b'The Constitutional Separation of Powers Between the President\nand Congress\nT h is m em o ran d u m provides an overview o f the constitutional issues th at periodically arise concerning\nthe relatio n sh ip betw een the executive and legislative branches o f the federal governm ent. Although\nth at relatio n sh ip is shaped in part by th e policy and political concerns o f the P resident and C ongress\no f the day , the political interaction betw een the P resident an d C ongress takes place w ithin an\nen d u rin g con stitu tio nal fram ew ork that confers p ow ers and responsibilities on both elected\nb ran ch es. In this m em orandum w e d iscu ss the general principles underlying separation o f pow ers\nan aly sis, and w e ad d ress certain specific questions th at have arisen in the past. A ny set o f exam ples\nis n ecessarily illu strative rather than exhaustive, h ow ever, and th e O ffice o f Legal Counsel is al\xc2\xad\nw ay s av ailab le to assist in reviewing legislation or o th e r congressional action for potential separa\xc2\xad\ntion o f p o w ers is s u e s .\'\n\nMay 7, 1996\nM em orandum O\n\np in io n f o r t h e\n\nof th e\n\nG en e r a l C o u n sels\n\nFederal G o v ern m en t\n\nTable o f Contents\nI. General Principles\nA. Express Procedures: The Bicameralism and Presentment Requirements\nand the Appointments Clause\nB. The Anti-Aggrandizement Principle\nC. The General Separation of Powers Principle\nII. Common Separation o f Powers Issues\nA. Bicameralism/Presentment Questions\nB. Appointments Clause and Related Questions\n1. W ho is Required to Be an Officer of the United States?\na. Employment by the Government: The Distinction between\nAppointees and Independent Contractors\nb. The Exercise of Significant Authority\nc. Appointment to a Position o f Employment within the Federal\nGovernment\nd. Summary\n2. W ho May Be an Inferior Officer?\n3. W ho May Appoint Inferior Officers?\n\n125\n129\n131\n133\n135\n135\n139\n139\n140\n143\n145\n148\n149\n151\n\n* This m emorandum supersedes a 1989 memorandum that the Office o f Legal Counsel provided to the General\nC ounsels\xe2\x80\x99 C onsultative Group. See Common Legislative Encroachments on Executive Branch Authority, 13 Op.\nO .L.C. 248 (1989). W hile we agree with m any o f the conclusions o f that document, we have determined that subse\xc2\xad\nquent decisions by the Supreme Coun and certain differences in approach to the issues make it appropriate to revisit\nand update the O ffice\xe2\x80\x99s general advice on separation o f powers issues.\nEditor\xe2\x80\x99s Note: TTiis memorandum was issued in 1996 but is being formally published in 2002. We caution that\nintervening Suprem e Court decisions and \xe2\x80\x9c certain differences in approach to the issues\xe2\x80\x9d discussed herein may render\nportions o f this memorandum inadequate as an expression o f the O ffice\'s advice on separation o f powers. Rather\nthan drafting a superseding memorandum on separation o f powers, divorced from a specific context, the Office\nwill provide advice on separation o f powers as questions are presented to it.\n\n124\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\n4. Legislation Lengthening the Tenure of an Officer\n\n153\n\n5. Legislation Imposing Additional Duties on an Officer\n\n157\n\n6. The Ineligibility and Incompatibility Clauses\n\n159\n\n7. The Recess Appointments Clause\n\n161\n\n8. Acting and Interim Appointments\n\n161\n\n9. Other Issues of Combined, Collective, and Interbranch Authority and\nthe Appointments Clause\n\n164\n\nC. Removal Power Issues\n\n166\n\n1. The Executive\xe2\x80\x99s Removal Power\n\n166\n\n2. Congressional Removal Power\n\n170\n\nD. Issues Involving the Boundaries of the Legislative Sphere\n\n171\n\n1. The Paradox o f Congressional Agencies\n\n172\n\n2. Reporting Requirements\n\n173\n\n3. Congressional Agents in Non-Legislative Contexts\n\n175\n\nE. The General Separation of Powers Principle\n\n176\n\nF. Statutory Construction\n\n178\n\nIII. Constitutional Requirements and Policy Concerns\n\n180\n\nI. General Principles\nThe Constitution reflects a fundamental conviction that governmental \xe2\x80\x9c power\nis of an encroaching nature, and that it ought to be effectually restrained from\npassing the limits assigned to it.\xe2\x80\x9d The Federalist No. 48, at 332 (James Madison)\n(Jacob E. Cooke ed., 1961), quoted in M etropolitan Washington A irports Auth.\nv. Citizens fo r the Abatem ent o f Aircraft Noise, Inc., 501 U.S. 252, 273 (1991)\n(\xe2\x80\x9c MWAA \xe2\x80\x9d ). The founders, not content to rely on paper definitions of the rights\nsecured to the people, \xe2\x80\x9c viewed the principle of separation of powers as a vital\ncheck against tyranny.\xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam).\nIn order to safeguard liberty, therefore, the Constitution creates three distinct\nbranches of government\xe2\x80\x94 Congress, the President, and the federal judiciary \xe2\x80\x94\nand assigns to them differing roles in the exercise of the government\xe2\x80\x99s powers.\nThe resulting division of governmental authority is not a mere set of housekeeping\nrules indicating which branch presumptively performs which functions; it is, rath\xc2\xad\ner, a fundamental means by which the Constitution attempts to ensure free, respon\xc2\xad\nsible, and democratic government. See MWAA, 501 U.S. at 272 (\xe2\x80\x9c The ultimate\npurpose of this separation of powers is to protect the liberty and security of the\ngoverned.\xe2\x80\x9d ). The constitutional separation of powers advances this central purpose\nby \xe2\x80\x9c assur[ing] full, vigorous, and open debate on the great issues affecting the\npeople\xe2\x80\x9d ; 1 by \xe2\x80\x9c placing both substantive and procedural limitations on each\n1Bowsher v. Synar. 478 U.S. 714, 722 (1986).\n\n125\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n[branch]\xe2\x80\x9d ; 2 and by maintaining a \xe2\x80\x9c system of . . . checks and balances\xe2\x80\x9d among\nthe three branches.3\nAlthough the structure of the Constitution is designed to obviate the danger\nto liberty posed by each of the branches,4 the founders were particularly con\xc2\xad\ncerned with the Congress\xe2\x80\x99s potential for improvident or overreaching action: \xe2\x80\x9c the\ntendency of republican governments is to an aggrandizement of the legislature]\nat the expense of the other departments.\xe2\x80\x9d The F ederalist No. 49, at 315-16 (James\nMadison) (Clinton Rossiter ed., 1961), cited in U nited States v. Brown, 381 U.S.\n437, 444 n.17 (1965). Many specific aspects of the Constitution\xe2\x80\x99s separation of\ngovernmental powers embody the founders\xe2\x80\x99 \xe2\x80\x9c profound conviction . . . that the\npowers conferred on Congress were the powers to be most carefully cir\xc2\xad\ncumscribed\xe2\x80\x9d and the founders\xe2\x80\x99 recognition of the particular \xe2\x80\x9c \xe2\x80\x98propensity\xe2\x80\x99 \xe2\x80\x9d of\nthe legislative branch \xe2\x80\x9c \xe2\x80\x98to invade the rights of the Executive.\xe2\x80\x99 \xe2\x80\x9d INS v. Chadha,\n462 U.S. 919, 947 (1983) (quoting The F ederalist No. 73, at 442 (Alexander Ham\xc2\xad\nilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a constitu\xc2\xad\ntional obligation, one grounded not in parochial institutional interests but in our\nfundamental duty to safeguard the liberty of the people, to assert and maintain\nthe legitimate powers and privileges of the President against inadvertent or inten\xc2\xad\ntional congressional intrusion. As Attorney General William Mitchell put it long\nago:\nSince the organization of the Government, Presidents have felt\nbound to insist upon the maintenance of the Executive functions\nu n im p aired by legislative encroachment, just as the legislative\nbranch has felt bound to resist interferences with its power by the\nExecutive. To acquiesce in legislation having a tendency to en\xc2\xad\ncroach upon the executive authority results in establishing dan\xc2\xad\ngerous precedents.\nConstitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att\xe2\x80\x99y\nGen. 56, 64 (1933).5\nThe Constitution, however, \xe2\x80\x9c by no means contemplates total separation of each\nof these three essential branches of Government.\xe2\x80\x9d Buckley, 424 U.S. at 121. In\xc2\xad\nstead, \xe2\x80\x9c \xe2\x80\x98[w]hile the Constitution diffuses power the better to secure liberty, it\n2 MWAA, 501 U.S. at 272.\n3Morrison v. Olson, 487 U.S. 654, 693 (1988). James Madison described the \xe2\x80\x9c policy\'* lying behind \xe2\x80\x9c distributions\no f power** \xe2\x80\x94 \xe2\x80\x9c the constant aim is to divide and arrange the several offices in such a manner as that each may\nbe a check on the other.*\xe2\x80\x99 The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961), quoted\nin Buckley, 424 U.S. at 122-23.\nASee INS v. Chadha, 462 U.S. 919, 951 (1983) (the C onstitution\'s separation o f powers is designed to counteract\nthe \xe2\x80\x9c hydraulic pressure inherent within each o f the separate Branches to exceed the outer limits o f its pow er\xe2\x80\x9d ).\n3 The A ttorney General noted that \xe2\x80\x9c [t]he first presidential defense o f the integrity o f the powers o f the Executive\nunder the C onstitution was made by W ashington himself\xe2\x80\x99\xe2\x80\x99 and that \xe2\x80\x9c [f]rom that day to this the Presidents, with\nvery few exceptions, have felt the necessity for refusing to overlook encroachments upon the executive pow er.\xe2\x80\x9d\n37 Op. A tt\xe2\x80\x99y Gen. at 64.