b'Applicability of the Civil Service Provisions of Title 5 of the\nUnited States Code to the United States Enrichment Corporation\n\nThe United States E nrichm ent C orporation is exem pt from the civil service provisions o f title 5 o f the\nU nited S tates Code\n\nJu n e 22, 1993\n\nM e m o r a n d u m O p in io n\n\nfor th e\n\nG eneral C o unsel\n\nU n it e d S t a t e s E n r ic h m e n t C o r p o r a t io n\n\nYou have requested our opinion on whether the United States Enrichm ent C or\xc2\xad\nporation (\xe2\x80\x9cUSEC\xe2\x80\x9d) is subject to the civil service provisions of title 5 of the United\nStates Code. We have concluded that, under the statute establishing USEC, title\nIX o f the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 2923\n(codified at 42 U.S.C. \xc2\xa7\xc2\xa7 2297-2297e-7) (\xe2\x80\x9cthe Act\xe2\x80\x9d), USEC is exempt from the\ncivil service provisions o f title 5.\nI.\nBefore USEC was established, the Department o f Energy (\xe2\x80\x9cD OE\xe2\x80\x9d) produced\nenriched uranium for use as fuel for commercial nuclear power plants. Congress\ndecided that the DOE program was inefficient; the problems included increasing\ninternational competition, declining global market share, and billions of dollars in\nunrecovered costs of production. In response to these problems, Congress decided\nto transfer the DOE program to a government corporation that could eventually be\nsold to the private sector, in order to ensure that the program would be operated in\na more business-like fashion. See, e.g., H.R. Rep. No. 102-474, pt. VIII, at 75-76\n(1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2293-94; see also 42 U.S.C.\n\xc2\xa7 2297a(l), (7) (identifying purposes of USEC, including \xe2\x80\x9c[t]o operate as a busi\xc2\xad\nness enterprise on a profitable and efficient basis\xe2\x80\x9d and \xe2\x80\x9c[t]o conduct the business as\na self-financing corporation and eliminate the need for Federal Government appro\xc2\xad\npriations or [most] sources of Federal financing\xe2\x80\x9d).\nThe rules regulating USEC\xe2\x80\x99s employees are set forth in 42 U.S.C. \xc2\xa7 2297b-4.\nThis provision authorizes the Board of Directors of USEC to \xe2\x80\x9cappoint such offi\xc2\xad\ncers and employees as are necessary for the transaction o f its business.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 2297b-4(a). In addition, 42 U.S.C. \xc2\xa7 2297b-4(b) provides:\nThe Board shall, without regard to section 5301 of title 5, fix the\ncom pensation o f all officers and employees of the Corporation, de\xc2\xad\nfine their duties, and provide a system of organization to fix respon\xc2\xad\n27\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nsibility and prom ote efficiency. Any officer or employee of the\nCorporation may be removed in the discretion of the Board.\nBy granting the Board broad discretion to make decisions regarding hiring and\nemploym ent, including decisions on wage rates and removal of employees, these\nprovisions suggest a congressional intent to exem pt USEC from the civil service\nlaws regulating such decisions, including the statutory pay system embodied in 5\nU.S.C. \xc2\xa7\xc2\xa7 5301-5392.\nW e recognize that, arguably, the use in \xc2\xa7 2297b-4(b) o f the phrase \xe2\x80\x9cwithout re\xc2\xad\ngard to section 5301 o f title 5\xe2\x80\x9d reveals an intent not to exempt USEC from any\nprovisions o f title 5 other than \xc2\xa7 5301. However, under the traditional rules of\nstatutory construction, this is not a plausible interpretation of the Act, and the Act\nshould be read as fully exempting U SEC from the civil service laws, including title\n5 \xe2\x80\x99s provisions regarding pay rates.\nII.\nA.\nIn interpreting the Act we \xe2\x80\x9cmust look to the particular statutory language at is\xc2\xad\nsue, as well as the language and design o f the statute as a whole,\xe2\x80\x9d K M art Corp. v.\nCartier, Inc., 486 U.S. 281, 291 (1988), and we m ust interpret the specific statu\xc2\xad\ntory language identified above in the context o f the \xe2\x80\x9cremainder of the statutory\nschem e,\xe2\x80\x9d United Savings A ss\xe2\x80\x99n v. Tim bers o f Inw ood Forest Assocs., 484 U.S.\n365, 371 (1988).\nSection 5301 o f title 5 establishes general policy criteria for setting pay rates for\nfederal em ployees under the General Schedule; the specific rules regulating federal\npay rates and system s, in turn, are set forth in the subsequent sections o f chapter 53\nof title 5. A ccordingly, construing the Act to exem pt USEC from \xc2\xa7 5301 but not\nthe im plem enting provisions of chapter 53 would create an anomaly: the Board\nwould be authorized to make em ploym ent decisions without complying with the\nbasic policy provision o f chapter 53, but would have to comply with the specific\nstatutory and regulatory provisions intended to effectuate that policy. It would not\nmake sense to interpret the Act as containing this contradiction, especially because\nall the other relevant evidence shows that Congress intended to exempt USEC from\nall o f title 5 \xe2\x80\x99s civil service provisions.1\nW hen 42 U.S.C. \xc2\xa7 2297b-4(b) is read in the context o f the other employee pro\xc2\xad\nvisions in \xc2\xa7 2297b-4 and the rest o f the Act as a whole, it becomes even clearer\nthat U SEC is exem pt from the civil service provisions of title 5, including all the\n1\nThis reasoning is sufficient to defeat the expressio unius est exclusio alterius maxim on which the\nargument for a contrary interpretation would be based. See 2A Norman J. Singer, Sutherland Statutory\nConstruction \xc2\xa7 47 25 (5th ed 1992) (expressio untus maxim should not be applied if its application would\nresult in a contradiction o r would noi serve the purpose for which the statute was enacted)\n\n28\n\n\x0cA p p licability o f the Civil Service P rovisions o f Title 5 o f the\nU nited States Code to the U nited States E nrichm ent C orporation\n\nrules regarding pay in chapter 53. First, the other provisions in 42 U.S.C.\n\xc2\xa7 2297b-4 demonstrate that Congress authorized USEC to make employmentrelated decisions w ithout regard to the civil service laws. For example, subsection\n2297b-4(c) provides that USEC is to follow certain general principles set forth in\ntitle 5 governing personnel matters, but also expressly exempts USEC from the\nspecific requirements o f title 5 in making these decisions:\nApplicable criteria. The Board shall ensure that the personnel\nfunction and organization is consistent with the principles o f section\n2301(b) of title 5, relating to merit system principles. Officers and\nemployees shall be appointed, promoted, and assigned on the basis\nof merit and fitness, and other personnel actions shall be consistent\nwith the principles of fairness and due process but without regard to\nthose provisions o f title 5 governing appointments and other p e r\xc2\xad\nsonnel actions in the competitive service.\n42 U.S.C. \xc2\xa7 2297b-4(c) (emphasis added).\nFurthermore, 42 U.S.C. \xc2\xa7 2297b-4 contains certain provisions relating to the\nrights of employees transferred to USEC from DOE and other governm ent posi\xc2\xad\ntions. These provisions indicate that Congress contemplated that USEC employees\nwould not be protected by the civil service laws. For example,\n[c]ompensation, benefits, and other terms and conditions of em \xc2\xad\nployment in effect immediately prior to the transition date, whether\nprovided by statute or by rules of the Department or the executive\nbranch, shall continue to apply to officers and employees who trans\xc2\xad\nfer to the Corporation from other Federal employment until\nchanged by the Board.\n42 U.S.C. \xc2\xa7 2297b-4(d) (emphasis added). This provision reflects C ongress\xe2\x80\x99s as\xc2\xad\nsumption that USEC would be free to set the terms and conditions of employment\nfor its employees, because if USEC were bound by civil service statutes Congress\nwould not have needed to guarantee transferred employees their existing em ploy\xc2\xad\nment terms and conditions. Furthermore, the protection is merely temporary, for it\nlasts only \xe2\x80\x9cuntil changed by the Board.\xe2\x80\x9d Thus, Congress provided that USEC\nwould be authorized to change the terms and conditions of employment for trans\xc2\xad\nferred government employees without regard to civil service laws. The natural\ninference from this authorization is that Congress assumed it had given USEC the\nsame authority with respect to new hires and other non-governmental employees.\nIn addition, the part o f the Act that governs the benefits o f transferees and detailees reflects C ongress\xe2\x80\x99s assumption that USEC would retain discretion to set\n\n29\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\npension and other benefits without regard to the statutory civil service benefit re\xc2\xad\nquirem ents. That provision states:\nAt the request o f the Board and subject to the approval of the Sec\xc2\xad\nretary, an em ployee of the [DOE] may be transferred or detailed as\nprovided for in section 2297b-14 o f this title, to the Corporation\nwithout any loss in accrued benefits or standing within the Civil\nService System. For those em ployees who accept transfer to the\nC orporation, it shall be their option as to whether to have any ac\xc2\xad\ncrued retirem ent benefits transferred to a retirement system estab\xc2\xad\nlished by the Corporation o r to retain their coverage under either\nthe Civil Service Retirement System or the Federal Em ployees\xe2\x80\x99 Re\xc2\xad\ntirem ent System, as applicable, in lieu of coverage by the Corpora\xc2\xad\ntio n \xe2\x80\x99s retirem ent system. F or those employees electing to remain\nwith one o f the Federal retirem ent systems, the Corporation shall\nwithhold pay and make such payments as are required under the\nFederal retirem ent system. For those [DOE] employees detailed,\nthe [DOE] shall offer those employees a position of like grade,\ncom pensation, and proximity to their official duty station after their\nservices are no longer required by the Corporation.\n42 U.S.C. \xc2\xa7 2297b-4(e)(4) (emphasis added). If Congress had intended that USEC\nwould generally be subject to the civil service laws, it would not have been neces\xc2\xad\nsary for the Act to state that employees transferred or detailed from government\njobs to USEC would retain \xe2\x80\x9caccrued benefits [and] standing within the Civil Serv\xc2\xad\nice System .\xe2\x80\x9d Furtherm ore, subsection 2297b-4(e)(4) constitutes congressional\nauthorization for USEC to establish its own retirement system in lieu of one of the\ntwo retirem ent systems established in title 5.2\nFinally, 42 U.S.C. \xc2\xa7 2297b-4(e)(3) states that USEC is subject to the National\nLabor Relations A ct (\xe2\x80\x9cNLRA\xe2\x80\x9d), 29 U.S.C. \xc2\xa7\xc2\xa7 151-169. This provision also\nreflects C ongress\xe2\x80\x99s intent to treat USEC more like a private employer than a\ngovernm ent em ployer for purposes o f em ploym ent guidelines. Government agen\xc2\xad\ncies and departm ents subject generally to the civil service system of title 5 are not\ncovered by the N LRA ; instead, these governm ent entities are subject to the\nLabor-M anagem ent and Employee Relations subpart o f title 5. See 5 U.S.C.\n\xc2\xa7\xc2\xa7 7101-7135.