b"Availability of Money Damages Under the\nReligious Freedom Restoration Act\n\nSection 3(c) o f the R eligious Freedom R estoration Act, w hich m akes available \xe2\x80\x9cappropriate r e lie f \xe2\x80\x99 in\nju d icial p ro ceed in g s against federal and state governm ent entities, does not w aive or abrogate the\nso v ereig n im m unity o f federal and state governm ents against the aw ard o f money dam ages.\n\nOctober 7, 1994\nM e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l\n\nW e have considered whether the Religious Freedom Restoration Act of 1993\n(\xe2\x80\x9cR FR A \xe2\x80\x9d), Pub. L. No. 103-141, 107 Stat. 1488, authorizes the recovery of money\ndam ages in suits against the United States or state governments. The specific\nquestion we have addressed is whether section 3(c) of RFRA, which makes avail\xc2\xad\nable \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 in judicial proceedings against federal and state govern\xc2\xad\nment entities,1 waives or abrogates the sovereign immunity that would otherwise\nbar the award of m oney damages against the United States and state governments.\nOn this point, we are in agreement with the conclusion o f the Second W orking\nDraft (\xe2\x80\x9cW orking D raft\xe2\x80\x9d) prepared by the D epartm ent\xe2\x80\x99s RFRA Task Force:\nR FR A \xe2\x80\x99s reference to \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 is not sufficiently unambiguous to abro\xc2\xad\ngate or w aive sovereign immunity for damages. S ee W orking Draft at 43-44.\n\xe2\x80\x9cW aivers o f the Government\xe2\x80\x99s sovereign immunity, to be effective, must be\nunequivocally expressed.\xe2\x80\x9d United S tates v. N ord ic Village, Inc., 503 U.S. 30, 33\n(1992) (internal quotation marks and citations omitted); see also U nited States v.\nIdaho, ex rel. D ir., D e p \xe2\x80\x99t o f Water Resources, 508 U.S. 1, 6 (1993). Under this\n\xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard, a statutory provision waives sovereign immu\xc2\xad\nnity for m onetary claims only if there is unavailable any plausible reading o f the\nprovision that would not authorize m onetary relief. N ordic Village, 503 U.S. at 34,\n37. It is not enough, in other words, that the provision in question can be read, and\neven read naturally, to authorize m onetary recovery; so long as the provision also\nis \xe2\x80\x9csusceptible\xe2\x80\x9d o f an interpretation that does not authorize monetary relief, there\nhas been no effective waiver. Id. The standard for finding congressional abroga\xc2\xad\ntion o f state Eleventh Amendment immunity from damages awards is substantially\nthe same. S ee id. at 37; see also H offm an v. Connecticut D e p \xe2\x80\x99t o f Income M ain te\xc2\xad\n* E d i to r s N ote. In C ity o f B oerne v F lores, 521 U.S. 507 (1 997), the Suprem e C ourt found the Religious\nF reedo m R esto ratio n A ct to be unconstitutional as applied to state governm ents H ow ever, RFRA continues\nto ap p ly to actio n s ag ain st the federal governm ent.\n1\nS e c tio n 3 (c) p ro v id es that \xe2\x80\x9c [a] person w h o se religious ex ercise has been burdened in violation o f this\nsection m ay assert lhat v io latio n as a claim o r d efen se in a ju d ic ia l proceeding and obtain appropriate relief\nag ain st a g o v e rn m e n t.\xe2\x80\x9d \xe2\x80\x9cG o v ern m en t\xe2\x80\x9d is d e fin e d in section 5(1 ) o f R FR A to include both the U nited States\nand state g o v ern m en ts.\n\n180\n\n\x0cA va ilability o f M oney D am ages U nder the R eligious F reedom R estoration A ct\n\nnance, 492 U.S. 96, 101-02 (1989) (plurality opinion) (analyzing provision at issue\nin Nordic Village under Eleventh Amendment); Dellmuth v. Muth, 491 U .S. 223,\n228 (1989) (abrogation of Eleventh Amendment immunity must be \xe2\x80\x9cunmistakably\nclear in the language o f the statute\xe2\x80\x9d). This strict standard applies even to statutes\nthat are remedial in nature. See Library o f Congress v. Shaw, 478 U.S. 310, 318\n(1986) (applying strict construction rule to find that Title VII does not waive im\xc2\xad\nmunity with respect to recovery o f interest).\nRFRA\xe2\x80\x99s use o f the phrase \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 does not meet the \xe2\x80\x9cunequivocal\nexpression\xe2\x80\x9d standard. To be sure, \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 could be read broadly to\nencompass monetary damages. But such language does not clearly and unequivo\xc2\xad\ncally reflect an intent to waive sovereign immunity for money damages. T he term\n\xe2\x80\x9cappropriate re lie f\xe2\x80\x99 inherently conveys the possibility that the nature and scope o f\nthe remedy for different conduct by different defendants could be subject to vari\xc2\xad\nance. Accordingly, \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 against a sovereign defendant easily can be\ninterpreted to encompass only equitable, non-monetary relief. This narrower con\xc2\xad\nstruction is further supportable on the ground that the Administrative Procedure\nAct (\xe2\x80\x9cAPA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7\xc2\xa7 701-706, already has waived the sovereign immunity of\nthe United States against non-monetary relief.2 See Authority o f USDA to Award\nMonetary Relief fo r Discrimination, 18 Op. O.L.C. 52, 57-6 0 ,'6 5 -6 6 (1994)\n(concluding that Fair Housing A ct and Rehabilitation Act do not waive federal\ngovernment\xe2\x80\x99s immunity from monetary damages). This waiver applies to any suit\nagainst the federal government, whether under the APA or under another statute.\nSee id. at 59.3 At least with respect to the federal government, then, RFRA \xe2\x80\x99s provi\xc2\xad\nsion for \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 may well have contemplated actions for non-monetary\nrelief based on the APA waiver. In any event, whether or not the narrow reading\nof \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 is the best reading, it is certainly a \xe2\x80\x9cplausible\xe2\x80\x9d interpreta\xc2\xad\ntion. Under Nordic Village, this is enough to \xe2\x80\x9cestablish that a reading im posing\nmonetary liability on the Governm ent [or state governments] is not \xe2\x80\x98unam biguous\xe2\x80\x99\nand therefore should not be adopted.\xe2\x80\x9d 503 U.S. at 37.4\n\n^The APA provides that\n[a]n action in a court of the United States seeking relief other than money damages and stating a\nclaim that an agency or an officer or employee thereof acted or failed to act in an official capacity\nor under color o f legal authority shall not be dismissed nor relief therein denied on the ground\nthat it is against the United States.\n5 U S.C. \xc2\xa7 702.\n3See also Specter v. Garrett, 995 F.2d 404, 410 (3d Cir. 1993); Red Lake Band o f Chippewa Indians v.\nBarlow, 846 F.2d 474, 476 (8th Cir. 1988); Alabama v. Bowsher, 734 F. Supp. 525, 533 (D.D.C. 1990)\n(discussing D.C. Circuit case law).\n4Although legislative history cannot supply the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d that the Supreme Court re\xc2\xad\nquires, see Nordic Village, 503 U.S. at 37; Dellmuth, 491 U.S. at 230, legislative history may be relevant\nwhere it reinforces a text-based conclusion that a statute does not waive or abrogate sovereign immunity.\nRFRA\xe2\x80\x99s legislative history is largely silent on this point. It may be o f some significance, however, that in\nestimating the effect o f RFRA on direct spending by the federal and state governments, the Congressional\nBudget Office anticipated awards o f attorney\xe2\x80\x99s fees but made no mention of possible damages awards. See\nS. Rep. No. 103-111, at 15-16 (1993); H.R. Rep. No. 103-88, at 11 (1993).\n\n181\n\n\x0cOpinions o f th e O ffice o f L eg a l C ounsel\n\nIt was suggested at a RFRA T ask Force m eeting that this conclusion is in ten\xc2\xad\nsion with Franklin v. G winnett C ounty Pub. Schs., 503 U.S. 60 (1992), in which\nthe Suprem e Court held that a damages remedy is available under Title IX despite\nthe absence o f explicit congressional authorization. Franklin, however, is not on\npoint here. Franklin involved a suit against a school district, and school districts\ngenerally are not treated as \xe2\x80\x9carms o f the state\xe2\x80\x9d to which Eleventh Amendment im\xc2\xad\nmunity extends. See Mt. Healthy C ity Sch. Dist. Bd. o f Educ. v. D oyle, 429 U.S.\n274, 280-81 (1977); A m bus v. G ranite Bd. o f Educ., 995 F.2d 992, 995 (10th Cir.\n1993). A ccordingly, the Court in Franklin was not faced with a sovereign immu\xc2\xad\nnity claim , and had no occasion to apply the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d standard\nthat governs RFRA suits against the federal and state governments.\nIt should be noted that the conclusion reached here is hardly anomalous. Money\ndamages are sim ilarly unavailable in civil rights enforcement suits against the\nstates (or, more accurately, against state officers in their official capacities) under\n42 U.S.C. \xc2\xa7 1983. See W ill v. M ichigan D e p \xe2\x80\x99t o f State P o lic e , 491 U.S. 58, 70-71\n& n.10 (1989); Q uern v. Jordan, 4 40 U.S. 332 (1979). Congress quite reasonably\ncould have chosen to limit RFRA plaintiffs to the same kind of equitable remedies\navailable in such \xc2\xa7 1983 actions. Conversely, to the extent \xc2\xa7 1983 allows recovery\nof m oney dam ages against state officers in their personal capacities, see Scheuer v.\nR hodes, 416 U.S. 232 (1974) (state executive officers personally liable for dam\xc2\xad\nages under \xc2\xa7 1983, subject to qualified immunity), a RFRA claimant also may re\xc2\xad\ncover dam ages against an officer in his or her personal capacity by asserting RFRA\nin a \xc2\xa7 1983 action.\nFinally, it is im portant to recognize that the federal and state governments are\nnot the only potential defendants under RFRA.\nR FRA \xe2\x80\x99s definition of a\n\xe2\x80\x9cgovernm ent\xe2\x80\x9d from which \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 may be obtained extends also to\nstate \xe2\x80\x9csubdivision[s],\xe2\x80\x9d to \xe2\x80\x9cofficial[s],\xe2\x80\x9d and to \xe2\x80\x9cother person[s] acting under color of\nlaw.\xe2\x80\x9d RFRA \xc2\xa7 5(1). Political subdivisions that cannot be characterized as \xe2\x80\x9carms\nof the state,\xe2\x80\x9d such as counties and municipal corporations, are not protected by\nEleventh Am endm ent immunity, se e Mt. H ealthy, 429 U.S. at 280; likewise, sover\xc2\xad\neign im munity poses no bar to the recovery o f damages against officials sued in\ntheir personal capacities or private parties acting under color of law, see H afer v.\nM elo, 502 U.S. 21, 25-28 (1991). Accordingly, the \xe2\x80\x9cunequivocal expression\xe2\x80\x9d\nstandard that governs sovereign im m unity cases would not apply in RFRA suits\nagainst such entities.\nRather, such cases would be governed by the traditional presumption that all\ncustom ary judicial relief, including damages, is available when Congress provides\na statutory right of action. See Franklin, 503 U.S. at 76 (damages available under\nTitle IX \xe2\x80\x99s im plied cause of action); C arey v. Piphus, 435 U.S. 247, 255 (1978)\n(dam ages available under \xc2\xa7 1983 though Congress did not \xe2\x80\x9caddress directly the\nquestion o f dam ages\xe2\x80\x9d); see gen erally Bell v. H ood, 327 U.S. 678, 684 (1946).\nW hen sovereign im m unity concerns are removed from the equation, in other\n\n182\n\n\x0cA va ila b ility o f M oney D am ages U nder the R eligious F reedom R estoration Act\n\nwords, the interpretive presumption is reversed: as against entities unprotected by\nsovereign immunity, Congress must provide \xe2\x80\x9cclear direction to the contrary\xe2\x80\x9d if it\nwishes to make money damages unavailable in a cause o f action under a federal\nstatute. See Franklin, 503 U.S. at 70-71 (\xe2\x80\x9cabsent clear direction to the contrary by\nCongress, the federal courts have the power to award any appropriate relief in a\ncognizable cause of action brought pursuant to a federal statute\xe2\x80\x9d). Because\nRFRA \xe2\x80\x99s reference to \xe2\x80\x9cappropriate re lie f\xe2\x80\x99 does not clearly exclude money damages,\nthere is a strong argument that under the Franklin standard money damages should\nbe made available to RFRA plaintiffs in suits against non-sovereign entities. Cf.\nReich v. C am bridgeport A ir Sys., Inc., 26 F.3d 1187, 1190-94 (1st Cir. 1994)\n(under Franklin presumption, statute providing for \xe2\x80\x9call appropriate re lie f\xe2\x80\x99 author\xc2\xad\nizes recovery of money damages).\n\nW ALTER DELLINGER\nA ssistan t A ttorney G eneral\nOffice o f L egal Counsel\n\n183\n\n\x0c"