\n\n126\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nalso contemplates that practice will integrate the dispersed powers into a workable\ngovernment. It enjoins upon its branches separateness but interdependence, auton\xc2\xad\nomy but reciprocity.\xe2\x80\x99 \xe2\x80\x9d M istretta v. United States, 488 U.S. 361, 381 (1989)\n(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)\n(Jackson, J., concurring)). The Constitution thus guards against \xe2\x80\x9c the accumulation\nof excessive authority in a single Branch\xe2\x80\x9d not by providing mutually exclusive\nlists of executive, legislative, and judicial powers, but by imposing on each of\nthe three branches \xe2\x80\x9c a degree of overlapping responsibility, a duty of interdepend\xc2\xad\nence as well as independence.\xe2\x80\x9d Id. at 381.6 The constitutional boundaries between\nthe powers of the branches must be determined \xe2\x80\x9c according to common sense and\nthe inherent necessities of the governmental co-ordination.\xe2\x80\x9d J.W. Hampton, Jr.,\n& Co. v. United States, 276 U.S. 394, 406 (1928).\nSome general observations on the sources and methodology we employ in ana\xc2\xad\nlyzing separation of powers questions are appropriate. We believe that the con\xc2\xad\nstitutional structure obligates the executive branch to adhere to settled judicial\ndoctrine that limits executive and legislative power. While the Supreme Court\xe2\x80\x99s\ndecisions interpreting the Constitution cannot simply be equated with the Constitu\xc2\xad\ntion, we are mindful of the special role of the courts in the interpretation of the\nlaw of the Constitution. \xe2\x80\x9c It is emphatically the province and duty of the judicial\ndepartment to say what the law is.\xe2\x80\x9d M arbury v. M adison, 5 U.S. (1 Cranch) 137,\n177 (1803).\nThe Supreme Court\xe2\x80\x99s decisions interpreting the constitutional separation of pow\xc2\xad\ners among Congress, the President, and the courts recognize the founders\xe2\x80\x99 basic\nconcern over the \xe2\x80\x9c encroaching nature\xe2\x80\x9d of power, as well as their specific belief\nthat Congress is potentially the most dangerous branch. \xe2\x80\x9c It is this concern of\nencroachment and aggrandizement that has animated our separation-of-powers ju\xc2\xad\nrisprudence and aroused our vigilance against the \xe2\x80\x98hydraulic pressure inherent\nwithin each of the separate Branches to exceed the outer limits of its power.\xe2\x80\x99 \xe2\x80\x9d\nMistretta, 488 U.S. at 382 (quoting Chadha, 462 U.S. at 951). The Court\xe2\x80\x99s deci\xc2\xad\nsions have employed three distinct principles in resolving separation of powers\ndisputes. First, where \xe2\x80\x9c [e]xplicit and unambiguous provisions of the Constitution\nprescribe and define . . . just how [governmental] powers are to be exercised,\xe2\x80\x9d\nChadha, 462 U.S. at 945, the constitutional procedures must be followed with\nprecision. Second, where the effect of legislation is to vest Congress itself, its\nmembers, or its agents with \xe2\x80\x9c \xe2\x80\x98either executive power or judicial power,\xe2\x80\x99 \xe2\x80\x9d the\nstatute is unconstitutional. MWAA, 501 U.S. at 274 (quoting Hampton, 276 U.S.\n6 The Supreme Court repeatedly has rejected the \xe2\x80\x9c \xe2\x80\x98archaic view o f the separation of powers as requiring three\nairtight departments o f government.\xe2\x80\x99 \xe2\x80\x9d Nixon v. Administrator o f Gen. Servs., 433 U.S. 425, 443 (1977) (quoting\nNixon v. Administrator o f Gen. Servs., 408 F. Supp. 321, 342 (D.D.C. 1976)). In doing so, the Court has noted\nthat such a view is \xe2\x80\x9c inconsistent with the origins o f thfe] doctrine\xe2\x80\x9d as well as with \xe2\x80\x9c the contemporary reaJities\no f our political system.\xe2\x80\x9d Id. at 441; see abo id. at 442 & n.5 (noting that James Madison in The Federalist No.\n47 and Justice Joseph Story in his famous treatise on the Constitution rejected the claim that the Constitution requires\nan absolute separation).\n\n127\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nat 406).7 Finally, legislation that affects the functioning of one of the other\nbranches may be unconstitutional if it prevents the affected branch \xe2\x80\x9c from accom\xc2\xad\nplishing its constitutionally assigned functions.\xe2\x80\x9d Nixon v. Administrator o f Gen.\nServs., 433 U.S. at 443 (legislation affecting the executive branch); accord CFTC\nv. Schor, 478 U.S. 833, 851, 856-57 (1986) (legislation affecting the judiciary).8\nOur analyses are guided and, where there is a decision of the Court on point,\ngoverned by the Supreme Court\xe2\x80\x99s decisions on separation of powers. At the same\ntime, the executive branch has an independent constitutional obligation to interpret\nand apply the Constitution.9 That obligation is of particular importance in the\narea of separation of powers, where the issues often do not give rise to cases\nor controversies that can be resolved by the courts. This is due in part to the\nlimits of jurisdiction and justiciability that Article III places on the courts. In addi\xc2\xad\ntion, there may be legislation that violates one of the three principles outlined\nabove and yet is unlikely to reach the courts in a form or context in which the\njudiciary will be able to identify or remedy the constitutional problem.10 The\nAttorneys General and this Office have a long tradition of carrying out this con\xc2\xad\nstitutional responsibility, one that dates back to Attorney General Edmund Ran\xc2\xad\ndolph\xe2\x80\x99s 1791 opinions on the constitutionality of a national bank. See The Con\xc2\xad\nstitutionality o f the Bank Bill (1994) (reprinting, with commentary, the bank opin\xc2\xad\nions), reprinted in H. Jefferson Powell, The Constitution and the Attorneys Gen\xc2\xad\neral 3 (1999).11 We believe therefore that it is important in addressing separation\nof powers matters to give careful consideration to the views of our predecessors\nand to what seems to us to be the import of the Constitution\xe2\x80\x99s text, history, and\nstructure.12\nTo be sure, respect for the legislative branch of the government requires a de\xc2\xad\ngree of deference to legislative judgments.13 However, it is also the President\xe2\x80\x99s\n7 W e shall refer to this theme in the Supreme C ourt\xe2\x80\x99s separation o f powers jurisprudence as \xe2\x80\x9c the anti-aggrandizem ent principle.\xe2\x80\x9d\n8 W e refer to this line o f reasoning as \xe2\x80\x9c the general separation o f powers principle.\xe2\x80\x9d\n9 Indeed, Article II specifically requires th e President to take an oath or affirmation \xe2\x80\x9c to preserve, protect and\ndefend the C onstitution.\xe2\x80\x9d U.S. Const, art. n , \xc2\xa7 I, cl. 8.\n10 A n exam ple o f such legislation, would b e an enactment that does not, when viewed in isolation, violate the\nconstitutional principles we have identified, b u t as to which constitutional difficulties arise when the statute is exam\xc2\xad\nined in conjunction with other similar enactments. Because, absent a refusal by the executive to enforce any of\nthese cumulative enactments, the courts m ay not have an opportunity to review the statute in its full context, it\nis incum bent upon the executive to object to such legislation before it becom es law. Burdensome reporting require\xc2\xad\nm ents may illustrate this problem. Even if no single reporting requirement violates the general separation o f powers\nprinciple, see Administrator o f Gen. Servs., 4 3 3 U.S. at 443, the cumulative effect of many such requirements might\nprevent the executive from acting with the dispatch and efficiency that the Constitution intends and that, indeed.\nCongress expects.\n11 Persuaded by Secretary o f the Treasury H am ilton\xe2\x80\x99s opinion defending the validity o f the legislation, President\nW ashington declined to accept the Attorney G eneral\xe2\x80\x99s arguments that the bank bill was unconstitutional and signed\nit into law. The Supreme Court upheld the President\xe2\x80\x99s conclusion that Congress could charter a national bank in\nM \xe2\x80\x99Culloch v. Maryland, 17 U.S. (4 Wheat.) 3 1 6 (1819).\n12 For an exam ple o f an opinion that is, in our view, an exemplary model of the approach this O ffice should\ntake in interpreting the Constitution. See Article II, Section 2, Clause 3 \xe2\x80\x94 Recess Appointments\xe2\x80\x94 Compensation (5\nU.S.C. \xc2\xa75503), 3 Op. O.L.C. 314 (1979).\n13 From the beginning o f the Republic, the executive branch has interpreted the Constitution with a due regard\nfor the constitutional views o f Congress. See, e.g., Thomas Jefferson, The Constitutionality o f the Bill for Establishing\n\n128\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\n\xe2\x80\x9c duty to pass the executive authority on to his successor, unimpaired by the adop\xc2\xad\ntion of dangerous precedents.\xe2\x80\x9d P roposed Legislation Affecting Tax Refunds, 37\nOp. Att\xe2\x80\x99y Gen. at 6 5 .14 Our constitutional analyses are informed by both of these\nconcerns.15\nA. Express Procedures: The Bicameralism and Presentment Requirements\nand the Appointments Clause\nWhile the expression \xe2\x80\x9c separation of powers\xe2\x80\x9d does not appear in the Constitu\xc2\xad\ntion, the Constitution does require both separation and interdependence on some\nmatters by specifying, expressly and precisely, the procedures that must be fol\xc2\xad\nlowed. Where the constitutional text is unequivocal as to the manner in which\nthe branches are to relate, any attempt to vary from the text\xe2\x80\x99s prescriptions is\ninvalid.16 The Court has identified two such express procedures relating to the\nseparation of executive and legislative powers: the bicameralism and presentment\nrequirements for legislation, and the Appointments Clause.