b'Authority of the Department of Justice to\nRepresent Members of Congress in a Civil Suit\nThe Attorney General has authority to represent members of the House of Representatives in a state\ncourt civil lawsuit if he determines that it would be in the interest of the United States to do so.\nThe question whether the congressmen should be represented by the Department is wholly discretionary and should be determined as a matter of policy.\n\nMarch 26, 1953\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nA number of members of the House Committee on Un-American Activities,\nincluding the chairman, have been named as defendants in a suit in the California\nstate courts by certain writers, actors, directors and other persons formerly\nemployed in the motion picture industry. Although the complaint has not been\nexamined in detail, it appears that the basic allegation is that certain producers and\nmotion picture production companies conspired with the named members of the\nHouse Committee to deprive the plaintiffs of employment in the motion picture\nindustry. The members of the House who are named in the suit are alleged to have\nacted both in their official and unofficial capacity in furtherance of the alleged\nconspiracy.\nThis memorandum is addressed to the question whether the Department may\nrepresent the congressmen in the defense of the suit. 1 It is concluded that authority\nto do so exists if it is determined that such action is appropriate as a matter of\npolicy.\nThe statutes provide authority for the Attorney General and any other officer of\nthe Department of Justice to appear in \xe2\x80\x9cany case in any court of the United States\nin which the United States is interested.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 309. In addition, authority is\nconferred upon any officer of the Department directed by the Attorney General to\ndo so \xe2\x80\x9cto attend to the interests of the United States in any suit pending in any of\nthe courts of the United States, or in the courts of any States.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 316.\nThese statutes have been interpreted as granting to \xe2\x80\x9cthe Attorney General broad\n\n1\nThis also involved the question whether the Department must represent the congressman pursuant\nto the provisions of 2 U.S.C. \xc2\xa7 118, which provides:\n\nIn any action brought against any person for or on account of anything done by him\nwhile an officer of either House of Congress in the discharge of his official duty, in\nexecuting any order of such House, the district attorney for the district within which\nthe action is brought, on being thereto requested by the officer sued, shall enter an appearance in behalf of such officer; . . . and the defense of such action shall thenceforth\nbe conducted under the supervision and direction of the Attorney General.\nThe question of the applicability of this provision is being considered by the Claims Division and it is\nassumed that that Division will advise you separately of its conclusion.\n\n157\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\npowers to institute and maintain court proceedings in order to safeguard national\ninterests.\xe2\x80\x9d United States v. California, 332 U.S. 19, 27 (1947).\nNo cases have been found in which the Department has undertaken to represent\ncongressmen pursuant to this broad general grant of authority. However, an\nanalogy is presented in the case of Booth v. Fletcher, 101 F.2d 676 (D.C. Ct. App.\n1938). In that case an action was instituted against a large number of persons,\nincluding justices of the Court of Claims, and of the District Court of the United\nStates for the District of Columbia, by a disbarred attorney, alleging his disbarment had been pursuant to conspiracy to injure him. The Department of Justice\nappeared for the justices, and the plaintiff contended that the action was against\nthe defendants in their individual capacity and that the Attorney General was not\nauthorized to represent them. The court, recognizing the right of the Attorney\nGeneral to represent the justices, stated:\nThe law provides that the Attorney General, whenever he deems\nit for the interest of the United States, may, in person, conduct and\nargue any case in any court of the United States in which the United\nStates is interested, or may direct the Solicitor General or any officer\nof the Department of Justice to do so. It does not limit his participation or the participation of his representatives to cases in which the\nUnited States is a party; it does not direct how he shall participate in\nsuch cases; it gives him broad, general powers intended to safeguard\nthe interests of the United States in any case, and in any court of the\nUnited States, whenever in his opinion those interests may be jeopardized. The Attorney General occupies no subordinate position\nwhen he elects to enter such a proceeding, whether in person or by\nhis representatives. On the contrary, the law contemplates that\xe2\x80\x94\nconsistent with the proper interests of private litigants and, so far as\nconcerns the interests of the United States\xe2\x80\x94he shall have full control\nof the prosecution or defense of the case.\nMoreover, it is not the function of the trial court to supervise the\nAttorney General in the exercise of the discretion thus vested in him.\nIn such cases he appears as an officer of the court it is true, but he\nappears also, and primarily, as the head of one of the great executive\ndepartments to protect the interests of the United States, under a special and extraordinary statutory authorization. As appellants in their\nbrief well say:\nAgain, if the right of the Attorney General to act rests upon a judicial determination of the Court where the suit is pending that\nthe asserted unlawful, illegal, or unauthorized acts were lawful\nand within the authority and in the discharge of official duty, then\n\n158\n\n\x0cAuthority of DOJ to Represent Members of Congress in a Civil Suit\n\nthe discretion of the Attorney General could be exercised only at\na time when the occasion for its exercise had passed.\nThroughout the years since the first Judiciary Act the Attorney\nGeneral and his representatives have appeared on many occasions, in\nactions between private persons where the interests of the United\nStates were involved, and in behalf of officers of the United States\nwho were sued by others. Under the well recognized rule this uniform practice may properly be regarded as having been approved by\nCongress through the adoption of later statutes, and particularly by\nthe sweeping provisions of Section 359 [of the Revised Statutes].\nId. at 681\xe2\x80\x9382 (footnotes omitted).\nThe reasoning in Booth v. Fletcher was followed in People ex rel. Woll v.\nGraler, 68 N.E.2d 750 (Ill. 1946). In that case a former government employee was\nsued, allegedly in his individual capacity, for having conspired, while a contracting officer for the Navy Department, with a competitor of the plaintiff to procure\nthe cancellation of certain contracts the plaintiff had with the Navy Department.\nThe trial judge in the state court entered an order directing the United States\nAttorney to withdraw his appearance on behalf of the defendant. The Supreme\nCourt of Illinois issued a writ of mandamus requiring the judge to expunge the\norder from the records as void. It did so on the theory that the Attorney General\nhas authority to appear in any suit in which the interests of the United States are\ninvolved and the courts will not interfere with his determination that such interests\nare involved even though the suit is between private persons.\nThe Fletcher and the Graber cases appear to supply clear authority for the\nDepartment to represent the congressmen if it determines that to do so would be in\nthe interests of the United States. Those cases indicate that, if that determination is\nmade, it is irrelevant that the United States is not a defendant, that the defendants\nare officials of a branch of the government other than the Executive Branch, that\ndefendants are being sued as individuals, and that the suit is in a state court.