b'Applicability of 18 U.S.C. \xc2\xa7 208 to Proposed Appointment of\nGovernment Official to the Board of Connie Lee\n\nA n e x e c u tiv e b ra n c h o ff ic e r o r em p lo y ee a p p o in te d to th e B o ard o f D ire c to rs o f C o n n ie L ee w o u ld be a\n\xe2\x80\x9cd ir e c to r \xe2\x80\x9d w ith in th e m e a n in g o f 18 U S .C\n\n\xc2\xa7 2 0 8 (a ) a n d th e re fo re w o u ld b e d is q u a lifie d fro m p a r\xc2\xad\n\ntic ip a tin g \xe2\x80\x9c p e rs o n n a lly a n d s u b sta n tia lly \xe2\x80\x9d in an y \xe2\x80\x9cp a rtic u la r m a tte r\xe2\x80\x9d im p lic a tin g the fin a n c ia l in te r\xc2\xad\ne s ts o f C o n n ie L e e u n le s s th e c o n d itio n s o f s u b se c u o n 2 0 8 (b ) are s atisfied .\n\nJune 22, 1994\nM e m o r a n d u m O p in io n f o r t h e A s s i s t a n t G e n e r a l C o u n s e l\nD epa r tm en t o f th e T r ea su ry\n\nThis memorandum is in response to your request of May 23, 1994, for an opin\xc2\xad\nion as to whether the Deputy Assistant Secretary, if appointed to the Board of Di\xc2\xad\nrectors of the College Construction Loan Insurance Association (\xe2\x80\x9cConnie Lee\xe2\x80\x9d),\nwould be subject to the requirements imposed by 18 U.S.C. \xc2\xa7 208 on \xe2\x80\x9cdirectors\xe2\x80\x9d of\noutside organizations. We have concluded that if appointed, the Deputy Assistant\nSecretary would be a \xe2\x80\x9cdirector\xe2\x80\x9d of an outside organization within the meaning of\n\xc2\xa7 208, and accordingly would have to comply with the provisions of that section in\ndischarging his or her government duties. This conclusion does not preclude the\nappointment of the Deputy Assistant Secretary or another Treasury official to the\nboard of Connie Lee. Rather, it means that if appointed, the official could not par\xc2\xad\nticipate in any particular matter in his or her government capacity in which Connie\nLee had a financial interest, unless he or she received a waiver issued pursuant to\n\xc2\xa7 208(b).\nB ackground\n\nConnie Lee was incorporated as a private, for-profit corporation of the District\nof Columbia in 1987 as directed by Title VII of the Higher Education Amendments\nof 1986, Pub. L. No. 99-498, sec. 701, \xc2\xa7 751, 100 Stat. 1268, 1528 (codified at 20\nU.S.C. \xc2\xa7\xc2\xa7 1132f-1132f-9).* At that time, many colleges and universities were un\xc2\xad\nable to obtain private financing for capital improvements and routine maintenance\nof their physical plants. By providing financial insurance and guarantees for quali\xc2\xad\nfying loans, Connie Lee enhances the credit quality of these educational institu-\n\n\xe2\x80\x99 E d i t o r \xe2\x80\x99s N o te T h e statu to ry provisions co n cern in g C o n n ie Lee that are discussed in this opinion were\nsu b sequ en tly rep ealed in 1996 and replaced b y the pro v isio n s that are now codified at 20 U .S.C. \xc2\xa7 113 2 f-10\nSee S tu d e n t L oan M ark etin g A ssociation R eo rg an izatio n A ct o f 1996, Pub. L No. 104-208, \xc2\xa7 603, 110 Stat\n3009-27 5 , 3 0 0 9 -2 0 9 (en a ctm en t o f current sec tio n ), 30 0 9 -2 9 3 (repeal) T he changes to the statute do not\naffect the an aly sis o r c o n clu sio n s o f this opinion.\n\n136\n\n\x0cApplicability o f J8 U.S C \xc2\xa7 208 to P roposed A ppointm ent o f G overnm ent O fficial\nto the B oard o f Connie Lee\n\ntions, facilitating their access to private credit. H.R. Rep. No. 99-383, at 71-73\n(1985), reprinted in 1986 U.S.C.C.A.N. 2572, 2642-44 (\xe2\x80\x9cHouse Rep.\xe2\x80\x9d). In form\nand function, Connie Lee is similar to the Student Loan Marketing Association\n(\xe2\x80\x9cSallie M ae\xe2\x80\x9d).\nConnie Lee began operating as a joint venture of the Secretary of Education,\nSallie Mae and interested members of the higher education community. Congress\n\xe2\x80\x9cintended that the Corporation . . . initially operate under the stewardship of the\nStudent Loan Marketing Association, subject to the direction and control of the\nCorporation\xe2\x80\x99s Board of Directors. . . . [T]he direct interest o f the federal govern\xc2\xad\nment in the Corporation is expected to diminish and eventually terminate.\xe2\x80\x9d House\nRep. at 74, reprinted in 1986 U.S.C.C.A.N. at 2645. The statute authorized the\nSecretary o f Education and Sallie Mae to subscribe to voting common stock in a\nfour to one ratio. See 20 U.S.C. \xc2\xa7 1132f-4(a), (b). Congress gave the board the\nauthority to issue additional shares of voting common stock for sale to the public\nand institutions of higher education. Id. \xc2\xa7 1132f-4(d). After five years, the statute\nauthorized the Secretary of Education to sell the stock held by that department, and\ngave Sallie Mae a right of first refusal in the event of such a sale. Id. \xc2\xa7 1132f-7(a).\nConnie Lee is governed by an eleven member board of directors. At present,\ntwo directors are appointed by the Secretary of Education, two by the Secretary o f\nthe Treasury, and three by Sallie Mae. The remaining four directors are elected by\nthe holders of the voting common stock. Id. \xc2\xa7 1132f-3(a). A director serves for a\nterm o f one year or until a successor has been appointed and qualified. Id. If Sal\xc2\xad\nlie Mae acquires enough voting common stock from the Secretary o f Education to\nown more than fifty percent o f the outstanding voting shares, the entire board is to\nbe elected by the shareholders. Id. \xc2\xa7 1132f-7(c).\nIn the past, the individuals appointed by the Secretary o f the Treasury have been\nprivate citizens. The Secretary is now considering appointing a Deputy Assistant\nSecretary to the board of Connie Lee. You are concerned that if appointed, the\nDeputy Assistant Secretary would no longer be able to participate in the form ula\xc2\xad\ntion o f the Department\xe2\x80\x99s policies regarding its interests in Connie Lee.\nDiscussion\nUnder \xc2\xa7 208, no officer or employee in the executive branch may participate\n\xe2\x80\x9cpersonally and substantially\xe2\x80\x9d in any \xe2\x80\x9cparticular m atter\xe2\x80\x9d in which an \xe2\x80\x9corganization\nin which he is serving as officer, director, trustee, general partner or employee . . .\nhas a financial interest\xe2\x80\x9d unless he obtains a waiver or satisfies an exception as out\xc2\xad\nlined in subsection 208(b). 18 U.S.C. \xc2\xa7 208(a). However, this Office has previ\xc2\xad\nously taken the position that \xe2\x80\x9ca federal official serving on the board of an\nessentially private entity by virtue of a federal statutory mandate is not an \xe2\x80\x98officer,\ndirector or trustee\xe2\x80\x99 o f that entity within the meaning o f section 208.\xe2\x80\x9d M em oran\xc2\xad\ndum for David H. Martin, Director, Office of Government Ethics, from Samuel A.\n137\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nAlito, Jr., Deputy A ssistant Attorney General, Office of Legal Counsel, Re: USIA\nD ir e c to r\xe2\x80\x99s S ervice on the Board o f the U nited S tates Telecom m unications Training\nInstitute at 2 (Dec. 3, 1986) (\xe2\x80\x9cUSTTI M em o\xe2\x80\x9d). You have suggested that the Sec\xc2\xad\nretary\xe2\x80\x99s appointm ent o f a Deputy Assistant Secretary to the Connie Lee board\nwould establish a position analogous to an \xe2\x80\x9cex officio\xe2\x80\x9d director and therefore\nshould not trigger the application o f \xc2\xa7 208. Unfortunately, we cannot agree.\nThis O ffice has found that a governm ent official serves on the board of a private\nentity in an ex officio rather than personal capacity where that service is expressly\nauthorized by statute.1 W e have also ruled that a government official\xe2\x80\x99s service as a\ndirector does not violate \xc2\xa7 208 where the rules of the private entity designate that\nofficial as a m em ber o f the board and neither the rules or state law appear to im\xc2\xad\npose a fiduciary duty to the private entity on that director.2\nThe proposed arrangem ent for Connie Lee would not fall into either of these\ncategories. W hile the governing statutes do not prohibit the appointment or elec\xc2\xad\ntion of federal officers to the Connie Lee board, no government official is desig\xc2\xad\nnated as a board m em ber in either a personal or official capacity. See 20 U.S.C.\n\xc2\xa7\xc2\xa7 1132f-3, 1132f-7(c). As we stated in the USTTI opinion:\n[S]ection 208 is premised on a concern to avoid any conflict be\xc2\xad\ntween a federal official\xe2\x80\x99s public and private obligations and inter\xc2\xad\nests. . . . [W Jhere a government official is authorized by statute to\nserve on the board of a private group as part o f his or her official\ngovernm ental duties, in w hat is essentially an ex officio capacity,\nthe reasonable inference to be drawn is that the official is to serve\nthe interests o f the government in the event of any conflict between\nthose interests and the interests of the private organization.\nId. at 2. Any fiduciary duty the director owes to the organization in question is\n\nclearly subordinate to that director\xe2\x80\x99s duties to his or her government office and the\nUnited States.\n1\nT h u s this O ffice has d eterm in ed that the restrictio n s o f \xc2\xa7 208 did not apply w here a federal statute exphcitly d esig n ated the A tto rn ey G eneral as an ex officio m em ber o f the B oard o f T rustees o f the N ational\nT ru st for H istoric P reserv atio n , Q uestions R a ise d by the A tto rn e y G en era l\'s Service as a T rustee o f the\nN a tio n a l T rust f o r H isto ric P reservation, 6 O p . O L C . 443, 4 4 6 (1982), or where the D irector o f the U.S.