\nThus, when read together, the employee provisions of the Act require the\nconclusion that the Act exempts USEC from all of title 5 \xe2\x80\x99s pay provisions. This\ninterpretation is also consistent w ith the general purposes of USEC\xe2\x80\x99s enabling stat\xc2\xad\nute as a whole. As discussed above, Congress established USEC so that it could\n2\nSee 5 U.S C. \xc2\xa7\xc2\xa7 8331-8351 (Civil Service Retirement System ), id. \xc2\xa7\xc2\xa7 8401-8479 (Federal Employees\xe2\x80\x99\nRetirement System)\n\n30\n\n\x0cA pplicability o f the Civil Service P rovisions o f Title 5 o f the\nU nited States Code to the U nited States E nrichm ent Corporation\n\nimplement the uranium enrichm ent program in a more efficient and com petitive\nmanner. USEC was created in order to \xe2\x80\x9coperate as a business enterprise on a\nprofitable and efficient basis,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2297a(l); see id. \xc2\xa7 2297a(7) (citing\nas one purpose of USEC, to \xe2\x80\x9cconduct the business as a self-financing corporation\nand eliminate the need for Federal Government appropriations or sources o f\nFederal financing\xe2\x80\x9d),3 and accordingly was authorized to have \xe2\x80\x9call the powers o f\na private corporation incorporated under the District of Columbia B usiness\nCorporation Act,\xe2\x80\x9d id. \xc2\xa7 2297b-2(l). The flexibility to make employment decisions\nwithout regard to the civil service laws, and particularly to attract highly\nqualified business executives without regard to federal salary caps, constitutes\nthe sort of competitive advantage that USEC needs to carry out the purpose o f the\nAct.\nOur conclusion is also supported by the fact that Congress contem plated that\nUSEC would start out as a government corporation but would eventually be pri\xc2\xad\nvatized without further action by Congress. Under 42 U.S.C. \xc2\xa7 2297d(a), USEC is\nrequired to \xe2\x80\x9cprepare a strategic plan for transferring ownership of the C orporation\nto private investors\xe2\x80\x9d within two years after the date D O E\xe2\x80\x99s uranium enrichm ent\nprogram is transferred to USEC. The privatization plan must be transmitted to the\nPresident and Congress, id. \xc2\xa7 2297d(d); USEC is authorized to implement the plan\nwithout additional legislation, so long as the President approves the plan and\nUSEC notifies Congress of its intent to implement the plan and then waits 60 days,\nid. \xc2\xa7 2297d-l. Thus, if the Act were interpreted to subject USEC to title 5 \xe2\x80\x99s civil\nservice provisions and USEC is then privatized, USEC as a private corporation\nwould be covered by the civil service laws. This would produce a very odd result,\nand one that contradicts the purpose of the Act \xe2\x80\x94 namely, to enable USEC to take\nadvantage of the added flexibility a private corporation has to compete in interna\xc2\xad\ntional markets.\nB.\nThe sparse legislative history of the Act supports the above analysis, because it\nshows that Congress rejected the Senate\xe2\x80\x99s language, which would have subjected\nUSEC to most of the civil service laws. The original Senate and House versions o f\n\n3\nSee also H.R. Rep. No. 102-474, pt. II, at 77, reprinted in 1992 U S.C C A N at 2084 ( \xe2\x80\x98A Government\ncorporation, with a clearly defined mission to operate as a commercial enterprise on a profitable and efficient\nbasis, will provide the enrichment program with the businesslike structure and flexibility that is crucial to the\nsurvival of the program "), H R. Rep No. 102-474, pt VIII, at 76, reprinted in 1992 U.S.C.C.A.N. at 2294\n(\xe2\x80\x9cThis proposal [establishing USEC] addresses the current problems of the DOE program through the estab\xc2\xad\nlishment of a Government Corporation which eventually could be sold to the private sector However, it is\ncritical that the new Government Corporation operate according to certain principles in order to be success\xc2\xad\nful The first principle is that the Government Corporation must be treated like a private corporation to the\nfullest extent practicable In order for the Government Corporation to become attractive to private investors,\nit will have to be competitive in the marketplace This will require freedom from bureaucratic behavior and\nweaning from special government favoritism ") (emphasis added).\n\n31\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nthe Act treated U S E C \xe2\x80\x99s employees quite differently. Section 1504 of S. 2166,\n102d Cong. (1992), the bill first passed by the Senate,4 provided:\n(a) O fficers and employees o f the Corporation shall be officers\nand em ployees of the United States.\n(b) The Administrator [o f USEC] shall appoint all officers, em \xc2\xad\nployees and agents of the Corporation as are deemed necessary to\neffect the provisions of this title without regard to any administra\xc2\xad\ntively imposed limits on personnel, and any such officer, employee\nor agent shall only be subject to the supervision of the Administra\xc2\xad\ntor. The Administrator shall fix all com pensation in accordance\nwith the com parable pay provisions o f section 5301 o f title 5,\nU nited States Code, with com pensation levels not to exceed Execu\xc2\xad\ntive Level II, as defined in section 5313 o f title 5, United States\nCode\\ Provided, That the A dm inistrator may, upon recommenda\xc2\xad\ntion by the Secretary and the Corporate Board . . . and approval by\nthe President, appoint up to ten officers whose compensation shall\nnot exceed an amount which is 20 per centum less than the compen\xc2\xad\nsation received by the Adm inistrator, but not less than Executive\nLevel II.\n(Em phasis added.) The Senate bill also provided that USEC employees were to be\nincluded in one of the two federal civil service retirement systems, S. 2166,\n\xc2\xa7 1504(c), and it explicitly subjected USEC em ployees to federal laws restricting\nem ployee conduct such as the Hatch Act, id. \xc2\xa7 1504(e). As explained in the com\xc2\xad\nmittee report accom panying S. 210, 102d Cong. (1991), a bill with identical em\xc2\xad\nployee provisions introduced the previous year, the Senate bill would have\n\xe2\x80\x9csu b je c te d ] USEC employees to all civil service laws except as otherwise\nprovided\xe2\x80\x9d in the bill. S. Rep. N o. 102-63, at 29 (1991) (discussing effect of\n\xc2\xa7 1504(a)).\nThus, the Senate bill would have explicitly subjected USEC to the compensa\xc2\xad\ntion provisions of title 5, including the pay cap provision. By contrast, the bill first\npassed by the H ouse o f Representatives, H.R. 776, 102d Cong. (1992), specifically\nprovided that the \xe2\x80\x9c [o]fficers and em ployees of the Corporation shall not be officers\nand em ployees o f the United States.\xe2\x80\x9d Id. \xc2\xa7 1305(a) (emphasis added). This lan\xc2\xad\nguage would have unambiguously exem pted USEC from all civil service laws.5\n\n4 See 138 Cong Rec. 2567 (1992)\n3\nThe only oiher employee-related provisions in the bill protected the existing rights of employees at\nfacilities performing functions vested in USEC and subjected USEC to the NLRA. H.R 776, \xc2\xa7 1305(b).\nSimilar provisions were incorporated into the legislation ultimately enacted into law. See 42 U S.C.\n\xc2\xa7 2297b-4(e)( l)-(3).\n\n32\n\n\x0cA p p licability o f the Civil Service P rovisions o f Title 5 o f the\nU nited States Code to the U nited States E nrichm ent Corporation\n\nH.R. 776 was passed by the House on May 27, 1992 and sent on to the Senate.\n138 Cong. Rec. at 12,725. The Senate amended H.R. 776 and replaced the House\nlanguage regarding USEC employees with the language contained in its own bill,\nS. 2166 (quoted above); the Senate passed the amended bill on July 30, 1992. 138\nCong. Rec. at 20,430.\nNo legislative history explains the differences between the House and Senate\nversions o f the employee provisions and the language produced by the\nHouse-Senate conference and enacted into law. However, a comparison o f the\nHouse and Senate bills makes clear that the provisions agreed upon effected a\ncompromise under which USEC was exempted from all of the civil service laws\nrelating to employee pay and benefits, but was required to implement \xe2\x80\x9cmerit sys\xc2\xad\ntem principles\xe2\x80\x9d and apply fairness and due process in carrying out personnel ac\xc2\xad\ntions under 42 U.S.C. \xc2\xa7 2297b-4(c).6 Thus, unlike the Senate version, the Act\nspecifically exempts USEC from 5 U.S.C. \xc2\xa7 5301 and authorizes it to fix the com \xc2\xad\npensation o f employees, take personnel actions without regard to the relevant title\n5 rules, and establish its own pension plan. Furthermore, the Act provides that the\n\xe2\x80\x9c[b]oard shall appoint such officers and employees as are necessary for the trans\xc2\xad\naction of its business,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2297b-4(a), in contrast to the original Senate\nversion of the bill, which provided that officers and employees would be officers\nand employees of the United States.\nIII.\nBased on the foregoing analysis of the Act and its legislative history, we have\nconcluded that USEC is exempt from the civil service provisions of title 5 o f the\nUnited States Code.\n\nDANIEL L. KOFFSKY\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n6\nSee Letter for Honorable James B. King, Director, Office of Personnel Management, from J. Bennett\nJohnston, Chairman, Senate Committee on Energy and Natural Resources (May 6, 1991) (explaining the\nSenator\'s view of the legislative history, based on informal sources that did not become part of the official\nrecorded legislative history) We merely note that this letter supports the theory explaining the change in the\nb ill\'s language, because the letter is a post-enactment interpretation by one Member of Congress, we do not\nrely on K in any way for our interpretation. See, e.g , Sullivan v. Fmkelstein, 496 U S. 617, 631-32 (1990)\n(Scaha, J , concurring in part); Tataranowicz v Sullivan, 959 F 2d 268, 278 n 6 (D C. Cir 1992), cert de\xc2\xad\nnied, 506 U S. 1048 (1993), Multnomah Legal Servs Workers Union v. Legal Servs. Corp., 936 F 2d 1547,\n1555 (9th Cir 1991).\n\n33\n\n\x0c'


b'Applicability of Executive Privilege to Deliberations Regarding\nAssertion of Privilege\nDocum ents reflecting and constituting deliberative communications within the White House Counsel\xe2\x80\x99s\nOffice and between that Office and the Department o f Justice relating to advice and recommenda\xc2\xad\ntions to the President on the assertion o f executive privilege are themselves a proper subject of\na claim o f executive privilege.\n\nSeptember 11, 1996\nL e t t e r O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t\n\nY o u have asked whether certain predecisional deliberative documents in the pos\xc2\xad\nsession of the White House Counsel\xe2\x80\x99s Office may properly be the subject of an\nassertion of executive privilege.\nThese documents reflect and constitute deliberative communications within the\nWhite House Counsel\xe2\x80\x99s Office and between that Office and the Department of\nJustice relating to the advice and recommendations presented to the President ear\xc2\xad\nlier this year with respect to the assertion of executive privilege in response to\na subpoena from the House Committee on Government Reform and Oversight.\nWe believe that the deliberative process concerning the President\xe2\x80\x99s assertion of\nhis constitutional privilege is at the heart o f the interests protected by the privi\xc2\xad\nlege \xe2\x80\x94 not only because of the heightened confidentiality interests regarding such\ndeliberations, but also because of the severe separation of powers concerns raised\nby a congressional intrusion on that process.\n\nBased on our review of these documents, we conclude that they are clearly\nprotected by executive privilege and may properly be the subject of an executive\nprivilege claim. The Supreme Court has expressly (and unanimously) recognized\nthat the Constitution gives the President the power to protect the confidentiality\nof White House deliberations. This power is rooted in the \xe2\x80\x9c need for protection\nof communications between high Government officials and those who advise and\nassist them in the performance of their manifold duties.\xe2\x80\x9d United States v. Nixon,\n418 U.S. 683, 705 (1974). \xe2\x80\x9c A President and those who assist him must be free\nto explore alternatives in the process of shaping policies and making decisions\nand to do so in a way many would be unwilling to express except privately.\xe2\x80\x9d\nId. at 708. The Court has also stressed the separation of powers nature of executive\nprivilege, stating that \xe2\x80\x9c [t]he privilege is fundamental to the operation of Govern\xc2\xad\nment and inextricably rooted in the separation of powers under the Constitution.\xe2\x80\x9d\nId.\n\n324\n\n\x0cApplicability o f Executive Privilege to Deliberations Regarding Assertion o f Privilege\n\nYou have not inquired concerning whether executive privilege could properly\nbe asserted in the context of any specific congressional demand for these docu\xc2\xad\nments.\nCHRISTOPHER H. SCHROEDER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n325\n\n\x0c'