\nIt is true that the Attorney General is not authorized to represent the defendants\nsolely to vindicate their private rights. However, the issue in the instant case\nappears to be whether their acts were lawful and authorized or whether they were\nillegal and outside the scope of their authorization. This was the issue in both the\nFletcher case and the Graber case and in each case the court deferred to the\npreliminary determination of the Attorney General, made for the purpose of his\ndecision to represent the defendants, that the alleged acts were authorized. In\ndoing so they pointed out that any other course would prevent the Attorney\nGeneral from exercising his discretion until it was too late.\nThe foregoing merely establishes that the Attorney General has authority to\nrepresent the congressmen if he determines that it would be in the interest of the\nUnited States to do so. It in no way requires him to. Unless 2 U.S.C. \xc2\xa7 118\n\n159\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nimposes such a requirement, the question whether the congressmen should be\nrepresented by the Department is wholly discretionary and should be determined\nas a matter of policy.\nJ. LEE RANKIN\nAssistant Attorney General\nExecutive Adjudications Division\n\n160\n\n\x0c'


b"Whether Members of the Sentencing Commission Who Were\nAppointed Prior to the Enactment of a Holdover Statute May\nExercise Holdover Rights Pursuant to the Statute\n\nS ta tu to ry p ro v is io n s th a t allo w m e m b e rs o f the U n ited S ta te s S e n te n c in g C o m m is sio n to h o ld o v e r in\no ffic e a fte r th e ir term s h av e e x p ire d a p p ly to in c u m b e n t m e m b e rs w h o w ere a p p o in te d p rio r to the\ne n a c tm e n t o f th e h o ld o v e r s tatu te\n\nC o m m is sio n e rs w h o w ere a p p o in te d p n o r to th e e n a c tm e n t o f the h o ld o v e r statu te m a y c o n stitu tio n a lly\ne x e rc ise su ch h o ld o v e r rig h ts w ith o u t v io la tin g the A p p o in tm e n ts C lau se.\n\nApril 5, 1994\n\nM e m o r a n d u m O p in i o n f o r t h e A t t o r n e y G e n e r a l\n\nB A C K G R O U N D AND SU M M A R Y\nOn August 26, 1992, President Bush signed \xe2\x80\x9cAn Act to amend [28 U.S.C. \xc2\xa7\n992] to provide [that] a member of the United States Sentencing Commission\nwhose term has expired may continue to serve until a successor is appointed or\nuntil the expiration of the next session of Congress.\xe2\x80\x9d Act of Aug. 26, 1992, Pub.\nL. No. 102-349, 106 Stat. 933 (1992) (codified at 28 U.S.C. \xc2\xa7 992(b)) (\xe2\x80\x9cthe holdo\xc2\xad\nver statute\xe2\x80\x9d). This memorandum addresses whether members of the Sentencing\nCommission (\xe2\x80\x9cCommission\xe2\x80\x9d) who were in office at the time the holdover statute\nwas enacted may exercise holdover rights pursuant to the statute.\nW e first address whether Congress intended the holdover statute to apply to\ncommissioners who were appointed prior to its enactment. The plain meaning of\nthe holdover provision belies any claim that it does not apply equally to incumbent\ncommissioners and to newly appointed commissioners. By its own terms, it ap\xc2\xad\nplies to any \xe2\x80\x9cvoting member of the Commission whose term has expired\xe2\x80\x9d regard\xc2\xad\nless of when the member was appointed. Id. Only by consulting the legislative\nhistory does any ambiguity arise regarding its application to incumbent com m is\xc2\xad\nsioners. Even then, the legislative history of the holdover provision and the presi\xc2\xad\ndential signing statement provide inconclusive evidence of intent. Assuming that\nan examination o f the legislative history is appropriate, there simply is insufficient\nevidence to disregard the plain meaning of the holdover provision.\nW e next address whether the holdover provision is constitutional as it applies to\ncommissioners who were appointed before its enactment. As applied to such\ncommissioners, the holdover provision raises questions under the Appointments\nClause o f the Constitution. It may be argued that the holdover provision interferes\n\n33\n\n\x0cOpinions o f th e Office o f L eg a l C ounsel\n\nwith the President\xe2\x80\x99s appointment pow er because it extends the terms of office of\nappointees beyond that contemplated by the appointing authority and amounts to a\nlegislative reappointm ent. Although this issue is not entirely free from doubt, we\nconclude that the particular holdover provision at issue would survive an Appoint\xc2\xad\nments C lause challenge. In sum, w e conclude that the commissioners serving at\nthe tim e the provision became law on August 26, 1992 may (like those appointed\nafter the provision was adopted) constitutionally exercise holdover rights pursuant\nto the statute.\nI.\nThe threshold issue requires us to construe the holdover provision to determine\nwhether it applies to commissioners w ho were serving at the time of its enactment.\nThe holdover provision provides that:\nSection 992(b) o f title 28, U nited States Code, is amended to read\nas follows:\n*\n\n*\n\n*\n\n\xe2\x80\x9c(2) A voting m em ber of the Commission whose term has expired\nm ay continue to serve until the earlier of\xe2\x80\x94\n\xe2\x80\x9c(A) the date on which a successor has taken office; or\n\xe2\x80\x9c(B) the date on which the Congress adjourns sine die to end\nthe session of Congress that com mences after the date on which the\nm em ber\xe2\x80\x99s term expired.\xe2\x80\x9d\n106 Stat. at 933. The text o f the holdover provision does not distinguish between\ncom m issioners appointed before or after its enactment. By its own terms, it applies\nto any \xe2\x80\x9cvoting m em ber of the Commission whose term has expired\xe2\x80\x9d without refer\xc2\xad\nence to when the m em ber was appointed. Although the text of the holdover provi\xc2\xad\nsion contains no language either raising or addressing the question o f whether it\napplies to a com m issioner who was serving at the time o f its passage, such a com\xc2\xad\nm issioner is a \xe2\x80\x9cvoting member of the Com m ission\xe2\x80\x9d and one \xe2\x80\x9cwhose term has ex\xc2\xad\npired,\xe2\x80\x9d and thus is unquestionably w ithin the plain meaning of the terms o f the\nholdover statute.\nThe Suprem e C ourt has instructed that \xe2\x80\x9c[t]he plain meaning of legislation\nshould be conclusive, except in the \xe2\x80\x98rare cases [in which] the literal application of a\nstatute will produce a result demonstrably at odds with the intentions of its draft\xc2\xad\ners.\xe2\x80\x99\xe2\x80\x9d U nited S tates v. Ron Pair E nterprises, Inc., 489 U.S. 235, 242 (1989)\n(second set of brackets in original) (quoting Griffin v. O ceanic C ontractors, Inc.,\n458 U.S. 564, 571 (1982)). See a lso INS v. C ardoza-F onseca, 480 U.S. 421, 432\n34\n\n\x0cOpinion Regarding the Sentencing C om m ission H oldover Appointees\n\nand n.12 (1987) (where \xe2\x80\x9cthe plain language o f [the] statute appears to settle the\nquestion. . . . [W]e look to the legislative history to determine only whether there is\n\xe2\x80\x98clearly expressed legislative intention\xe2\x80\x99 contrary to that language, which would\nrequire us to question the strong presumption that Congress expresses its intent\nthrough the language it chooses\xe2\x80\x9d). In his signing statement, President Bush cited a\nportion o f the legislative history of the holdover provision and rejected the plain\nreading o f the statute. See infra. After examining the legislative history of the\nholdover provision, we conclude that President Bush was mistaken in his statement\nabout its legislative history and that a careful reading of the legislative history as a\nwhole provides no support for rejecting the plain meaning o f the statute.