are designated to serve on the FOMC by officials who\nmay not constitutionally appoint officers, the new duties that Reserve\nBank presidents acquire as members of the FOMC are sufficiently germane to their underlying Reserve Bank positions that they may serve on\nthe FOMC without new Article II appointments. That conclusion would\nhave remained the same even under H.R. 6741.\n1.\n\xe2\x80\x9cGenerally speaking, the term \xe2\x80\x98inferior officer\xe2\x80\x99 connotes a relationship\nwith some higher ranking officer or officers below the President: Whether\none is an \xe2\x80\x98inferior\xe2\x80\x99 officer depends on whether he has a superior.\xe2\x80\x9d Edmond v. United States, 520 U.S. 651, 662 (1997). To decide whether an\nofficer has a superior, the Supreme Court has considered whether the\nofficer is subject to the policy direction of another official, whether the\n9\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nofficer can take \xe2\x80\x9cfinal\xe2\x80\x9d action without the approval of another officer, and\nwhether an executive officer other than the President has the \xe2\x80\x9cpower to\nremove [the] officer[].\xe2\x80\x9d Id. at 664\xe2\x80\x9365.\nAn official who is invested with authority to make a final decision for\nthe Executive Branch and who is not supervised by anyone other than\nthe President is the prototypical principal officer. See, e.g., id. at 663\n(\xe2\x80\x9c\xe2\x80\x98[I]nferior officers\xe2\x80\x99 are officers whose work is directed and supervised\nat some level by others who were appointed by Presidential nomination\nwith the advice and consent of the Senate.\xe2\x80\x9d); Intercollegiate Broad. Sys.,\nInc. v. Copyright Royalty Bd., 684 F.3d 1332, 1339 (D.C. Cir. 2012)\n(concluding that copyright royalty judges were principal officers given\ntheir \xe2\x80\x9cnonremovability and the finality of their decisions\xe2\x80\x9d); Secretary of\nEducation Review of Administrative Law Judge Decisions, 15 Op. O.L.C.\n8, 14 & n.11 (1991) (concluding that an administrative law judge who\nenjoyed \xe2\x80\x9ctenure protection\xe2\x80\x9d and \xe2\x80\x9cwhose decision could not be reviewed\nby the Secretary . . . would appear to be acting as a principal officer of the\nUnited States\xe2\x80\x9d). By contrast, an officer who lacks final decision-making\nauthority and who may be removed by other officers is an inferior officer.\nSee, e.g., Edmond, 520 U.S. at 664\xe2\x80\x9365 (concluding that certain military\njudges were inferior officers because they were subject to administrative\noversight, were \xe2\x80\x9cremov[able] . . . without cause,\xe2\x80\x9d and had \xe2\x80\x9cno power to\nrender a final decision\xe2\x80\x9d); see also Separation of Powers, 20 Op. O.L.C. at\n150 (\xe2\x80\x9can officer who is subject to control and removal by an officer other\nthan the President should be deemed presumptively inferior\xe2\x80\x9d). 4\n\n4 In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court relied on other factors\nto define inferior officers, such as whether the officer performed only limited duties, had\nnarrow jurisdiction, and had limited tenure. Id. at 671\xe2\x80\x9373. Yet the Court\xe2\x80\x99s subsequent\ndecision \xe2\x80\x9cin Edmond appeared to offer one overall standard for identifying inferior\nofficers.\xe2\x80\x9d Special Master for Troubled Asset Relief Program Executive Compensation, 34\nOp. O.L.C. 219, 229 (2010) (\xe2\x80\x9cSpecial Master for TARP\xe2\x80\x9d). And Edmond specifically\nrejected reliance on the importance of an officer\xe2\x80\x99s duties in analyzing the question,\nexplaining that the significance of one\xe2\x80\x99s duties \xe2\x80\x9cmarks, not the line between principal and\ninferior officer for Appointments Clause purposes, but rather . . . the line between officer\nand nonofficer.\xe2\x80\x9d 520 U.S. at 662. The Court has since adhered to Edmond \xe2\x80\x99s approach of\nexamining whether an officer is supervised by someone other than the President, with a\nfocus on whether the officer can make final decisions and be removed by a principal\nofficer. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,\n510 (2010); Intercollegiate Broad. Sys., 684 F.3d at 1339. Although this Office has\nsometimes considered the Morrison factors in addition to Edmond, see Special Master for\n\n10\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nUnder this rubric, we believe that Reserve Bank members of the FOMC\nare inferior officers. It is true that the FOMC, as a body, has final authority over open-market operations. See 12 U.S.C. \xc2\xa7 263(a). But the work of\nReserve Bank members on the FOMC is \xe2\x80\x9cdirected and supervised at some\nlevel,\xe2\x80\x9d Edmond, 520 U.S. at 663, by the Board of Governors, which has\nthe authority to remove them at will. Because the power to remove is a\n\xe2\x80\x9cpowerful tool for control,\xe2\x80\x9d the Court has viewed the removability of an\nofficer by someone other than the President to be strong evidence of\ninferior-officer status. Id. at 664; see Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 510 (2010) (relying on removability and \xe2\x80\x9cthe Commission\xe2\x80\x99s other oversight authority\xe2\x80\x9d).\nHere, the Board of Governors has statutory authority to \xe2\x80\x9csuspend or\nremove any officer or director of any Federal reserve bank,\xe2\x80\x9d including any\nReserve Bank FOMC member. 12 U.S.C. \xc2\xa7 248(f ). An agency head\xe2\x80\x99s\nstatutory authority to remove a subordinate is plenary absent statutory\nlanguage to the contrary under the \xe2\x80\x9cwell approved principle of constitutional and statutory construction that the power of removal of executive\nofficers [is] incident to the power of appointment.\xe2\x80\x9d Myers v. United\nStates, 272 U.S. 52, 119 (1926); see also, e.g., Ex Parte Hennen, 38 U.S.\n(13 Pet.) 230, 259 (1839). \xe2\x80\x9cThis principle applies to the appointments by\nthe President and by other Executive officers, such as department heads,\nwho are appointing officials.\xe2\x80\x9d Removal of Members of the Commission on\nFederal Laws for the Northern Mariana Islands, 7 Op. O.L.C. 95, 98\n(1983).\nNothing in the statute limits the Board\xe2\x80\x99s removal authority. It is true\nthat the Board of Governors must convey \xe2\x80\x9cthe cause of such removal . . .