\nCongress\xe2\x80\x99s broad authority to take action that has \xe2\x80\x9c the purpose and effect of\naltering the legal rights, duties, and relations of persons . . . outside the Legisla\xc2\xad\ntive Branch,\xe2\x80\x9d INS v. Chadha, 462 U.S. at 952, is limited by the procedural re\xc2\xad\nquirements of-Article I. With a few express exceptions found or rooted in the\nconstitutional text, see MWAA, 501 U.S. at 276 n.21,17 Article I requires that\na National Bank (Feb. 15, 1791) (Opinion o f the Secretary o f State), in 5 Writings o f Thomas Jefferson 284, 289\n(Paul L. Ford ed., 1895) (arguing that the President should not veto a bill on constitutional grounds, \xe2\x80\x9c if the pro\nand the con hang so even as to balance his judgm ent,\xe2\x80\x9d out o f \xe2\x80\x9c a just respect for the wisdom o f the legislature\xe2\x80\x9d ).\nRespect for Congress also demands that the Executive, like the judiciaiy, construe statutes so as to avoid constitutional\nproblems. See, e.g.. Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980)\n( \xe2\x80\x9c It is our practice to interpret statutes in ways that avoid constitutional infirmities, whenever possible.\xe2\x80\x9d ).\nl4Thus, for exam ple, in declining to comply with a request from the House of Representatives that he deem ed\nan intrusion on the treaty power, President Washington explained that \xe2\x80\x9c as it is essential to the due administration\nof the government, that the boundaries fixed by the [C onstitution between the different departments should be pre\xc2\xad\nserved: A just regard to the Constitution and to the duty o f my Office . . . forbids a c o m p lia n c e with your request.\xe2\x80\x9d\nMessage to the House o f Representatives (Mar. 30, 1796), reprinted in 35 Writings o f George Washington 5 (John\nC. Fitzpatrick ed., 1940).\n15 The correct resolution o f separation o f powers questions demands that due respect be given to two distinct\nconstitutional axioms. The fust axiom is that the Constitution\'s creation o f a vigorous Executive and an independent\njudiciary must not be undermined by legislative encroachment. The second axiom is that the Constitution delegates\nto Congress broad pow er \xe2\x80\x9c [t]o make all Laws which shall be necessary and proper for carrying into Execution\n(he foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government o f the\nUnited States, or in any department or officer thereof.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa7 8, cl. 18 (emphasis added). The Necessary\nand Proper Clause thereby authorizes Congress not only to choose any appropriate means of exercising the legislative\npowers it has been delegated, but also \xe2\x80\x9c to exercise its best judgment in the selection of measures to cany into\nexecution the constitutional powers o f the government\xe2\x80\x9d as a whole, M\xe2\x80\x99Culloch v. Maryland, 17 U.S. at 420, including\nthe powers vested in the President. In our analyses, we fully acknowledge the broad sweep of Congress\xe2\x80\x99s powers\nwhile insisting, as we must, that those powers cannot be legitimately employed so as to undermine the constitutional\nauthority of the executive branch.\n16 In such circumstances \xe2\x80\x9c the balance\xe2\x80\x9d between the branches \xe2\x80\x9c already has been struck by the Constitution its e lf \xe2\x80\x99\nin the text. Public Citizen v. United States Dep\xe2\x80\x99t o f Justice, 491 U.S. 440, 486 (1989) (Kennedy, J., concurring).\n17 The House o f Representatives has the power to impeach any civil officer of the United States, see U.S. Const,\nart. I, \xc2\xa72, cl. 5; id. art. II, \xc2\xa7 4 , and the Senate has the pow er to try and, if convinced that the officer is guilty\nof \xe2\x80\x9c high Crimes and M isdemeanors,\xe2\x80\x9d to remove him or her from office. Id. art. I, \xc2\xa73 , els. 5, 6; id. art. II, \xc2\xa74 .\nContinued\n\n129\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nCongress take such action \xe2\x80\x9c in accord with a single, finely wrought and exhaus\xc2\xad\ntively considered, procedure\xe2\x80\x99\xe2\x80\x99 \xe2\x80\x94 bicameral passage and presentation to the Presi\xc2\xad\ndent followed by presidential signature, or bicameral repassage by a two-thirds\nmajority. Chadha, 462 U.S. at 951; see U.S. Const, art. I, \xc2\xa7\xc2\xa71, 7. The classic\nand often-repeated violation of this express textual requirement is the \xe2\x80\x9c legislative\nveto\xe2\x80\x9d mechanism invalidated in Chadha . 18\nThe Supreme Court has applied a similar analysis to the Appointments Clause\nof Article II, Section 2. In Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (per\ncuriam), the Court concluded that \xe2\x80\x9c Congress\xe2\x80\x99 power under [the Necessary and\nProper] Clause is inevitably bounded by the express language of Art. II, \xc2\xa72, cl.\n2,\xe2\x80\x9d and that consequently Congress cannot provide for the appointment of \xe2\x80\x9c Offi\xc2\xad\ncers of the United States,\xe2\x80\x9d except through a procedure that \xe2\x80\x9c comports with\xe2\x80\x9d\nthe Appointments Clause.19 Pursuant to the language of the Clause, principal offi\xc2\xad\ncers must be appointed by the President with the advice and consent of the Senate,\nwhile Congress is limited in providing alternative means for the appointment of\ninferior officers to the \xe2\x80\x9c possible repositories for the appointment power.\xe2\x80\x9d Freytag\nv. Com m issioner, 501 U.S. 868, 884 (1991). Those repositories are \xe2\x80\x9c the President\nalone, . . . the Courts of Law, or . . . the Heads of Departments.\xe2\x80\x9d U.S. Const,\nart. II, \xc2\xa72, cl. 2.\nThe rules of law derived from the requirements of bicameralism/presentment\nand the Appointments Clause have the clear and powerful effect of invalidating\nany inconsistent congressional action. Congress may not employ any mode of ex\xc2\xad\nercising legislative power other than through bicameralism and presentment. The\nAppointments Clause\xe2\x80\x99s list of those who may appoint officers is exclusive, and\nCongress cannot authorize anyone else to appoint officers of the United States.\nThe major difficulty in applying the bicameralism/presentment and Appointments\nClause requirements lies in determining whether a particular action falls within\nthe scope of the prescribed procedures. In section II of this memorandum, we\ndiscuss questions that have arisen concerning the scope of both requirements.\nThe Senate also acts on its ow n in exercising its advice and consent powers with respect to treaties and the appoint\xc2\xad\nment o f officers. Congress and congressional committees, furthermore, may take certain actions in aid o f Congress\xe2\x80\x99s\nlegislative tasks that have legal consequences for specific persons outside the legislative branch; a congressional\ncom m ittee, for exam ple, may issue a subpoena to a witness. See Lear Siegler, Inc. Energy Prods. Div. v. Lehman,\n842 F.2d 1102, 1108 (9th Cir. 1988), modified as to attorney fees, 893 F.2d 205 (9th Cir. 1989) (en banc). We\ndisagree w ith the Lear Siegler court\xe2\x80\x99s application of this principle to the question before it.\n,8 The statute at issue in Chadha provided for a one-house \xe2\x80\x9c veto\xe2\x80\x9d o f certain decisions by the Attorney General.\nA two-house \xe2\x80\x9c v eto \xe2\x80\x99* satisfies bicameralism but is inconsistent with the requirement o f presentment, and soon after\nChadha the C ourt sum m arily invalidated a statute employing this mechanism. See United States Senate v. FTC,\n463 U.S. 1216 (1983) (mem.). These Supreme Court decisions vindicated the executive branch\xe2\x80\x99s long-held objections\nto any form o f legislative \xe2\x80\x9c veto .\xe2\x80\x9d See Memorandum for the Attorney General from President Franklin D. Roosevelt\n(Apr. 7, 1941), reprinted in Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357-58\n(1953) (concurrent resolution); Proposed Legislation Affecting Tax Refunds, 37 Op. A tt\xe2\x80\x99y Gen. at 60-62 (joint con\xc2\xad\ngressional com m ittee); Constitutional Issues Raised by Inter-American Convention on International Commercial Arbi\xc2\xad\ntration, 4B Op. O.L.C. 509, 5 12-13 (1980) (one-house veto o f \xe2\x80\x9c private\xe2\x80\x9d action).\nl9BuckIey vindicated the long-standing constitutional view o f the executive branch. See, e.g., Constitutionality\no f Resolution Establishing United Stales New York World\'s Fair Commission, 39 Op. A tt\xe2\x80\x99y Gen. 61 (1937).\n\n130\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nB. The Anti-Aggrandizement Principle\nAlthough the founders were concerned about the concentration of governmental\npower in any of the three branches, their primary fears were directed toward con\xc2\xad\ngressional self-aggrandizement,20 and the Supreme Court\xe2\x80\x99s decisions call for care\xc2\xad\nful scrutiny of legislation that has the purpose or effect of extending Congress\xe2\x80\x99s\nauthority beyond the legislative process. Just as the textual requirement of bi\xc2\xad\ncameralism and presentment limits the means by which Congress may legislate,\nso the anti-aggrandizement principle limits the means by which Congress may\ninfluence the execution (or adjudication) of the laws.21 The Constitution affords\nCongress great latitude in making policy choices through the process of bicameral\npassage and presentment. However, \xe2\x80\x9c once Congress makes its choice in enacting\nlegislation, its participation ends,\xe2\x80\x9d and \xe2\x80\x9c Congress can thereafter control the exe\xc2\xad\ncution of its enactment only indirectly\xe2\x80\x94 by passing new legislation.