\nThe legislative history of the holdover statute contains, at most, some am bigu\xc2\xad\nous evidence of congressional intent. The text of the holdover provision is con\xc2\xad\ntained in the only section of the statute. W hen the bill was introduced in the\nSenate, it also contained a second section that provided:\nSec. 2. EXTENSION OF TERM S OF PRESENT MEMBERS OF\nTHE COM M ISSION\nThe amendment to [28 U.S.C. \xc2\xa7 992(b)] contained in section 1 of\nthis Act shall apply to the term of any voting member of the Com\xc2\xad\nmission whose term expires on October 31, 1991.\nS. 1963, 102d Cong., \xc2\xa7 2 (1991). The same provision was contained in the bill\nwhen it was reported out o f committee. On January 31, 1992, Senate Majority\nLeader Mitchell sought and received unanimous consent to consider passage of the\nbill immediately. 138 Cong. Rec. 1 166 (1992). At that date, the event specified in\nsection two (the expiration of two com m issioners\xe2\x80\x99 terms on October 31, 1991) had\nalready occurred. Rather than alter section two, an amendment was offered on\nbehalf of the bill\xe2\x80\x99s sponsors, the Chairman and Ranking Minority M ember o f the\nJudiciary Committee, to strike section two of the bill entirely. Id. W ithout any\ndiscussion, the amendment striking section two was approved (by unanimous con\xc2\xad\nsent) and then the bill as amended was passed by unanimous consent. Id.\nThe Senate\xe2\x80\x99s decision to strike all of section two rather than to amend it to\ncover other sitting commissioners is subject to different interpretations. Based on\nthe future verb tense \xe2\x80\x9cexpires\xe2\x80\x9d rather than the past tense \xe2\x80\x9cexpired\xe2\x80\x9d in draft section\ntwo, it can be inferred that the sponsors of S. 1963 originally hoped to introduce\nand pass the bill prior to October 31, 1991. It could be argued that the sponsors\nthought that it was important to provide in the text that the holdover provisions in\nsection one applied to these commissioners whose terms would soon expire be\xc2\xad\ncause they believed that section one, in and of itself, might not apply to com m is\xc2\xad\nsioners who were then serving on the Commission. If that were the case, however,\nit seems curious that they would want to grant holdover rights only to the com m is\xc2\xad\n35\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nsioners whose term s expired in October of 1991 and not to any of the other incum\xc2\xad\nbent com m issioners. It is also possible that at the time the Senate deleted section\ntwo, it simply realized that it could do nothing for the commissioners whose terms\nhad a lre a d y expired but that it assum ed section 1 would apply to all of the then\nincum bent com m issioners whose term s of office had not yet expired. These con\xc2\xad\nflicting argum ents based on the S enate\xe2\x80\x99s deletion of section two are difficult to\nreconcile, which suggests that placing much reliance on them is not warranted.\nThe signing statem ent issued by President Bush reflects a misinterpretation of\nthe Senate\xe2\x80\x99s action in deleting section two. The signing statement states that:\nToday I am signing into law S. 1963, which permits M embers of\nthe United States Sentencing Commission whose terms have expired\nto continue to serve until either a successor takes office or the next\nsession o f the Congress ends.\nThe legislation does not specify whether it would apply to the\ncurrent M em bers o f the Commission. W ere the Act read to apply to\nthe current M em bers, it would appear to violate the Appointments\nC lause o f the Constitution by, in effect, permitting the M embers to\nextend the terms o f the office to which they were appointed by the\nPresident and confirmed by the Senate. Accordingly, I sign this\nlegislation based on my understanding that it applies only to ap\xc2\xad\npointm ents made after the date of enactm ent o f the Act, so as not to\ninfringe on my constitutional appointment authority. This is in\nkeeping with the well-settled obligation to construe ambiguous\nstatutory provisions to avoid constitutional questions.\nI note that this interpretation o f the A ct is su p p o rted b y the fa c t\nth at the Senate d eleted fro m the A ct a p ro visio n that w ou ld have\nex pressly a p p lie d it to current M em bers o f the Com mission.\n\nStatem ent o f President George Bush Upon Signing S. 1963, II Pub. Papers 1432\n(Aug. 31, 1992) (em phasis added).\nThere are two problem s with giving much weight to President Bush\xe2\x80\x99s signing\nstatement. In general, the use of presidential signing statements by the courts and\nothers as evidence o f legislative history and the weight to be given such evidence\n\xe2\x80\x94 if it is to be given any weight at all \xe2\x80\x94 is controversial. See The L egal Signifi\xc2\xad\ncance o f P resid en tia l Signing Statem ents, 17 Op. O.L.C. 131 (1993) (discussing\nargum ents for and against such use o f presidential signing statements). Moreover,\nwe believe President B ush\xe2\x80\x99s signing statement quoted above is subject to even less\nweight than is norm ally appropriate because it is based on a misreading of the leg\xc2\xad\nislative history. It simply is not true \xe2\x80\x9cthat the Senate deleted from the Act a provi\xc2\xad\n36\n\n\x0cOpinion R egarding the Sentencing C om m ission H oldover A ppointees\n\nsion that would have expressly applied it to [then] current Members of the Com \xc2\xad\nmission.\xe2\x80\x9d II Pub. Papers at 1432. The deleted section only applied to com m is\xc2\xad\nsioners whose terms had already expired when the section was deleted; it did not\napply to those then serving as commissioners whose terms would expire after en\xc2\xad\nactment o f the law. That fact makes questionable the inference drawn in the sign\xc2\xad\ning statement.\nTwo other statements of congressional intent are contained in the House report\non S. 1963. H.R. Rep. No. 102-827, at 3 (1992). The section-by-section analysis\ndescribes the effect o f the holdover statute:\nSection 1 of S. 1963 (the bill\xe2\x80\x99s only section) amends 28 U.S.C.\n992(b) to provide for a voting member of the United States Sen\xc2\xad\ntencing Commission whose term has expired to continue to serve\nbeyond the expiration date until a successor has taken office or until\nthe end of [Congress\xe2\x80\x99s next] session . . . . No distinctions between\ntypes of voting members is intended; this provision is intended to\napply to all voting members of the Sentencing Commission, in\xc2\xad\ncluding those appointed to fill a vacancy that occurs before the ex\xc2\xad\npiration o f the term. In addition, the section is intended to have\np rosp ective application only.\nId. (emphasis added).\n\nThe underlined language of the House report is also am\xc2\xad\nbiguous. One possible meaning of \xe2\x80\x9cprospective application only\xe2\x80\x9d is that the\nholdover statute would apply to commissioners who were appointed to serve on the\nCommission in the future but not to commissioners who were already serving on\nthe Commission. Another possible meaning of \xe2\x80\x9cprospective application only\xe2\x80\x9d is\nthat the holdover statute could not be invoked by a commissioner whose term had\nalready expired, i.e., the commissioners whose terms had expired in O ctober o f\n1991. This second proposition is obviously true. If a com m issioner\xe2\x80\x99s presidential\ncommission had expired, nothing short of a renomination, reconfirmation, and re\xc2\xad\nappointment consistent with the Appointments Clause would allow the former\ncommissioner to serve again on the Commission. Thus, this statement in the House\nReport, which is subject to two reasonable but different interpretations, is to no\navail in resolving the interpretive question.