\nin writing . . . to the removed officer or director and to said bank.\xe2\x80\x9d 12\nU.S.C. \xc2\xa7 248(f ). But we think that \xe2\x80\x9ccause\xe2\x80\x9d in this context means whatever\nreasons (if any) the Board has for removing the officer, and therefore\npermits the Board to remove the officer at will. The requirement that the\nBoard notify certain parties of the reasons for removal does not displace\nthe default rule that the appointing authority retains plenary removal\nauthority. Such a notification requirement parallels many statutes that\nTARP, 34 Op. O.L.C. at 231\xe2\x80\x9338, we think Edmond states the correct approach to analyzing the principal\xe2\x80\x93inferior distinction. Accord NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947\nn.2 (2017) (Thomas, J., concurring) (\xe2\x80\x9cAlthough we did not explicitly overrule Morrison\nin Edmond, it is difficult to see how Morrison\xe2\x80\x99s nebulous approach survived [the Court\xe2\x80\x99s]\nopinion in Edmond.\xe2\x80\x9d).\n\n11\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nrequire the President to \xe2\x80\x9ccommunicate [to Congress] the reasons for . . .\nremoval\xe2\x80\x9d of a particular officer but impose no substantive constraint on\nthe removal authority. See, e.g., 10 U.S.C. \xc2\xa7 139(a)(1); 22 U.S.C.\n\xc2\xa7 3929(a)(2); 44 U.S.C. \xc2\xa7 2103(a).\nThe structure of the Federal Reserve System is consistent with this conclusion. Congress no doubt intended to give the Federal Reserve System a\ndegree of independence in providing that the members of the Board of\nGovernors\xe2\x80\x94as distinct from the presidents of the regional Reserve\nBanks\xe2\x80\x94may be removed only \xe2\x80\x9cfor cause.\xe2\x80\x9d 12 U.S.C. \xc2\xa7 242. In Wiener v.\nUnited States, 357 U.S. 349, 350, 355\xe2\x80\x9356 (1958), the Supreme Court\ninferred, despite the absence of any explicit tenure protection in the statute, the existence of such protection for the members of the War Claims\nCommission based on what the Court perceived as Congress\xe2\x80\x99s intent to\ninsulate the Commission from political influence in carrying out its adjudicative functions. But whatever the continuing vitality of Wiener\xe2\x80\x99s\n\xe2\x80\x9cquestionable\xe2\x80\x9d rationale, Separation of Powers, 20 Op. O.L.C. at 168\nn.115, that rationale does not apply here. Subjecting the Reserve Bank\nFOMC members to removal at will does not threaten the mechanism\nCongress chose for protecting the independence of the Federal Reserve\nSystem as a whole. The members of the Board of Governors remain\ntenure-protected, even if their subordinates serving on the FOMC are not.\nPrinciples of constitutional avoidance bolster this conclusion. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades\nCouncil, 485 U.S. 568, 575 (1988) (statutes should be interpreted to avoid\nthe reading that \xe2\x80\x9cwould raise serious constitutional problems\xe2\x80\x9d where\nmultiple readings are available). Under the statute, the President may\nremove members of the Board of Governors only for cause. See 12 U.S.C.\n\xc2\xa7 242. If the Governors, in turn, could remove FOMC Reserve Bank\nmembers only for cause, then those members would be unconstitutionally\ninsulated from presidential supervision with two layers of for-cause\nremoval protection. The Supreme Court invalidated a similar structure in\nFree Enterprise Fund. There, the Court held unconstitutional tenure\nprotection for members of the Public Company Accounting Oversight\nBoard, because they were removable only by members of the Securities\nand Exchange Commission, the members of which (the Court assumed)\nwere likewise tenure protected. 561 U.S. at 487, 492\xe2\x80\x93508. Inferring tenure\nprotection for Reserve Bank FOMC members would raise grave constitutional questions for substantially the same reasons.\n12\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nWe recognize that Reserve Bank FOMC members have voting power\non a body that is empowered to make final decisions on behalf of the\nfederal government. H.R. 6741, by increasing their ranks from five to\ntwelve, see sec. 6, \xc2\xa7 263(a), would have increased the collective power of\nthe Reserve Bank FOMC members in that regard, because it would have\nmade them a majority on the FOMC, and therefore able to outvote the\nseven members of the Board of Governors. Be that as it may, we agree\nwith the D.C. Circuit, which reached a similar conclusion with respect to\ncopyright royalty judges supervised by the Librarian of Congress, that the\nplenary supervision that the Governors exercise over the Reserve Bank\nFOMC members is enough to make the latter inferior officers. See Intercollegiate Broad. Sys., 684 F.3d at 1340\xe2\x80\x9341 (severing removal protections\nof copyright royalty judges gave the Librarian of Congress the \xe2\x80\x9cdirect\nability to \xe2\x80\x98direct,\xe2\x80\x99 \xe2\x80\x98supervise,\xe2\x80\x99 and exert some \xe2\x80\x98control\xe2\x80\x99 over the Judges\xe2\x80\x99\ndecisions\xe2\x80\x9d such that they became inferior officers). Just as the power to\nremove is incident to the power to appoint, the power to supervise and\ndirect is incident to the power to remove. See Myers, 272 U.S. at 135;\nProposed Executive Order Entitled \xe2\x80\x9cFederal Regulation,\xe2\x80\x9d 5 Op. O.L.C.\n59, 61 (1981) (noting that Congress is presumably aware that agency\nheads \xe2\x80\x9cperform their functions subject to presidential supervision on\nmatters of both substance and procedure\xe2\x80\x9d). The Board\xe2\x80\x99s ability to supervise Reserve Bank FOMC members through the removal authority means\nthat Reserve Bank members would have remained inferior officers, even\nif H.R. 6741 had made them a majority on the FOMC. See, e.g., Intercollegiate Broad. Sys., 684 F.3d at 1340\xe2\x80\x9341.\nWe thus disagree with the suggestion of the court in Melcher, see 644\nF. Supp. at 519\xe2\x80\x9320, that Reserve Bank FOMC members are subject to\ndismissal by the Board of Governors only for cause. Instead, Reserve\nBank FOMC members are subject to plenary supervision and control by\ntheir co-participants on the FOMC, the members of the Board of Governors, and therefore are inferior, rather than principal, officers.\n2.