\xe2\x80\x9d B owsher\nv. Synar, 478 U.S. at 733-34. While Congress may inform itself of how legislation\nis being implemented through the ordinary means of legislative oversight and in\xc2\xad\nvestigation, the anti-aggrandizement principle forbids Congress, directly or\nthrough an agent subject to removal by Congress,22 from intervening in the deci\xc2\xad\nsion making necessary to execute the law. See id. at 733-34; FEC v. NRA Political\nVictory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88\n(1994).\xc2\xab\nIn Bowsher, the Court held that a provision of the Gramm-Rudman Deficit Re\xc2\xad\nduction Act was unconstitutional because it vested in the Comptroller General\n(an official \xe2\x80\x9c removable only at the initiative of Congress,\xe2\x80\x9d 478 U.S. at 728) the\npower to make post-enactment decisions about how the executive branch should\nimplement budget reduction legislation. The Court rejected the argument that selfaggrandizing legislation can be upheld when it is as a practical matter harmless\nor de minimis and dismissed as beside the point Justice White\xe2\x80\x99s vigorous argument\n20See Mistretta, 488 U.S. at 411 n.35 (distinguishing Bowsher, as resting on "\xe2\x80\x98the special danger recognized by\nthe Founders o f congressional usurpation o f Executive Branch functions").\n2\xe2\x80\x98 The fact that the anti-aggrandizement principle does not rest on a particular provision o f the Constitution does\nnot make it any less important and legitimate a feature o f the law o f separation of powers than those features\nsuch as bicameralism and presentment that do have specific textual loci:\nThe Framers regarded the checks and balances they had built into the tripartite Federal Government as\na self-executing safeguard against the encroachment or aggrandizement o f one branch at the expense of\nthe other. . . . This Court has not hesitated to enforce the principle o f separation embodied in the C onstitu\xc2\xad\ntion when its application has proved necessary for the decisions o f cases or controversies properly before\nit.\nBuckley v. Valeo, 424 U.S. at 122-23.\n22 \xe2\x80\x9c The structure o f the Constitution does not permit Congress to execute the laws; it follows that Congress cannot\ngrant to an officer under its control what it does not possess.\xe2\x80\x9d Bowsher, 478 U.S. at 726. A n officer subject to\nremoval by Congress is subordinate to Congress as a matter o f constitutional law and must be viewed as an agent\nof Congress for separation o f powers purposes. Id. at 730. The Constitution expressly prescribes the only means\nby which the houses o f Congress may participate in the removal from an ongoing office of a non-legislative official \xe2\x80\x94\nimpeachment by the House and trial by the Senate. Id. at 723.\n23Bowsher upheld the view o f the Constitution long maintained by the executive branch. See, e.g., Constitutionality\no f Proposed Legislation Affecting Tax Refunds, 37 Op. Att\xe2\x80\x99y Gen. 56, 56 (1933) (unconstitutional for Congress\nto give a joint committee o f Congress authonty \xe2\x80\x9c to approve or disapprove executive acts\xe2\x80\x9d ).\n\n131\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nthat \xe2\x80\x9c [r]ealistic consideration of the nature of the Comptroller General\xe2\x80\x99s relation\nto Congress . . . reveals that the threat to separation of powers . . . is wholly\nchimerical.\xe2\x80\x9d 478 U.S. at 774 (White, J., dissenting); see also MWAA, 501 U.S.\nat 269 n.15 (finding that \xe2\x80\x9c the likelihood that Congress\xe2\x80\x9d actually would exercise\nits authority to remove the members of the review board under consideration in\nMWAA was \xe2\x80\x9c irrelevant for separation-of-powers purposes\xe2\x80\x9d ). In contrast, the\nCourt upheld the validity of the laws challenged in Morrison v. Olson (inde\xc2\xad\npendent counsel provisions of Ethics in Government Act of 1978) and CFTC v.\nSchor, 478 U.S. 833 (1986) (regulations implementing section of the Commodity\nExchange Act), in part because the Court saw no reason to view those laws as\nexamples of legislative aggrandizement.24\nLike the express requirements of the bicameralism/presentment process and the\nAppointments Clause, the anti-aggrandizement principle puts a powerful constraint\non congressional power: legislative action that falls within the scope of the prin\xc2\xad\nciple is unconstitutional.25 The complementary limit on the principle is that, as\nthe Court understands it, the principle applies only to congressional action that\namounts to fo rm a l o r direct self-aggrandizement\xe2\x80\x94 for example, the placement\nof congressional agents on a body with prosecutorial or law enforcement pow\xc2\xad\ners \xe2\x80\x94 no matter how limited the power thereby seized by Congress. See NRA P o\xc2\xad\nlitical Victory Fund, 6 F.3d at 826-27. The Court reviews legislation that arguably\nincreases Congress\xe2\x80\x99s power indirectly by weakening the Executive politically\nunder the less stringent general separation of powers principle. See M orrison, 487\nU.S. at 694. A significant difficulty in applying the anti-aggrandizement principle\narises from the uncertain line between minor (but unconstitutional) aggrandize\xc2\xad\nments and (constitutional) exercises of Congress\xe2\x80\x99s broad investigative and over\xc2\xad\nsight powers.26 In section II, we discuss some of the questions that have arisen.\n\n24 Morrison, 487 U.S. at 694 ( \xe2\x80\x9c We observe first that this case does not involve an attempt by Congress to increase\nits ow n powers at the expense o f the Executive Branch.\xe2\x80\x9d ); Schor, 478 U.S. at 856 ( \xe2\x80\x9c Unlike Bowsher, this case\nraises no question o f the aggrandizement of congressional power at the expense o f a coordinate branch.\xe2\x80\x9d ).\n25 The bicameralism/presentment and anti-aggrandizement requirements converge when Congress attempts to vest\nin itself o r its agents the pow er to take action with legal effects outside the legislative branch by some means\nother than the textually prescribed procedure o f bicameral passage o f a bill and presentation to the President. Such\nan attempt is unconstitutional regardless o f w hether one views the attempt as a violation o f the bicameralism/present\xc2\xad\nm ent requirement for legislation o r as a self-aggrandizing intrusion into the sphere o f activity o f another branch.\nSee MWAA, 501 U.S. at 274-77. However, the tw o requirements do not always work in tandem. A statute providing\nthat the President can exercise additional authority over some issue with the approval o f a single house o f Congress\nw ould not amount to congressional self-aggrandizement but would violate the bicameralism requirement. Similarly,\nit is difficult to view the designation by statute o f agents o f C ongress to be non-voting members o f an extra-legislative\ndecision-m aking body as leading to the exercise o f legislative authority in violation o f Chadha, but such designation\nmay well run afoul o f the anti-aggrandizement principle. See, e.g., NRA Political Victory Fund, 6 F.3d at 82627.\n\n26 Compare NRA Political Victory Fund, 6 F.3d at 826-27 (unconstitutional for Congress to place agents within\nan entity exercising final decision-making authority) with McGrain v. Daugherty, 273 U.S. 135 (1927) (constitutional\nfor C ongress to issue subpoenas).\n\n132\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nC. The General Separation of Powers Principle\nLegislation that affects the constitutional separation of powers but is consistent\nwith the requirements of bicameralism/presentment, the Appointments Clause, and\nthe anti-aggrandizement principle is subject to less searching scrutiny.27 While\nsome older judicial opinions used language suggesting that any overlap between\nthe powers wielded by the different branches is illegitimate,28 the modem Su\xc2\xad\npreme Court interprets the general principle of separation of powers in light of\nMadison\xe2\x80\x99s assertion that the separation necessary to free government is violated\nonly \xe2\x80\x9c \xe2\x80\x98where the whole power of one department is exercised by the same hands\nwhich possess the whole power of another department.\xe2\x80\x99 \xe2\x80\x9d Nixon v. Administrator\no f Gen. Servs., 433 U.S. at 442 n.5 (quoting The Federalist No. 47, at 325-26\n(James Madison) (Jacob E. Cooke ed., 1961)).29 Therefore, \xe2\x80\x9c in determining\nwhether [an] Act disrupts the proper balance between the coordinate branches,\nthe proper inquiry focuses on the extent to which it prevents the Executive Branch\nfrom accomplishing its constitutionally assigned functions.\xe2\x80\x9d Id. at 443; cf. CFTC\nv. Schor, 478 U.S. at 856-57 (\xe2\x80\x9c [T]he separation of powers question presented\nin this litigation is whether Congress impermissibly undermined . . . the role of\nthe Judicial Branch.\xe2\x80\x9d ). An affirmative answer to the question of whether Congress\nhas prevented the Executive or Judiciary from accomplishing its functions, further\xc2\xad\nmore, would not lead inexorably to the judicial invalidation of the statute: in that\ncase, the Court has stated, it would proceed to \xe2\x80\x9c determine whether that impact\nis justified by an overriding need to promote objectives within the constitutional\nauthority of Congress.\xe2\x80\x9d Adm inistrator o f Gen. Servs., 433 U.S. at 443.30\n27 Legislation impinging on the President\xe2\x80\x99s responsibilities in the areas o f foreign affairs and national defense\nposes unique issues in the application o f the general principle o f separation o f powers, requiring a more searching\nexamination o f the validity o f congressional action.