b'Whether a State May Elect Its United States Senators\nFrom Single-Member Districts Rather Than At-Large\nU n d e r th e S ev en teenth Am endm ent to the C onstitution, a State m ay not constitutionally elect its\nU n ited S tates S enators from tw o single-m em ber districts rather than at large.\n\nAugust 20, 1992\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nC i v i l R ig h t s D iv is io n\n\nThe National Association for the Advancement of Colored People, Inc.,\n(\xe2\x80\x9cNAACP\xe2\x80\x9d) has filed suit challenging the method by which Mississippi se\xc2\xad\nlects its Senators. The NAACP claims that Mississippi has violated the\nVoting Rights Act o f 1965, as amended, 42 U.S.C. \xc2\xa7\xc2\xa7 1971-1974e, and the\n14th and 15th Amendments to the Constitution, by electing its Senators atlarge, rather than from two single-member districts. You have asked for our\nviews on the issue of whether a State constitutionally may elect its Senators\nfrom single-member districts, rather than at-large. We conclude that it may not.\nThe analysis begins with the text of the Seventeenth Amendment, which\nprovides that \xe2\x80\x9c[t]he Senate o f the United States shall be composed of two\nSenators from each State, elected by the people thereof.\xe2\x80\x9d U.S. Const, amend.\n17. Because States of the Union are distinct, unitary political entities, in\norder for a Senator to be from a State he or she must be from the entire\nState, not some part of it. Similarly, because of the nature of the States,\nelection by \xe2\x80\x9cthe people\xe2\x80\x9d of the State implies election by the whole people of\nthe State, not some smaller set of citizens. The election of Senators from\nsm aller districts instead of the entire State would result in Senators elected\nby only a part of the people o f a State. Such a plan would be inconsistent\nwith the Constitution\xe2\x80\x99s text.1\n1This conclusion is fully consistent with the Constitution\xe2\x80\x99s provision concerning the election of Repre\xc2\xad\nsentatives, which also refers to election by the people, stating that the \xe2\x80\x9cHouse of Representatives shall be\ncom posed of M em bers chosen every second Year by the People o f the several Slates." U.S. Const, art. I,\n\xc2\xa7 2, cl. I (em phasis added). This formulation was adopted by the Constitution\xe2\x80\x99s original framers to make\nclear that the low er house of Congress was to be elected proportionally by popular vote. See The F ed er\xc2\xad\na list N o. 39, at 254-55 (Jam es M adison) (Jacob E. C ooke ed. 1961). R epresentatives, th erefo re,\nre p re se n t people. A lthough it requires p opular election. A rticle I, Section 2 for this reason need\nContinued\n\n132\n\n\x0cThe history of the Seventeenth Amendment confirms that Senators are to\nbe selected by the people of the whole State. The report accompanying S.J.\nRes. 134, which eventually became the Seventeenth Amendment, explained\nthat the character of the Senate as representative of the States would be\nenhanced by popular election because, henceforth, a Senator would be se\xc2\xad\nlected by all o f the people of a State, instead of just the members of the\nState\xe2\x80\x99s legislature: \xe2\x80\x9cIt might change his relations to certain interests and\ncertain forces within the State, but if we are to suppose that a State consists\nof all the people and of all the interests, will he not still be its representative\nin every sense when his election comes from all the people o f his State!"\nElection o f Senators by Popular Vote, S. Rep. No. 961, 61st Cong., 3d Sess.\n4-5 (1911) (emphasis added) (\xe2\x80\x9cSenate Report\xe2\x80\x9d).\nThe Constitution elsewhere confirms that the role o f Senators is to repre\xc2\xad\nsent States considered as integral political units. As Madison explained, the\nbicameral structure of Congress reflects a decision to have one body in\nwhich the people are directly represented and one in which they are repre\xc2\xad\nsented in their capacity as state citizens \xe2\x80\x94 i.e., one in which the States are\nrepresented. \xe2\x80\x9cThe Senate . . . will derive its powers from the States, as\npolitical and co-equal societies; and these will be represented on the prin\xc2\xad\nciple of equality in the Senate, as they now are in the existing [Confederation]\nCongress.\xe2\x80\x9d Federalist No. 39, supra note 1, at 255. His remarks were later\nechoed by Justice Joseph Story, who contrasted the Senate with the House of\nRepresentatives and wrote that: \xe2\x80\x9c[E]ach state in its political capacity is\nrepresented [in the Senate] upon a footing of perfect equality, like a con\xc2\xad\ngress of sovereigns, or ambassadors, or like an assembly of peers.\xe2\x80\x9d Joseph\nStory, Commentaries on the Constitution o f the United States \xc2\xa7 352, at 252\n(Carolina Academic Pr. ed. 1987).2 Accordingly, Article I, Section 3 pro\xc2\xad\nvided that: \xe2\x80\x9cThe Senate of the United States shall be composed of two\nSenators from each State, chosen by the Legislature thereof . . . \xe2\x80\x9d U.S.\nConst, art. I, \xc2\xa7 3, cl.\' 1.\nArticle V of the Constitution also recognizes the role of Senators as rep\xc2\xad\nresentatives of their respective States. In creating a process of constitutional\namendment. Article V both confirms that the Senate is a body representing\nStates, and assures that it will continue as such. The provision describes the\nstructure of the Senate as one of suffrage for the States, providing \xe2\x80\x9cthat no\nState, without its Consent, shall be deprived of its equal Suffrage in the\nSenate.\xe2\x80\x9d U.S. Const, art. V.\nThe Seventeenth Amendment did not change the fundamental character\n\xe2\x80\x98 (....continued)\nnot and does not address the question of how the people are to choose Representatives, whether by dis\xc2\xad\ntricts, at-large, or otherwise. Senators, by contrast, represent States, and are elected, not by the people of\nthe several States \xe2\x80\x94 that is, the people at large \xe2\x80\x94 but by the people o f the States \xe2\x80\x94 that is, the people of\neach State in their separate capacities. It is therefore not surprising that the requirements of the Seven\xc2\xad\nteenth Amendment for apportionment are different from those of Article I.\n2See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551-53 (1985) (citations om itted)\n(States as such are represented in the Senate both to reflect and to protect their remaining sovereignty).\n\n133\n\n\x0cof the Senate. Indeed, as noted above, the framers of the Seventeenth Amend\xc2\xad\nment maintained that the change they were proposing would make the Senate\nmore representative of the States:\nIt was undoubtedly in the minds of the fathers that the Sena\xc2\xad\ntors should in a peculiar sense represent the State something\nas an ambassador. That idea naturally arose out of the fact\nthat the States had been separate and independent sovereign\xc2\xad\nties, and regarded each other to a great extent as wholly\nindependent States. . . . This amendment does not propose in\nany way to interfere with the fundamental law save and ex\xc2\xad\ncept the method or mode of choosing the Senators. It will\nstill be the duty of the Senator to see that the States respec\xc2\xad\ntively are not denied any of the rights to which they are justly\nentitled under our system of government. It will still be the\nduty and the pride of the Senator to see that the Common\xc2\xad\nw ealth w hich he represents in its entirety has that full\nrepresentation to which it is entitled under the fundamental\nlaw. The change will consist in bringing him more thoroughly\nin touch with all the interests and all that makes up a great\nState, and that is certainly desired.\nSenate Report, at 4-5 (emphasis added).\nIf Senators were elected from districts smaller than States, and not by the\nwhole people of each State, they would represent and be accountable only to\nparts o f States, not to the States as the Constitution requires. Indeed, the\nSenate would cease to be a body representing the States, and would become\nan assembly, like the House of Representatives, representing individuals living\nin certain areas of a State. The Constitution would no longer be the one de\xc2\xad\nscribed in Article V, in which the States themselves enjoy suffrage in the Senate.\nFinally, the election of Senators from districts would deprive the people\no f the States o f their constitutional right to elect both of their State\xe2\x80\x99s Sena\xc2\xad\ntors. The Supreme Court has recognized that the Constitution\xe2\x80\x99s popular\nelection provisions vest constitutionally protected rights in the people. United\nStates v. Classic, 313 U.S. 299, 314 (1941) (Article I, Section 2 creates a\nright in the people to choose their representatives).3\n3 C lassic involved a federal prosecution under sections 19 and 20 of the federal criminal code (now\ncodified at 18 U.S.C. \xc2\xa7\xc2\xa7 241, 242), forbidding conspiracies to interfere with the enjoyment o f rights\nsecured by the C onstitution, and the deprivation o f such rights under color of state law. The defendants\nw ere indicted for w illfully altering and falsifying ballots voters had cast in a Louisiana Democratic\nParty primary. In resolving the case, the C ourt was faced with the issue o f "whether the right o f quali\xc2\xad\nfied voters to vote in the Louisiana primary and to have their ballots counted is a right \'secured by the\nC o n stitu tio n .\'\xe2\x80\x9d Id. at 307. The Court concluded that it was.\n\n134\n\n\x0cThe Seventeenth Amendment, then, grants to each State\xe2\x80\x99s qualified voters\na constitutional right to participate in senatorial elections. At-large election\nof Senators is mandatory if that individual right is understood as either the\nright to participate in all senatorial elections or the right to vote for both\nSenators. It is difficult to see how it could be understood otherwise. The\nSeventeenth Amendment, which provides that each State shall have two Sena\xc2\xad\ntors and that the people shall elect them, nowhere suggests that there is any\ndifference between the two Senators, nor that the right of the people it\ncreates attaches to anything other than the two Senators given to each State.\nIn the absence of any indication to the contrary, the only conclusion is that\nthere is no disjunction between the individual right established by the amend\xc2\xad\nment and the two senatorial offices the amendment refers to. It follows that\nif Senators were elected from districts smaller than States, the people o f the\nState would be deprived of their constitutionally protected right to vote for\neach of their State\xe2\x80\x99s Senators. This can be accomplished, if it is to be\naccomplished, only by an amendment to the Constitution.\nTIMOTHY E. FLANIGAN\nAssistant Attorney General\nOffice o f Legal Counsel\n\n135\n\n\x0c'