\nWe further conclude that, as inferior officers, the FOMC\xe2\x80\x99s Reserve\nBank members are appointed in conformity with the Appointments\nClause. Congress may vest the appointment of inferior officers in the\nPresident, a head of a department, or a court of law. U.S. Const. art. II,\n13\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\n\xc2\xa7 2, cl. 2. Here, Congress has done so by providing for each FOMC Reserve Bank member to be selected to his position as president of a Reserve Bank with the approval of the Board of Governors, which is the\ncollective head of a department (the Federal Reserve System). The Board\nof Governors does not, however, select which presidents serve on the\nFOMC; that function is performed instead by the boards of directors of\nthe Reserve Banks, bodies that are not competent to appoint officers of\nthe United States. See 12 U.S.C. \xc2\xa7 263(a). We think that structure is\nnonetheless constitutionally permissible because the function of serving\non the FOMC is germane to the duties of Reserve Bank presidents, and\ntherefore assigning them the duties of FOMC membership does not require a new constitutional appointment. 5\nAs a threshold matter, each Reserve Bank FOMC member\xe2\x80\x99s initial selection as a Reserve Bank president is consistent with the procedures\nidentified in the Appointments Clause. The Supreme Court has long held\nthat a subordinate to the head of a department may select an inferior\nofficer if the department head approves the appointment. In United States\nv. Hartwell, 73 U.S. (6 Wall.) 385 (1868), the Court concluded that \xe2\x80\x9ca\nclerk in the office of the assistant treasurer of the United States\xe2\x80\x9d was a\nvalidly appointed officer because he was selected by \xe2\x80\x9cthe assistant treasurer . . . with the approbation of the Secretary of the Treasury.\xe2\x80\x9d Id. at 392.\nEven though the Secretary of the Treasury merely approved his subordinate\xe2\x80\x99s choice, the clerk was \xe2\x80\x9cappointed by the head of a department within the meaning of the constitutional provision upon the subject of the\nappointing power.\xe2\x80\x9d Id. at 393\xe2\x80\x9394; see Free Enter. Fund, 561 U.S. at 512\nn.13 (noting that appointments made by the Chairman of the Securities\nand Exchange Commission with \xe2\x80\x9cthe approval of the Commission\xe2\x80\x9d would\n\xe2\x80\x9csatisf [y] the Appointments Clause\xe2\x80\x9d (internal quotation marks omitted)\n(citing, e.g., Hartwell, 73 U.S. at 393\xe2\x80\x9394)); accord United States v.\nMouat, 124 U.S. 303, 307\xe2\x80\x9308 (1888); United States v. Sears, 27 F. Cas.\n1006, 1009 (C.C.D. Mass. 1812) (No. 16,247). Hartwell agreed with an\neven older tradition of Attorney General opinions approving similar\nappointments. See Power of the Secretary of the Treasury to Remove\n5\n\nWe do not in this opinion address the constitutionality of the method of appointing\nClass A and B directors of the Reserve Banks, who are selected by regional member\nbanks with little involvement by the Board of Governors. See 12 U.S.C. \xc2\xa7 304. The\nproposed legislation would not have directly affected this long-standing method of\nselecting the directors of the Reserve Banks.\n\n14\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nInspectors of Hulls and Boilers, 10 Op. Att\xe2\x80\x99y Gen. 204, 205\xe2\x80\x9307 (1862)\n(concluding that an initial designation of inferior officers by a board\nconsisting primarily of the Secretary\xe2\x80\x99s subordinates may have \xe2\x80\x9cnarrowed\nand fettered\xe2\x80\x9d his \xe2\x80\x9csphere of selection\xe2\x80\x9d to some degree, but that the Secretary\xe2\x80\x99s approval \xe2\x80\x9cg[a]ve[] force and effect to the designation and\nbreathe[d] into the action of the designating board the breath of official\nlife\xe2\x80\x9d); Tenure of Office of Inspectors of Customs, 1 Op. Att\xe2\x80\x99y Gen. 459,\n459 (1821) (recognizing that inspectors of customs were appointed by\ncollectors of duties with \xe2\x80\x9cthe approbation of the Secretary of the Treasury\xe2\x80\x9d). This Office has accordingly advised that, so long as a head of a\ndepartment approves the selection of an inferior officer, the department\nhead\xe2\x80\x99s subordinates may do much of the legwork of the appointment\nprocess. See Assignment of Certain Functions Related to Military Appointments, 29 Op. O.L.C. 132, 135\xe2\x80\x9336 (2005) (\xe2\x80\x9cMilitary Appointments\xe2\x80\x9d).\nUnder these established principles, Reserve Bank presidents are selected in a manner that allows them to exercise the authority of an officer of\nthe United States. Six members of a Reserve Bank board of directors\xe2\x80\x94\nthree Class B directors and three Class C directors\xe2\x80\x94make the initial\nselection of a Reserve Bank president. 12 U.S.C. \xc2\xa7 341. Under H.R. 6741,\nall nine members of the board of directors would have made the initial\nselection. H.R. 6741, sec. 8, \xc2\xa7 341. The directors\xe2\x80\x99 picks are then subject to\nthe \xe2\x80\x9capproval of the Board of Governors.\xe2\x80\x9d 12 U.S.C. \xc2\xa7 341. The Board is\ncollectively the head of a department, the Federal Reserve System, which\n\xe2\x80\x9cexercise[s] governmental authority without being subordinated to any\nbroader unit within the executive branch.\xe2\x80\x9d Separation of Powers, 20 Op.\nO.L.C. at 152\xe2\x80\x9353. The Board\xe2\x80\x99s members are appointed by the President\nand are removable (for cause) only by the President; they report to no one\nelse in the Executive Branch. See 12 U.S.C. \xc2\xa7\xc2\xa7 241\xe2\x80\x93242; Memorandum\nfor the Files, from Harold F. Reis, Office of Legal Counsel, Re: Application of Section 9(a) of the Hatch Act to a Federal Reserve Agent at 9\n(Mar. 6, 1964) (concluding that, for Appointments Clause purposes, and\n\xe2\x80\x9cconsistent with the history of its establishment and on the basis of precedents, the Board of Governors of the Federal Reserve System constitutes a\ndepartment and the Governors the head thereof \xe2\x80\x9d); cf. Free Enter. Fund,\n561 U.S. at 512\xe2\x80\x9313 (concluding that the multi-member Securities and\nExchange Commission acting as a body is a head of a department under\nthe Appointments Clause). Under Hartwell, the head of a department\xe2\x80\x99s\n\n15\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\napproval of the Reserve Bank presidents makes their selections comport\nwith the Appointment Clause.