\n28 See, e.g., Springer v. Philippine Islands, 277 U.S. 189, 201 (1928) (discussing the \xe2\x80\x9c exclusive character of\nthe powers conferred upon each o f the three departments\xe2\x80\x9d ). On the present Court, Justice Scalia adheres to a version\no f this view. See, e.g., Morrison, 487 U.S. at 7 0 3 -0 4 (Scalia, J., dissenting) (criticizing the Court for focusing\non \xe2\x80\x9c such relatively technical details as the Appointments Clause and the removal pow er\xe2\x80\x9d rather than on \xe2\x80\x9c the prin\xc2\xad\nciple o f separation o f pow ers\xe2\x80\x9d ).\n29 M adison\xe2\x80\x99s language about \xe2\x80\x9c the whole power o f [a] department\xe2\x80\x9d should not be construed in a woodenly literalistic manner. As the Supreme C ourt\xe2\x80\x99s decisions indicate, the point is that the principle of separation o f powers\nsafeguards the overall constitutional role and function o f the affected branch. Indeed, this would seem to have been\nM adison\xe2\x80\x99s view as well: during the great debate in the First Congress over the President\'s authority to remove\nexecutive branch officers, Madison argued against congressional power to limit the President\xe2\x80\x99s authority on the\nground that such limitations would distort the constitutionally ordained role o f the Executive. See Myers v. United\nStates, 272 U.S. 52, 131 (1926) (quoting Madison).\n30 Although most o f the C ourt\xe2\x80\x99s decisions applying the general separation o f powers principle have concerned\nlegislation arguably interfering with the executive o r judiciary, the C ourt\xe2\x80\x99s approach is applicable in other cir\xc2\xad\ncumstances as well. For example, United Stales v. Nixon, 418 U.S. 683 (1974), addressed the argument that a sub\xc2\xad\npoena duces tecum addressed to the President in the course o f a criminal proceeding was a judicial encroachment\non the Executive\xe2\x80\x99s autonomy. The Court rejected the argument, holding in the circumstances o f the case that the\nPresident\'s \xe2\x80\x9c generalized interest in confidentiality\xe2\x80\x9d w as outweighed by \xe2\x80\x9c the demonstrated, specific need [of the\ncourts and the accused] for evidence in a pending criminal trial.\xe2\x80\x9d Id. at 713. The threat to the President\'s constitu\xc2\xad\ntionally based interest posed by compelled disclosure in such (presumably rare) circumstances was slight, the Court\nconcluded, while \xe2\x80\x9c the allowance o f the privilege to withhold evidence . . . would . . . gravely impair the basic\nfunction o f the courts.\xe2\x80\x9d Id. at 712. The Court built on its reasoning in United States v. Nixon in formulating the\nContinued\n\n133\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe Court\xe2\x80\x99s current understanding of the general principle of separation of pow\xc2\xad\ners is illustrated by Morrison v. O lson . 31 There the Court concluded that the re\xc2\xad\nstrictions in the independent counsel statute on the Executive\xe2\x80\x99s supervisory and\nremoval powers did not violate the principle. While the Court acknowledged that\nthe statute rendered the independent counsel \xe2\x80\x9c free from Executive supervision\nto a greater extent than other federal prosecutors,\xe2\x80\x9d it was unpersuaded that the\nlimitations placed on that supervision meant that the President would not be able\n\xe2\x80\x9c to perform his constitutionally assigned duties.\xe2\x80\x9d 487 U.S. at 696.32 In light of\nthe narrow range of the independent counsel\xe2\x80\x99s jurisdiction, her essential insulation\nfrom any significant policy-making role, and the well-established principle that\nCongress can limit the removal authority of a head of department when granting\nthat officer the power to appoint subordinates, the Court concluded that the inde\xc2\xad\npendent counsel statute did not fundamentally undermine the Executive\xe2\x80\x99s constitu\xc2\xad\ntional authority.\nThe Supreme Court\xe2\x80\x99s basic formulation of the general principle of separation\nof powers is consistent with the approach taken by most Attorneys General in\nthe past, and it accords with what we find to be the most persuasive scholarship\non the original understanding and early practice of the separation of powers under\nthe United States Constitution.33 However, given the very emphasis the general\nprinciple places on evaluating constitutional questions in light of the overall struc\xc2\xad\nture and functioning of the federal government, the principle\xe2\x80\x99s application to spe\xc2\xad\ntest set out a few years later in Administrator o f General Services, under w hich it examined the impact o f an adverse\ndecision on the constitutional functions of the executive and judicial branches.\n31 See also Mistretta . Mistretta upheld the validity o f C ongress\xe2\x80\x99s decision to create the Sentencing Commission\nas an independent entity within the judicial branch composed, in part, o f Article in judges against the claim that\nthe Com m ission violated the general separation o f powers principle. 488 U.S. at 383. As in Morrison , the Court\nlooked to the im pact o f the challenged legislation on the ability o f the affected branch to fulfill its duties and con\xc2\xad\ncluded that the legislation posed no real threat to the integrity o r authority o f the judiciary. 488 U.S. at 384.\n32The C ourt also addressed the statute\'s imposition o f a for-cause requirement on the Attorney G eneral\'s power\nto rem ove an independent counsel, arguably a violation o f the rule o f Myers v. United States, 272 U.S. 52 (1926)\n(holding unconstitutional a statute requiring Senate advice and consent to the presidential removal o f certain post\xc2\xad\nmasters). Morrison distinguished Myers as based on what we have called the anti-aggrandizement principle, 487\nU.S. at 686 (like Bowsher v. Synar , Myers involved "C o n g ress\xe2\x80\x99 attempt to involve itself in the removal o f an\nexecutive o fficial\xe2\x80\x9d ), and rejected the argument that the constitutionality o f a for-cause removal requirement depends\non w hether an official is classified as \xe2\x80\x9c purely executive,\xe2\x80\x9d id. at 689. The proper inquiry, the Court concluded,\nwas the com patibility o f the restriction on the Executive\xe2\x80\x99s removal pow er with the general separation o f powers\nprinciple that Congress cannot legislate in such a way that the President cannot carry out his constitutional functions.\nU ltim ately, the Court was \xe2\x80\x9c simply [unable to] see how the President\xe2\x80\x99s need to control the [counsel\'s] exercise\no f . . . discretion is so central to the functioning o f the Executive Branch as to require as a matter o f constitutional\nlaw that the counsel be terminable at will by the President.\xe2\x80\x9d Id. at 691-92.\n33 W hile we do not rest any conclusions on the potentially shifting ground of scholarly consensus, we note the\nexistence o f a num ber o f impressive studies arguing that the principle o f separation was originally understood to\nbe flexible, open-ended, and consistent with a variety o f actual institutional relationships among the three branches.\nFurtherm ore, it seem s undeniable that early practice under the Constitution reflected a loose rather than strict under\xc2\xad\nstanding o f the required separation. See, e.g., Susan Low Bloch, The Early Role o f the Attorney General in our\nConstitutional Scheme: In the Beginning There was Pragmatism, 1989 D uke L.J. 561; Gerhard Casper, An Essay\nin Separation o f Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211 (1989); William B.\nGw yn, The Indeterminacy o f the Separation o f Powers and the Federal Courts , 57 Geo. Wash. L. Rev. 474 (1989);\nLaw rence Lessig & Cass R. Sunstein, The President and the Administration, 93 Colum. L. Rev. 1 (1994); Peter\nM. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev.\n596(1989 ).\n\n134\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ncific questions is unavoidably difficult, and the answers we or the courts reach\nordinarily should be viewed as quite specific to context.34 Furthermore, although\nthe general principle marks the boundary of the law of separation of powers, it\nis inappropriate for the Executive to regard this as defining the outer limit of\nproper separation of powers policy objections to legislation.35 The Constitution\xe2\x80\x99s\nvery structure suggests the importance of maintaining the hallmarks of \xe2\x80\x9c executive\nadministration essential to effective action\xe2\x80\x9d 36 as well as the accountability to the\npublic that stems from vesting ultimate authority in a single, politically responsible\nofficer.37 Several quite common types of legislation threaten the structural values\nprotected by the general separation of powers principle even if the courts are un\xc2\xad\nlikely to invalidate them. Examples of such legislation may include burdensome\nreporting requirements, attempts to dictate the processes of executive deliberation,\nand legislation that has the purpose or would have the effect of \xe2\x80\x9c micromanaging\xe2\x80\x9d\nexecutive action. Executive branch agencies should be careful to object to any\nlegislation that unduly reduces the accountability of officials or agencies to the\nPresident, or that unnecessarily interferes with the flexibility and efficiency of\nexecutive decision making and action. Such legislation undercuts the constitutional\npurpose of creating an energetic and responsible executive branch.