\nThere is some unambiguous evidence in the legislative history to support the\nplain meaning of the holdover provision. The congressional purpose in passing the\nholdover statute, as expressed in floor statements and the House Report, would\napply equally to sitting commissioners and future members of the Com m ission.1\nThe House Report explained that the problem of vacancies on the Commission was\nexacerbated by \xe2\x80\x9cthe requirement that sentencing guidelines be promulgated or\n1 See H. R Rep. No 102-827, at 2-3, 138 C ong Rec 23,098-99 (1992) (statem ents o f Reps. S chum er and\nSensenbrenner)\n\n37\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nam ended with the support of at least four o f the seven authorized voting members\no f the Com m ission. Consequently, w henever there is less than a full complement\no f sentencing com m issioners, the w ork of the Commission may be impaired.\xe2\x80\x9d H.R.\nRep. No. 102-827, at 2. The House R eport also related that:\nOn O ctober 31, 1991, the term s of three voting members of the\nCom m ission expired with no successors having been nominated.\nT w o of these term s remain unfilled at the time of the writing of this\nreport \xe2\x80\x94 more than eight m onths later. * * * In 1989-90, the\nCom m ission was forced to operate approximately seven months\nwith only four voting members. * * * This legislation is n eces\xc2\xad\nsa ry to ensure th at this situation is not re p ea ted w h en ever com m is\xc2\xad\ns io n e r s \xe2\x80\x99 term s expire in the fu tu re.\nId. (em phasis added).\n\nThe situation that Congress was attem pting to prevent would exist now if the\nholdover statute did not apply to com m issioners who were appointed prior to the\nstatute\xe2\x80\x99s enactm ent. For this reason, we believe the legislative history of the\nholdover provision, on balance, reinforces the plain meaning of the statute. At\nworst, the legislative history is am biguous regarding whether Congress intended\nthe holdover statute to apply to com m issioners who were appointed before it was\npassed. It is simply not conclusive enough to reject the plain meaning of the stat\xc2\xad\nute.\nW e do not believe that \xe2\x80\x9cthe well-settled obligation to construe ambiguous\nstatutory provisions to avoid constitutional questions,\xe2\x80\x9d to which President Bush\nreferred in his signing statement, is to the contrary. II Pub. Papers at 1432. We\nmay not avoid all constitutional questions whenever a statutory ambiguity exists.\nThe Suprem e C ourt has instructed instead that statutes should be read, when fairly\npossible, to avoid grave and doubtful constitutional questions. See Rust v. Sulli\xc2\xad\nvan, 500 U.S. 173, 191 (1991) (\xe2\x80\x9c[a] statute must be construed, if fairly possible, so\nas to avoid not only the conclusion that it is unconstitutional but also grave doubts\nupon that score\xe2\x80\x9d) (quoting United S tates v. Jin Fuey M oy, 241 U.S. 394, 401\n(1916)). To begin with, we are not convinced that the interpretation of the statute\nin President B ush\xe2\x80\x99s signing statement is \xe2\x80\x9c fairly possible.\xe2\x80\x9d This is because such an\ninterpretation would violate another canon of construction, the plain meaning rule,\nand was based on an erroneous reading of the legislative history.\nM oreover, to satisfy the canon o f construction articulated in Rust, one interpre\xc2\xad\ntation o f the statute m ust be necessary to avoid a \xe2\x80\x9cgrave and doubtful constitutional\nquestion[].\xe2\x80\x9d Id. at 191 (quoting U n ited S tates v. D ela w a re an d Hudson Co., 213\nU.S. 366, 408 (1909)). The Supreme Court has explained that although this canon\nis followed \xe2\x80\x9cout o f respect for Congress, which [is presumed to] legislate^ in the\nlight o f [its] constitutional limitations, . . . avoidance of a difficulty will not be\n38\n\n\x0cOpinion R egarding the Sentencing Com m ission H oldover A ppointees\n\npressed to the point of disingenuous evasion.\xe2\x80\x9d Id. (quoting M oore Ice Cream Co.\nv. Rose, 289 U.S. 373, 379 (1933)). In Rust, for example, the Court concluded that\nthe constitutional questions were not so doubtful that it should read the statute as\nprecluding the questions. Id. As we explain in part II, we do not believe that the\nconstitutional question is so grave and doubtful that we should evade answering it.\nW e conclude that the holdover provision does apply to com m issioners who\nwere appointed prior to its enactment. By its own terms, the text of the holdover\nprovision applies to any \xe2\x80\x9cvoting member of the Commission whose term has ex\xc2\xad\npired,\xe2\x80\x9d regardless of when the member o f the Commission was appointed. We also\nfind support for this interpretation in the legislative history of the holdover provi\xc2\xad\nsion. Although the legislative history contains some ambiguous evidence of legis\xc2\xad\nlative intent, we simply cannot say that it is sufficient to reject the plain meaning of\nthe statute.\nII.\nWe next address whether the application of the holdover provision to com m is\xc2\xad\nsioners who were appointed before its enactment violates the Appointments\nClause. The Appointments Clause provides that the President \xe2\x80\x9cshall nominate, and\nby and with the Advice and Consent of the Senate shall appoint . . . [principal]\nOfficers of the United States.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 2, cl. 2. It further provides\nthat \xe2\x80\x9cthe Congress may by Law vest the Appointment of such inferior Officers, as\nthey think proper, in the President alone, in the Courts of Law, or in the Heads of\nDepartm ents.\xe2\x80\x9d Id. The Commission is \xe2\x80\x9can independent commission in the judicial\nbranch of the United States.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 991(a). See a lso M istretta v. U nited\nStates, 488 U.S. 361, 368, 384-94 (1989). The Com m ission\xe2\x80\x99s seven voting mem\xc2\xad\nbers are appointed by the President \xe2\x80\x9cby and with the advice and consent of the\nSenate.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 991(a).\nThe Appointments Clause by its terms and its structure prohibits Congress from\nitself exercising the power to appoint \xe2\x80\x9cOfficers of the United States.\xe2\x80\x9d S ee Buckley\nv. Valeo, 424 U.S. 1, 126-28, 139 (1976) (per curiam). The text and structure of\nthe Constitution reflect a deliberate constitutional choice to deny to the legislature\nthe power to select the individuals who exercise significant governing authority as\n(non-legislative) officers of the federal government. See id. at 128-31 (reviewing\nthe debates in the Philadelphia convention). That choice can be set at naught either\nby legislation overtly vesting in Congress the power of appointment or by statutes\nthat functionally enable Congressional exercise of a power to appoint. This latter\nconcern arises most pointedly in connection with statutes that attempt to extend the\nfixed tenure of an officer with a set term, thus denying the President the power he\nwould otherwise have to reappoint the officer or select someone else.\nIn 1951, for example, the President requested the Justice D epartm ent\xe2\x80\x99s views on\nthe validity of a statute extending the terms of the members of a commission: ac39\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\ncording to the original legislation creating the commission, the terms were to ex\xc2\xad\npire in June 1951, but prior to that date Congress amended the legislation to extend\nthe com m issioners\xe2\x80\x99 tenure to August 1952. Acting Attorney General Perlman ad\xc2\xad\nvised the President that w hile he did not think \xe2\x80\x9cthere can be any question as to the\npower o f the Congress to extend the terms of offices which it has created,\xe2\x80\x9d that\nlegislative power was subject \xe2\x80\x9cto the President\xe2\x80\x99s constitutional power of appoint\xc2\xad\nment and rem oval.\xe2\x80\x9d D isp la c ed P ersons C om m ission \xe2\x80\x94 Terms o f M em bers, 41 Op.