\nAlthough the Board of Governors is limited to approving or rejecting\nthe selections made by the Reserve Bank directors, the Board also supervises the directors, ensuring that, as the department head, it retains sufficient control and accountability over the directors\xe2\x80\x99 selections. 6 The Class\nC directors who select the Reserve Bank presidents are not only themselves appointed by the Board of Governors, but they are also removable\nby the Board at will. See 12 U.S.C. \xc2\xa7\xc2\xa7 248(f ), 305. While the other\nselectors are Class B directors elected by regional member banks of the\nFederal Reserve System, id. \xc2\xa7 304\xe2\x80\x94and H.R. 6741 would have added\nClass A directors\xe2\x80\x94the Board of Governors can also fire those directors\nat will, id. \xc2\xa7 248(f ), and it generally supervises all Reserve Bank boards,\nid. \xc2\xa7 248( j). Moreover, because each member of the FOMC must be\napproved by the Board of Governors, and there are no time limits or\nother restrictions on approving the selections, the Board could indefinitely reject proposed candidates until the directors propose Reserve Bank\npresidents to the Board\xe2\x80\x99s liking. These powers give the Board effective\ncontrol over which Reserve Bank presidents are selected for its approval.\nThey create sufficient \xe2\x80\x9cscope for the judgment and will of the person or\nbody in whom the Constitution vests the power of appointment,\xe2\x80\x9d CivilService Commission, 13 Op. Att\xe2\x80\x99y Gen. 516, 520 (1871), as the Appointments Clause requires. Reserve Bank presidents are therefore selected to their five-year terms consistent with the Appointments Clause.\nBecause Reserve Bank presidents are selected in that manner, they may\nbe designated to serve on the FOMC without new constitutional appointments. An appointment to an underlying position makes an appointee\nconstitutionally competent to perform not only the duties associated with\nthat position, but also any duties that are \xe2\x80\x9cgermane to the offices already\n6\n\nDifferent questions would arise if Congress required the Board of Governors to appoint Reserve Bank presidents from a list of individuals compiled by an entity not under\nthe Board\xe2\x80\x99s control. See, e.g., Letter for Richard Shelby, Chairman, Senate Committee on\nRules and Administration, and Amy Klobuchar, Ranking Member, Senate Committee on\nRules and Administration, from Samuel R. Ramer, Acting Assistant Attorney General,\nOffice of Legislative Affairs at 1\xe2\x80\x932 (May 16, 2017) (observing that a bill that would have\nrequired the President to appoint the Register of Copyrights from a list of individuals\ngenerated by a seven-member panel consisting of persons not under presidential supervision would have violated the Appointments Clause).\n\n16\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nheld.\xe2\x80\x9d Shoemaker v. United States, 147 U.S. 282, 301 (1893); see Weiss v.\nUnited States, 510 U.S. 163, 175\xe2\x80\x9376 (1994); id. at 196 (Scalia, J., concurring in judgment). When an appointing authority selects an official for a\nposition, that authority has judged the official competent to perform\nadditional duties that are reasonably related to those already associated\nwith that position. See Separation of Powers, 20 Op. O.L.C. at 158\xe2\x80\x9359.\nIn approving the selection of Reserve Bank presidents to their positions,\nthe Board of Governors has implicitly concluded that the presidents would\nbe competent to serve on the FOMC, as they compose the small pool of\nindividuals\xe2\x80\x94two for each of the twelve regional Reserve Banks\xe2\x80\x94who are\neligible to be tapped for the five FOMC positions currently set aside for\nReserve Bank members. The president of the New York Reserve Bank\ninvariably serves on the FOMC, and the other four Reserve Bank slots on\nthe FOMC rotate among the eleven other Reserve Banks at predictable\nintervals. See supra note 2 and accompanying text. And since, under\nexisting law, all Reserve Bank presidents are already eligible to serve on\nthe FOMC, the provision in H.R. 6741 to give each of the twelve Reserve\nBanks a guaranteed slot on the FOMC, see H.R. 6741, sec. 6, \xc2\xa7 263(a),\nlikewise would have merely added germane duties to those already performed by the officials. The only significant proposed additions to the\nduties associated with service on the FOMC under the bill would have\nbeen directly related to monetary-policy-making functions already exercised by the FOMC: to require decisions of the Board of Governors to\nauthorize emergency lending to be approved by a two-thirds vote of the\nFOMC and to authorize the FOMC to set the interest rate on balances held\nby Reserve Banks on behalf of commercial banks as part of their required\nreserves. Id. sec. 4(1)(B), \xc2\xa7 343(3)(A); id. sec. 5, \xc2\xa7 461(b)(12)(A). We\nthus think that FOMC service, under existing law or under H.R. 6741, fits\ncomfortably \xe2\x80\x9cwithin the contemplation of those who were in the first\nplace responsible for the[] appointment and confirmation,\xe2\x80\x9d Separation of\nPowers, 20 Op. O.L.C. at 158 (internal quotation marks omitted), of\nReserve Bank presidents. They are therefore constitutionally eligible to\nserve on the FOMC without a new constitutional appointment and would\nhave remained eligible even under H.R. 6741. 7\n\n7 It would present a different question had Congress added eligibility for FOMC service for the first time to the duties of Reserve Bank presidents. Whether FOMC service is\ngermane to the duties of Reserve Bank presidents would turn on a more detailed compari-\n\n17\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nIII.\nFinally, we conclude that the methods of removing Reserve Bank\nmembers of the FOMC are constitutional. To promote political accountability within the Executive Branch, the Constitution requires an appropriate officer to possess removal authority. Typically, as both a constitutional and a statutory matter, the removal authority lies with the appointing\nauthority. See, e.g., Myers, 272 U.S. at 119 (referring to the \xe2\x80\x9cwell approved principle of constitutional and statutory construction that the\npower of removal of executive officers was incident to the power of\nappointment\xe2\x80\x9d); Keim v. United States, 177 U.S. 290, 293 (1900) (presuming that the department head who appointed an inferior officer had the\npower of removal). Although no statute expressly governs the removal of\nFOMC members, a Reserve Bank president may be removed at will from\nhis Reserve Bank position either by the Board of Governors, 12 U.S.C.