b'Constitutionality of Bill Creating an Office\nof Congressional Legal Counsel\nCongressional officers representing the combined power of both houses of Congress\xe2\x80\x94in contrast to\nofficers of either house\xe2\x80\x94who perform significant governmental duties must be appointed as\nprovided in the Appointments Clause of the Constitution.\nThe authority to bring a civil action requiring an officer or employee of the Executive Branch to act in\naccordance with the Constitution and laws of the United States is an exclusive executive function\nthat must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President\xe2\x80\x99s unlimited removal power.\n\nFebruary 13, 1976\n\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL\nCIVIL DIVISION\nThis is in response to your memorandum of January 12, 1976, in which you ask\nfor information designed to assist you in complying with a request of the Subcommittee on Separation of Powers of the Senate Judiciary Committee for\n\xe2\x80\x9cMaterials to be Submitted for the Record\xe2\x80\x9d in connection with your recent\ntestimony before that Subcommittee. The two topics assigned to us are:\nI.\nStatements Submitted to Congress in Which the\nDepartment of Justice Opposed Congressional Attempts\nto Provide for a Counsel of Its Own\nSince the Office of Legislative Affairs is the clearing house for reports submitted to Congress, we checked with that Office in order to answer this question. The\nOffice of Legislative Affairs advised us that there have been only two instances in\nwhich statements relating to congressional attempts to provide for a counsel of its\nown were submitted to the Congress by the Department of Justice. They were your\nown statement of December 12, 1975, before the Senate Judiciary Committee, of\nwhich you, of course, are aware (Representation of Congress and Congressional\nInterests in Court: Hearings Before the Subcomm. on Separation of Powers of the\nS. Comm. on the Judiciary, 94th Cong. 4 (1976) (testimony of Rex. E. Lee,\nAssistant Attorney General, Civil Division)), and Assistant Attorney General\nUhlmann\xe2\x80\x99s testimony of December 3, 1975, before the Senate Committee on\nGovernment Operations on S. 495, on pages 15\xe2\x80\x9321 of the prepared text (Watergate Reorganization and Reform Act of 1975: Hearings on S. 495 and S. 2036\nBefore the S. Comm. on Government Operations, 94th Cong. pt. 2, at 15\xe2\x80\x9321\n(1976)).\n\n384\n\n\x0cConstitutionality of Bill Creating an Office of Congressional Legal Counsel\n\nThis Office is not aware of any other instances in which the Department submitted to Congress any statements pertinent to this issue.\nFor your information, I may point out that this problem came up in connection\nwith S. 1384, 90th Cong. (as introduced Mar. 23, 1967) (\xe2\x80\x9cTo establish the Office\nof Legislative Attorney General\xe2\x80\x9d). The comments prepared in this Office,\nhowever, were not submitted to Congress. The late Professor Bickel, however,\ncommented adversely on the proposal. Separation of Powers: Hearings Before the\nSubcomm. on Separation of Powers of the S. Comm. on the Judiciary, 90th Cong.,\npt. 1, at 248\xe2\x80\x9350 (1967).\nII.\nComments on the Constitutionality of S. 2731,\n94th Cong., 1st Sess.\nThis rather complex bill would establish the Office of the Congressional Legal\nCounsel as an office of the Congress. S. 2731, 94th Cong. \xc2\xa7 4(a)(1) (as introduced\nDec. 2, 1975)). The Congressional Legal Counsel would be appointed jointly by\nthe President pro tempore of the Senate and the Speaker of the House of Representatives, subject to approval by a concurrent resolution of the Senate and the\nHouse of Representatives. Id. The appointment would be for a term which would\nexpire at the end of the Congress following the Congress in which the Congressional Legal Counsel was appointed; he could be removed by concurrent resolution for misconduct, incapacity, or incompetence. Id. \xc2\xa7 4(a)(2).\nSections 5 and 6 would provide that the Congressional Legal Counsel shall\nprosecute and defend certain civil litigation in which Congress has an interest.\nBriefly those actions fall into the following categories:\n(a) Defense of either house or of congressional agencies, members,\nofficers, or employees in any civil action in which such house, etc.,\nis a party defendant in which there is placed in issue the validity of\n(i) any proceeding of, or action taken, including any subpoena or\norder issued, by such house, joint committee, subcommittee,\nmember, officer, employee, office, or agency; or\n(ii) any subpoena directed to such house, joint committee, committee, subcommittee, member, officer, employee, office, or\nagency (id. \xc2\xa7\xc2\xa7 5(a)(1), 6(2)).\n(b) Prosecution of civil actions on behalf of Congress, etc.,\n(i) to secure a declaratory judgment concerning the validity of any\nsubpoena directed to, or subpoena or order issued by, Congress,\n\n385\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nor such house, joint committee, committee, subcommittee, member, officer, employee, office, or agency (id. \xc2\xa7\xc2\xa7 5(a)(2)(B); 6(1));\nor\n(ii) to require an officer or employee of the executive branch of\nthe Government to act in accordance with the Constitution and\nlaws of the United States (id. \xc2\xa7 5(a)(2)(A)).\nUnder section 7(a), the Congressional Legal Counsel would make recommendations as to whether a civil action requiring an officer or employee of the\nExecutive Branch to act in accordance with the Constitution and laws of the\nUnited States should be brought.\nSection 8(a) would provide for the intervention or appearance as amicus curiae\nby the Congressional Legal Counsel in any legal action in which\n(1) the constitutionality of any law of the United States is challenged\nand the United States is a party to such action, or a Member, officer,\nor employee of Congress does not consent to representation by the\nCongressional Legal Counsel under section 5 of this Act; and\n(2) the powers and responsibilities of Congress under article I of the\nConstitution of the United States are placed in issue.\nSection 9 would confer on the Congressional Legal Counsel certain advisory\nand consultative functions.\nSection 10 would implement the responsibilities of the Congressional Legal\nCounsel under the preceding sections. Sections 11 and 12 deal with internal\nprocedural matters.\nSection 13 would provide for the supersedure of the Attorney General by the\nCongressional Legal Counsel if the latter undertakes any representational service.\nWe assume that this provision is not intended to apply to proceedings under\nsection 5(a)(2)(A), i.e., where the Congressional Legal Counsel institutes a civil\naction to require a officer of the Executive Branch \xe2\x80\x9cto act in accordance with the\nConstitution and laws of the United States.\xe2\x80\x9d The remainder of the bill contains\nprovisions mainly of a procedural nature. Section 15(f), however, would put on a\npermanent general basis Public Law 93-190, 87 Stat. 736 (1973), which authorized\nthe Senate Select Committee on Presidential Campaign Activities to enforce its\nsubpoenas or orders in judicial proceedings.\nIt may be briefly mentioned that the reference to section 6 or 7 on page 18, line\n10 of the bill should probably be section 5 or 6.\nIn commenting on the constitutionality of the bill it must be recognized, first,\nthat the bill represents a conscious effort to obviate certain constitutional obstacles\ninherent in other bills providing for a Congressional Legal Counsel by limiting his\nactivities to the fields of civil litigation and the giving of advice and the making of\n\n386\n\n\x0cConstitutionality of Bill Creating an Office of Congressional Legal Counsel\n\nrecommendations. And, second, that the pertinent law has been substantially\nclarified by the decision in Buckley v. Valeo, 424 U.S. 1 (1976), which was rendered after the introduction of the bill.\nProvisions for a congressional officer charged on a permanent basis with the\nfunction of representing Congress, its agencies, members and employees in\njudicial proceedings, raise two questions: (a) whether the appointment of a joint\ncongressional officer performing only legislative functions must comply with\nArticle II, Section 2, Clause 2 of the Constitution, and (b) whether, assuming that\nthe answer to (a) is no, the functions of the counsel envisaged in the bill are\nsufficiently of an executive nature to require his appointment pursuant to Article II, Section 2, Clause 2 for that reason. Further serious problems are raised by\nsection 5(a)(2)(A) which would confer upon the Congressional Legal Counsel the\npower to bring a civil action against an executive officer in order to require him\n\xe2\x80\x9cto act in accordance with the Constitution and the laws of the United States.\xe2\x80\x9d\n1. Article II, Section 2, Clause 2 of the Constitution provides that the President\nshall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose\nAppointments are not herein otherwise provided for, and which shall\nbe established by Law: but the Congress may by Law vest the\nAppointment of such inferior Officers, as they think proper, in the\nPresident alone, in the Courts of Law, or in the Heads of Departments.\nIt will be noted that this constitutional provision is not limited to executive\nofficers. Judicial officers are appointed pursuant to it, and, as will be presently\nshown, also a number of important congressional officers.\nUnited States v. Hartwell defines an office as a public station or employment\nwhich \xe2\x80\x9cembraces the ideas of tenure, duration, emolument, and duties,\xe2\x80\x9d to\ndistinguish it from relationships of a purely occasional or contractual nature.\n73 U.S. (6 Wall.) 385, 393 (1867). The elements of tenure, duration, emoluments,\nand duties relating to the office of the Congressional Legal Counsel are spelled out\nin detail in the bill, as has been shown above.1\nIn United States v. Germaine, the Court held:\nThat all persons who can be said to hold an office under the government about to be established under the Constitution were intended to\nbe inclined within one or the other of these modes of appointment\nthere can be but little doubt.\n\n1\nSince the definition of office includes the elements of duration and tenure, the subsequent discussion is not concerned with the representation of Congress, etc., by counsel retained on a case by case\nbasis in the rare situations in which the Executive Branch is unable to represent it.\n\n387\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n99 U.S. 508, 510 (1878).\nAnd most recently the Court amplified on this in Buckley v. Valeo:\nWe think its fair import is that any appointee exercising significant\nauthority pursuant to the laws of the United States is an \xe2\x80\x9cOfficer of\nthe United States,\xe2\x80\x9d and must, therefore, be appointed in the manner\nprescribed by \xc2\xa7 2, cl. 2, of that Article.\n424 U.S at 126.\nThe functions to be conferred on the Congressional Legal Counsel clearly vest\nin him significant authority under the laws of the United States; they are not\nlimited to an internal advisory nature. The provisions for his appointment therefore\nare unconstitutional unless the Constitution \xe2\x80\x9cotherwise provides\xe2\x80\x9d for his appointment. In our view there is no such alternative provision for his appointment.\nArticle I, Sections 2 and 3 of the Constitution provide that the House of Representatives and the Senate choose their respective officers. There is, however, no\nprovision in the Constitution \xe2\x80\x9cotherwise providing\xe2\x80\x9d for the appointment of officers\nserving Congress as such rather than its components.\nBuckley v. Valeo demonstrates that the failure of the Constitution to authorize\nCongress to appoint officers who are not officers of the respective houses but of\nCongress as a whole was no oversight. 