\nInform ation A g en cy served on the board o f a p riv ate institute pursuant to a federal statute authorizing several\nexecutiv e ag en cies to p ro v id e o fficial support to that in stitute \xe2\x80\x98\xe2\x80\x98including . . . service on the board o f the\nIn s titu te /\xe2\x80\x99 U ST T I M em o at 2 (quoting the O m n ib u s D iplom atic Security and A nti-T errorism A ct o f 1988,\nPub. L N o 9 9 -3 9 9 , \xc2\xa7 1307, 100 S tat 8 5 3 ,8 9 9 ).\n*\xe2\x96\xa0 N o r did \xc2\xa7 208 apply w here the constitution o f the A m erican B ar A ssociation designated the A ttorney\nG eneral as an ex o fficio m e m b e r o f the A B A H ouse o f D elegates, M em orandum for T hom as E. Kauper,\nA ssistant A tto rn ey G en eral, A n titru st Division, from M ary C L aw ton, D eputy A ssistant A ttorney G eneral,\nO ffice o f Legal C ounsel, Re. C ontem plated A B A Suit (M ay 21, 1976), or where every D irector o f the N a\xc2\xad\ntional B ureau o f Stan d ard s since 1951 had serv ed on the bo ard o f a private standard setting organization and\nthat org an izatio n am en d ed its b y law s to d esig n ate the D irector as a non-voting ex officio m em ber of the\nboard L etter fo r the H on. W arren G M agnuson, C hairm an, S enate C om m ittee on C om m erce, S cience and\nT ransp o rtatio n , from Leon U lm an, Deputy A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel at 4-6 (Dec.\n13, 1977)\n\n138\n\n\x0cA p p lic a b ility o f 18 U S C. \xc2\xa7 2 0 8 to P ro p o se d A p p o in tm e n t o f G o v e r n m e n t O ffic ia l\nto th e B o a r d o f C o n n ie Lee\n\nThere is no indication that the fiduciary duty of a Connie Lee director appointed\nby the Secretary is subordinate to any duty to the government. Congress expressly\nprovided that absent a conflict with the provisions o f the Higher Education Act,\nConnie Lee was to be subject to the corporation law o f the District of Columbia.\n20 U.S.C. \xc2\xa7 1132f(c). The language and structure of the statutory provisions gov\xc2\xad\nerning the board of directors are in no way inconsistent with the proposition that all\nConnie Lee directors, including those appointed by the Secretary, owe the fiduci\xc2\xad\nary duty dictated by D.C. law to the corporation and its shareholders. W hile the\nSecretaries o f Education and the Treasury were both granted the power to appoint\ntwo directors and to replace these directors by appointing replacements anytime\nafter the end of their one year term because of the \xe2\x80\x9csignificant interests\xe2\x80\x9d of the\ngovernment in the early years o f operation, see House Rep. at 73, rep rin ted in\n1986 U.S.C.C.A.N. at 2644; 20 U.S.C. \xc2\xa7 1132f-3(a), the articles and bylaws of\nConnie Lee vest limited removal power in the board, not in any of the appointing\nbodies.3 If a government official appointed by the Secretary resigned or was re\xc2\xad\nmoved from that government position, he or she could retain a seat on the Connie\nLee board for the duration of the term unless he or she resigned or was removed by\nthe remaining board members.4 This structure suggests that Congress did not in\xc2\xad\ntend for the Secretary to exercise direct control over his appointees once they were\nappointed.\nConnie L e e \xe2\x80\x99s status as a private, for-profit corporation with outstanding voting\nshares held by private individuals and institutions strengthens the conclusion that\nits directors are bound by a fiduciary duty to the corporation and to these share\xc2\xad\nholders in their capacity as directors. 20 U.S.C. \xc2\xa7 1132f(a),(b); Bylaws, art. Ill,\n\xc2\xa7 3.8. Furthermore, directors may receive compensation for their service to the\ncorporation \xe2\x80\x9cin their capacities as Directors or otherw ise.\xe2\x80\x9d Bylaws, art. Ill, \xc2\xa7 3.8.\nW hile you have indicated that a Treasury official appointed to the board would\nwaive any compensation, this provision is additional evidence o f the directors\xe2\x80\x99\nfiduciary duty to the corporation and potentially presents the appearance o f a con\xc2\xad\nflict of interest. These obligations and the attendant potential for conflict are pre\xc2\xad\ncisely the circum stances that \xc2\xa7 208 is designed to address.\n\nConclusion\nAn executive officer or employee appointed to the board of Connie Lee by the\nSecretary would be a \xe2\x80\x9cdirector\xe2\x80\x9d within the meaning o f 18 U.S.C. \xc2\xa7 208(a). Ac-\n\n3 A rticle V II, clause 4 o f the original articles o f incorporation, see D istrict o f C olum bia D epartm ent o f\nC onsum er and R egulatory A ffairs, Business R egulation A dm inistration C ertificate o f Incorporation, College\nC onstruction L oan Insurance A ssociation (Feb. 13, 1987), and article III, section 3 6 o f the bylaw s, see B y\xc2\xad\nlaws o f the C o lleg e C onstruction Loan Insurance A ssociation (Sept. 11, 19 9 1) ("B ylaw s"), both specify that\n\xe2\x80\x9c (a]ny D irector m ay be rem oved for cause by vote o f a m ajority o f the rem aining D irectors.\xe2\x80\x99\xe2\x80\x99\n4 T hus, ev en if the Secretary ordered the D eputy A ssistant Secretary to vote in a particular w ay on the\nBoard, the Secretary could not enforce that o rder by rem oving him or h e r from the Board.\n\n139\n\n\x0cOpinions o f th e O ffice o f L egal Counsel\n\ncordingly, he or she would be disqualified from participating \xe2\x80\x9cpersonally and sub\xc2\xad\nstantially\xe2\x80\x9d in any \xe2\x80\x9cparticular matter\xe2\x80\x9d implicating the financial interests o f Connie\nLee unless the conditions o f subsection 208(b) were satisfied.\n\nW ALTER DELLINGER\nA ssistan t A ttorn ey G en eral\nO ffice o f L egal C ounsel\n\n140\n\n\x0c'


b'Procedures for Exchanging Instruments of Ratification for\nBilateral Law Enforcement Treaties\nAs long as the Attorney General is duly authorized by the President \xe2\x80\x94 or his delegate in the field\nof foreign affairs, the Secretary o f State \xe2\x80\x94 there is no legal barrier to the Attorney General\nwitnessing or signing a Protocol o f Exchange of Ratifications on behalf of the United States.\nIn addition, there is no legal barrier to the exchange of instruments o f ratification occurring at\nthe Departm ent o f Justice.\n\nJuly 17, 1984\nM e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l\n\nYou have requested our advice regarding the procedures legally required for\nthe exchange of instruments of ratification of certain bilateral law enforcement\ntreaties recently concluded between the United States and other countries. We\nunderstand that the Senate has already given its advice and consent to the\nratification of these treaties, and that the only questions remaining concern\nwhere, and by whom, the instruments of ratification to those treaties are\nrequired to be exchanged. We conclude that, if the Attorney General is duly\nauthorized by either the President or his delegate (the Secretary of State), there\nis no legal impediment either to the Attorney General signing the Protocol of\nExchange of Ratifications or to the signing ceremonies taking place at the\nDepartment of Justice.\nAs you know, a treaty enters into force in four stages. First, the treaty is\nnegotiated. Generally speaking, in order to negotiate a treaty, a nation\xe2\x80\x99s repre\xc2\xad\nsentative must produce \xe2\x80\x9cfull powers,\xe2\x80\x9d i.e., a document from the President or his\ndelegate designating him to represent the United States in relation to the treaty.\nHeads of state, heads of government, and ministers of foreign affairs are\ngenerally regarded as representing the state without having to produce full\npowers, while heads of diplomatic missions and representatives accredited to\ninternational organizations are regarded as possessing like powers within their\njurisdiction. See Restatement (Revised) Foreign Relations Law o f United States\n\xc2\xa7 310 (Tent. Draft No. 1, 1980). Thus, the President\xe2\x80\x99s negotiating authority\nwith respect to bilateral treaties is ordinarily exercised in his name only by the\nSecretary of State, Ambassadors, or other delegates who have been provided\nwith full powers. In this Administration, the Attorney General has been pro\xc2\xad\nvided with the full powers necessary to sign a number of bilateral mutual\ncriminal assistance treaties on behalf of the United States.\n157\n\n\x0cSecond, the signed treaty is submitted to the Senate for its advice and\nconsent to ratification. Once the Senate gives its advice and consent, the treaty\nis returned to the President, who must ratify it by signing the instrument of\nratification. Third, representatives of the two nations meet to exchange the\ninstruments of ratification, a procedure whereby each country gives notice to\nthe other that it has completed its domestic constitutional processes for ap\xc2\xad\nproval and entry into force of the agreement. Fourth and finally, the President\n\xe2\x80\x9cproclaims\xe2\x80\x9d the treaty, and by Executive Order, declares it to be in force\ninternationally and domestically (to the extent to which it is self-executing).\nThe questions that you have raised regard the procedure to be followed at the\nthird step of the procedure outlined above, namely, the exchange of instru\xc2\xad\nments of ratification. Specifically, you have asked whether there is any legal\nbarrier to the Attorney General\xe2\x80\x99s signing a Protocol of Exchange of Ratifica\xc2\xad\ntions or to such a signing ceremony occurring at the Department of Justice, as\nopposed to the Department of State.\nIn the brief time available, we have uncovered no such legal barriers. The\ncustomary procedure for exchanging bilateral instruments of ratification is that\nthe exchange occurs in the capital city of the country other than that in which\nthe treaty was signed. Thus, if the United States and Italy were to sign a treaty\nin Rome, the treaty would usually specify that the exchange of ratifications is\nto take place in Washington, D.C. It is a customary practice that representatives\nof the two nations witness the exchange of instruments of ratification by\nsigning a document known as a proces verbal, or protocol of exchange. \xe2\x80\x98The\nprotocol of exchange does not constitute a new agreement between the parties\nto the treaty; it merely evidences the fact that the exchange of instruments of\nratification has taken place.\xe2\x80\x9d 14 M. Whiteman, Digest o f International Law 65\n(1970). Thus, the protocol usually states that representatives of the two coun\xc2\xad\ntries \xe2\x80\x9cbeing duly authorized by their respective Governments,\xe2\x80\x9d have met for the\npurpose of exchanging instruments of ratification by the respective govern\xc2\xad\nments of the treaty at issue, and that the exchange has taken place, the respec\xc2\xad\ntive instruments having been compared and found to be in due form.\nAlthough exchanges are often done by two plenipotentiaries, i.e., representa\xc2\xad\ntives endowed with the \xe2\x80\x9cfull powers\xe2\x80\x9d described above, that practice does not\nappear to be legally required. In July 1974, the Department of State approved a\nprocedure, known as the \xe2\x80\x9cCircular 175\xe2\x80\x9d Procedure, which provides internal\nguidelines to be followed in the United States for conclusion of international\ntreaties. The section of that Circular concerning \xe2\x80\x9cEffecting the Exchange\xe2\x80\x9d of\nRatification expressly states that:\nIn exchanging instruments of ratification, the representative of\nthe United States hands to the representative of the foreign\ngovernment a duplicate original of the President\xe2\x80\x99s instrument of\nratification. . . . A protocol, sometimes called proces verbal or\n\xe2\x80\x9cProtocol of Exchange of Ratifications,\xe2\x80\x9d attesting the exchange\n158\n\n\x0cis signed by the two representatives when the exchange is made.