\nA tt\xe2\x80\x99y Gen. 88, 90 (1951). However, because the legislation did not attempt to re\xc2\xad\nstrict the President\xe2\x80\x99s authority to rem ove the com m issioners at will, it was consti\xc2\xad\ntutionally harmless: the President rem ained free to exercise his appointment power\nsimply by rem oving the incumbents from office. Id. (\xe2\x80\x9cAs so construed, the\n[extension legislation] presents no constitutional difficulties\xe2\x80\x9d).2 See a lso Pension\nA gents an d A gencies, 14 Op. Att\xe2\x80\x99y Gen. 147 (1872) (discussing the President\xe2\x80\x99s\npower to remove officer serving a term extended by statute).\nW e think that the D epartm ent\xe2\x80\x99s 1951 opinion adopted the correct approach to\nthis issue: while the pow er to lengthen the tenure o f an incumbent officer is inci\xc2\xad\ndent to C ongress\xe2\x80\x99s general power to create, determ ine the duties of, and abolish\noffices,3 that power cannot legitimately be em ployed to produce a result that is,\npractically speaking, a congressional reappointm ent to office or a removal from\noffice. This problem is not presented where a statutory change in the term of office\nis applied to subsequent appointees, for the appointing authority in the latter case\nappoints to an office that includes the potential for holdover as one of its attributes.\nW here a statutory change in the term of office is applied to incumbent officers,\nhowever, we must analyze the statute to determ ine whether it amounts to a legisla\xc2\xad\ntive exercise of the executive\xe2\x80\x99s appointment powers.\nThe situation presented by the holdover statute at issue is on a continuum be\xc2\xad\ntween legislation that we would view as non-objectionable and legislation we\nwould view as constitutionally questionable. On one end o f the continuum is a\nstatute that extends the terms of officers whose appointment is vested in the Presi\xc2\xad\ndent alone and who serve at the will and pleasure o f the President. The extension\no f these officers\xe2\x80\x99 terms does not interfere with the appointing authority\xe2\x80\x99s (here, the\nPresident\xe2\x80\x99s) power to terminate or reappoint a given officer. Such legislation ad\xc2\xad\njusts the interval at which the President must either make another appointment or\nface a vacancy, but does not infringe the appointm ent power. The President can\nterminate and replace the person who is serving in the office at any time, notwith\xc2\xad\n2\nC f In re Benny, 812 F 2d 1133, 1142-43 (9 th C ir. 1987) (N o m s , J , concurring in the judgm ent):\n*\xe2\x80\x98[T ]he A pp o in tm en ts C lause preclu d es C ongress from extending th e terms o f incum bent officeholders I am\nsim ply unable to see any prin cip led distinction b e tw ee n co n g ressio n al extensions o f the term s o f incum bents\nand m o re trad itio n al form s o f congressional a p p o in tm en ts B oth im plicate the identical constitutional e vil\xe2\x80\x94\ncongressio n al selectio n o f the individuals filling n onlegislative o ffice s \xe2\x80\x9d\nS e e C renshaw v. U n ited S ta tes, 134 U S . 99 (1890), C ivil Service R etirem ent A ct \xe2\x80\x94 P ostm asters \xe2\x80\x94\nA u to m a tic S ep a ra tio n F rom th e S e rv ic e , 35 O p . A tt\xe2\x80\x99y G en 309, 314 (1927): \xe2\x80\x9c If, as stated in [Em bry v\nU n ited S ta te s, 100 U S 6 8 0 (1 8 79)], Congress m ay at any tim e add to or take from com pensation fixed, it\nm ay also, it w ould seem , by analogy, at any tim e shorten o r len g th en a term o f office \xe2\x80\x99*\n\n40\n\n\x0cOpinion R egarding the Sentencing C om m ission H o ld o ver A ppointees\n\nstanding the term extension. Approaching the other end of the continuum is a stat\xc2\xad\nute that lengthens the fixed terms o f officials who can be removed only for cause,\nthus depriving the appointing authority of the opportunity to reappoint the incum\xc2\xad\nbent or to chose someone else. In sum, the extension o f tenure o f officers serving\nat will raises no Appointments Clause problem, but lengthening the term o f an offi\xc2\xad\ncer who may be removed only for cause is constitutionally questionable.4\nHowever, this conclusion, which we think sound in principle, has been partly\nrejected, at least in one context, by the courts. C ongress\xe2\x80\x99s extension of the tenure\nof bankruptcy judges (who can be removed only for cause) in the Bankruptcy\nAmendments and Federal Judgeship Act of 1954 has been sustained repeatedly\nagainst constitutional challenge. The leading case, In re Benny, held that a statu\xc2\xad\ntory extension of tenure \xe2\x80\x9cbecomes similar to an appointment\xe2\x80\x9d on ly \xe2\x80\x9cwhen it ex\xc2\xad\ntends the office for a very long tim e.\xe2\x80\x9d 812 F.2d at 1141. See a lso In re Investm ent\nBankers, 4 F.3d 1556, 1562, 1563 (10th Cir. 1993) (\xe2\x80\x9cAlthough plausible argu\xc2\xad\nments can be raised in response to the reasoning adopted by the Benny court, we\nare ultimately persuaded that this reasoning is correct;\xe2\x80\x9d noting that the Appoint\xc2\xad\nments Clause challenge \xe2\x80\x9chas been rejected by every court that has considered it\xe2\x80\x9d);\nM atter o f Koerner, 800 F.2d 1358, 1366-67 (5th Cir. 1986) (\xe2\x80\x9cCongress has the\nconstitutional power to make reasonable changes in the duties of any office it cre\xc2\xad\nates, including shortening or lengthening the term of service. . . . Under the limited\ncircumstances of this case, . . . the action of Congress was a constitutionally rea\xc2\xad\nsonable change in the term of an existing office\xe2\x80\x9d) (citations omitted). Although we\nare not persuaded by Benny's reasoning, we must acknowledge that the courts may\nfollow B enny\xe2\x80\x99s conclusion in analogous situations.5 In light of the fact that Benny\n\n4 In 1987, this O ffice opined that legislation extending the term s o f the certain m em bers o f the U nited\nStates Parole C om m ission w as an unconstitutional interference w ith the P resident's appointm ents pow er.\nSee R ea p p o in tm en t o f U nited S ta tes Parole C om m issioners, 11 Op. O L C 135 (1987) If, as we think likely\nunder the rule o f W iener v U nited States, 357 U .S 349 (1958), the C om m issioners w ere rem ovable only for\ncause, that conclusion was consistent with the earlier view s o f the A ttorneys G eneral, w hich we believe are\nsound. H ow ever, the analysis in the opinion suggests that the extension legislation w as invalid be ca u se the\nC om m issioners w ere \xe2\x80\x9cpurely executive o fficers,\xe2\x80\x9d id. at 352, rem ovable (presum ably) by the P resident at will,\na line o f reasoning with w hich w e disagree T he opinion m ight be read to suggest that extension legislation\nconcerning officers rem ovable only for cause is not unconstitutional T h at conclusion may be d ictated by\njudicial precedent, see m jra, but th e'reaso n in g w ould be contrary to our view of the better interpretation o f\nthe A ppointm ents C lause.\n5 B ennv stated that W iener im plicitly rejected any A ppointm ents C lause problem with term -extension\nlegislation, but that overreads the decision T h e date on w hich the P resident rem oved the p la in tiff in W iener\nfrom office was in fact within the term o f office for w hich the p laintiff w as originally appointed, although\npart o f the back pay the p lain tiff ultim ately recovered was for a period after his original term w ould have\nexpired. S ee 357 U S. at 350-51 (the term sh o u ld have expired on M arch 1, 1954 as the law stood at the time\nplaintiff was appointed, the President rem oved plaintiff on D ecem ber 10, 1953; p laintiff recovered back pay\nfor four m onths after M arch I, 1954 under a post-appointm ent extension o f term ) T h e additional Suprem e\nC ourt cases that B enny and o th er courts have cited are distinguishable. See, e g , B ennv, 812 F .2d at 1141\n(citing S h o em a ker v U nited States, 147 U S 282 (1893), w hich upheld legislation im posing additional\nduties on an officer), In re Tom C arter E nters , 44 B.R. 605, 607 (B ankr. C .D . Cal 1984) (citing S h o e m a ke r\nand cases d ealing w ith issues un d er the C o n tracts C lause and the Philippine O rganic Act) B e n n y also\npointed out that the First C ongress twice extended the tenure o f the first Postm aster G eneral. 