\n\xc2\xa7 248(f ), or by the Reserve Bank\xe2\x80\x99s board of directors, id. \xc2\xa7 341. Removing a Reserve Bank president from that post would also, as a practical\nmatter, remove him from the FOMC. The power of the Board of Governors to remove Reserve Bank presidents at will tracks the constitutional\nand statutory default: the Board of Governors, as the appointing authority,\nalso has the removal power. The harder question is whether Congress may\nconcurrently vest the removal authority of Reserve Bank FOMC members\nin the Reserve Banks\xe2\x80\x99 boards of directors. See id. (authorizing a Reserve\nBank\xe2\x80\x99s board of directors \xe2\x80\x9cto dismiss at pleasure\xe2\x80\x9d its officers and employees). We conclude that the removal authority of the boards of directors\nmay constitutionally be exercised only with the approbation of the Board\nof Governors; the relevant removal provisions may be read to require such\napprobation.\n\nson of the duties performed by both positions. See, e.g., Application of the Appointments\nClause to a Statutory Provision Concerning the Inspector General Position at the Chemical Safety and Hazard Investigation Board, 30 Op. O.L.C. 92, 99\xe2\x80\x93103 (2006). We need\nnot decide that question here.\nWe also need not decide whether a Reserve Bank president who is never designated to\nserve on the FOMC is an officer of the United States, or the constitutional status of the\nReserve Banks more broadly. See supra note 3. The decisive point here is that a Reserve\nBank president has been adjudged by the Board of Governors, a proper appointing\nauthority under the Appointments Clause, as competent to serve on the FOMC.\n\n18\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nWe do not believe that the Reserve Bank boards of directors could constitutionally dismiss Reserve Bank FOMC members without the approval\nof the Board of Governors. The Appointments Clause limits the authority\nto assign or delegate appointment-related powers to officials other than\nthose identified by the Constitution as having that power. We have long\nadvised, for instance, that the President alone may appoint officers by and\nwith the advice and consent of the Senate. See Military Appointments, 29\nOp. O.L.C. at 134\xe2\x80\x9335. Congress may authorize the President to delegate\nto department heads the authority to appoint inferior officers who do not\nrequire Senate confirmation, because the Appointments Clause allows\nCongress to give that authority to department heads. See id.; Delegation of\nthe President\xe2\x80\x99s Power to Appoint Members of the National Ocean Research Leadership Council, 21 Op. O.L.C. 38, 39 (1997). But the President\xe2\x80\x99s constitutionally assigned authority to appoint officers subject to the\nSenate\xe2\x80\x99s advice and consent is not delegable. See Military Appointments,\n29 Op. O.L.C. at 134\xe2\x80\x9335.\nIn recent years, we have similarly advised that the power to appoint\ninferior officers not subject to Senate confirmation may be delegated only\nto officials identified by the Appointments Clause as competent to appoint\ninferior officers. See, e.g., E-mail for Robin M. Stutman, Executive Office\nfor Immigration Review, from Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Question About Removals\n(Oct. 14, 2010 12:39 PM). After all, \xe2\x80\x9cby naming three permissible repositories of appointment authority\xe2\x80\x94the President, the Heads of the Departments, and the Courts of Law\xe2\x80\x94the Excepting Clause implicitly indicates\nthat the power may not be vested in some other person.\xe2\x80\x9d Military Appointments, 29 Op. O.L.C. at 135.8 That conclusion is consistent with\nearly opinions of the Attorney General holding that \xe2\x80\x9cCongress has no\npower whatever to vest the appointment of any employ\xc3\xa9, coming fairly\nwithin the definition of an inferior officer of the government, in any other\npublic authority but the President, the heads of departments, or the judicial tribunals.\xe2\x80\x9d Appointment and Removal of Inspectors of Customs, 4 Op.\nAtt\xe2\x80\x99y Gen. 162, 164 (1843); accord Civil-Service Commission, 13 Op.\n\n8\n\nThe reasoning of our Military Appointments opinion anticipated our later advice that\nthe power to appoint inferior officers may not be delegated to an official below the head\nof a department, although in that opinion we declined to \xe2\x80\x9cprovide a definitive answer\xe2\x80\x9d to\nthe question. 29 Op. O.L.C. at 135.\n\n19\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nAtt\xe2\x80\x99y Gen. at 521\xe2\x80\x9322. And it honors the structural and functional considerations on which the Clause is based. \xe2\x80\x9cThe diffusion of power carries\nwith it a diffusion of accountability.\xe2\x80\x9d Free Enter. Fund, 561 U.S. at 497.\nAccountability is fostered by requiring, in the decision to appoint an\ninferior officer, the personal involvement of a department head directly\naccountable to the President. While the Appointments Clause \xe2\x80\x9cdoes not\nprohibit substantial involvement of subordinates in the appointment\nprocess,\xe2\x80\x9d Military Appointments, 29 Op. O.L.C. at 135, it does preclude\nCongress and appointing officials from eliminating the need for any\ninvolvement in the appointment decision by the officials who have been\nconstitutionally assigned that function.\nThose same principles of political accountability apply to the power of\na department head to remove inferior officers. When it comes to the\nsupervision of an officer within the Executive Branch, the removal power\nis perhaps even more significant than the appointment authority. See, e.g.,\nBowsher v. Synar, 478 U.S. 714, 726 (1986) (\xe2\x80\x9cOnce an officer is appointed, it is only the authority that can remove him, and not the authority that\nappointed him, that he must fear and, in the performance of his functions,\nobey.