\nNo fu ll power is required fo r this purpose.\n\nRovine, Digest o f United States Practice in International Law \xe2\x80\x94 1974 199,\n209-10 (1975) (emphasis added). To us, this provision suggests that so long as\nthe Attorney General has been \xe2\x80\x9cduly authorized\xe2\x80\x9d by the President (or his\ndelegate in the field of foreign affairs, the Secretary of State), there is no legal\nbarrier to the Attorney General witnessing or signing a Protocol of Exchange of\nRatifications on behalf of the United States, even if the President or the\nSecretary of State has not otherwise conferred upon the Attorney General the\n\xe2\x80\x9cfull powers\xe2\x80\x9d that would be required to negotiate or sign the treaty on behalf of\nthe United States.\nWith respect to the place of exchange, Circular 175 states only that \xe2\x80\x9cit is\ncustomary for a treaty to contain a simple provision to the effect that the\ninstruments of ratification shall be exchanged at a designated capital," id. at\n209 (emphasis added), without anywhere specifying in which building within\nthe capital the exchange must take place. Assuming that the treaties with which\nyou are concerned specify that the exchange of ratifications must occur in\nWashington, D.C., we see no legal impediment to that exchange occurring at\nthe Department of Justice, rather than at the Department of State. We express\nno view, of course, as to whether protocol or custom might dictate otherwise\nwith respect to either of the points discussed above.\nT heodore\n\nB.\n\nO lson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n159\n\n\x0c'


b'Applicability of Section 504 of the Rehabilitation\nAct to Certain Governmental Entities\nSection 504 o f the Rehabilitation A ct o f 1973 prohibits discrimination against qualified handi\xc2\xad\ncapped individuals in any program or activity conducted by any \xe2\x80\x9cExecutive agency." The\nlegislative history o f the 1978 Amendments to the Act makes clear that Congress intended\n\xc2\xa7 504 to apply to all \xe2\x80\x9cagencies and instrum entalities\xe2\x80\x9d in \xe2\x80\x9cthe Executive branch,\xe2\x80\x9d including\nindependent regulatory agencies performing functions constitutionally committed to the\nExecutive Branch. The term \xe2\x80\x9cExecutive agency\xe2\x80\x9d as used in \xc2\xa7 504 must be construed broadly\nto include all government entities which are not within either the legislative or judicial\nbranches.\nAll o f the entities listed in the m em orandum are \xe2\x80\x9cExecutive agencies\xe2\x80\x9d under \xc2\xa7 504. These are:\nthe Architectural and Transportation Barriers Com pliance Board, the Civil Aeronautics\nB oard, the Com m ission of Fine Arts, the Federal Deposit Insurance Corporation, the Federal\nLabor R elations Authority, the Federal M aritim e Commission, the National Transportation\nSafety Board, the National L abor Relations Board, the Railroad Retirement Board, the\nSecurities and Exchange Com mission, the Federal Communications Commission, and the\nA dm inistrative Conference of the United States.\n\nMay 3, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor the\n\nA s s is t a n t A t t o r n e y G\n\nC iv il R ig h t s D\n\neneral,\n\niv is io n\n\nYou have requested the views of this Office with respect to whether certain\nentities are \xe2\x80\x9cExecutive agencies\xe2\x80\x9d covered by \xc2\xa7 504 of the Rehabilitation Act of\n1973, as amended, 29 U.S.C. \xc2\xa7 794 (Act).1 Section 504 prohibits, inter alia,\ndiscrimination against qualified handicapped individuals in any program or\nactivity conducted by any \xe2\x80\x9cExecutive agency.\xe2\x80\x9d Each such agency is required\nby \xc2\xa7 504 to promulgate regulations to carry out these provisions. Your inquiry\narises in the context of your development of prototype regulations for the use of\nExecutive agencies in fulfilling their responsibilities under \xc2\xa7 504.2 For the\n1 T hese entities are: the Architectural and Transportation B arriers Com pliance Board, the Civil Aeronautics\nB oard, the C om m ission o f Fine Arts, the Federal D eposit Insurance C orporation, the Federal Labor Relations\nA uthority, the Federal M aritim e C om m ission, the Federal R eserve System , the Interstate Commerce C om \xc2\xad\nm ission, the N ational Transportation Safety Board, the N ational Labor Relations Board, the Railroad\nR etirem ent B oard, the S ecurities and Exchange Com m ission, the Federal C om m unications Commission, and\nthe A dm inistrative C onference o f the U nited States.\n2U n d er E xecutive O rder N o. 122S0,45 Fed. Reg. 72995 (1980), the A ttorney General has general authority\nto coordinate the im plem entation by \xe2\x80\x9cExecutive agencies\xe2\x80\x9d o f various laws prohibiting discrim ination,\nincluding \xc2\xa7 504. Because you have decided, as a policy matter, to assist agencies in developing their own\nregulations by issuing a prototype set, rather than by issuing a set o f regulations purporting to bind them, we need\nnot address the m ore difficult questions which would be raised were the regulations to have been made mandatory.\n\n110\n\n\x0creasons which follow, we believe that all of the named entities are \xe2\x80\x9cExecutive\nagencies\xe2\x80\x9d under \xc2\xa7 504.3\nWe begin with a general analysis of the intended scope of the statutory term\n\xe2\x80\x9cExecutive agency\xe2\x80\x9d whose programs and activities are covered by \xc2\xa7 504. We\nthen apply this analysis to the named entities, to determine whether they should\nbe regarded as falling within that category.\nI\nSection 504 of the Rehabilitation Act of 1973, as amended, provides in\npertinent part that:\nNo otherwise qualified handicapped individual in the United\nStates, as defined in section 706(7) of this title, shall, solely by\nreason of his handicap, be excluded from the participation in, be\ndenied the benefits of, or be subjected to discrimination under\nany program or activity receiving Federal financial assistance or\nunder any program or activity conducted by any Executive\nagency o r by the United States Postal Service. The head o f each\nsuch agency shall prom ulgate such regulations as may be neces\xc2\xad\nsary to carry out the amendments to this section made by the\nRehabilitation, Comprehensive Services, and D evelopm ental\nD isabilities Act o f 1978.\n\n29 U.S.C. \xc2\xa7 794 (emphasis added). The underscored language was added to\n\xc2\xa7 504 by \xc2\xa7 119 of the Rehabilitation, Comprehensive Services, and Develop\xc2\xad\nmental Disabilities Amendments of 1978, Pub. L. No. 95-602, 92 Stat. 2955,\n2982 (1978 Amendments). Although neither \xc2\xa7 504 nor any other section of the\nAct defines the \xe2\x80\x9cExecutive agencies\xe2\x80\x9d to which \xc2\xa7 504 applies, the legislative\nhistory of the 1978 Amendments contains clear evidence of Congress\xe2\x80\x99 intent in\nthis regard.\nAs passed by the House, \xc2\xa7 119 of H.R. 12467, the Rehabilitation Amend\xc2\xad\nments of 1973, would have extended the nondiscrimination provisions of \xc2\xa7 504\nto \xe2\x80\x9cany program or activity conducted by any Executive agency (as defined in\nsection 105 of title 5, United States Code).\xe2\x80\x9d 124 Cong. Rec. 13892 (1982).\nCongressman Brademas, Chairman of the Subcommittee on Select Education\nof the reporting Committee on Education and Labor, described this provision\nas extending the antidiscrimination provisions of \xc2\xa7 504 to \xe2\x80\x9call activities and\nprograms of the executive branch of the Federal government.\xe2\x80\x9d Id. at 13897.\nCongressman Jeffords, who claimed responsibility for adding \xc2\xa7 119 to the bill,\n3 You have asked fo r our view s w ith respect to w hether the named agencies should be regarded as\n\xe2\x80\x9cExecutive agencies\xe2\x80\x9d as that term is employed in Executive O rder No. 12250. In subsequent discussions w ith\nthe staff o f your C oordination and Review Section, it w as agreed that the advisory nature o f the prototype\n\xc2\xa7 504 regulations m ade it more appropriate at this point for us simply to address the question of statutory\ncoverage. W e note, how ever, that w e believe it w as the President\xe2\x80\x99s intent in issuing the Executive O rder to\ndelegate to the A ttorney General his authority over all \xe2\x80\x9c Executive agencies\xe2\x80\x9d covered by the various nondis\xc2\xad\ncrim ination laws m entioned in the O rder, including the so-called \xe2\x80\x9c independent" agencies\n\n111\n\n\x0cdescribed it as \xe2\x80\x9cextending] the coverage of section 504 to include any function\nor activity of any department or agency of the Federal government.\xe2\x80\x9d Id. at\n13901.4 He explained that \xe2\x80\x9c [w]hen the original legislation was developed it\nwas intended to apply to every phase of American life,\xe2\x80\x9d but that the Justice\nDepartment had since ruled that \xe2\x80\x9cthe Federal Government was exempt from the\nstatute.\xe2\x80\x9d5 The proposed amendment to \xc2\xa7 504 \xe2\x80\x9cremoves that exemption and\napplies section 504 to the Federal Government as well as State and local\nrecipients of Federal dollars.\xe2\x80\x9d Id.\nNotwithstanding these broad statements by the House sponsors of the amend\xc2\xad\nment to \xc2\xa7 504, the House-passed version of the amendment to \xc2\xa7 504 would by\nits terms have limited its coverage to \xe2\x80\x9cExecutive agencies\xe2\x80\x9d as defined in 5\nU.S.C. \xc2\xa7 105. This definition explicitly excludes the United States Postal\nService and the Postal Rate Commission. It includes, however, an entity ordinarily\nconsidered part of the Legislative Branch, the General Accounting Office.6\nThe Senate-passed version of H.R. 12467 contained no provision compa\xc2\xad\nrable to \xc2\xa7 119 of the House-passed bill. The Senate bill contained another\nprovision, however, which reflected a similar concern over how the Act\xe2\x80\x99s\nnondiscrimination provisions were being enforced against the Federal govern\xc2\xad\nment. That provision added a new section to the Act making clear that individu\xc2\xad\nals could sue federal agencies for violations of \xc2\xa7 501 of the Act, 29 U.S.C.\n\xc2\xa7 791, and making available to such individuals the rights and remedies appli\xc2\xad\ncable under Title VII of the Civil Rights Act of 1964, including attorneys fees.\nSee S. Rep. No. 890, 95th Cong., 2d Sess. at 18-19 (1978).7 Section 501(b)\nrequires, inter alia, that \xe2\x80\x9c[e]ach department, agency, and instrumentality (in\xc2\xad\ncluding the United States Postal Service and the Postal Rate Commission) in\nthe executive branch\xe2\x80\x9d must submit an affirmative action plan for the employ\xc2\xad\nment of handicapped individuals to the Civil Service Commission.8\n4 T he language am ending \xc2\xa7 504 w as not contained in the bill w hich was reported out o f the House\nC om m ittee on Education and Labor. S e e H.R. Rep. No. 1149, 95th C ong., 2d Sess. (1978). It was added to\nH.R. 12467 a t som e point p rio r to its introduction in the H ouse in M ay o f 1978. 