424 U.S. at 124\xe2\x80\x9331. This conclusion is\nsupported by the consideration that the Constitutional Convention deliberately\nsplit the Legislative Branch into two houses lest it overwhelm the other two\nbranches of the government. As James Madison stated in The Federalist No. 51:\nIn republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes\nof election and different principles of action, as little connected with\neach other as the nature of their common functions and their common dependence on the society will admit. . . . [T]he weight of the\nlegislative authority requires that it should be thus divided . . . .\nId. at 322 (Clinton Rossiter ed., 1961) (emphasis added). John Adams\xe2\x80\x99 three volumes in the Defence of the Constitutions of Government of the United States of\nAmerica (1794), based on a formidable amount of historical research, were compiled in order to establish the proposition that, in order to be viable, a republican\nform of government must be based not only on the principle of the separation of\npowers but also on that of bicameralism. Hence, it must be concluded that the\nConstitutional Convention deliberately denied Congress the power to appoint joint\ncongressional officers, in order to hold \xe2\x80\x9cconnections\xe2\x80\x9d between the two Houses of\nCongress to a minimum. Such officers, therefore, like all other officers of the United States, have to be appointed pursuant to Article II, Section 2 of the Constitution.\n\n388\n\n\x0cConstitutionality of Bill Creating an Office of Congressional Legal Counsel\n\nLegislative precedent supports this conclusion. The principal joint congressional officers have been traditionally appointed in this manner: the Comptroller\nGeneral (31 U.S.C. \xc2\xa7 42 (Supp. III 1973)); the Librarian of Congress (2 U.S.C.\n\xc2\xa7 136 (Supp. III 1973)); and the Public Printer (44 U.S.C. \xc2\xa7 301 (Supp. III 1973))\nare appointed by the President by and with the advice and consent of the Senate;\nthe Architect of the Capitol is appointed by the President alone (40 U.S.C. \xc2\xa7 162\n(1970)). Significantly, the legislative counsel appointed by the President pro\ntempore of the Senate and by the Speaker of the House of Representatives,\nrespectively (2 U.S.C. \xc2\xa7 272 (1970)), are officers of the house to which they have\nbeen appointed and not officers of Congress at large (2 U.S.C. \xc2\xa7\xc2\xa7 271, 281\n(1970)).\nThis is not to say that there may not be some congressional officials\xe2\x80\x94such as\njoint committee staffs\xe2\x80\x94who are not appointed pursuant to Article II, Section 2,\nClause 2. But their functions are purely internal and advisory; they do not carry\nout any significant authority outside the limits of the Capitol.\nIt is therefore concluded that congressional officers\xe2\x80\x94in contrast to officers of\neither house\xe2\x80\x94who perform significant governmental duties must be appointed as\nprovided in Article II, Section 2 of the Constitution. In other words, if Congress\nprovides for an officer representing the combined power of both houses of\nCongress, it must pay the price by giving the President the authority of selection.\n2. This portion of the discussion is based on the assumption arguendo that\ncongressional officers, even if they do perform significant governmental functions,\nneed not be appointed according to the procedures set forth in Article II, Section 2,\nClause 2 of the Constitution provided their functions are not of an executive or\nadministrative nature.\nThe principal pertinent functions of the Congressional Legal Counsel would lie\nin the field of litigation. The kind of proceedings in which he would be involved\nfall into three categories:\ni. Generally, to defend Congress, its agencies, members and employees in cases involving the validity of congressional action, congressional subpoenas, or orders issued by or directed against Congress.\nii. To bring civil actions for declaratory relief concerning the validity\nof a subpoena issued by or directed against Congress or to enforce\nany congressional subpoena or order.\niii. To bring civil actions requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws\nof the United States.\nThe last category quite obviously and uncontrovertibly involves an exclusively\nexecutive function. To require an officer to act in accordance with the Constitution\n\n389\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nand laws of the United States is nothing but a paraphrase of the constitutional text\nto \xe2\x80\x9ctake Care that the Laws be faithfully executed.\xe2\x80\x9d That responsibility is vested,\npursuant to Article II, Section 3 of the Constitution, in the President and not in\nCongress. An officer whose duty it is to compel action in accordance with the\nrequirements of the Constitution and laws of the United States, therefore, is an\nexecutive officer who must be appointed as provided for in Article II, Section 2,\nClause 2 of the Constitution and be subject to the President\xe2\x80\x99s unlimited removal\npower. Buckley v. Valeo, 424 U.S. at 134\xe2\x80\x9341.\nIn view of this recent pertinent ruling in Buckley v. Valeo, we do not consider it\nnecessary to discuss here the alternative consideration whether Congress or a\nmember has standing in court to require an officer to act in accordance with the\nConstitution and laws of the United States. We merely refer to the recent holding\nof the U.S. Court of Appeals for the Fourth Circuit in Harrington v. Schlesinger,\ndecided on October 8, 1975:\nA legislator may sue to prevent dilution of his voting power in the\nlegislature. In Kennedy v. Sampson, D.C. Cir., 511 F.2d 430\n[(1974)], the Court decided that a Senator had standing to challenge\na President\xe2\x80\x99s \xe2\x80\x9cpocket veto\xe2\x80\x9d of a bill for which he had voted. The\nSenator was challenging the diminution of his voting power in the\nlegislative process. By analogy, the four congressmen in this action\nclaim that they have an interest in ensuring enforcement of laws for\nwhich they voted. Once a bill has become law, however, their interest is indistinguishable from that of any other citizen. They cannot\nclaim dilution of their legislative voting power because the legislation they favored became law.\n....\n. . . The plaintiffs\xe2\x80\x99 status as congressmen does not give them\nstanding to sue for a declaration that Executive activities are illegal.\nThe congressmen\xe2\x80\x99s interest seems little different from that of any citizen who might find a court\xe2\x80\x99s advice useful in casting his votes in\npresidential or congressional elections. In both instances the interest\nis too generalized to provide a basis for standing.\n....\nWhile we hold that none of the plaintiffs has standing to seek a\njudicial resolution of the controversy, they are not without a remedy,\nfor the controversy is subject to legislative resolution. If there is a\ndifference between a majority of the members of both houses of\nCongress and the President as to the interpretation and application of\nthe statutes, the Congress has the resources through its committees to\n\n390\n\n\x0cConstitutionality of Bill Creating an Office of Congressional Legal Counsel\n\nascertain the facts. With the facts before it, it may tighten the statutory restrictions, if that be the congressional will. The fact that the\nCongress has done nothing suggests that the Executive\xe2\x80\x99s interpretation of the statutes is in agreement with the congressional intent, but\nthat is an issue in this case which we do not reach.\n528 F.2d 455, 459 (4th Cir. 1975) (footnote omitted).\nIn other words, while a congressman may have standing to determine whether\nor not legislation which had passed both Houses of Congress has become law\n(Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)),* once a statute has been\napproved by the President, the congressional power over it becomes functus\nofficio. See Cong. Globe, 39th Cong., 1st Sess. 186 (Jan. 11, 1866) (statement of\nSen. Davis). In this connection it should be remembered that \xe2\x80\x9cstanding to sue\xe2\x80\x9d is a\nconstitutional requirement flowing from the limitation of the jurisdiction of the\nfederal courts to cases and controversies in Article III, Section 2, Clause 1 of the\nConstitution. It therefore cannot be waived by statute, which is apparently what\nsection 14(a) of the bill seeks to accomplish.\nPortions of the litigating functions conferred upon the Congressional Legal\nCounsel in categories (i) and (ii) described above\xe2\x80\x94notably the defense of actions\nagainst individual congressmen with respect to the performance of their legislative\nfunctions, and the defense or prosecution of suits relating to congressional\nsubpoenas\xe2\x80\x94are less exclusively executive in nature; it is our view, however, that\nthe lodging of any of them in a non-executive officer is subject to serious constitutional doubt. Litigation is basically an executive function. This conclusion is\nsupported by section 14(c) of the bill, which would vest in the Congressional\nLegal Counsel the powers conferred by law upon the Attorney General, which\npowers, of course, are of a preeminently executive nature. It is also significant that\nthe responsibility of defending congressional officers has been vested in the\nAttorney General for more than a century. See 2 U.S.C. \xc2\xa7 118 (1970) (derived\nfrom Act of Mar. 3, 1875, ch. 130, \xc2\xa7 8, 18 Stat. 371, 401). The Supreme Court\nsuggested in Buckley v. Valeo that legislative power may come to an end at the\ncourtroom door: \xe2\x80\x9c[The] discretionary power to seek judicial relief . . . cannot\npossibly be regarded as merely in aid of the legislative function of Congress.\xe2\x80\x9d 424\nU.S. at 138. Kennedy v. Sampson is of course not in point, since that involved the\nstanding of individual members of Congress rather than the power of the Congress, as an institution, to represent individual members, or the Congress itself, in\nlitigation.\n\n*\nEditor\xe2\x80\x99s Note: In Chenoweth v. Clinton, 181 F.3d 112, 115\xe2\x80\x9317 (D.C. Cir. 1999), the Court of\nAppeals expressed doubt about the continuing viability of Kennedy v. Sampson in light of Raines v.\nByrd, 521 U.S. 811 (1997).\n\n391\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe preceding discussion encompasses the constitutional objections to the bill\nwhich appear to us to be the most serious ones. While we realize that there are\nothers lurking in it, space and time preclude us from dealing with all of them.\nFor the above reasons, it is our conclusion that the bill is subject to substantial\nconstitutional infirmities.\nANTONIN SCALIA\nAssistant Attorney General\nOffice of Legal Counsel\n\n392\n\n\x0c'