\xe2\x80\x9d (internal quotation marks omitted)). Accordingly, we have advised\nthat the authority to remove inferior officers may not be delegated to an\nagency official other than the department head, or another official constitutionally competent to appoint that officer in the first place. Although,\nunlike the power to appoint officers, the power of removal is not expressly enumerated in the Constitution, that power is frequently treated as a\nnecessary correlate to the power to appoint. For example, we have long\nmaintained that the President\xe2\x80\x99s power to remove officials appointed by\nand with the advice and consent of the Senate cannot be assigned to\nanother official just as his appointment power may not be. See, e.g.,\nCentralizing Border Control Policy Under the Supervision of the Attorney\nGeneral, 26 Op. O.L.C. 22, 24\xe2\x80\x9325 (2002) (\xe2\x80\x9cCentralizing Border Control\nPolicy\xe2\x80\x9d); Relation of the President to the Executive Departments, 7 Op.\nAtt\xe2\x80\x99y Gen. 453, 465 (1855). We have conceived of both the power to\nappoint and the power to remove such officers as being among the nondelegable authorities \xe2\x80\x9cprescribed by the Constitution.\xe2\x80\x9d Centralizing Border Control Policy, 26 Op. O.L.C. at 24\xe2\x80\x9325 (internal quotation marks and\nemphasis omitted). Since the power to remove inferior officers is likewise\n\xe2\x80\x9can incident of the power to appoint them,\xe2\x80\x9d Myers, 272 U.S. at 161, we\nthink that Congress similarly may not assign the power to remove inferior\n20\n\n\x0cAppointment and Removal of Federal Reserve Bank Members of the FOMC\n\nofficers to officials other than those who may appoint inferior officers\nunder the Appointments Clause. Such a delegation would improperly\ndiffuse accountability for the supervision of inferior officers beyond the\nPresident and other appointing officials specified in the Appointments\nClause.\nUnder these principles, we do not believe that Congress could constitutionally vest the authority to remove Reserve Bank FOMC members in\nthe Reserve Bank boards of directors. The boards of directors are not\nheads of a department, courts of law, or the President.9 Indeed, the boards\nmay not even be part of the federal government. See supra note 3. Congress therefore may not constitutionally assign them the authority to\nremove inferior officers, such as Reserve Bank FOMC members.\nWe believe, however, that the Reserve Bank authorizing statute may\nbe read and administered to avoid this unconstitutional result. Just as\nthe Board of Governors\xe2\x80\x99 approval is required for the appointment of\nReserve Bank presidents, so too should the statute be read to ensure\nthat boards of directors exercise their removal power over Reserve\nBank presidents subject to the approval of the Board of Governors.\nRead in isolation, 12 U.S.C. \xc2\xa7 341 authorizes Reserve Bank boards of\ndirectors to \xe2\x80\x9cdismiss at pleasure\xe2\x80\x9d bank officers, including presidents\nserving on the FOMC. At the same time, the statute makes clear that all\nclasses of directors are subservient to the Board of Governors, which can\nsuspend or remove directors at will, id. \xc2\xa7 248(f ), and can \xe2\x80\x9cexercise\ngeneral supervision\xe2\x80\x9d over Reserve Banks, id. \xc2\xa7 248( j). These extensive\nsupervisory powers would enable the Board of Governors to require\nboards of directors to seek the approval of the Board of Governors before\nthey remove FOMC Reserve Bank members. This reading of the statute\nwould harmonize the Board of Governors\xe2\x80\x99 supervisory authority with the\nboards of directors\xe2\x80\x99 removal authority and prevent an unconstitutional\nresult. See Edward J. DeBartolo Corp., 485 U.S. at 575.\nAlthough section 341 permits boards of directors to \xe2\x80\x9cdismiss at pleasure\xe2\x80\x9d Reserve Bank presidents, such language does not expressly foreclose\na requirement that the Board of Governors approve any such dismissals.\nWe need not address constitutional restrictions on Congress\xe2\x80\x99s power to vest the authority to appoint or remove an executive branch official in a court of law or on other\n\xe2\x80\x9cinterbranch\xe2\x80\x9d appointments and removals. See, e.g., Ex parte Siebold, 100 U.S. 371, 398\xe2\x80\x93\n99 (1880).\n9\n\n21\n\n\x0c43 Op. O.L.C. __ (Oct. 23, 2019)\n\nThe statute provides that the boards of directors have the power to \xe2\x80\x9cappoint\xe2\x80\x9d Reserve Bank presidents, but makes clear that such authority is\nsubject to approval by the Board of Governors. See 12 U.S.C. \xc2\xa7 341. It is\nat least reasonable to read the statute to permit the Board of Governors to\nrequire its approval before boards of directors remove Reserve Bank\npresidents, given the long-standing interpretive principle that the power to\nremove is incident to the power to appoint. See Keim, 177 U.S. at 293;\nHennen, 38 U.S. at 259; Tenure of Office of Inspectors of Customs, 1 Op.\nAtt\xe2\x80\x99y Gen. at 459 (\xe2\x80\x9cAs the approbation of the Secretary of the Treasury is\nnecessary to put them into office, I presume they cannot be put out of it\nwithout the like approbation.\xe2\x80\x9d); see also Power of the Secretary of the\nTreasury to Remove Inspectors of Hulls and Boilers, 10 Op. Att\xe2\x80\x99y Gen. at\n207\xe2\x80\x9309; Appointment and Removal of Inspectors of Customs, 4 Op. Att\xe2\x80\x99y\nGen. at 165. And if the Board of Governors administers the statute to\nrequire and make such approvals, that would satisfy the constitutional\nrequirement that a competent appointing official retain ultimate authority\nto approve each removal. So construed and executed, the statute\xe2\x80\x99s removal provisions would be constitutional.\nIV.\nIn sum, H.R. 6741 would have expanded the powers of the FOMC and\nthe significance of its Reserve Bank members. The proposed legislation\nwould have reinforced that all members of the FOMC are officers of the\nUnited States who must be appointed consistent with the Appointments\nClause. But we concluded that members of the FOMC are appointed in a\nconstitutional manner and that they would have continued to be so under\nthe amendments proposed by H.R. 6741. The statute likewise can be read\nto avoid unconstitutionally assigning removal authority over FOMC\nmembers to the regional Reserve Banks\xe2\x80\x99 boards of directors by requiring\nthe approval of the Board of Governors for any such removal. We accordingly recommended no constitutional objections to this proposed legislation.\nHENRY C. WHITAKER\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n22\n\n\x0c'