124C ong. Rec. 13621 (1978).\n5 T he Justice D epartm ent \xe2\x80\x9c ruling\xe2\x80\x9d to w hich Congressm an Jeffords was apparently referring was an opinion\nissued by th is O ffice on September 23, 1977, to the G eneral Counsel o f the Department o f Health, Education\nand W elfare. 1 Op. O .L.C . 210 (1977). In that opinion, th is O ffice concluded that \xc2\xa7 504, like Title VI o f the\nC ivil R ights A ct o f 1964, did not prohibit discrim ination by recipients o f federal financial support through\nprogram s o f insurance o r guarantee.\n6 S e c tio n 105 d e fin e s \xe2\x80\x9c Executive a g e n c y \xe2\x80\x9d to in c lu d e \xe2\x80\x9cE x e c u tiv e d e p artm e n t[s],\xe2\x80\x9d \xe2\x80\x9c G overnm ent\ncorp o ratio n [s],\xe2\x80\x9d and \xe2\x80\x9c Independent establishm ent[s].\xe2\x80\x9d T he \xe2\x80\x9c Executive departm ent[s]\xe2\x80\x9d are defined in 5 U.S.C.\n\xc2\xa7 101 to include all Cabinet-level agencies. \xe2\x80\x9cG overnm ent c o rp o ra tio n ^ ]\xe2\x80\x9d are defined in 5 U.S.C. \xc2\xa7 103 to\ninclude both governm ent-ow ned and governm ent-controlled corporations. An \xe2\x80\x9cindependent establishm ent\xe2\x80\x9d is\ndefined in 5 U .S.C . \xc2\xa7 104 to mean \xe2\x80\x9can establishm ent in the executive branch (other than the U nited States\nPostal Service o r the Postal Rate C om m ission) which is not an Executive departm ent, m ilitary departm ent,\nG overnm ent corporation, o r part th ereo f,\xe2\x80\x9d and, in addition, the G eneral A ccounting Office. The General\nA ccounting O ffice has historically been regarded as a part o f the L egislative Branch both by Congress and by\nthe Executive Branch. See \xe2\x80\x9c General A cco u n tin g Office \xe2\x80\x94 A uthority to Obtain Inform ation in Possession o f\nE xecutive B ranch, \xe2\x80\x9d 2 Op. O.L.C. 415, 4 1 6 (1978), and authorities cited therein.\n7 T he provision was ultim ately enacted as \xc2\xa7 505(a)(1) o f the Act, and is codified at 29 U.S.C. \xc2\xa7 794a(a)(l)\nand (3).\n8 In hearings held during 1976 and 1977, the Subcom m ittee on the H andicapped o f the Senate Com m ittee\non H um an R esources had received evidence o f the difficulties which the Civil Service Commission was\nC ontinued\n\n112\n\n\x0cIn Conference, the House conferees agreed to the Senate\xe2\x80\x99s proposed strength\xc2\xad\nening of \xc2\xa7 501, and the Senate conferees agreed to the House bill\xe2\x80\x99s proposed\nextension of \xc2\xa7 504, in a slightly modified form. As modified, the provision\namending \xc2\xa7 504 extended the antidiscrimination provisions of that section to\n\xe2\x80\x9cany program or activity conducted by any Executive agency or by the United\nStates Postal Service.\xe2\x80\x9d H.R. Rep. No. 1780, 95th Cong., 2d Sess. 29 (1978).\nAccording to the Conference Report, this modification was intended to make\n\xc2\xa7 504\xe2\x80\x99s proposed new coverage of federal agencies consistent with the existing\ncoverage of \xc2\xa7 501(b). See id. at 93.9 In short, the amended \xc2\xa7 504 would apply,\nlike \xc2\xa7 501, to \xe2\x80\x9ceach department, agency, and instrumentality . . . in the Execu\xc2\xad\ntive branch,\xe2\x80\x9d including the Postal Service, but would no longer apply to the\nGeneral Accounting Office.10\nUrging passage of the conference bill on the floor of the House, Congress\xc2\xad\nman Jeffords again emphasized that the amended \xc2\xa7 504 was intended to extend\nthat section\xe2\x80\x99s antidiscrimination provisions to \xe2\x80\x9cany function or activity in\nevery department or agency of the Federal Government.\xe2\x80\x9d 124 Cong. Rec.\n38551 (1978). See also id. at 38552 (legislation extends the provisions of \xc2\xa7 504\nto \xe2\x80\x9ceach department, division, and agency of the Federal Government\xe2\x80\x9d) (re\xc2\xad\nmarks of Rep. Sarasin).\nWith no objections to or comments on the conference amendment to \xc2\xa7 504\xe2\x80\x99s\nnew coverage, the bill passed the House by an overwhelming margin. Id. at\n\n8 ( . . . continued)\nencountering in trying to enforce agency com pliance w ith \xc2\xa7 501(b) o f the Act. D uring those hearings,\nrepresentatives o f em ployee advocacy groups charged, and governm ent w itnesses conceded, that few federal\nagencies h ad made any progress in enhancing em ploym ent opportunities for handicapped persons. See, e.g.,\nRehabilitation o f the H andicapped Programs: H earings before the Subcomm. on the H andicapped o f the\nSenate Comm, on Labor and Public Welfare, 94th Cong., 2d Sess., Part 3 (1976); Rehabilitation Extension\nAm endm ents o f 1977: H earings on S. 1712 a n d S. 1596 before the Subcomm. on the H andicapped o f the\nSenate Comm, on Human Resources, 95th C ong., 1st Sess. at 387-415 (1977) (1977 Senate H earings). In\nDecem ber o f 1978, responsibility for enforcem ent o f \xc2\xa7 501(b) was transferred by the President to the Equal\nEm ploym ent O pportunity Com m ission, pursuant to R eorganization Plan No. 1 o f 1978, 92 Stat. 3781. See\nExecutive O rder No. 12106, 44 Fed. Reg. 1053, 3 C.F.R. 263 (1978 Comp ), reprinted m 42 U S.C. 2000e-4\nnote (1978).\n9 The language which appears in the Conference Report is d ifficult to parse, and som ew hat confusing: \xe2\x80\x9cThe\nSenate recedes w ith an am endm ent adding coverage o f the provision covered by Section 5 0 1(b).\xe2\x80\x9d Id. In light\no f the purpose o f both the H ouse and Senate to facilitate the A ct\'s enforcem ent against Executive Branch\nagencies, w e think the conclusion is inescapable that this language was intended to mean that the coverage of\nthe two sections w ould be coextensive.\n10 We do not believe that C ongress\xe2\x80\x99 failure to include an explicit reference in \xc2\xa7 504 to the Postal Rate\nC om m ission indicates an intent to exclude that entity from coverage. It is true th at \xc2\xa7 501(b) refers explicitly\nto both the U nited States Postal Service and the Postal Rate C om m ission. H ow ever, that reference shows that\nC ongress regarded them both as entities already \xe2\x80\x9cincluded\xe2\x80\x9d as agencies or instrum entalities in the Executive\nBranch. See also \xc2\xa7 501(a) (jurisdiction o f the Interagency Com m ittee on Handicapped Em ployees described\nin term s o f \xe2\x80\x9ceach departm ent, agency, and instrum entality o f G overnm ent,\xe2\x80\x9d without reference to either the\nPostal Service o r the Postal Rate C om m ission, although a representative o f the Postal Service sits on the\nC om m ittee). A ccordingly, we do not believe that a failure to single out either the Postal Service or the Postal\nRate Com m ission for special m ention in \xc2\xa7 504 would establish a legislative intent not to include those entities\nas \xe2\x80\x9c Executive agencies\xe2\x80\x9d for purposes o f that law. M oreover, it would be anom alous to conclude that C ongress\nintended to extend \xc2\xa7 504 to the Postal Service but not to the Postal Rate Commission. A ccordingly, we\nbelieve that the Postal Rate C om m ission must be regarded as an \xe2\x80\x9c Executive agency\xe2\x80\x9d for purposes o f \xc2\xa7 504.\n\n113\n\n\x0c38553. The conference bill was debated and passed by the Senate on the same\nday, with no discussion of the amendment to \xc2\xa7 504. Id. at 37504-10.\nIt is clear from the legislative history of the 1978 Amendments, as set forth\nabove, that Congress intended the amended \xc2\xa7 504 to have the broadest possible\ncoverage within the Executive Branch. In the House, both before and after the\nconference amendments, the provision\xe2\x80\x99s sponsors emphasized its intended\napplication to \xe2\x80\x9cany\xe2\x80\x9d activity of \xe2\x80\x9cevery\xe2\x80\x9d federal entity."\nMore specifically, the legislative history shows that Congress intended\n\xc2\xa7 504 to apply coextensively with \xc2\xa7 501(b). Thus Congress\xe2\x80\x99 understanding of\nthe intended coverage of \xc2\xa7 504 as it emerged from conference can also be\ngauged by reference to its understanding of the coverage of \xc2\xa7 501(b). This in\nturn is illuminated by the reports on \xc2\xa7 501\xe2\x80\x99s enforcement, which Congress had\nreceived each year since 1973 from the Civil Service Commission. These\nreports include statistics showing the progress made in hiring the handicapped\nby each Executive Branch agency responsible for submitting an affirmative\naction plan to the Commission under \xc2\xa7 501(b). The 1977 hearing record of the\nSenate Committee on Human Resources incorporates a listing of agencies\nwhich had submitted such reports, and an analysis by the Civil Service Com\xc2\xad\nmission of their performance in hiring the handicapped. See 1977 Senate\nHearings, supra note 8, at 401-08. The agencies reporting under \xc2\xa7 501(b)\ninclude, in addition to the Cabinet level agencies, all of the independent\nregulatory agencies and many boards, commissions and councils which per\xc2\xad\nform only advisory functions.12\nIn sum, the legislative history of the 1978 Amendments makes clear that\nCongress intended \xc2\xa7 504 to apply, like \xc2\xa7 501(b), to all \xe2\x80\x9cagencies and instru\xc2\xad\nmentalities\xe2\x80\x9d in \xe2\x80\x9cthe Executive [BJranch\xe2\x80\x9d of government. Those \xe2\x80\x9cagencies and\ninstrumentalities\xe2\x80\x9d were understood by Congress to include independent regula\xc2\xad\ntory agencies performing functions constitutionally committed to the Execu\xc2\xad\ntive Branch, as well as entities more closely subject to the President\xe2\x80\x99s day-today supervisory authority. Accordingly, we believe that the term \xe2\x80\x9cExecutive\nagency\xe2\x80\x9d as used in \xc2\xa7 504 must be construed broadly to include all governmen\xc2\xad\ntal entities which are not within either the Legislative or Judicial Branches.\nII\nApplying the broad construction of \xe2\x80\x9cExecutive agency,\xe2\x80\x9d which we believe\nCongress intended for \xc2\xa7 504 to the named entities, we conclude that all of them\n11 N otw ithstanding these broad statem ents by the p ro v isio n \'s sponsors, apparently no one proposed that it\nshould apply to en tities in either the L egislative or Judicial Branch.\n12 The C ivil S ervice C om m ission\'s 1978 Report shows that all but tw o o f the named entities had subm itted\naffirm ative action plans u n d er \xc2\xa7501. S e e \xe2\x80\x9cEm ploym ent o f H andicapped Individuals Including Disabled\nV eterans in th e Federal G overnment," A pp. A (Sept. 30, 1978). O ne o f the tw o m issing agencies, the Federal\nL ab o r R elations A uthority, w as not established until O ctober o f 1978. See Pub. L. No. 9 5 -4 5 4 ,9 2 Stat. 1196\n(1978). The oth er, the A rchitectual and Transportation B arriers C om pliance Board, was at that time com \xc2\xad\nposed entirely o f agency heads and staffed by personnel from the D epartm ent o f Health, Education and\nW elfare. See Pub. L. No. 93 -1 1 2 , \xc2\xa7 502, 87 Stat. 355, 391 (1973) (codified at 29 U .S.C. \xc2\xa7 792(a) (1976)).