b"September 19, 1978\n\n78-52\n\nM EM ORANDUM OPINION FOR THE\nEXECUTIVE DIRECTOR, NATIONAL\nCOM MISSION ON LIBRARIES AND\nINFORM ATION SCIENCE\nNational Commission on Libraries and Information\nScience (20 U .S.C . \xc2\xa7 1501 et seq.)\xe2\x80\x94 Quorum Under\nCommission\xe2\x80\x99s Sunshine Act\xe2\x80\x94 Delegation of Authority\nby the Librarian of Congress\n\nThis responds to your request for our opinion whether the Librarian of\nCongress can delegate his duties as an ex officio member of the National\nCommission on Libraries and Information Science (Commission) to the Deputy\nLibrarian of Congress, and whether the Commission\xe2\x80\x99s Sunshine Act regula\xc2\xad\ntions affect the Commission\xe2\x80\x99s quorum. We conclude that the Librarian can\ndelegate his official duties, and that the Commission\xe2\x80\x99s Sunshine Act regula\xc2\xad\ntions do not affect the quorum.\nI.\nWhen former Librarian of Congress H.R. Spofford testified before the Joint\nCommittee on the Library of Congress (Committee) in 1896, he told the\ncommittee its chairman had advised him that he had the authority to deputize an\nassistant to whom he could delegate certain of his official duties.1 In making\nrecommendations to Congress on the reorganization of the Library, the\nCommittee said that the Librarian of Congress should have complete control\nover the Library\xe2\x80\x99s management and expressly declined to propose a change in\nthe Librarian\xe2\x80\x99s authority.2 The Librarian\xe2\x80\x99s authority to delegate his official\nduties is also supported by the provision for compensation for a Deputy\nLibrarian of Congress without specifying his duties.3\nThe Librarian of Congress has the statutory authority to \xe2\x80\x9c make rules and\nregulations for the government\xe2\x80\x9d of the Library of Congress.4 Substantially\n'S . Rept. No. 1573, 54th C o n g ., 2d sess. 129 (1897).\n\n2Id\xe2\x80\x9e at 1-2.\n32 U .S .C . \xc2\xa7 136 a-1 (1976).\n42 U .S .C . \xc2\xa7 1 3 6 (1976).\n\n208\n\n\x0cidentical grants of rulemaking power to the heads of the executive departments\nare considered general authorizations for their delegation of authority,5 although\ncertain powers have been held nondelegable where Congress has so indicated.\nIn United States v. Giordano, 416 U.S. 505 (1974), the Court found that the\nlegislative history of the Omnibus Crime Control and Safe Streets Act of 1968,\n18 U.S.C. \xc2\xa7\xc2\xa7 2510-20 (1976), shows that Congress did not intend to authorize\nthe Attorney General\xe2\x80\x99s delegation of authority to approve wiretap applications\nto the Attorney General\xe2\x80\x99s Executive Assistant; it held that a wiretap application\napproved by the Executive Assistant was invalid. The legislative history of the\nNational Commission on Libraries and Information Act, 20 U.S.C. 1501-1506\n(1976), shows no intent by Congress to limit the delegation of authority by the\nLibrarian of Congress. We believe that the grant of rulemaking power to the\nLibrarian of Congress implies the authority to delegate his official duties. This\nauthority is also strongly suggested by Congress\xe2\x80\x99s provision for compensation\nfor a Deputy Librarian, without specifying the Deputy\xe2\x80\x99s duties, and Congress\xe2\x80\x99\nearlier tacit approval of the Librarian\xe2\x80\x99s delegation of authority.\nThe Librarian of Congress is a member of the Commission ex officio; his\nmembership is an extension of his duties as Librarian of Congress.6 Because the\nLibrarian of Congress can delegate his official duties, he can also delegate his\nduties stemming from his membership on the Commission to his Deputy, and\nallow the Deputy both to vote and to be included in the Commission\xe2\x80\x99s quorum.\nII.\nThe Commission\xe2\x80\x99s Sunshine Act regulations define the Commission\xe2\x80\x99s\nquorum to be \xe2\x80\x9c a majority of the Commission\xe2\x80\x99s members who have been\nappointed by the President and confirmed by the Senate. \xe2\x80\x9d You ask whether this\ndefinition of a quorum in the Commission\xe2\x80\x99s regulations is authority to allow\nless than 8 members, which is a majority of the Commission\xe2\x80\x99s statutory 15\nmembers,7 to conduct the Commission\xe2\x80\x99s business when the Commission has\nless than 15 members confirmed by the Senate.\nThe National Commission on Libraries and Information Science Act, 20\nU.S.C. \xc2\xa7\xc2\xa7 1501-6 (1976), does not specify a quorum for the Commission. The\ncourts have uniformly held that a failure of Congress to specify a quorum\nauthorizes the adoption of no less than a common-law quorum, a majority of\nthe statutory membership of a collective body.8 We can find no authority for the\nCommission\xe2\x80\x99s authorizing a quorum of less than a majority of its statutory 15\nmembers. We must therefore conclude that the Commission cannot adopt a\nquorum of less than 8 members; thus the Commission\xe2\x80\x99s regulation defining the\n\n>E.g., Fleming v. Mowhawk Wrecking \xc2\xa3 Lumber Co., 331 U .S. I l l , 121 (1946); Wirtz v.\nAtlantic Stales Construction C o. , 357 F. (2d) 442, 445 (1966); Plapao Labs. In c. , v. Farley, 92 F.\n(2d) 228, 229 (D .C . Cir. 1937), cert, denied, 302 U .S . 732 (1937).\n620 U .S .C . \xc2\xa7 1505 (1976).\n720 U .S .C . \xc2\xa7 1505 (1976).\n*E.g.. FTC v. Flotill Products, Inc., 389 U .S . 179, 182-184 (1967).\n\n209\n\n\x0cCommission\xe2\x80\x99s quorum must be interpreted to require a majority of the\nCommission\xe2\x80\x99s statutory 15 members for a quorum.\nLEON U l m a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n210\n\n\x0c"


b'Constitutionality o f Proposed Statutory Provision\nRequiring Prior Congressional Notification for\nCertain CIA Covert Actions\nA proposed statutory provision that would oblige the President to notify Congress of any\nand all covert actions (other than those for the purpose of intelligence-gathering) to be\nfunded out of the Reserve for Contingencies, regardless of the circumstances, would\nunconstitutionally infringe upon the President\xe2\x80\x99s constitutional responsibilities, including\nhis duty to safeguard the lives and interests of Americans abroad.\n\nJuly 31, 1989\nM\n\nemorandum\n\nO p in io n\n\nfor the\n\nAttorney G en eral\n\nThis is in response to your request for our opinion on the constitu\xc2\xad\ntionality o f a proposed amendment to section 502 o f the National\nSecurity Act, 50 U.S.C. \xc2\xa7 414. That amendment would prohibit the\nexpenditure or obligation o f any funds from the \xe2\x80\x9cReserve for Con\xc2\xad\ntingencies\xe2\x80\x9d for any covert action in a foreign country (other than for the\npurpose o f intelligence-gathering) if the President has not first notified\nthe appropriate congressional committees o f the proposed expenditure.\nFor the reasons stated below, we believe such a requirement is an un\xc2\xad\nconstitutional condition on the President\xe2\x80\x99s authority to conduct covert\nactivities abroad pursuant to the President\xe2\x80\x99s constitutional responsibil\xc2\xad\nities, including his responsibility to safeguard the lives and interests o f\nAmericans abroad.\nTitle 22, section 2422, of the United States Code, prohibits the expen\xc2\xad\nditure o f funds\nby or on behalf of the Central Intelligence Agency for oper\xc2\xad\nations in foreign countries, other than activities intended\nsolely for obtaining necessary intelligence, unless and until\nthe President finds that each such operation is important to\nthe national security o f the United States.\nThe proposed amendment would further limit the President\xe2\x80\x99s ability to\nconduct certain intelligence activities important to the national security\no f the United States. It would add as a proviso to section 502 o f the\n258\n\n\x0cNational Security Act, 50 U.S.C. \xc2\xa7 414, a requirement that \xe2\x80\x9cno funds from\nthe Reserve for Contingencies may be expended for any operation or\nactivity for which the approval o f the President is required by section 662\no f the Foreign Assistance Act o f 1961 (22 U.S.C. \xc2\xa7 2422), or for any sig\xc2\xad\nnificant change to such operation or activity, for which prior notice has\nbeen withheld.\xe2\x80\x9d\nWe believe the proposed amendment is unconstitutional because it\nwould oblige the President to notify Congress o f any and all covert\nactions to be funded out o f the Reserve for Contingencies, regardless o f\nthe circumstances. It would apply even if the President is directing an\nextremely sensitive national security activity within his exclusive respon\xc2\xad\nsibility under the Constitution. We need not define all that is compre\xc2\xad\nhended within the grant to the President o f \xe2\x80\x9cthe executive Power ... o f\nthe United States o f America,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 1. At a minimum, that\npower encompasses the authority to direct certain covert actions without\nfirst disclosing them to Congress, among which are those actions neces\xc2\xad\nsary to protect the lives and property o f Americans abroad. Early judicial\nrecognition o f this authority o f the President to take action to protect\nAmericans abroad came during a mid-nineteenth century revolution in\nNicaragua. On the President\xe2\x80\x99s orders, a naval gunship bombarded a town\nwhere a revolutionary government had engaged in violence against\nAmericans and their property. Of this action it was said:\nAs the executive head o f the nation, the president is made\nthe only legitimate organ o f the general government, to open\nand carry on correspondence or negotiations with foreign\nnations, in matters concerning the interests o f the country\nor o f its citizens. It is to him, also, the citizens abroad must\nlook for protection of person and o f property ....\nNow, as it respects the interposition o f the executive\nabroad, fo r the protection o f the lives or property of the cit\xc2\xad\nizen, the duty must, of necessity, rest in the discretion of\nthe president.\nDurand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. 1860) (No. 4186)\n\n(emphasis added). At least to the extent the amendment would limit that\nauthority, it is unconstitutional.\nThe courts have also recognized that the President must be able to act\nsecretly in order to meet his constitutional responsibilities in foreign\naffairs. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304,\n320-21 (1936), the Court expressly endorsed President Washington\xe2\x80\x99s\nrefusal to provide the House o f Representatives with information about\ntreaty negotiations even after the negotiations had been concluded. A for\xc2\xad\ntiori, such information could be withheld during the negotiations.\n259\n\n\x0cThe Court has more recently emphasized that the core presidential\nresponsibility for protecting confidential national security interests\nextends beyond matters concerning treaties and into diplomatic and mil\xc2\xad\nitary secrets such as covert actions. United States v. Nixon, 418 U.S. 683,\n712 n.19 (1974) (recognizing the \xe2\x80\x9cPresident\xe2\x80\x99s interest in preserving state\nsecrets\xe2\x80\x9d). This conclusion is rooted in the original conception o f the\nPresident\xe2\x80\x99s Office, as described by John Jay in the Federalist. There, he\nspoke o f the need for \xe2\x80\x9cperfect secrecy and immediate dispatch\xe2\x80\x9d in the\nfield o f diplomacy and intelligence gathering.1He continued:\nThe convention have done well, therefore, in so disposing\no f the power o f making treaties that although the President\nmust, in forming them, act by the advice and consent o f the\nSenate, yet he will be able to manage the business o f intel\xc2\xad\nligence in such manner as prudence may suggest.\nId. at 392-93 (emphasis added).\n\nWe believe that because the Constitution permits the President, where\nnecessary, to act secretly to achieve vital national security objectives\nabroad, a rigid requirement o f prior notice for covert operations imper\xc2\xad\nmissibly intrudes upon his constitutional authority.\nAs the Durand court recognized, the grant o f executive power is the\nprincipal textual source of the President\xe2\x80\x99s discretion to act for the Nation\nin foreign affairs. From the First Congress on, this grant has been con\xc2\xad\nstrued to afford the President discretion to act in the field o f foreign\naffairs. This broad power in matters o f foreign policy stands in contrast\nto his comparatively limited authority to act alone in the domestic con\xc2\xad\ntext. President Washington, fo r example, asserted the President\xe2\x80\x99s prerog\xc2\xad\native to communicate with Citizen Genet when he sought something for\na consul, and addressed that request to \xe2\x80\x9cthe Congress o f the United\nStates.