b'Removal of Japanese Aliens and Citizens\nFrom Hawaii to the United States\nJapanese who are aliens can be brought to the continental United States from Hawaii and interned\nunder the provisions of 50 U.S.C. \xc2\xa7 21. This statute, however, is probably not applicable to the\nJapanese who are American citizens.\nAlthough not free from doubt, an argument can be made for removing Japanese who are American\ncitizens from Hawaii to a restricted zone in the United States on grounds of military necessity.\nIn view of the changed conditions of modern warfare, the Supreme Court would likely follow the views\nof the dissenting justices in Ex parte Milligan, sustaining a declaration of martial law in places\noutside the zone of active military operations upon a showing of military necessity for such action.\nFrom the nature and purpose of martial law, it would seem to be properly applicable to particular\nareas rather than to particular persons.\n\nMay 16, 1942\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\n1. Attached is a legal memorandum* on the subject.\n2. As a practical matter, I understand that the Army feels the problem can be\nsatisfactorily handled by removing the Japanese citizens from Hawaii and treating\nthem the same way as those evacuated from the West Coast.\n3. If this is so, it is not necessary to pass on the legal questions which you put. I\nshould think therefore, that the War Department ought not now to be told the\n\n*\nEditor\xe2\x80\x99s Note: The referenced memorandum begins after the line of asterisks on the next page. It\nwas issued three months after Executive Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942), which authorized the Secretary of War \xe2\x80\x9cto prescribe military areas in such places and of such extent as he or the\nappropriate Military Commander may determine, from which any or all persons may be excluded, and\nwith respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever\nrestrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.\xe2\x80\x9d\nIt is not clear from our files what precipitated this opinion request from the Attorney General, or to\nwhom the opinion may have been forwarded. The opinion does not appear to have been directed to a\nparticular executive or military order, although it preceded by days a string of Civilian Restrictive\nOrders (8 Fed. Reg. 982\xe2\x80\x9388), requiring the removal of \xe2\x80\x9cpersons of Japanese ancestry\xe2\x80\x9d to various\ninternment camps in the western United States. Another relocation/internment order\xe2\x80\x94Civilian Exclusion Order No. 34, 7 Fed. Reg. 3967 (May 3, 1942), requiring the removal of persons of Japanese\nancestry from Alameda County, California, and issued just two weeks prior\xe2\x80\x94was upheld against\nconstitutional challenge by the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944).\nAt the time of this opinion, military authorities had already set up internment camps on the Hawaiian Islands, including in particular Sand Island, through which internees were then transferred to internment camps on the continent. See Brian Niiya, History of the Internment in Hawai\xe2\x80\x98i (June 4, 2010),\nhttp://www.hawaiiinternment.org/history-of-internment. In 1988, Congress formally recognized that \xe2\x80\x9ca\ngrave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the\nevacuation, relocation, and internment of civilians during World War II,\xe2\x80\x9d Pub. L. No. 100-383, \xc2\xa7 2(a),\n102 Stat. 903, 903 (codified at 50 U.S.C. App. \xc2\xa7 1989a(a)), and ordered restitution for JapaneseAmerican citizens and resident aliens who had been confined under one of the relocation/internment\norders, id. \xc2\xa7 105, 102 Stat. at 905-08 (codified at 50 U.S.C. App. \xc2\xa7 1989b-4).\n\n84\n\n\x0cRemoval of Japanese Aliens and Citizens From Hawaii to the United States\n\ntheory of removing and interning the Japanese. It is a conclusion not without doubt\nand it might be extended or abused. Like unto the Supreme Court, I think the\ndecision ought to be saved for the specific case in which it is necessary.\n*****\nYou have asked me to consider whether (1) Japanese moved from Hawaii to\nthe United States could be placed in a delimited zone in which martial law could\nbe declared; (2) martial law could be declared with respect to a group of Japanese.\nI.\nThose Japanese who are aliens can be brought to the continental United States\nand interned under the provisions of 50 U.S.C. \xc2\xa7 21 (1940). This statute, however,\nis probably not applicable to the Japanese who are citizens.\nII.\nAlthough not free from doubt, an argument can be made for removing Japanese\nwho are American citizens from Hawaii to a restricted zone in the United States.\nThis is total war. It is quite unlike any prior war. Fifth column activities, espionage, and sabotage have been and are being employed on an unprecedented scale.\nWhat the Nazis did in Norway, Holland, Belgium, and France\xe2\x80\x94to mention but a\nfew places\xe2\x80\x94through citizens of those places as well as through German nationals\nis now well known. The Japanese have used similar techniques. Axis agents\xe2\x80\x94\nAmerican citizens as well as non-citizens\xe2\x80\x94participated in making the Japanese\nattack on Pearl Harbor so successful to the Japanese.\nAs a result of the Japanese attack, Hawaii has been put under martial law.\nMilitary necessity dictated that move\xe2\x80\x94a move well justified under the legal\nauthorities. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); United States v. Diekelman, 92 U.S. 520, 526 (1875). Hawaii is still within the Pacific theatre of war and\nsubject to attack again. Continuance of martial law in Hawaii is doubtless justified.