\n\n114\n\n\x0cfall within that category. It is true that a number of these entities fall under the\ndefinition of \xe2\x80\x9cindependent regulatory agencies\xe2\x80\x9d contained in the Paperwork\nReduction Act of 1980, 44 U.S.C. \xc2\xa7 3502(10). However, as discussed in the\npreceding section, in order to find these entities outside the scope of \xc2\xa7 504\xe2\x80\x99s\ncoverage, we would have to conclude either that they are within one of the\nother two exempted branches of government, or that they are not within the\ngovernment at all. Notwithstanding the arguments that several of these entities\nhave made in submissions to you, we do not think it constitutionally possible,\nin light of their clearly executive functions, to regard any of them as legislative\nentities. Cf. Buckley v. Valeo, 424 U.S. 1, 137\xe2\x80\x9443 (1976). Nor do we under\xc2\xad\nstand any of the named agencies to argue that they are not governmental\nentities at all.13 Consequently, we believe that all of them fall within the broad\ncategory of \xe2\x80\x9cExecutive agencies\xe2\x80\x9d for purposes of \xc2\xa7 504, and that they are\ntherefore required to issue regulations to carry out the provisions of \xc2\xa7 504\nwhich apply to the programs and activities they conduct.\nAlthough we conclude that Congress intended to bring all of the named\nentities within the category of \xe2\x80\x9cExecutive agencies\xe2\x80\x9d covered by \xc2\xa7 504, we have\nnot addressed the related, but distinct question of the President\xe2\x80\x99s authority to\ndirect coordination of \xc2\xa7 504\xe2\x80\x99s enforcement through an Executive order. See\nsupra note 2. We would prefer to address this question, if necessary, in the\ncontext of specific agencies, should any fail to adopt adequate regulations as\nrequired by \xc2\xa7 504.\nT heodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n13 One o f the entities named in your list, the Commission o f Fine A rts, concedes that it is w ithin the\nExecutive B ranch, but argues that, because it is subject to the Federal A dvisory Committee A ct (FACA), it is\nnot an \xe2\x80\x9cagency\xe2\x80\x9d and therefore not subject to \xc2\xa7 504. It is true that the C om m ission would not be considered an\n\xe2\x80\x9cagency\xe2\x80\x9d under the A dm inistrative Procedure A ct (APA), 5 U.S C. \xc2\xa7 551, unless it were an \xe2\x80\x9cauthority\xe2\x80\x9d o f the\ngovernm ent. W e do not believe, how ever, that an entity\xe2\x80\x99s status under the APA or the FACA was intended by\nC ongress to determ ine its coverage by \xc2\xa7 504. The legislative history o f that Act shows that it was intended to\napply to all p rogram s and activities conducted within the Executive Branch, not ju s t those conducted by\nentities with p a rticu la r statutory attributes.\n\n115\n\n\x0c'


b'Participation of Members of Congress in the\nRonald Reagan Centennial Commission\nProvisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that\nsix of eleven commissioners of the Ronald Reagan Centennial Commission would be\nmembers of Congress, appointed by congressional leadership, would raise concerns\nunder the Appointment Clause, the Ineligibility Clause, and the separation of powers.\nApril 21, 2009\n\nMEMORANDUM OPINION FOR THE\nACTING ASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGISLATIVE AFFAIRS\nThe Ronald Reagan Centennial Commission Act of 2009 (the \xe2\x80\x9cAct\xe2\x80\x9d)\nwould create a Ronald Reagan Centennial Commission with responsibility\nto \xe2\x80\x9cplan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the\n100th anniversary of his birth.\xe2\x80\x9d H.R. 131, 111th Cong. \xc2\xa7 3(1). Six of\nthe eleven commissioners would be members of Congress, appointed by\ncongressional leadership, id. \xc2\xa7 4(a), raising concerns under the Appointments Clause, the Ineligibility Clause, and the separation of powers. To\nameliorate these concerns, we recommend amending section 3(1) of the\nbill to make clear that the Commission would be responsible for making\nadvice and recommendations as to the planning, developing, and carrying\nout of the contemplated commemorative activities. We further recommend designating an Executive Branch official as the officer responsible\nfor considering the advice and recommendations of the Commission and\nthen \xe2\x80\x9cplanning, developing and carrying out\xe2\x80\x9d the ceremonial events. The\nAct could require that these events include participatory roles for members of both branches, but operational control should remain with the\ndesignated Executive Branch official.\nI.\nThe Ronald Reagan Centennial Commission (the \xe2\x80\x9cCommission\xe2\x80\x9d) created by the Act would be composed of the following eleven members:\n(1) The Secretary of the Interior.\n193\n\n\x0c33 Op. O.L.C. 193 (2009)\n\n(2) Four members appointed by the President after considering the\nrecommendations of the Board of Trustees of the Ronald Reagan\nFoundation.\n(3) Two Members of the House of Representatives appointed by\nthe Speaker of the House of Representatives.\n(4) One Member of the House of Representatives appointed by the\nminority leader of the House of Representatives.\n(5) Two Members of the Senate appointed by the majority leader\nof the Senate.\n(6) One Member of the Senate appointed by the minority leader of\nthe Senate.\nH.R. 131, \xc2\xa7 4(a). Six of the eleven members, therefore, would be members of Congress, appointed by other members of Congress. The Commission would have responsibility to\n(1) plan, develop, and carry out such activities as the Commission\nconsiders fitting and proper to honor Ronald Reagan on the occasion\nof the 100th anniversary of his birth;\n(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to\nhonor Ronald Reagan on the occasion of the 100th anniversary of his\nbirth;\n(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to\nhonor Ronald Reagan on the occasion of the 100th anniversary of his\nbirth; and\n(4) submit to the President and Congress reports pursuant to section 7.\nId. \xc2\xa7 3. To fulfill these responsibilities, the Commission would be empowered to appoint an executive director and hire staff (id. \xc2\xa7 5(a)\xe2\x80\x93(b)),\nto \xe2\x80\x9cprocure temporary and intermittent services\xe2\x80\x9d of experts and consultants (id. \xc2\xa7 5(e)), and to \xe2\x80\x9center into contracts with and compensate government and private agencies or persons\xe2\x80\x9d (id. \xc2\xa7 6(f)). Positions on the\nCommission would be uncompensated (id. \xc2\xa7 4(f)) and would last until\nthe duties of the Commission are complete, \xe2\x80\x9cbut not later than May 30,\n2011\xe2\x80\x9d (id. \xc2\xa7 8(a)).\n194\n\n\x0cParticipation of Members of Congress in the Ronald Reagan Centennial Commission\n\nII.\nLegislation of this nature, creating a commemorative commission composed of representatives of multiple branches, has ample historical precedent. 1 It is not unconstitutional for such commissions to perform advisory\nfunctions. Nor is there any constitutional problem with representatives of\nmultiple branches participating in ceremonial events. Congress also\npossesses the authority to plan, develop and carry out ceremonial activities of its own that are clearly in aid of the functions of the Legislative\nBranch. 2 However, when the responsibilities of members of hybrid commissions extend beyond providing advice or recommendations to the\nExecutive Branch, or participating in ceremonial activities, to exercising\nSee, e.g., Pub. L. No. 91-332, \xc2\xa7 2(a), 84 Stat. 427 (1970) (creating a National Parks\nCentennial Commission, consisting of four members of the Senate appointed by the\nPresident of the Senate; four members of the House appointed by the Speaker of the\nHouse; the Secretary of the Interior; and six presidential appointees); Pub. L. No. 98-101,\n\xc2\xa7 4(a), 97 Stat. 719 (1983) (creating a Commission on the Bicentennial of the Constitution, consisting of 20 presidential appointees; the Chief Justice of the United States; the\nPresident pro tempore of the Senate; and the Speaker of the House); Pub. L. No. 99-624,\n\xc2\xa7 4(a), 100 Stat. 3497 (1986) (creating a Dwight David Eisenhower Centennial Commission, consisting of the President pro tempore of the Senate; the Speaker of the House; six\nSenators appointed by the President pro tempore of the Senate; six members of the House\nappointed by the Speaker; six Presidential appointees; and the Archivist of the United\nStates); Pub. L. No. 105-389, \xc2\xa7 4(a), 112 Stat. 3486 (1998) (creating a Centennial of\nFlight Commission, consisting of the Director of the National Air and Space Museum of\nthe Smithsonian Institution; the Administrator of the National Aeronautics and Space\nAdministration; the chairman of the First Flight Centennial Foundation of North Carolina;\nthe chairman of the 2003 Committee of Ohio; the head of a United States aeronautical\nsociety; and the Administrator of the Federal Aviation Administration); Pub. L. No. 106408, \xc2\xa7 303(b)(1), 114 Stat. 1782 (2000) (creating a National Wildlife Refuge System\nCentennial Commission, consisting of the Director of the United States Fish and Wildlife\nService; up to ten persons appointed by the Secretary of the Interior; the chairman and\nranking minority member of the Committee on Resources of the House of Representatives\nand of the Committee on Environment and Public Works of the Senate; and the congressional representatives of the Migratory Bird Conservation Commission).\n2 See, e.g., Capitol Visitor Center Act, Pub. L. No. 110-437, \xc2\xa7 402(b)(1), 122 Stat.\n4983, 4991\xe2\x80\x9392 (Oct. 20, 2008), to be codified at 2 U.S.C. \xc2\xa7 2242(b)(1) (\xe2\x80\x9cIn providing for\nthe direction, supervision, and control of the Capitol Guide Service, the Architect of the\nCapitol, upon recommendation of the Chief Executive Officer, is authorized to . . . subject\nto the availability of appropriations, establish and revise such number of positions of\nGuide in the Capitol Guide Service as the Architect of the Capitol considers necessary to\ncarry out effectively the activities of the Capitol Guide Service.\xe2\x80\x9d).\n1\n\n195\n\n\x0c33 Op. O.L.C. 193 (2009)\n\noperational control over a statutorily prescribed national commemoration,\nthen the Executive Branch has consistently raised constitutional objections. 3 Specifically, legislative involvement in the proposed Commission\nwould be constitutionally problematic for several reasons.\nFirst, the Appointments Clause requires that \xe2\x80\x9cOfficers of the United\nStates\xe2\x80\x9d be appointed by the President with the Senate\xe2\x80\x99s advice and consent or, in cases of inferior officers, either by that same process or by the\nPresident alone, by Courts of Law, or by Heads of Departments. U.S.\nConst. art. II, \xc2\xa7 2, \xc2\xb6 2. An Officer of the United States is an appointee to\nan \xe2\x80\x9coffice\xe2\x80\x9d whose duties constitute the exercise of \xe2\x80\x9csignificant authority\npursuant to the laws of the United States.