\nIT. Common Separation of Powers Issues\nA. Bicameralism/Presentment Questions\nThe Supreme Court\xe2\x80\x99s holding in INS v. Chadha was emphatic: Congress can\nexercise \xe2\x80\x9c the legislative power of the Federal Government\xe2\x80\x9d only \xe2\x80\x9c in accord with\na single, finely wrought and exhaustively considered, procedure\xe2\x80\x9d \xe2\x80\x94 passage by\n34 Once again, we note that the areas o f foreign relations and national defense present unique considerations,\nin light of the President\'s much greater constitutional authority to act in those areas.\n35 In analyzing the validity o f congressional action, we are mindful o f the respect it is appropriate for the executive\nbranch to pay to an equal and coordinate branch o f the government. However, the executive branch is not bound\nby precisely the same rules o f deference that guide the courts in exercising their power of judicial review. Judicial\ndeference to the legislative choices embodied in statutes is one o f the means by which the courts themselves avoid\ninterfering improperly with the constitutional powers o f the politically responsible branches. (In the case o f most\nstatutes, judicial review involves scrutinizing the legal and policy judgm ents o f the President who signed the legisla\xc2\xad\ntion into law as well as those o f the Congress that enacted it.) The courts, it should be remembered, are also deferen\xc2\xad\ntial to purely executive branch decisions, and for the same basic reason: the constitutional structure makes the Presi\xc2\xad\ndent, like Congress, politically responsible. See Chevron U.SJi., Inc. v. Natural Resources Defense Council, Inc.,\n467 U.S. 837, 865 (1984) ( \xe2\x80\x9c While agencies are not directly accountable to the people, the C hief Executive is,\nand it is entirely appropriate for this political branch o f the Government to make . . . policy choices.").\n36 Myers, 272 U.S. at 134.\n\n37 Rejecting the argument that it was unsafe to delegate the executive power to a single official, Alexander Hamilton\nwrote that 4\'one o f the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults,\nand destroy responsibility." The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), cited\nin In re Sealed Case, 838 F.2d 476, 527 n.27 (D.C. Cir.) (Ginsburg, R.B., J., dissenting), rev\xe2\x80\x99d., Morrison v. Olson,\n487 U.S. 654 (1988). Then-Judge Ginsburg explained that \xe2\x80\x9c [t]he unity o f the executive branch was intended to\nserve the ends o f responsibility and accountability." Id.\n\n135\n\n\x0cOpinions o f ihe O ffice o f Legal Counsel in Volume 20\n\nboth houses and presentment to the President.38 462 U.S. at 951. Applying that\nrule, the Court struck down a statutory mechanism in the Immigration and Nation\xc2\xad\nality Act by which a single house of Congress could override decisions of the\nAttorney General. The effect of the Court\xe2\x80\x99s decision was to invalidate the similar\n\xe2\x80\x9c legislative veto\xe2\x80\x9d provisions found in many other statutes.39 In addition to the\nclassic legislative veto mechanism invalidated by Chadha, we think that the re\xc2\xad\nquirement of bicameralism and presentment is infringed whenever a single house,\ncommittee, or agent of Congress attempts to direct the execution of the laws,\nto determine the \xe2\x80\x9c final disposition of the rights of persons outside the legislative\nbranch,\xe2\x80\x9d or to promulgate rules or standards intended to bind the actions of execu\xc2\xad\ntive or administrative officials that have not been approved by both houses and\npresented to the President. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v.\nLehman, 842 F.2d 1102, 1108 (9th Cir. 1988), m odified as to attorney fees, 893\nF.2d 205 (1989) (en banc);40 cf. M istretta v. United States, 488 U.S. at 396 (dis\xc2\xad\ntinguishing Sentencing Guidelines from political policy making on the grounds\nthat \xe2\x80\x9c they do not bind or regulate the primary conduct of the public\xe2\x80\x9d ).\nFor many decades, the congressional Joint Committee on Printing (\xe2\x80\x9c JCP\xe2\x80\x9d ) has\nattempted to exercise the legislative authority to promulgate rules and procedures\nbinding on the executive branch\xe2\x80\x99s activities relating to printing, publication, and\n(more recently) data storage. In 1920, President Wilson vetoed an appropriations\nbill because it purported to confer on the JCP the power to promulgate regulations\ngoverning printing by executive officials or agencies: Congress has no power,\nhe explained, to \xe2\x80\x9c endo[w] a committee of either House or a joint committee of\nboth Houses with power to prescribe \xe2\x80\x98regulations\xe2\x80\x99 under which executive depart\xc2\xad\nments may operate.\xe2\x80\x9d Veto Message on Legislative, Executive and Judicial Appro\xc2\xad\npriation Bill, H.R. No. 764, 66th Cong., 2d Sess. 2 (1920), reprinted in 59 Cong.\nRec. 7026 (1920); see Constitutionality o f P roposed Legislation Affecting Tax Re\xc2\xad\nfunds, 37 Op. Att\xe2\x80\x99y Gen. 56, 62-63, 65 (1933) (quoting and endorsing President\nWilson\xe2\x80\x99s reasoning). In 1984, we concluded that legislation granting the JCP au\xc2\xad\nthority to promulgate regulations that \xe2\x80\x9c would require executive departments to\n38 As a m atter o f practical reality, much o f the federal governm ent\xe2\x80\x99s legislative activity is undertaken by officers\nand agencies outside the legislative branch (in the form of regulations), but as a rule such entities act under statutory\ndelegation ftom Congress. The delegating legislation is, for Chadha purposes, the congressional exercise o f legislative\npower. See Chadha, 462 U.S. at 953 n. 16,\n39 A statutory provision conditioning the E xecutive\xe2\x80\x99s ability to take action on approval by one or both houses\nof C ongress o r by a congressional committee is as invalid as a provision enabling one o f these bodies to \xe2\x80\x9c veto\xe2\x80\x9d\nexecutive action, and for the sam e reason: it is a legislative attempt to exercise authority beyond the legislative\nsphere in a mode not conform ing to the requirements o f bicameralism and presentment. See, e.g., American Fed\xe2\x80\x99n\no f Gov\'t Employees v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982).\n40 W e agree w ith the court o f appeals in Lear Siegler that many separation o f powers issues can properly be\nanalyzed under either the Chadha rule (forbidding Congress to exercise legislative power except by bicameralism\nand presentm ent) o r the anti-aggrandizement principle (forbidding Congress to exercise executive power). Attempts\nto resolve constitutional issues by categorizing an exercise o f authority as \xe2\x80\x9c in its essence, \xe2\x80\x98legislative\xe2\x80\x99 or "execu\xc2\xad\ntive\xe2\x80\x99, \xe2\x80\x9d can be confusing and, in any event, m iss the point that under either analysis, \xe2\x80\x9c the critical issue is whether\nC ongress o r its agent seeks to control . . . the execution o f its enactments without respect to the Article I legislative\nprocess.\xe2\x80\x9d 842 F.2d at 1108. In MWAA, the Suprem e Court concluded that it was unnecessary to resolve the cat\xc2\xad\negorization issue because the exercise of authority was unconstitutional how ever it was viewed. 501 U.S. at 276.\n\n136\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nsubmit annual plans outlining their intended activities and to seek advance ap\xc2\xad\nproval of all projected goals, policies, strategies, purchases, publications, and\nmeans of distribution\xe2\x80\x9d with respect to printing, word processing, and data storage\nand retrieval was unconstitutional. Constitutionality o f Proposed Regulations o f\nJoint Committee on Printing, 8 Op. O.L.C. 42, 42 (1984). The proposed regula\xc2\xad\ntions would have established general rules binding upon the conduct of executive\nofficials without those rules being approved by both houses of Congress and pre\xc2\xad\nsented to the President, in plain violation of Article I\xe2\x80\x99s procedural requirements.41\nWe have also advised that the statutory provision authorizing the JCP \xe2\x80\x9c unilaterally\nto create exceptions to the [statutory] rule that all printing must be accomplished\nthrough the GPO [Government Printing Office]\xe2\x80\x9d has no lawful force under\nChadha. Id. at 51 & n. 14; see also Constitutionality o f Proposed Legislation Af\xc2\xad\nfecting Tax Refunds, 37 Op. Att\xe2\x80\x99y Gen. at 58-60 (bill subjecting Treasury Depart\xc2\xad\nment decisions on tax refunds to review and disallowance by congressional joint\ncommittee would be unconstitutional).\nThe requirement of bicameralism and presentment also can be violated in more\nconvoluted ways. Section 431 of the General Education Provisions Act, for exam\xc2\xad\nple, subjected final regulations of the Department of Education to a forty-five\nday report-and-wait provision 42 and provided that the final regulation would not\nbecome effective if Congress \xe2\x80\x9c by concurrent resolution, findfs] that the final regu\xc2\xad\nlation is inconsistent with the Act . . . and disapprove^] such final regulation.\xe2\x80\x9d\n20 U.S.C. \xc2\xa7 1232(d) (Supp. IV 1980). Concurrent resolutions are not legislation\nwithin the meaning of the Constitution, see U.S. Const, art. I, \xc2\xa77, cl. 3, because\nthey are not presented to the President. Accordingly, Attorney General Civiletti\nadvised the Secretary of Education that the subjection of the Education Depart\xc2\xad\nment\xe2\x80\x99s delegated lawmaking authority to congressional control and revision by\nmeans other than those required by Article I was unconstitutional. \xe2\x80\x9c [0]nce a func\xc2\xad\ntion has been delegated to the executive branch, it must be performed there, and\ncannot be subjected to continuing congressional control except through the con\xc2\xad\nstitutional process of enacting new legislation.