812 F.2d at\n1142. W hile we agree that this fact supports the argum ent that C ongress generally possesses the pow er to\n\n41\n\n\x0cOpinions o f the O ffice o f L eg a l Counsel\n\ndoes not rule out an Appointments C lause objection to legislation giving tenure for\nextraordinary long terms to incumbent officers removable only for cause, we be\xc2\xad\nlieve that a short term holdover provision is likely to be upheld by the courts.\nAs we explained above, the holdover statute at issue is, constitutionally, some\xc2\xad\nwhere in between the situations we believe represent the two extremes. Although\nthe voting m em bers o f the Commission do have tenure protection and new mem\xc2\xad\nbers o f the Com m ission must receive the advice and consent of the Senate before\nthey are appointed, the secured or \xe2\x80\x9cguaranteed\xe2\x80\x9d terms of office of hold-over mem\xc2\xad\nbers are not being lengthened. The holdover provision simply allows them to con\xc2\xad\ntinue to serve in office after their term s have expired until the earlier of two events:\n\xe2\x80\x9c(A) the date on which a successor has taken office; or (B) the date on which the\nC ongress adjourns sine die to end the session o f Congress that commences after the\ndate on which the m em ber\xe2\x80\x99s term expired.\xe2\x80\x9d 106 Stat. at 933.\nW e must determ ine whether this change in the incumbent commissioners\xe2\x80\x99 serv\xc2\xad\nice effectively frustrates the President\xe2\x80\x99s appointm ent power or confers on the Leg\xc2\xad\nislature a reappointm ent power (albeit for a short period o f time). As to the first\nissue, the P resident\xe2\x80\x99s formal appointment power is not affected in the least. He\nmay nom inate w hom ever he wants at precisely the same time as he could before,\npresum ably in advance o f the expiration of the term he is seeking to fill. M oreo\xc2\xad\nver, it is not even clear that the effect of the holdover provision is to limit the dis\xc2\xad\ncretion of the Executive, since it gives the President the option of retaining the\nholdover officer until he chooses to nom inate a successor. In short, it is not clear\nwhether the appointing authority\xe2\x80\x99s pow er is augmented or diminished by a holdo\xc2\xad\nver statute that applies to incumbent office holders. See FEC v. NRA P olitical\nV ictory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) (holding that the N R A \xe2\x80\x99s challenge\nto the alleged restriction on the President\xe2\x80\x99s appointment power to select more than\nthree com m issioners from one party is not justiciable because \xe2\x80\x9cit is impossible to\ndeterm ine in this case whether the sta tu te actually limited the President\xe2\x80\x99s appoint\xc2\xad\nment power[;] . . . we [cannot] assume [] that the President wished to appoint more\nthan three m em bers of one party\xe2\x80\x9d).\nThe only problem atic effect we see that the holdover statute could have on the\nPresident\xe2\x80\x99s pow er o f appointment is that the Senate might be less inclined to act on\na nom ination for bureaucratic or institutional reasons, such as a less pressing need\nto act on a nom ination where there is a holdover, or for political or inter-branch\nadvantage. But all o f these reasons fo r Senatorial inaction are present for commis\xc2\xad\nsioners who are appointed after the holdover statute is enacted, and there can be no\nreasonable argum ent that the holdover statute as applied to subsequent appointees\nis unconstitutional. It is simply not persuasive to argue that the President\xe2\x80\x99s ap\xc2\xad\npointm ent pow er is effectively frustrated when incumbent commissioners hold over\nbut not when subsequent commissioners hold over.\ne xtend term s, the o rig in al P o stm aster General serv ed at the p leasu re o f the President, and thus the First\nC o n g re ss \xe2\x80\x99s actio n s placed no practical limitation o n the ap p o in tm en ts pow er\n\n42\n\n\x0cOpinion R egarding the Sentencing Com m ission H oldover Appointees\n\nWith regard to Congress, we must still consider whether the application of a\nholdover provision to incumbent officer holders with tenure protection amounts to\na legislative designation or legislative reappointment. Once again, there is no leg\xc2\xad\nislative reappointment in granting future appointees holdover rights because when\nthe President makes a future appointm ent the holdover provision simply defines\none of the attributes of the office to which the appointment is made. However, in\nhis concurrence in Benny , Judge Norris argued that the problem with extending the\nterms of incumbents lies in the fact that Congress can review the track record o f the\nincumbents and manipulate the tenure of officials it likes and dislikes. 812 F.2d at\n1143-44. As Judge Norris argued in the context of extending the fixed term of\nbankruptcy judges:\nCongress can dictate with certainty who occupies an office by\nextending the terms of known incumbents. . . . By extending the\nterms of known incumbents, Congress can guarantee that its choices\nwill continue to serve for as long as Congress wishes, unless the of\xc2\xad\nficers can be removed. Thus, congressional extension can effec\xc2\xad\ntively block the exercise of appointing power by the only officials\nconstitutionally authorized to exercise it\xe2\x80\x94 officials of the o th er\nbranches of government. Selective exercise of this extension power\ncould prove to be a potent political weapon. For example, if Con\xc2\xad\ngress wished to prevent the executive or judicial branch from filling\nan office about to become vacant with an appointee unfavorable to\nthe prevailing congressional majority party, it could simply extend\nthe incumbent\xe2\x80\x99s term until a more favorable group of officials took\ncontrol of either the executive or judicial branch. * * * In effect,\nextension statutes allow Congress to arrogate to itself one of the\npowers of appointment\xe2\x80\x94 the power of reappointment. Indeed, it is\nhard to see any distinction between the congressional extension at\nissue here and a statute expressly authorizing congressional reap\xc2\xad\npointment of incumbents.\nId. (emphasis in original).\n\nJudge Norris was in the minority in Benny, and furthermore, there are several\nimportant differences between the extension statute he was considering and the\nholdover statute we are considering. For Congress to extend the tenure of a known\nincumbent by means of a holdover statute beyond that desired by the President,\nCongress not only would have to pass a holdover statute, over the President\xe2\x80\x99s veto\nif necessary, but the Senate would also have to cooperate in refusing to confirm the\nPresident\xe2\x80\x99s subsequent nominee. Such bad faith concerted action is too speculative\nand hypothetical a basis to support a claim of unconstitutionality. Cf. NRA P o liti\xc2\xad\nca l Victory Fund, 6 F.3d at 824-25 (holding not justiciable the N R A \xe2\x80\x99s separation\n\n43\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nof pow ers claim that the President would have appointed other commissioners but\nfor the political party restriction in the statute).\nT here are tw o other important lim itations on the Congress\xe2\x80\x99s power to frustrate\nthe President\xe2\x80\x99s appointm ent power by means of this holdover statute. One limita\xc2\xad\ntion is that the office probably is vacant for Recess Appointments Clause purposes,\nand the President probably would be able to make a recess appointment to fill the\nposition w henever the Senate is in recess for the requisite length o f time.6 See U.S.\nConst, art. II, \xc2\xa7 2, cl. 3 (\xe2\x80\x9cThe President shall have Power to fill up all Vacancies\nthat may happen during the Recess o f the Senate, by granting Commissions which\nshall expire at the End o f their next Session.