\xe2\x80\x9d 4\n\n3\n\nConstitutionality of Resolution Establishing United States New York World\xe2\x80\x99s Fair\nCommission, 39 Op. Att\xe2\x80\x99y Gen. 61, 62 (1937) (Attorney General Cummings) (\xe2\x80\x9cIn my\nopinion those provisions of the joint resolution establishing a Commission composed\nlargely of members of the Congress and authorizing them to appoint a United States\nCommissioner General and two Assistant Commissioners for the New York World\xe2\x80\x99s Fair,\nand also providing for the expenditure of the appropriation made by the resolution and for\nthe administration of the resolution generally amount to an unconstitutional invasion of\nthe province of the Executive\xe2\x80\x9d); H.R. Doc. No. 75-252, at 2 (1937) (message of President\nRoosevelt vetoing joint resolution that would have authorized federal participation in\n1939 World\xe2\x80\x99s Fair and quoting opinion of Attorney General Cummings above as basis);\nStatement on Signing the Bill Establishing a Commission on the Bicentennial of the\nUnited States Constitution, 2 Pub. Papers of Pres. Ronald Reagan 1390 (Sept. 29, 1983)\n(\xe2\x80\x9cI welcome the participation of the Chief Justice, the President pro tempore of the\nSenate, and the Speaker of the House of Representatives in the activities of the Commission [on the Bicentennial of the Constitution]. However, because of the constitutional\nimpediments contained in the doctrine of the separation of powers, I understand that they\nwill be able to participate only in ceremonial or advisory functions of the Commission,\nand not in matters involving the administration of the Act. Also, in view of the incompatibility clause of the Constitution, any Member of Congress appointed by me pursuant to\nSection 4(a)(1) of this Act may serve only in a ceremonial or advisory capacity.\xe2\x80\x9d);\nAppointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C.\n200 (1984) (\xe2\x80\x9cBicentennial Commission\xe2\x80\x9d) (proposing practical solution to constitutional\nconcerns raised by presence of members of Congress on Commission on the Bicentennial\nof the Constitution).\n4 Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam); see also United States v.\nHartwell, 73 U.S. (6 Wall.) 385, 393 (1867) (\xe2\x80\x9cAn office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of\ntenure, duration, emolument, and duties.\xe2\x80\x9d); The Constitutional Separation of Powers\nBetween the President and Congress, 20 Op. O.L.C. 124, 148 (1996) (\xe2\x80\x9cDellinger Memo\xe2\x80\x9d)\n(\xe2\x80\x9cAn appointee (1) to a position of employment (2) within the federal government (3) that\n\n196\n\n\x0cParticipation of Members of Congress in the Ronald Reagan Centennial Commission\n\nFor purposes of the Appointments Clause, an \xe2\x80\x9coffice\xe2\x80\x9d \xe2\x80\x9cembraces the\nideas of tenure, duration, emolument, and duties.\xe2\x80\x9d United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867). The commissioners here would\nnot receive compensation for their services (H.R. 131, \xc2\xa7 4(f) (\xe2\x80\x9cMembers\nshall serve without pay\xe2\x80\x9d)), and the positions they are to fill would exist\nfor no longer than two years (id. \xc2\xa7 8(a) (\xe2\x80\x9cThe Commission may terminate\non such date as the Commission may determine after it submits its final\nreport pursuant to section 7(c), but not later than May 30, 2011\xe2\x80\x9d)). Nevertheless, the duties of the commissioners would not be \xe2\x80\x9coccasional and\nintermittent.\xe2\x80\x9d 5 They would be continuing during the period of time necessary for the exercise of the important government duties assigned to the\nCommission. In Morrison v. Olson, 487 U.S. 654 (1987), the Supreme\nCourt held that it was \xe2\x80\x9cclear\xe2\x80\x9d that an \xe2\x80\x9cindependent counsel\xe2\x80\x9d under the\nEthics in Government Act of 1978, 28 U.S.C. \xc2\xa7\xc2\xa7 591\xe2\x80\x93599 (1982 &\nSupp. V)\xe2\x80\x94a position that was temporary and case-specific, but expected\nto last for an extended period, with ongoing, continuous duties, and termination only upon a determination that all matters within the counsel\xe2\x80\x99s\njurisdiction were substantially complete\xe2\x80\x94\xe2\x80\x9cis an \xe2\x80\x98officer\xe2\x80\x99 of the United\nStates, not an \xe2\x80\x98employee.\xe2\x80\x99\xe2\x80\x9d Id. at 671 n.12. Consistent with this holding,\nour Office has concluded that members of an unpaid commission similar\nto the Reagan Commission would hold offices in the constitutional sense.6\ncarries significant authority pursuant to the laws of the United States is required to be an\n\xe2\x80\x98Officer of the United States.\xe2\x80\x99\xe2\x80\x9d).\n5 See United States v. Germaine, 99 U.S. 508, 511\xe2\x80\x9312 (1879) (\xe2\x80\x9cIf we look to the nature\nof [the civil surgeon\xe2\x80\x99s] employment, we think it equally clear that he is not an officer. . . .\n[T]he duties are not continuing and permanent, and they are occasional and intermittent.\xe2\x80\x9d)\n(emphasis in original); see also Auffmordt v. Hedden, 137 U.S. 310, 326\xe2\x80\x9327 (1890) (\xe2\x80\x9c[The\nmerchant appraiser] has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that\nparticular case. . . . His position is without tenure, duration, continuing emolument, or\ncontinuous duties . . . . Therefore, he is not an \xe2\x80\x9cofficer,\xe2\x80\x9d within the meaning of the\nclause.\xe2\x80\x9d).\n6 See, e.g., Memorandum for L. Anthony Sutin, Acting Assistant Attorney General,\nOffice of Legislative Affairs, from William Michael Treanor, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Centennial of Flight Commission\xe2\x80\x94Airport Improvement Program Reauthorization, H.R. 4057, at 1 (Oct. 1, 1998) (\xe2\x80\x9cCentennial of\nFlight Commission\xe2\x80\x9d) (objecting on Appointments Clause grounds to H.R. 4057); see also\nH.R. 4057, 105th Cong. \xc2\xa7 804(c)(1) (engrossed amendment as agreed to by Senate, Sept.\n25, 1998) (providing that \xe2\x80\x9cmembers of the Commission shall serve without pay or com-\n\n197\n\n\x0c33 Op. O.L.C. 193 (2009)\n\nMoreover, the Commissioners would exercise significant governmental\nauthority. Although some of the functions of the Commission here would\nbe merely advisory (H.R. 131, \xc2\xa7 3(2)\xe2\x80\x93(4)), the Commission would also\nhave the authority to \xe2\x80\x9cplan, develop, and carry out such activities as the\nCommission considers fitting and proper to honor Ronald Reagan\xe2\x80\x9d (id.\n\xc2\xa7 3(1)). This Office has previously indicated that \xe2\x80\x9ccarrying out a limited\nnumber of commemorative events and projects\xe2\x80\x9d is a \xe2\x80\x9cclearly executive\xe2\x80\x9d\nfunction and that the planning and development of commemorative events\nconstitutes \xe2\x80\x9csignificant authority\xe2\x80\x9d for Appointments Clause purposes if\nthe plans are final (i.e., not just advisory). 7 In light of these precedents,\nwe conclude the Commissioners would be Officers of the United States.\nTherefore the bill\xe2\x80\x99s prescription that members of Congress shall appoint\ncertain of the Commissioners would violate the Appointments Clause.\nAn additional constitutional problem arises from the fact that six of the\nCommissioners would not only be appointed by members of Congress but\nwould themselves be members of Congress. The Ineligibility Clause states\nthat \xe2\x80\x9c[n]o Senator or Representative shall, during the Time for which he\nwas elected, be appointed to any civil Office under the Authority of the\nUnited States, which shall have been created, or the Emoluments whereof\nshall have been increased during such time.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 6, cl. 2.\nAs we have previously advised, \xe2\x80\x9c[t]he most common problem under the\nIneligibility Clause arises from legislation that creates a commission or\nother entity and simultaneously requires that certain of its members be\nRepresentatives or Senators, either ex officio or by selection or nomination by the congressional leadership. Unless the congressional members\nparticipate only in advisory or ceremonial roles, or the commission itself\npensation\xe2\x80\x9d); cf. Offices of Trust, 15 Op. Att\xe2\x80\x99y Gen. 187, 188 (1877) (concluding, for\npurposes of the Emoluments Clause and with respect to commissioners of the United\nStates Centennial Commission, that \xe2\x80\x9cthough their duties are of a special and temporary\ncharacter, they may properly be called officers of the United States during the continuance of their official functions\xe2\x80\x9d); In re Corliss, 11 R.I. 639 (1877) (holding that member\nof same Centennial Commission held \xe2\x80\x9cOffice of Trust or Profit\xe2\x80\x9d under U.S. Const., art. II,\n\xc2\xa7 1, and was therefore disqualified from serving as a presidential elector).\n7 Bicentennial Commission, 8 Op. O.L.C. at 200; Centennial of Flight Commission,\nsupra note 6, at 1 (\xe2\x80\x9cThe Commission is also authorized . . . to plan and develop commemorative activities itself . . . . In accordance with prior precedent of this Office, these\nfunctions have been understood to encompass significant authority for purposes of the\nAppointments Clause.\xe2\x80\x9d).\n\n198\n\n\x0cParticipation of Members of Congress in the Ronald Reagan Centennial Commission\n\nis advisory or ceremonial, the appointment of members of Congress to the\ncommission would violate the Ineligibility Clause.\xe2\x80\x9d Dellinger Memo, 20\nOp. O.L.C. at 160. Here, the legislation contemplates that Commissioners\nwould not simply be participating in or advising on ceremonial events but\nthat they would also be responsible for planning, developing, and carrying\nout such events as part of a national commemoration. In such circumstances, the Commission\xe2\x80\x99s composition would run afoul of the Ineligibility Clause.\nFinally, independent of the concerns under the Appointments and Ineligibility Clauses, the Commission\xe2\x80\x99s composition would raise constitutional\nconcerns under the anti-aggrandizement principle. \xe2\x80\x9c[O]nce Congress\nmakes its choice in enacting legislation, its participation ends. Congress\ncan thereafter control the execution of its enactment only indirectly\xe2\x80\x94by\npassing new legislation.\xe2\x80\x9d Bowsher v. Synar, 478 U.S. 714, 733\xe2\x80\x9334 (1986);\nsee also INS v. Chadha, 462 U.S. 919 (1983). A statute may not give\nmembers of Congress, or congressional agents, the authority to perform\nExecutive Branch functions. Accordingly, \xe2\x80\x9cdesignating a member of\nCongress to serve on a commission with any executive functions, even in\nwhat was expressly labeled a ceremonial or advisory role, may render the\ndelegation of significant governmental authority to the commission unconstitutional as a violation of the anti-aggrandizement principle.\xe2\x80\x9d\nDellinger Memo, 20 Op. O.L.C. at 160 n.95 (citing FEC v. NRA Political\nVictory Fund, 6 F.3d 821 (D.C. Cir. 1993) (invalidating statute that authorized agents of Congress to be members of the Federal Election Commission)). This problem would persist, moreover, even if only a minority\nof Commissioners were members or agents of Congress, and even if the\ncongressional members were not permitted to exercise voting authority.\nSee NRA Political Victory Fund, 6 F.3d at 826\xe2\x80\x9327 (members of Congress\ncould not serve on the FEC even in non-voting capacity). 8\n\n8 See also Memorandum for Robert Raben, Assistant Attorney General, Office of Legislative Affairs, from Evan Caminker, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: National Wildlife Refuge System Centennial Commemoration Act of 2000\n(Aug. 11, 2000) (objecting on anti-aggrandizement grounds to statute appointing members\nof Congress to serve as non-voting members of commission with responsibility to develop\nand carry out plan to commemorate 100th anniversary of National Wildlife Refuge\nSystem).\n\n199\n\n\x0c33 Op. O.L.C. 193 (2009)\n\nTo address these constitutional concerns, the functions of the Commission in section 3(1) should be limited to giving advice and making recommendations with respect to planning, developing and carrying out\ncommemorative activities. In such an advisory capacity, the Commission\ncould remain composed as it is under section 4(a) of the Act. The Act\nshould then assign an Executive Branch official the responsibility to\nconsider the advice of the Commission and then to \xe2\x80\x9cplan, develop and\ncarry out such activities as [the official] considers fitting and proper to\nhonor Ronald Reagan on the occasion of the 100th anniversary of his\nbirth.\xe2\x80\x9d The Act could still require that any ceremonial events include a\nrole for members of Congress. As long as operational control remains\nwith the Executive Branch official, the Appointments Clause and Ineligibility Clause concerns would be assuaged, and there would be no impermissible congressional aggrandizement.\nMARTIN S. LEDERMAN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n200\n\n\x0c'