\xe2\x80\x9d It was President Washington who asserted the President\xe2\x80\x99s author\xc2\xad\nity to determine the status o f foreign representatives when he later\ndemanded Citizen Genet\xe2\x80\x99s recall. President Washington also determined,\nwithout consulting Congress, that the United States would remain impar\xc2\xad\ntial in the war between France and Great Britain; he also refused to share\nwith the House o f Representatives sensitive information about the nego\xc2\xad\ntiation o f the Jay Treaty with Great Britain. The First Congress recog\xc2\xad\nnized that the conduct o f our foreign affairs was to be primarily the\nresponsibility o f the President, and for that reason located the State\nDepartment in the executive branch. The Supreme Court has recognized\nthat the President alone is empowered to negotiate with foreign countries\non behalf o f the United States. In Curtiss-Wright, 299 U.S. at 319, the\nCourt stated:\n1The Federalist , N o 64, at 392 (John J a y) (Clinton Rossiter ed , 1961).\n\n260\n\n\x0cNot only ... is the federal power over external affairs in\norigin and essential character different from that over inter\xc2\xad\nnal affairs, but participation in the exercise o f the power is\nsignificantly limited. In this vast external realm, with its\nimportant, complicated, delicate and manifold problems,\nthe President alone has the power to speak or listen as a\nrepresentative o f the nation. He makes treaties with the\nadvice and consent o f the Senate; but he alone negotiates.\nInto the field o f negotiation the Senate cannot intrude; and\nCongress itself is powerless to invade it.\nId. These examples could be expanded upon, but all buttress the conclu\xc2\xad\n\nsion that the President\xe2\x80\x99s authority with respect to foreign affairs is very\nbroad, and that certain foreign affairs powers, such as the power to act\n(secretly if need be) to protect Americans abroad, inhere in his Office.\nCongress attempts to justify under its power o f the purse requiring\nprior notification o f all covert actions to be paid for out o f the Reserve for\nContingencies. Congress\xe2\x80\x99s authority incident to its power over the purse\nis broad, and generally includes the power to attach conditions to appro\xc2\xad\npriations, but its power is by no means limitless. For example, Congress\nappropriates money for all federal agencies in all three branches o f gov\xc2\xad\nernment. But the fact that Congress appropriates money for the Army\ndoes not mean that it can constitutionally condition an appropriation on\nallowing its armed services committees to have tactical control o f the\narmed forces. Nor does it follow from Congress\xe2\x80\x99 legislative establishment\no f executive branch departments and its appropriation o f money to pay\nthe salaries o f federal officials that Congress can constitutionally condi\xc2\xad\ntion creation o f a department or the funding o f an officer\xe2\x80\x99s salary on being\nallowed to appoint the officer. Interpreting the appropriations power in\nthis manner would in effect transfer to Congress all powers o f the\nbranches o f government. The Framers\xe2\x80\x99 carefully worked out scheme o f\nseparation o f powers, o f checks and balances, would be rendered mean\xc2\xad\ningless. Accordingly, however broad the Congress\xe2\x80\x99 appropriations power\nmay be, the power may not be exercised in ways that violate constitu\xc2\xad\ntional restrictions on its own authority or that invade the constitutional\nprerogatives o f other branches. As the Supreme Court has said, \xe2\x80\x9cLacking\nthe judicial power given to the Judiciary, [Congress] cannot inquire into\nmatters that are exclusively the concern o f the Judiciary. Neither can it\nsupplant the Executive in what exclusively belongs to the Executive .\xe2\x80\x9d\nBarenblatt v. United States, 360 U.S. 109, 112 (1959) (emphasis added).\nThis well-established doctrine o f unconstitutional conditions further\nprevents Congress from using its power over the appropriation o f public\nfunds to attach conditions to executive branch appropriations requiring\nthe President to relinquish his constitutional discretion in foreign affairs.\nJust as an individual may not be required to waive his constitutional\n261\n\n\x0crights as a condition o f accepting public employment or benefits, so the\nPresident cannot be compelled to give up the authority o f his Office as a\ncondition o f receiving the funds necessary to carrying out the duties of\nhis office.2\nCongress has also justified such reporting requirements on the basis o f\nits need for information to carry out its legislative function. This over\xc2\xad\nsight power, however, is neither explicit, McGrain v. Daugherty, 273 U.S.\n135, 161 (1927), nor \xe2\x80\x9cunlimited,\xe2\x80\x9d Watkins v. United States 354 U.S. 178,\n187 (1957). It can be exercised only to further a legitimate legislative\nfunction traceable to one of Congress\xe2\x80\x99 enumerated powers. See McGrain,\n273 U.S. at 173-74. There is no enumerated power in the Constitution giv\xc2\xad\ning Congress the authority to require the President first to report to a con\xc2\xad\ngressional committee prior to undertaking covert activities which are\nexclusively within his province. Any legislative purpose that would be\nserved by informing Congress about a covert action can be served by\nnotice after the covert action has been initiated or completed.3\nMoreover, even in cases in which it can be assumed that Congress has\na legitimate legislative basis for the requested information, it does not fol\xc2\xad\nlow that the President invariably should give Congress prior notice o f cer\xc2\xad\ntain covert actions. As President Tyier recognized in 1843, \xe2\x80\x9c [i]t can not be\nthat the only test is whether the information relates to a legitimate sub\xc2\xad\nje ct o f [congressional] deliberation.\xe2\x80\x9d 4 James D. Richardson, Messages\nand Papers o f the Presidents 220, 223 (1897). A President is under no\nobligation to communicate information to Congress if to do so would\nimpair his ability to execute his own constitutional duties. United States\nv. Nixon, 418 U.S. 683, 710 (1974). Under some circumstances, prior\nnotice to Congress could well frustrate the President\xe2\x80\x99s ability to dis\xc2\xad\ncharge those duties.\nIn concluding that the amendment is unconstitutional, we are not deny\xc2\xad\ning that Congress has a legitimate role in the formulation o f American for\xc2\xad\neign policy. Nor are we denigrating the value o f consulting with members\no f Congress prior to the initiation o f a covert operation. We simply\nbelieve Congress does not require prior notification o f all intelligence\nactivities paid for out of the Reserve for Contingencies in order to per\xc2\xad\nform its legislative function. Therefore, it lacks the constitutional author\xc2\xad\nity to impose a rigid requirement of notice in all circumstances.\n\n2The doctrine o f unconstitutional conditions has w ide application throughout the law For a good gen\xc2\xad\neral statement o f the doctrine, see Frost & Frost Trucking Co v. Railroad C om m ission, 271 U.S. 583,\n594 (1926)\nI f the state may compel the surrender o f one constitutional nght as a condition o f its favor,\nit may, m like manner, compel the surrender o f all It is inconceivable that guaranties embed\xc2\xad\n3\n\nded in the Constitution o f the United States may thus be manipulated out o f existence.\nFor instance, post-action notification w ill suffice to inform Congress about actions o f foreign nations\n\nand merchants so that it may regulate \xe2\x80\x9cforeign comm erce \xe2\x80\x9d\n\n262\n\n\x0cConclusion\nWe conclude that a requirement o f prior notice for all covert operations\nfunded from the Reserve for Contingencies unconstitutionally infringes\non the President\xe2\x80\x99s constitutional responsibilities, including his duty to\nsafeguard the lives and interests o f Americans abroad.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n263\n\n\x0c'


b'Employment Status of the Members of the Board of\nDirectors of the Federal Housing Finance Board\nT h e F in a n c ia l In s titu tio n s R e fo rm , R ec o v e ry , an d E n fo rc e m e n t A c t o f 1989, w h ic h c re a te d th e\nF e d e ra l H o u sin g F in a n c e B o a rd , p e rm its th e m e m b e rs o f th e B o a rd o f D ire c to rs o f th e F H F B\nto serv e o n a p a rt-tim e b asis.\n\nJuly 11, 1990\nM e m o r a n d u m O p in io n f o r t h e C h a ir m a n\nF e d e r a l H o u s i n g Fi n a n c e B o a r d\n\nThis memorandum responds to your request for a summary which could\nbe made available to the Congress, of the reasoning underlying our January\n31, 1990, opinion for the White House Counsel\xe2\x80\x99s Office regarding the service of\nthe members of the Board of Directors of the Federal Housing Finance Board.\n\nI. BACKGROUND\nThe Federal Housing Finance Board (\xe2\x80\x9cFHFB\xe2\x80\x9d) was established by\nthe Financial Institutions Reform, Recovery, and Enforcement Act of 1989\n(\xe2\x80\x9cFIRREA\xe2\x80\x9d), Pub. L. No. 101-73, \xc2\xa7 702(a), 103 Stat. 183, 413 (codified at\n12 U.S.C. \xc2\xa7 1422a(a)), for the purpose of overseeing and regulating the\nFederal Home Loan Banks. The Federal Home Loan Bank Board (\xe2\x80\x9cFHLBB\xe2\x80\x9d)\nhad previously supervised the Federal Home Loan Banks. The FHLBB also\nexercised regulatory supervision over federally insured savings and loan as\xc2\xad\nsociations. See 12 U.S.C. \xc2\xa7\xc2\xa7 1437, 1464-1470, & 1724-1730i (1988).\nFIRREA abolished the FHLBB and distributed its duties among several agen\xc2\xad\ncies. The Office of Thrift Supervision (\xe2\x80\x9cOTS\xe2\x80\x9d) was assigned prim ary\nregulatory authority over the savings and loan industry, see 12 U.S.C. \xc2\xa7\n1462a(e), as added by FIRREA, \xc2\xa7 301, 103 Stat. at 278-79, and the FHFB\nwas given regulatory authority over the Federal Home Loan Banks. See 12\nU.S.C. \xc2\xa7 1422a & 1422b, as added by FIRREA, \xc2\xa7 702(a), 103 Stat. at 41314. Other functions previously performed by the FHLBB relating to the\nmanagement of deposit insurance and the resolution of cases were transferred\n127\n\n\x0crespectively to the Federal Deposit Insurance Corporation (\xe2\x80\x9cFDIC\xe2\x80\x9d) and the\nResolution Trust Corporation (\xe2\x80\x9cRTC\xe2\x80\x9d). FIRREA, \xc2\xa7\xc2\xa7 202 & 501(a), 103\nStat. at 188, 363-93, (codified at 12 U.S.C. \xc2\xa7\xc2\xa7 1811 & 1441a).\nThe FHFB is to be managed by a Board of Directors comprising five\nmembers: the Secretary of Housing and Urban Development and four indi\xc2\xad\nviduals appointed by the President with the advice and consent of the Senate.\n12 U.S.C. \xc2\xa7 1422a(b)(l).\xe2\x80\x98 The four directors appointed by the President are\nrequired to have, among other qualifications, \xe2\x80\x9cextensive experience or train\xc2\xad\ning in housing finance\xe2\x80\x9d or \xe2\x80\x9ca commitment to providing specialized housing\ncredit.\xe2\x80\x9d Id. \xc2\xa7 1422a(b)(2)(A). At least one of these four directors must be\nchosen \xe2\x80\x9cfrom an organization with more than a 2-year history of represent\xc2\xad\ning consum er or community interests on banking services, credit needs,\nhousing, or financial consumer protections.\xe2\x80\x9d Id. \xc2\xa7 1422a(b)(2)(B). These\nfour directors may not hold any other appointed office or serve as an officer\nor director of a Federal Home Loan Bank or of any member of any such\nBank, nor may they have any financial interest in any such member. Id. \xc2\xa7\n1422a(b)(2)(A) & (C).