\xe2\x80\x9d Constitutionality o f Congress\xe2\x80\x99\nDisapproval o f Agency Regulations by Resolutions N ot Presented to the President,\n\n4A Op. O.L.C. 21, 27 (1980) (opinion of the Attorney General).\nSimilarly, while Congress has near-plenary authority in deciding to grant, limit\nor withhold appropriations, the Department of Justice has long contended that the\nappropriations power may not be used to circumvent the restrictions the Constitu\xc2\xad\ntion places on the modes of legislative action. See, e.g., Authority o f Congressional\nCommittees to D isapprove Action o f Executive Branch, 41 Op. Att\xe2\x80\x99y Gen. 230\n(1955) (opining that legislation authorizing congressional committees to dis\xc2\xad\n41 We also determined that the proposed regulations were not authorized by any of the statutes concerning the\nJCP. See 8 Op. O .L .C at 43-46. That point was not relevant to the constitutional analysis, however, since Congress\ncannot circumvent the bicameralism and presentment requirement by delegating legislative authority to a part or\nagent o f itself even by means o f a statute itself duly passed and presented.\n42 In themselves report-and-wait mechanisms usually are valid, as we discuss more fully later in this memorandum.\n\n137\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\napprove Defense Department contracts is unconstitutional). Several years before\nChadha, for example, this Office advised that Congress could not validly provide\nfor the indirect implementation of a legislative \xe2\x80\x9c veto\xe2\x80\x9d by an appropriations rider\nthat would prospectively deny funding for the implementation of any regulation\ndisapproved in the future by such a \xe2\x80\x9c veto.\xe2\x80\x9d See Appropriations Limitation fo r\nRules V etoed b y Congress, 4B Op. O.L.C. 731 (1980). Our reasoning in that opin\xc2\xad\nion is equally applicable to appropriations provisions that attempt to cut off fund\xc2\xad\ning that would otherwise be available on the basis of any future expression of\ndisapproval by Congress that does not take the form of new legislation. The same\nanalysis would apply, as well, to a provision prohibiting the expenditure of funds\nfor some purpose, but allowing a future expression of approval by committee ac\xc2\xad\ntion to remove the prohibition.\nIn carrying out its legitimate legislative functions, Congress \xe2\x80\x9c enjoys ample\nchannels to advise, coordinate, and even directly influence an executive agency\n[including by] direct communication with the [agency].\xe2\x80\x9d FEC v. NRA Political\nV ictory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88\n(1994). As a practical matter, therefore, congressional committees and individual\nmembers of Congress often are able to sway the decisions of the executive offi\xc2\xad\ncials with whom they deal. In addition, congressional committees can exercise\nlimited but legally coercive authority over persons outside the legislative branch\nthrough the power to issue subpoenas to compel testimony.43 In light of the capac\xc2\xad\nity of Congress to extend its influence beyond the legislative sphere by informal\nmeans that are sometimes troubling although not unlawful, it is imperative that\nthe executive branch consistently assert the rule of constitutional law that formal\ncontrol of executive decisionmaking and administration is subject to the require\xc2\xad\nments of Article I, and especially to the constitutional authority of the President\nto participate in the legislative process through the presentment mechanism. The\nexecutive branch has a constitutional obligation not to accede to legislative action\nthat does not conform to Article I. Advising the Secretary of Education that she\ncould validly implement departmental regulations despite a legislative \xe2\x80\x9c veto,\xe2\x80\x9d At\xc2\xad\ntorney General Civiletti wrote that \xe2\x80\x9c recognition of these concurrent resolutions\nas legally binding would constitute an abdication of the responsibility of the exec\xc2\xad\nutive branch, as an equal and coordinate branch of government with the legislative\nbranch, to preserve the integrity of its functions against constitutional encroach\xc2\xad\nment.\xe2\x80\x9d C ongress\xe2\x80\x99 Disapproval o f A gency Regulations, 4A Op. O.L.C. at 29.\n\n43 The Suprem e Court has reasoned that the \xe2\x80\x9c congressional pow er o f inquiry\xe2\x80\x9d is necessary to \xe2\x80\x9c \xe2\x80\x98enable [Congress]\nefficiently to exercise [the] legislative function[s] belonging to it under the Constitution.\xe2\x80\x99 \xe2\x80\x9d Barenblait v. United\nStates, 360 U.S. 109, 111 (1959) (quoting McGrain v. Daugherty, 273 U.S. 135, 160 (1927)) Like C ongress\xe2\x80\x99s\nsubstantive powers to legislate, the power o f inquiry is \xe2\x80\x9c subject to the limitations placed by the Constitution on\ngovernm ental action,\xe2\x80\x9d id. at 112, including the anti-aggrandizement and general separation of powers principles.\n\n138\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nB. Appointments Clause and Related Questions\nThe Appointments Clause provides:\n[The President,] shall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint Ambassadors, other public\nMinisters and Consuls, Judges of the supreme Court, and all other\nOfficers of the United States, whose Appointments are not herein\notherwise provided for, and which shall be established by Law: but\nthe Congress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the Courts\nof Law, or in the Heads of Departments.\nU.S. Const, art. II, \xc2\xa72, cl. 2 .44 In Buckley v. Valeo, the Supreme Court held\nthat the terms of the Appointments Clause set out the only means by which Con\xc2\xad\ngress may provide for the appointment of \xe2\x80\x9c Officers of the United States.\xe2\x80\x9d 45 424\nU.S. at 124-37. Principal officers must be appointed by the President with the\nadvice and consent of the Senate; inferior officers must be appointed in the same\nmanner unless Congress by statute provides for their appointment by the President,\nthe \xe2\x80\x9c Head[] of [a] Department! ],\xe2\x80\x9d or the courts. Id. at 132;46 see also Freytag\nv. Commissioner, 501 U.S. at 878 (\xe2\x80\x9c [T]he Constitution limits congressional dis\xc2\xad\ncretion to vest power to appoint \xe2\x80\x98inferior Officers\xe2\x80\x99 to three sources.\xe2\x80\x9d ). Despite\nthe apparent clarity of its language, however, the Appointments Clause has pro\xc2\xad\nvided the occasion for many opinions of the Attorneys General and of this Of\xc2\xad\nfice. 47\n1. Who is Required to Be an \xe2\x80\x9c Officer of the United States\xe2\x80\x9d ? Not everyone\nwho performs duties for the federal government is an \xe2\x80\x9c officer\xe2\x80\x9d within the mean\xc2\xad\ning of the Appointments Clause. From the early days of the Republic, this term\nhas been understood to embrace the ideas of \xe2\x80\x9c tenure, duration, emolument, and\nduties.\xe2\x80\x9d U nited States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). Because\n44 As the language o f the Appointments Clause suggests, offices in the constitutional sense \xe2\x80\x9c are onJy those estab\xc2\xad\nlished or recognized by the Constitution or by act o f C ongress." Inventions International Exposition, 18 Op. A tt\xe2\x80\x99y\nGen. 171, 171 (1885); see also id. ( \xe2\x80\x9c [T]he President cannot create an office.").\n45 The officers at issue in Buckley were the six voting members o f the Federal Election Commission, four o f\nwhom were appointed by congressional officials and tw o by the President, subject to the approval of the Senate\nand the House o f Representatives. The statutory scheme thus violated the Appointments Clause in tw o distinct ways,\nby vesting appointment power in officials not listed in the Clause and by subjecting presidential nominees to con\xc2\xad\nfirmation by the House. 424 U.S. at 126-27.\n46 See Appointment o f Assistant Secretary ofState, 6 Op. A tt\xe2\x80\x99y Gen. 1, 1 (1853) (*\xe2\x80\x98[W]ithout there be[ing] express\nenactment to the contrary . . . the appointment o f any officer o f the United States belongs to the President, by\nand with the advice and consent o f the Senate.").\n47 We do not state anything novel in observing that the Appointments Clause sometimes presents difficult questions\no f interpretation. Attorney General Legare remarked in an 1843 opinion that 44[n]o points of our fundamental law\nare more difficult than those involved in this whole subject o f appointm ents." Appointment and Removal o f Inspectors\no f Customs, 4 0 p . A tt\'y Gen. 162, 164(1843).\n\n139\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nH artwell has long been taken as the leading statement of the constitutional mean\xc2\xad\n\ning of \xe2\x80\x9c officer,\xe2\x80\x9d 48 that statement is worth repeating in full:\nAn office is a public station, or employment, conferred by the\nappointment of government. The term embraces the ideas of tenure,\nduration, emolument, and duties.\nThe employment of the defendant was in the public service of\nthe United States. He was appointed pursuant to law, and his com\xc2\xad\npensation was fixed by law. Vacating the office of his superior\nwould not have affected the tenure of his place. His duties were\ncontinuing and permanent, not occasional or temporary. They were\nto be such as his superior in office should prescribe. A government\noffice is different from a government contract. The latter from its\nnature is necessarily limited in its duration and specific in its ob\xc2\xad\njects. The terms agreed upon define the rights and obligations of\nboth parties, and neither may depart from them without the assent\nof the other.