b'Immunity of the Former Counsel to the President\nFrom Compelled Congressional Testimony\nThe former Counsel to the President is immune from compelled congressional testimony about matters\nthat arose during her tenure as Counsel to the President and that relate to her official duties in that\ncapacity and is not required to appear in response to a subpoena to testify about such matters.\n\nJuly 10, 2007\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether Harriet Miers, the former Counsel to the President, is\nlegally required to appear and provide testimony in response to a subpoena issued\nby the Committee on the Judiciary of the House of Representatives. The Committee, we understand, seeks testimony from Ms. Miers about matters arising during\nher tenure as Counsel to the President and relating to her official duties in that\ncapacity. Specifically, the Committee wishes to ask Ms. Miers about the decision\nof the Justice Department to request the resignations of several United States\nAttorneys in 2006. See Letter for Harriet E. Miers, from John Conyers, Jr.,\nChairman, House Committee on the Judiciary (June 13, 2007). For the reasons\ndiscussed below, we believe that Ms. Miers is immune from compulsion to testify\nbefore the Committee on this matter and, therefore, is not required to appear to\ntestify about this subject.\nSince at least the 1940s, administrations of both political parties have taken the\nposition that \xe2\x80\x9c\xe2\x80\x98the President and his immediate advisers are absolutely immune\nfrom testimonial compulsion by a Congressional committee.\xe2\x80\x99\xe2\x80\x9d Assertion of\nExecutive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 4 (1999)\n(opinion of Attorney General Janet Reno) (quoting Memorandum for All Heads of\nOffices, Divisions, Bureaus and Boards of the Department of Justice, from John\nM. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Executive\nPrivilege at 5 (May 23, 1977)). This immunity \xe2\x80\x9cis absolute and may not be\noverborne by competing congressional interests.\xe2\x80\x9d Id.\nAssistant Attorney General William Rehnquist succinctly explained this position in a 1971 memorandum:\nThe President and his immediate advisers\xe2\x80\x94that is, those who customarily meet with the President on a regular or frequent basis\xe2\x80\x94\nshould be deemed absolutely immune from testimonial compulsion\nby a congressional committee. They not only may not be examined\nwith respect to their official duties, but they may not even be compelled to appear before a congressional committee.\nMemorandum for John D. Ehrlichman, Assistant to the President for Domestic\nAffairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal\n\n191\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nCounsel, Re: Power of Congressional Committee to Compel Appearance or\nTestimony of \xe2\x80\x9cWhite House Staff\xe2\x80\x9d at 7 (Feb. 5, 1971). In a 1999 opinion for\nPresident Clinton, Attorney General Reno concluded that the Counsel to the\nPresident \xe2\x80\x9cserves as an immediate adviser to the President and is therefore\nimmune from compelled congressional testimony.\xe2\x80\x9d Assertion of Executive Privilege, 23 Op. O.L.C. at 4.\nThe rationale for the immunity is plain. The President is the head of one of the\nindependent branches of the federal government. If a congressional committee\ncould force the President\xe2\x80\x99s appearance, fundamental separation of powers\nprinciples\xe2\x80\x94including the President\xe2\x80\x99s independence and autonomy from Congress\xe2\x80\x94would be threatened. As the Office of Legal Counsel has explained, \xe2\x80\x9c[t]he\nPresident is a separate branch of government. He may not compel congressmen to\nappear before him. As a matter of separation of powers, Congress may not compel\nhim to appear before it.\xe2\x80\x9d Memorandum for Edward C. Schmults, Deputy Attorney\nGeneral, from Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel at 2 (July 29, 1982) (\xe2\x80\x9cOlson Memorandum\xe2\x80\x9d).\nThe same separation of powers principles that protect a President from compelled congressional testimony also apply to senior presidential advisers. Given\nthe numerous demands of his office, the President must rely upon senior advisers.\nAs Attorney General Reno explained, \xe2\x80\x9cin many respects, a senior advisor to the\nPresident functions as the President\xe2\x80\x99s alter ego, assisting him on a daily basis in\nthe formulation of executive policy and resolution of matters affecting the\nmilitary, foreign affairs, and national security and other aspects of his discharge of\nhis constitutional responsibilities.\xe2\x80\x9d Assertion of Executive Privilege, 23 Op. O.L.C.\nat 5. 1 Thus, \xe2\x80\x9c[s]ubjecting a senior presidential advisor to the congressional\nsubpoena power would be akin to requiring the President himself to appear before\nCongress on matters relating to the performance of his constitutionally assigned\nfunctions.\xe2\x80\x9d Id.; see also Olson Memorandum at 2 (\xe2\x80\x9cThe President\xe2\x80\x99s close advisors\nare an extension of the President.\xe2\x80\x9d). 2\nThe fact that Ms. Miers is a former Counsel to the President does not alter the\nanalysis. Separation of powers principles dictate that former presidents and former\nsenior presidential advisers remain immune from compelled congressional\n1\n\nIn an analogous context, the Supreme Court held that the immunity provided by the Speech or\nDebate Clause of the Constitution to members of Congress also applies to congressional aides, even\nthough the Clause refers only to \xe2\x80\x9cSenators and Representatives.\xe2\x80\x9d U.S. Const. art I, \xc2\xa7 6, cl. 1. In\njustifying expanding the immunity, the Supreme Court reasoned that \xe2\x80\x9cthe day to day work of such aides\nis so critical to the Members\xe2\x80\x99 performance that they must be treated as the latter\xe2\x80\x99s alter egos.\xe2\x80\x9d Gravel v.\nUnited States, 408 U.S. 606, 616\xe2\x80\x9317 (1972). Any other approach, the Court warned, would cause the\nconstitutional immunity to be \xe2\x80\x9cinevitably . . . diminished and frustrated.\xe2\x80\x9d Id. at 617.\n2\nSee also History of Refusals by Executive Branch Officials to Provide Information Demanded by\nCongress, 6 Op. O.L.C. 751, 771\xe2\x80\x9372 (1982) (documenting how President Truman directed Assistant to\nthe President John Steelman not to respond to a congressional subpoena seeking information about\nconfidential communications between the President and one of his \xe2\x80\x9cprincipal aides\xe2\x80\x9d).\n\n192\n\n\x0cImmunity of Former Counsel to President From Compelled Congressional Testimony\n\ntestimony about official matters that occurred during their time as President or\nsenior presidential advisers. Former President Truman explained the need for\ncontinuing immunity in November 1953, when he refused to comply with a\nsubpoena directing him to appear before the House Committee on Un-American\nActivities. In a letter to that committee, he warned that \xe2\x80\x9cif the doctrine of separation of powers and the independence of the Presidency is to have any validity at\nall, it must be equally applicable to a President after his term of office has expired\nwhen he is sought to be examined with respect to any acts occurring while he is\nPresident.\xe2\x80\x9d Texts of Truman Letter and Velde Reply, N.Y. Times, Nov. 13, 1953,\nat 14 (reprinting November 12, 1953 letter by President Truman). \xe2\x80\x9cThe doctrine\nwould be shattered, and the President, contrary to our fundamental theory of\nconstitutional government, would become a mere arm of the Legislative Branch of\nthe Government if he would feel during his term of office that his every act might\nbe subject to official inquiry and possible distortion for political purposes.\xe2\x80\x9d Id. In a\nradio speech to the Nation, former President Truman further stressed that it \xe2\x80\x9cis just\nas important to the independence of the Executive that the actions of the President\nshould not be subjected to the questioning by the Congress after he has completed\nhis term of office as that his actions should not be questioned while he is serving\nas President.\xe2\x80\x9d Text of Address by Truman Explaining to Nation His Actions in the\nWhite Case, N.Y. Times, Nov. 17, 1953, at 26.\nBecause a presidential adviser\xe2\x80\x99s immunity is derivative of the President\xe2\x80\x99s,\nformer President Truman\xe2\x80\x99s rationale directly applies to former presidential\nadvisers. We have previously opined that because an \xe2\x80\x9cimmediate assistant to the\nPresident may be said to serve as his alter ego . . . the same considerations that\nwere persuasive to former President Truman would apply to justify a refusal to\nappear [before a congressional committee] by . . . a former [senior presidential\nadviser], if the scope of his testimony is to be limited to his activities while serving\nin that capacity.\xe2\x80\x9d Memorandum for the Counsel to the President, from Roger C.\nCramton, Assistant Attorney General, Office of Legal Counsel, Re: Availability of\nExecutive Privilege Where Congressional Committee Seeks Testimony of Former\nWhite House Official on Advice Given President on Official Matters at 6 (Dec. 21,\n1972).\nAccordingly, we conclude that Ms. Miers is immune from compelled congressional testimony about matters, such as the U.S. Attorney resignations, that arose\nduring her tenure as Counsel to the President and that relate to her official duties in\nthat capacity, and therefore she is not required to appear in response to a subpoena\nto testify about such matters.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n193\n\n\x0c'