\nIf military necessity dictates it\xe2\x80\x94as it well may\xe2\x80\x94those Japanese who were\ninterned in Hawaii or those whose presence is dangerous can be removed. To hold\notherwise would be deciding upon the impractical. Hawaii is virtually an armed\nfortress. All of the energies of the armed forces there should doubtless be concentrated on resisting or striking the enemy. If, because of the military needs, the\nforces cannot be spared to guard or watch the Japanese in Hawaii, they can be\nremoved.\nThe strongest legal ground upon which to make the removal would be under an\norder of the military commander in Hawaii to a restricted area\xe2\x80\x94a military area or\nmilitary zone\xe2\x80\x94designated by the Secretary of War under Public Law 77-503, 56\nStat. 173 (1942), codified at 18 U.S.C. \xc2\xa7 97a (Supp. II 1942).\n\n85\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIf this is done, it would not be necessary to declare martial law with respect to\nthese Japanese as a group. A declaration of martial law as to a group is of doubtful\nlegal validity except possibly under unusual circumstances. The circumstances\nhere involved might be such. But I would be inclined not to rely on this method of\nhandling the problem.\nIII.\nThe existing case law indicates some doubt on the power to remove and intern\nthe Japanese citizens in the United States. But the conditions of modern warfare\nare different from those of prior wars. Because of this the courts might well follow\na different course than that indicated by the earlier decisions. Ex parte Ventura, 44\nF. Supp. 520 (W.D. Wash. 1942).\nIf the majority opinion in Ex parte Milligan should be followed today, a declaration of martial law outside the zone of active military operations at a place where\nthe courts are functioning would probably not be approved by the Supreme Court.\nIt is believed, however, that, in view of the changed conditions of warfare, the\nSupreme Court, in a proper case, would follow the views of the dissenting justices\nin the Milligan case sustaining a declaration of martial law in places outside the\nzone of active military operations upon a showing of military necessity for such\naction. Martial law, however, is ordinarily made applicable to districts or areas and\nwhen established applies to all persons within the district or area so long as they\nremain therein. There appear to be no precedents sustaining a declaration of\nmartial law with respect only to a particular group of persons as suggested in your\nquestion numbered 2. From the nature and purpose of martial law, it would seem\nto be properly applicable to particular areas rather than to particular persons.\nThe establishment of martial law in a delimited zone for the sole purpose of\nconfining therein a particular citizen or group of citizens would also raise questions of policy and public morals. If this can be done with respect to the Japanese\nhere involved, it might be done at any time with respect to any citizen. Thus, it\nwould approach the practices of the German and Italian governments, so bitterly\ndenounced in this country, of establishing citizen concentration camps in which\ncitizens may be confined without due process of law.\nThere is considerable authority for the position that military necessity for the\nestablishment of martial law is a political question into which the courts will not\ninquire. There is, however, authority on the other side of this question, and in the\ncomparatively recent case of Sterling v. Constantin, 287 U.S. 378 (1932), the\nCourt inquired into this question and determined that military necessity did not\nexist. That case may be distinguishable since it involved a question of conflict\nbetween state and federal jurisdiction. There is sufficient language to indicate,\nhowever, that the Court would have the right to and would inquire into the\nnecessity for declaring martial law if the occasion arose. A declaration of martial\nlaw in a delimited zone for the sole purpose of confining therein objectionable\n\n86\n\n\x0cRemoval of Japanese Aliens and Citizens From Hawaii to the United States\n\ncitizens might not be a good case in which to have this question directly passed\nupon by the Court.\nThe desired result might be obtained by a suspension of the privilege of the writ\nof habeas corpus as to the Japanese citizens involved. There is precedent for the\nsuspension of the privilege of the writ as to particular persons. See 6 A Compilation of the Messages and Papers of the Presidents (1789\xe2\x80\x931908) 19 (James D.\nRichardson ed., 1909). This, however, raises the same question of policy and\npublic morals above discussed. If the privilege of the writ can be suspended as to\nJapanese citizens, it can likewise be suspended as to other citizens at any time.\nAlso, if the suspension should be made by the President, it would reopen the ageold question of whether the President has the authority to suspend or whether that\nright lies in the Congress alone. I think the President has the power, but whether\nthe controversy over this subject should be again precipitated at this time is a\nquestion which should be carefully considered.\nIV.\n1. If it is at all practical to do so, the safest legal procedure would be to hold the\nJapanese who are American citizens in Hawaii.\n2. The next best legal procedure would be, under the martial law prevailing in\nHawaii or under an order pursuant to Public Law 77-503, to intern them in Hawaii\nand then give them the option to come to the United States if they sign up as\nmembers of the work corps of the War Relocation Authority under an agreement\nto serve for the duration of the war.\n3. It would also be proper to evacuate the Japanese citizens from Hawaii under\nExecutive Order 9066 and Public Law 77-503 and then treat them the same as the\nJapanese evacuated from the West Coast.\n4. If it is not necessary for these Japanese to be kept in strict confinement it\nmay be that, in view of the large industrial plants along the East Coast and in\nmany cities extending westward to the Mississippi, military areas might be\ndeclared along the entire East Coast and extending inward some distance, thus\nrequiring the Japanese, under Public Law 77-503, to reside in the Middlewest,\nwhere they would probably have less opportunity to engage in activities dangerous\nto the national safety.\n5. It is possible that the Japanese citizens legally could be removed from Hawaii and interned in the United States.\nOSCAR C. COX\nAssistant Solicitor General\n\n87\n\n\x0c'