\n\nII. DISCUSSION\nNo provision o f FIRREA expressly or impliedly requires that the mem\xc2\xad\nbers o f the Board of Directors of the FHFB serve on either a full-time or a\npart-tim e basis. Accordingly, the employment status of the members must\nbe determined by construing the relevant provision of FIRREA, as a whole,\nin light of the Act\xe2\x80\x99s legislative history.2\nThere is little legislative history on this question. From the legislative\nhistory that does exist, however, it appears that Congress contemplated that\nmembers of the Board of Directors would serve on a part-time basis. The\nconference report and the Senate report on the bill that became law are\nsilent on the part-time or full-time status of the members of Board of Direc\xc2\xad\ntors. See H.R. Conf. Rep. No. 222, 101st Cong., 1st Sess. 423-24 (1989),\nreprinted in 1989 U.S.C.C.A.N. 432, 462-63; S. Rep. No. 19, 101st Cong.,\n1st Sess. 364-65 (1989) (discussing proposed \xe2\x80\x9cFederal Home Loan Bank\n\n\' R eg a rd less o f w h e th er the directors se rv e on a p art-tim e o r a fu ll-tim e basis, this schem e com ports\nw ith th e A p p o in tm e n ts C la u se o f the C o n stitu tio n , A rticle II, Section 2, pursuant to w hich the P resident\na p p o in ts o ffic e rs o f th e U n ite d States w ith the ad v ice and co n sen t o f the Senate.\n5 W e d o not b e lie v e th a t th e m atter m ay be reso lv ed by a p p ly ing a presum ption that C o n g ress w ould\nh a v e e x p re ss ly sp e c ifie d p art-tim e em p lo y m en t had it so intended. W hile such a presu m p tio n m ight be\na p p ro p ria te w h ere th e d u tie s o f the office a re such that fu ll-tim e em ploym ent m ust have been intended,\nth a t is n o t th e c a s e here. See infra pp. 128-29. M oreover, on a num ber o f occasions C ongress has been\ne q u a lly c le a r in e x p re ssly requiring/ii//-\xc2\xbb/m e em ploym ent. See, e.g., 16 U .S .C . \xc2\xa7 83 la (e ) ( \xe2\x80\x9cN o m em ber o f\nth e [T en n essee V alley A u th o rity Board o f D irecto rs] shall, d u rin g his continuance in office, be engaged in\na n y o th e r b u sin ess, b u t each m em ber sh all d evote h im se lf to the w ork o f the C o rp o ra tio n .\xe2\x80\x9d ); 42 U .S.C .\n\xc2\xa7 5 8 4 1 (e ) (\xe2\x80\x9c N o m e m b e r o f the [Nuclear R eg u lato ry C o m m ission] shall engage in any b u siness, v oca\xc2\xad\ntio n , o r e m p lo y m e n t o th e r th an that o f serv in g as a m em b er o f the C om m issio n .\xe2\x80\x9d ). T hus, there is no\nm o re re a so n in th is c o n te x t to indulge a p resu m p tio n that C o n g ress intended for the D irectors to serve\nfu ll-tim e , th a n th ere is th a t it intended fo r them to serve part-tim e.\n\n128\n\n\x0cAgency\xe2\x80\x9d). However, the House report on the bill reported by the House\nBanking, Finance and Urban Affairs Committee does address this issue, and\nthere is no relevant difference between the applicable provisions in that bill\nand those contained in the bill that was enacted into law.3 The House report\nunequivocally states that \xe2\x80\x9cmembers of the Board of Directors will not serve\non a full-time basis.\xe2\x80\x9d H.R. Rep. No. 54(1), 101st Cong., 1st Sess. 455 (1989),\nreprinted in 1989 U.S.C.C.A.N. 86, 251.\nAn analysis of the provisions of FIRREA that created the FHFB and\ndefined its duties supports the conclusion that Congress expected that mem\xc2\xad\nbers of the FHFB Board of Directors may serve on a part-time basis. Although\nthe members of the FHLBB served on a full-time basis, FIRREA divided the\nduties of the FHLBB among at least four different agencies and assigned the\nfive members of the FHFB substantially fewer functions than had been per\xc2\xad\nformed by the three members of the FHLBB. In particular, the burdensome\ntasks of supervising thrift institutions and of managing case resolutions were\nassigned to OTS and RTC respectively, not to the FHFB. Also, oversight of\ndeposit insurance was transferred to the Federal Deposit Insurance Corpora\xc2\xad\ntion. The House report thus described the FHFB as \xe2\x80\x9ca small, effective and\nefficient governing body.\xe2\x80\x9d H.R. Rep. No. 54(1), at 455, 1989 U.S.C.C.A.N.\nat 251. In light of the fact that the FHFB is to perform substantially fewer\ntasks with a greater number of members, it was fully reasonable for Con\xc2\xad\ngress to conclude that full-time service would not be essential for members\nof the FHFB Board.\nWe also note that FIRREA authorizes the FHFB to \xe2\x80\x9cemploy, direct, and\nfix the compensation and number of employees, attorneys, and agents of the\nFederal Housing Finance Board.\xe2\x80\x9d FIRREA, \xc2\xa7 702(a), 103 Stat. at 414 (codi\xc2\xad\nfied at 12 U.S.C. \xc2\xa7 1422b(b)(l)). This provision permits the FHFB members\nto employ a staff to whom it may delegate various functions.4 Congress\xe2\x80\x99\n5It has b een argued that the p roposed status o f the B oard ch an g ed from part-tim e to fu ll-tim e w hen the\np roposed com p o sitio n o f the B oard in the H ouse bill w as ch an g ed to elim inate the tw o F ederal H om e\nLoan B ank p residents. N ot only is there no evidence that the proposed part-tim e status w as a ttrib u tab le\nto the in c lu sio n o f these bank presid en ts; there is no evidence, affirm ative o r inferential, th at C o n g ress\nin te n d e d the statu s o f th e B oard to ch an g e fro m p a rt-tim e to fu ll-tim e as a c o n se q u e n c e o f the\nreco m p o sitio n . If an y th in g , the ev id en ce is to the contrary becau se the S ecretary o f H o using and U rb an\nD e v elop m en t is one o f the five m em bers o f the B oard o f D irectors. 1 2 U S .C .\xc2\xa7 1 4 2 2 a (b )(l)(A ). O b v i\xc2\xad\nously, C o n g ress did not expect the Secretary to serve full-tim e as a FH FB D irector.\n4 In its M ay 9, 1990, m em orandum on this subject, the A m erican Law D ivision o f the C o n g re ssio n a l\nR esearch Service app eared to suggest that FIR R E A generally p rohibits the d elegation o f d iscretio n ary\nd u ties by the FH FB . T h is suggestion is incorrect. FIRR EA m erely states that \xe2\x80\x9cin n o e v e n t shall the\nB oard d e le g ate any fu n ctio n to any em ployee, ad m in istrativ e unit o f any B ank, or jo in t office o f the\nFederal Home Loan Bank System " FIR R E A , \xc2\xa7 702(a), 103 Stat at 414-15 (codified at 12 U .S C . \xc2\xa7\n14 2 2 b (b )( 1)) (em phasis added). Section 701 o f FIR R EA defin es the term \xe2\x80\x9c Federal H om e L oan B ank\nS y ste m \xe2\x80\x9d to m ean \xe2\x80\x9cthe Federal H om e Loan Banks under the superv ision o f the B oard \xe2\x80\x9d 103 Stat at 412\n(c o d ified at 12 U .S .C \xc2\xa7 1422(2)(B )). A ccordingly, the nondelegation provision only o p e ra te s to p re \xc2\xad\nvent the FH FB from d eleg atin g discretionary supervisory duties to the Federal H om e L o a n B anks, th e ir\ne m p lo y e es, o r th eir o ffices - the e n tities being regulated. It d oes not prohibit the FH FB fro m d eleg atin g\nfu n c tio n s to its ow n em p lo y ees T his construction o f section 702 is confirm ed by the co m m en ts on the\nS enate bill, from w hich this provision originated. See S. R ep. No. 19, at 364 ( \xe2\x80\x9cT h e A gency [la te r\nren am ed the FH FB ] m ay not delegate any o f its functions to any em ployee or ad m in istrativ e unit o f any\nFHL B a n k") (em phasis added).\n\n129\n\n\x0cdecision to empower the FHFB both to employ however many employees it\nneeds and to delegate to those employees many of its functions is consistent\nwith C ongress\xe2\x80\x99 apparent belief that part-time service would be permissible.\nAccordingly, we conclude that the members of the Board of Directors may\nserve on a part-time basis. Indeed, the only available direct evidence is that\nCongress expected that the Directors would serve part-time.\nWe do not believe that any of the provisions of FIRREA are inconsistent\nwith this conclusion. In particular, the fact that FIRREA provides for the\nChairperson and other members of the Board of Directors to be compen\xc2\xad\nsated respectively at Levels III and IV of the Executive Schedule, see FIRREA,\n\xc2\xa7 702(a), 103 Stat. at 415 (codified at 12 U.S.C. \xc2\xa7 1422b(b)(l)), does not\nimply that these individuals must serve in a full-time capacity. This provi\xc2\xad\nsion merely fixes the rate of compensation. Federal law provides the formula\nfor calculating the salary of a part-time employee from the Executive Sched\xc2\xad\nule if the annual rate of compensation is known. See 5 U.S.C. \xc2\xa7 5505.\nM oreover, the original House bill established the same rates of compensa\xc2\xad\ntion for these officials, see H.R. 1278, \xc2\xa7 723, 101st Cong., 1st Sess. (as\nreported by the House Comm, on Banking, Finance and Urban Affairs),\nreprinted in H.R. Rep. No. 54(1), at 190, at the same time that the House\nreport expressly acknowledged that these individuals would not serve full\xc2\xad\ntime. Id. at 455, 1989 U.S.C.C.A.N. at 251.\nFinally, we do not believe that the fact that FIRREA contains conflict-ofinterest and incompatibility provisions applicable to the FHFB implies that\nthe members o f the Board o f Directors must serve on a full-time basis.\nSection 702 of FIRREA provides that each of the appointed members of the\nBoard of Directors of the FHFB may not \xe2\x80\x9chold any other appointed office\nduring his or her term as director\xe2\x80\x9d and may not \xe2\x80\x9cserve as a director or\nofficer o f any Federal Home Loan Bank or any member of any Bank\xe2\x80\x9d or\n\xe2\x80\x9chold shares of, or any other financial interest, in, any member of any such\nBank.\xe2\x80\x9d 103 Stat. at 413 (codified at 12 U.S.C. \xc2\xa7 1422a(b)(2)(A) & (C)).\nThese provisions serve purposes that are wholly independent of the employ\xc2\xad\nment status of the Board of Directors and do not in any way suggest that\nCongress intended for these members to serve on a full-time basis. The\npurpose o f the conflict-of-interest provisions is to ensure the impartiality\nand objectivity o f the members of the Board. The incompatibility provision\nensures the FHFB\xe2\x80\x99s status as an \xe2\x80\x9cindependent agency in the executive branch,\xe2\x80\x9d\n12 U.S.C. \xc2\xa7 1422a(a)(2), by forbidding the simultaneous appointment of, for\nexample, a Treasury Department official to the Board of Directors of the\nFHFB.5 The need for such restrictions exists regardless of whether the mem\xc2\xad\nbers serve full-time or part-time. Indeed, if anything, the need for these\n\n3 T h e le g isla tiv e h isto ry indicates that C o n g ress w as co n cerned th at the FH FB not com e u n d e r the\nin d ire c t c o n tro l o f o th e r executive b ra n c h ag en cies. See, e.g., H .R . Rep. N o. 54(1), at 4 5 4 , 1989\nU .S .C .C .A .N . at 250 (\xe2\x80\x9c The Treasury D epartm ent\xe2\x80\x99s oversight and direction o f the D irector o f the O ffice o f\nT hrift S u pervision shall not extend, directly o r indirectly, to the Federal H ousing Finance Board . . . \xe2\x80\x9d ).\n\n130\n\n\x0cprovisions is greater when members serve on a part-time basis and therefore\nhave more time available to engage in the kind of activities that Congress\nwished to foreclose. The House report appears to have recognized as much\nwhen it stated that \xe2\x80\x9c[although members of the Board of Directors will not\nserve on a full-time basis, no appointive member o f the Federal Housing\nFinance Board may hold any other federally appointive office.\xe2\x80\x9d H.R. Rep.\nNo. 54(1), at 455, 1989 U.S.C.C.A.N. at 251.\n\nCONCLUSION\nConstruing the relevant provisions of FIRREA in light of the A ct\'s legis\xc2\xad\nlative history, we conclude that the members of the Board of Directors of\nthe FHFB may serve on a part-time basis. Indeed, the House report ex\xc2\xad\npressly states that the members would not serve full-time service. Part-time\nservice appears fully consistent with the reduced duties and increased m em \xc2\xad\nbership of the FHFB as compared with its predecessor, the FHLBB.\nJ. MICHAEL LUTTIG\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n131\n\n\x0c'