\xe2\x80\x9d). The Department o f Justice has long\ninterpreted the term \xe2\x80\x9cRecess of the Senate\xe2\x80\x9d to include intrasession recesses if they\nare o f substantial length.7 There usually is a recess of the Senate of sufficient\nlength to satisfy the constitutional standard in A ugust and December of each year.\nThe Sentencing Commission holdover statute, moreover, contains its own time\nlimit. In Benny, the Ninth Circuit held that an extension o f a term o f short duration\ndid not constitute a congressional appointment:\nC ongress\xe2\x80\x99[s] pow er to extend prospectively terms of office can be\nim plied from its power to add to the duties o f an office other duties\nthat are germ ane to its original duties. Shoem aker v. U nited States,\n147 U.S. 282, 300-01 (1893). Logically, the only point at which a\nprospective extension of term o f office becomes similar to an ap\xc2\xad\npointm ent is when it extends the office for a very long time. . . . [A]\nshort extension, like the one at issue here [as much as a six year ex\xc2\xad\ntension, does not] preventf] those who have the appointment power\nfrom exercising that power.\n\n6 T h e re m ay be so m e qu estio n , however, w h e th er the p osition being filled by the holdover officer is vacant fo r recess a p p o in tm e n t p u rposes C om pare S ta eb ler v. C arter, 4 64 F. Supp. 585, 588-601 (D .D C\n1979) (h o ld in g that the FE C office was vacant fo r R ecess A pp o in tm ents C lause purposes when the incum \xc2\xad\nbent co n tin u e d to e x ercise authority pursuant to a holdover provision that provided that \xe2\x80\x9c[a] m em ber of the\nC o m m issio n [F E C ] m ay serve on the C om m ission after the ex p iration o f his term until his successor has\ntaken o ffice \xe2\x80\x99*) w ith M a c k ie v. C lin to n , 827 F. S upp. 56, 58 (D .D .C . 1993) (w hether a vacancy exists for\nR ecess A p p o in tm e n ts C lau se purposes depends on the w o rd in g and structure of the particular holdover\nprovisio n , d ecid in g that the Postal Service h o ld o v e r provision did not create a vacancy) The Sentencing\nC o m m issio n h o ld o v e r statute has features in co m m on w ith the holdover statutes in both Staebler and\nM ackie. A lth o u g h the Sentencing C om m ission holdover statu te is sim ilar to the w ording o f the statute in\nS ta e b le r in tw o resp ects, there is a limitation o n the length o f tim e that the incum bent can hold over, which\nthe co u rt in M a ckie said was im portant in d ecid in g that a v acan cy did not ex ist in the office. Thus, in the\npresent c ase, it is u n c le ar w h eth er courts would h o ld that the P resident could exercise his recess appointm ent\npow er to oust a h o ld o v e r co m m issioner and fill the vacancy. W e believe that the better view is that this\nh o ld o v e r statu te c re ates a vacancy for purposes o f the R ecess A p pointm ents C lause\n7 S e e g e n e ra lly E x e c u tive P o w er \xe2\x80\x94 Recess A p p o in tm en ts, 33 O p A tt'y G en. 20 (1921) (opining that the\nP resid en t h ad the p o w er to m ake recess appointm ents d u n n g an intrasession recess o f the Senate lasting from\nA ugust 24 to S e p te m b e r 21. 1921); Recess A p p o in tm en ts D u rin g an Intrasession R ecess, 16 Op O L C . 15\n(1992), In tra sessio n R e c e ss A ppointm ents, 13 O p O L C . 271 (1989); R ecess A ppoin tm en ts Issues, 6 Op\nO L C 5 8 5 (1 9 8 2 ).\n\n44\n\n\x0cOpinion R egarding the Sentencing Com m ission H oldover A ppointees\n\n812 F.2d at 1141 (parallel citation omitted). Judge Norris disputed the short/long\ndistinction and the majority\xe2\x80\x99s reliance on Shoem aker. He argued that:\nThe congressional power to expand the duties of an existing of\xc2\xad\nfice is subject to a reasonable and relatively clear limitation: C on\xc2\xad\ngress may not devolve upon an officeholder responsibilities which\nare not germane to his existing duties [citing Shoem aker ]. W hen\nCongress merely adds duties to an office that are germane to the of\xc2\xad\nficeholder\xe2\x80\x99s existing duties, Congress has simply expanded the\npower of an official in the field and for a period of time in which a\nvalid appointing authority has already entrusted him to act. The in\xc2\xad\nterference with the appointing authority\xe2\x80\x99s choice of personnel is\nmarginal. By contrast, it is apparent from reading the majority\nopinion that there is no principled or coherent limitation on the\npower to extend an incumbent\xe2\x80\x99s term of office. * * * I fail to see\nhow a line can be drawn between \xe2\x80\x9cshort\xe2\x80\x9d and \xe2\x80\x9clong\xe2\x80\x9d extensions on\nany principled basis. The same constitutional evil the majority finds\ninherent in \xe2\x80\x9clong\xe2\x80\x9d extensions . . . is also present with short exten\xc2\xad\nsions. It is merely present for a shorter period of time.\nId. at 1145.\n\nAlthough we are not prepared to articulate the precise line at which an extension\nwould effect a congressional appointment, we do not share Judge N orris\xe2\x80\x99s skepti\xc2\xad\ncism either. In contrast to the hypothetical cases Judge Norris writes about where\nthere is no \xe2\x80\x9cprincipled or coherent limitation\xe2\x80\x9d on extending the term of office, there\nis a \xe2\x80\x9creasonable and relatively clear limitation\xe2\x80\x9d in the Sentencing Commission\nholdover statute. In fact, we think that the time limit in the Sentencing Com m is\xc2\xad\nsion holdover statute serves the same function, and is a close proxy for,\n\xe2\x80\x9cgermaneness\xe2\x80\x9d as that concept is used when Congress expands the duties of an\nexisting office. If the \xe2\x80\x9cinterference with the appointing authority\xe2\x80\x99s choice o f per\xc2\xad\nsonnel is marginal\xe2\x80\x9d where additional but germane duties are added, we do not see\nany reason why the interference is greater, at least in a constitutional sense, for\nholdover provisions of short duration. We do not need to address the precise point\nat which an extension becomes impermissibly long, because we are satisfied that\nthe time limit chosen by Congress in the Sentencing Commission holdover statute\nis shorter than the time limit in Benny and comes with a venerable pedigree. The\ntime limit in the holdover provision at issue is almost identical to the one in the\nRecess Appointments Clause. The Framers provided that the President alone could\nfill vacancies in principal offices for this length of time without receiving the ad\xc2\xad\nvice o f the Senate. In other words, they decided that keeping the governm ent run\xc2\xad\nning for this length of time was more important than adhering to the formalities of\nthe Appointments Clause. We conclude that this time limit is also a reasonable\n45\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\nlength within which Congress may by law keep independent agencies running until\nthe appointing authority fills the position at issue.8\n\nIII.\nIn sum m ary, we conclude that the holdover statute applies to the members of the\nCom m ission who were appointed prior to its enactment. We also conclude that\nsuch com m issioners may hold over without violating the Appointments Clause,\nbecause the President rem ains free to appoint a successor who, upon confirmation,\nwould displace the holdover and because there is a reasonable limit to the period\nduring which they can serve as holdover commissioners.\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G eneral\nO ffice o f L egal Counsel\n\n8\nW e d o not ad d ress o th e r hypothetical statu tes that are not neutral in th eir application For exam ple, we\ndo not a d d ress a statute that w ould create or rep eal holdover provisions fo r selective m em bers of the sam e\ncom m issio n o r for classes o f m em bers on the sam e co m m issio n , e.g., those appointed on a certain date or\nthose from a p a rtic u la r p o litical p arty Such statu tes m ight a m o u n t to a prohibited congressional designation,\neven if the h o ld o v er perio d is for a short period o f tim e\n\n46\n\n\x0c"


b'July 19, 1979\n\n79-54\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConstitutional Law\xe2\x80\x94Article I, Section 6, Clause\n2\xe2\x80\x94Appointment of Member of Congress to a Civil\nOffice\n\nThis m em orandum addresses the arguments made in a letter dated July\n16, 1979, from the general counsel o f the National Rifle Association\n(NRA), to Senator Joseph Biden concerning the constitutional eligibility\no f Representative A bner Mikva for appointm ent to the U.S. Court o f A p\xc2\xad\npeals for the District o f Columbia Circuit. The letter substantially repeats\ncontentions contained in an unsigned mem orandum dated July 2, 1979, to\nwhich I responded in my m em orandum to you o f July 11, 1979. However,\nin order to clarify the issues, we will discuss certain o f the main points ad\xc2\xad\nvanced by the NRA after summarizing our position.\nIt is our conclusion that, under the present statutory posture, C on\xc2\xad\ngressman M ikva\xe2\x80\x99s appointm ent is not barred by Article I, Section 6,\nClause 2, o f the C onstitution. First, since no increase in the emoluments o f\nFederal judges has to date come into effect during this Congress, we are\ndealing with a situation in which there is a prospect\xe2\x80\x94but no present\nreality\xe2\x80\x94o f such an increase. Accordingly, the question is whether the ap\xc2\xad\npointm ent is barred by the possibility o f a future salary increase during the\nterm for which the M ember o f Congress was elected. The plain language\nand settled executive interpretation o f Clause 2 firmly support the view\nthat a sitting member o f Congress is not barred from appointm ent in such\ncircumstances. Second, even if a salary increase were to occur prior to the\nappointm ent o f Representative Mikva, it is our position that Congress is\nconstitutionally empowered to exempt from coverage o f the increase the\noffice to which Representative Mikva may be appointed. Such practice has\nboth historic (the appointm ent o f Senator Knox as Secretary o f State) and\nm odem (appointm ent o f Senator Saxbe as A ttorney General) precedent,\neach o f which was referred to in our earlier m em orandum.\nThe NRA, in responding to these arguments, has stated quite clearly\n298\n\n\x0c(at page 2 o f its July 16 letter) that its position is that under existing\nstatutes \xe2\x80\x9c the com pensation o f federal judges must increase during the\npresent Congress.\xe2\x80\x9d This is simply incorrect. It is possible for Congress, by\nmeans o f legislation, to block a salary increase for judges during the pres\xc2\xad\nent Congress; we do not now know what course Congress will take.\nFurther, the NRA letter makes plain that its position is that all sitting\nMembers o f Congress are barred from appointm ent to Federal judgeships,\nor any other \xe2\x80\x9c civil office\xe2\x80\x9d for purposes o f Clause 2, until after the end o f\ntheir terms as Members o f Congress. That reasoning rests on the premise\nthat the Federal salary statutes, by providing for the possibility o f annual\nadjustm ents in Government salaries, disqualify all Members o f Congress\nbecause, after their appointm ent to a civil office, the office to which they\nhad been appointed may have its compensation adjusted upwards. Such\nan extreme view fails to take account o f the plain wording o f Clause 2,\nstating that no Member o f Congress \xe2\x80\x9cshall * * * be appointed\xe2\x80\x9d to a civil\noffice the emoluments o f which \xe2\x80\x9c shall have been encreased\xe2\x80\x9d during the\nterm for which the member was elected. [Emphasis added.] As we noted in\nour earlier m em orandum, by using the future tense in referring to an ap\xc2\xad\npointm ent, while employing the future perfect tense to refer to an increase\nin emoluments, the provision on its face displays a clear and unambiguous\nintent o f preventing an appointm ent only when an increase in the\nemoluments o f an office precedes an appointm ent.\nIn response, the NRA letter seems to suggest that our position treats dif\xc2\xad\nferently the provision\xe2\x80\x99s language \xe2\x80\x9c shall have been created * * * during\nsuch tim e,\xe2\x80\x9d referring to an office, and the language \xe2\x80\x9c shall have been\nencreased * * * during such tim e,\xe2\x80\x9d referring to the com pensation. If we\nunderstand th at suggestion correctly, the opposite is in fact the case. For it\nis clear that a Member o f Congress cannot be appointed to a civil office\nbefore the office has been created. Thus, the constitutional language refer\xc2\xad\nring to the creation o f offices must be taken to refer to a situation in which\nan office is created during the term o f a Member o f Congress, at a certain\ntime, and after that time but before the end o f his term , the member is ap\xc2\xad\npointed to the office. Such an appointm ent under Clause 2 is barred. In\nprecisely analogous fashion, with respect to the language regarding an in\xc2\xad\ncrease in emoluments, the language must, in our opinion, be taken to refer\nto a situation in which the emoluments o f an office are increased during\nthe term o f a Member o f Congress, at a certain time, and after that time\nbut before the end o f this term , the Member is appointed. In short, the two\nsituations should be viewed in parallel terms. That reasoning leads to our\nconclusion th at unless emoluments for an office have been increased prior\nto appointm ent, the C onstitution presents no bar.\nFurther, the N R A \xe2\x80\x99s letter rather inexplicably asserts that Attorney\nGeneral Clark\xe2\x80\x99s opinion regarding the appointm ent o f Representative\nLaird to the office o f Secretary o f Defense does not lend support to the\nview that Representative Mikva\xe2\x80\x99s appointm ent would be constitutional.\n299\n\n\x0cIn fact, the Clark opinion directly supports that view. U nder the statute in\xc2\xad\nvolved in the Clark opinion, the President was authorized to include\nrecommendations for salary increases, if any, in his budget message to\nCongress, the recom m endations to become effective no earlier than 30\ndays following the transm ittal in the President\xe2\x80\x99s budget message, unless\nthey were disapproved by Congress. U nder these circumstances, Mr. Laird\nwould have been a Member o f the 91st Congress when the recommenda\xc2\xad\ntions for salary increases were transm itted, but the Secretary o f Defense\nwhen they became effective. See O p. A tt\xe2\x80\x99y Gen. 381, 382 (1969) On this\nbasis\xe2\x80\x94which if anything is less favorable than the present factual situa\xc2\xad\ntion\xe2\x80\x94A ttorney General Clark reasoned that the appointm ent would be\nvalid because the proscription o f Clause 2 does not apply where \xe2\x80\x9c it is im\xc2\xad\npossible but not certain at the time o f the appointm ent that a proposed\nsalary increase for the appointee may receive final approval at a future\nd ate.\xe2\x80\x9d 42 O p. A tt\xe2\x80\x99y Gen. 382. That reasoning applies directly to this case,\nin which it is possible, but not certain, that a salary increase may receive\nfinal approval at a future date.\nIn response to our contention that even if, in the future, a salary in\xc2\xad\ncrease for Federal judges were to come into effect before Representative\nMikva were appointed to the Federal bench, Congress still could by\nlegislation exempt his office from coverage o f the salary increase. The July\n16 m em orandum merely repeats points earlier advanced. The short answer\nis th at, although this point has been debated in the past (for example, by\nProfessor Kurland), Congress quite correctly, has not accepted the sugges\xc2\xad\ntion that Clause 2 stands in the way o f such a procedure.\nJohn M . H\n\narmon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n300\n\n\x0c'