\nId. at 393.\nH artw ell and the cases following it specify a number of criteria for identifying\n\nconstitutional officers, and in some cases it is not entirely clear which criteria\nthe Court considered essential to its decision. Nevertheless, we believe that from\nthe earliest reported decisions onward, the constitutional definition of officer has\ninvolved at least three necessary conditions.\na. Employment by the Government: The Distinction between Appointees and\nIndependent Contractors. An officer\xe2\x80\x99s duties are permanent, continuing, and\nbased upon responsibilities created through a chain of command rather than by\ncontract. Underlying an officer is an \xe2\x80\x9c office,\xe2\x80\x9d to which the officer must be ap\xc2\xad\npointed. As Chief Justice Marshall, sitting as circuit justice, wrote: \xe2\x80\x9c Although\nan office is \xe2\x80\x98an employment,\xe2\x80\x99 it does not follow that every employment is an\noffice. A man may certainly be employed under a contract, express or implied,\nto do an act, or perform a service, without becoming an officer.\xe2\x80\x9d United States\nv. M aurice , 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747). Chief Justice\nMarshall speaks here of being \xe2\x80\x9c employed under a contract\xe2\x80\x9d ; in modem termi\xc2\xad\nnology the type of non-officer status he is describing is usually referred to as\n48 In an opinion discussing an Appointments Clause issue. Attorney General Kennedy referred to Hartwell as\nproviding the \xe2\x80\x9c classical definition pertaining to an officer.*\xe2\x80\x99 Communications Satellite Corporation, 42 Op. A tt\xe2\x80\x99y\nG en. 165, 169 (1962). Hartwell itself cited several earlier opinions, mcluding United States v. Maurice, 26 F. Cas.\n1211 (C.C.D. Va. 1823) (No. 15,747) (M arshall, Circuit Justice), see 73 U.S. at 393 n .f, and in turn has been\ncited by numerous subsequent Supreme C ourt decisions, including United States v. Germaine, 99 U.S. 508, 511\xe2\x80\x94\n12 (1879), and Auffmordt v. Hedden, 137 U .S. 310, 327 (1890). These latter tw o decisions were cited with approval\nby the Court in Buckley v. Valeo, 424 U.S. at 125-26 & n. 162.\n\n140\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nthat of independent contractor. In H artwell, this distinction shows up in the opin\xc2\xad\nion\xe2\x80\x99s attention to the characteristics of the defendant\xe2\x80\x99s employment being \xe2\x80\x9c con\xc2\xad\ntinuing and permanent, not occasional or temporary,\xe2\x80\x9d as well as the opinion\xe2\x80\x99s\nsuggestion that with respect to an officer, a superior can fix and then change\nthe specific set of duties, rather than having those duties fixed by a contract. 73\nU.S. at 393.\nThe distinction between employees and persons whose relationship to the gov\xc2\xad\nernment takes some other form also appears in later decisions.49 The question\nin United States v. Germaine, 99 U.S. 508 (1879), concerned whether a surgeon\nappointed by the Commissioner of Pensions \xe2\x80\x9c to examine applicants for pension,\nwhere [the Commissioner] shall deem an examination . . . necessary,\xe2\x80\x9d id. at 508\n(quoting Rev. Stat. \xc2\xa74777), was an officer within the meaning of the Appoint\xc2\xad\nments Clause. The surgeon in question was \xe2\x80\x9c only to act when called on by the\nCommissioner of Pensions in some special case\xe2\x80\x9d ; furthermore, his only compensa\xc2\xad\ntion from the government was a fee for each examination that he did in fact per\xc2\xad\nform. Id. at 512. The Court stated that the Appointments Clause applies to \xe2\x80\x9c all\npersons who can be said to hold an office under the government\xe2\x80\x9d and, applying\nHartwell, concluded that \xe2\x80\x9c the [surgeon\xe2\x80\x99s] duties are not continuing and permanent\nand they are occasional and intermittent.\xe2\x80\x9d Id. The surgeon, therefore, was not\nan officer of the United States.50\nThe Court employed the same reasoning in Auffmordt v. Hedden, 137 U.S. 310\n(1890). Pursuant to statute, an importer dissatisfied with the government\xe2\x80\x99s valu\xc2\xad\nation of dutiable goods was entitled to demand a reappraisement jointly conducted\nby a general appraiser (a government employee) and a \xe2\x80\x9c merchant appraiser\xe2\x80\x9d ap\xc2\xad\npointed by the collector of customs for the specific case. Despite the fact that\nthe reappraisement decision was final and binding on both the government and\nthe importer, id. at 329, the Court rejected the argument that the merchant ap\xc2\xad\npraiser was an \xe2\x80\x9c inferior Officer\xe2\x80\x9d whose appointment did not accord with the\nrequirements of the Appointments Clause.\nHe is an expert, selected as such. . . . He is selected for the special\ncase. He has no general functions, nor any employment which has\nany duration as to time, or which extends over any case further\nthan as he is selected to act in that particular case. . . . He has\nno claim or right to be designated, or to act except as he may be\ndesignated. . . . His position is without tenure, duration, con\xc2\xad\n49In this memorandum, the term \xe2\x80\x9c officer\xe2\x80\x9d will be used to refer exclusively to \xe2\x80\x9c Officers o f the United States\xe2\x80\x9d\nin the constitutional sense; other full-time government servants will be called \xe2\x80\x9c employees.\xe2\x80\x9d\n50Germaine clearly was discussing the concept o f \xe2\x80\x9c officer\xe2\x80\x9d in the constitutional, and not simply a generic, sense:\nthe alternative basis for the holding was that the surgeon was not an officer because he was appointed by the C om m is\xc2\xad\nsioner who, as the head o f a bureau within the Interior Department, could not be a \xe2\x80\x9c Head of Department\xe2\x80\x9d with\nthe authority to appoint officers. Id. at 510-11.\n\n141\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ntinuing emolument, or continuous duties . . . . Therefore, he is not\nan \xe2\x80\x98officer,\xe2\x80\x99 within the meaning of the clause.\nId. at 326-27.\n\nWe believe that under its best reading, Buckley v. Valeo, 424 U.S. 1 (1976)\n(per curiam), reflects and endorses this distinction, and that suggestions to the\ncontrary misread the opinion. First, Buckley cites both Germaine and Auffmordt\napprovingly. See id. at 125-26 & n.162. Second, in several of its statements of\nthe definition of \xe2\x80\x9c officers,\xe2\x80\x9d Buckley, sometimes citing Germaine explicitly, says\nthat the term applies to appointees or appointed officials who exercise significant\nauthority under federal law, thus recognizing the possibility that non-appointees\nmight sometimes exercise authority under federal law. See, e.g., id. at 131 (\xe2\x80\x9c Offi\xc2\xad\ncers\xe2\x80\x9d are \xe2\x80\x9c all appointed officials exercising responsibility under the public\nlaws.\xe2\x80\x9d ). It is true that at other points in its opinion, the Buckley Court used lan\xc2\xad\nguage that, taken in isolation, might suggest that the Appointments Clause applies\nto persons who, although they do not hold positions in the public service of the\nUnited States, exercise significant authority pursuant to federal law. See id. at\n141. However, we think such a reading of Buckley is unwarranted. So understood,\nBuckley must be taken to have overruled, sub silentio, Germaine and Auffmordt \xe2\x80\x94\ncases upon which it expressly relies in its analysis, see id. at 125-26 & n.162 \xe2\x80\x94\nand its repeated quotation of the G erm aine definition of \xe2\x80\x9c officer\xe2\x80\x9d as \xe2\x80\x9c all persons\nwho can be said to hold an office under the government\xe2\x80\x9d would make no sense.\nThe apparently unlimited language of some passages has a simpler explanation:\nthere was no question that the officials at issue in Buckley held \xe2\x80\x9c employments],\xe2\x80\x9d\nM aurice, 26 F. Cas. at 1214, under the federal government, and thus the question\nof the inapplicability of the Appointments Clause to persons not employed by\nthe federal government was not before the Court.51 The Supreme Court\xe2\x80\x99s decision\nin Buckley, we conclude, did not modify the long-settled principle that a person\nwho is not an officer under H artw ell need not be appointed pursuant to the Ap\xc2\xad\npointments Clause.52\n51 The post-Buckley Supreme Court has often assessed the validity o f statutes that would starkly pose Appointments\nClause issues if, in fact, the Court had adopted the position that wielding significant authority pursuant to the laws\no f the U nited States, without more, requires appointment in conformity with that Clause. In none of these cases\nhas the C ourt even hinted at the existence o f an Appointments Clause issue. See, e.g., Thomas v. Union Carbide\nAgric. Prods. Co., 473 U.S. 568 (1985) (upholding statutory requirement that registrants under a federal regulatory\nschem e subm it to binding arbitration conducted by a panel o f arbitrators who are private individuals not appointed\nby one o f the methods specified in the Appointments Clause and are subject only to limited judicial review); FERC\nv. Mississippi, 456 U.S. 742 (1982) (upholding requirement that states enforce federal regulatory scheme relating\nto utilities); Lake Carriers\xe2\x80\x99 Ass\'n v. Kelley, 4 5 6 U.S. 985 (1982) (mem.) (upholding statute that granted states author\xc2\xad\nity to ban sew age emissions from all vessels), a ffg 527 F. Supp. 1114 (E.D. Mich. 1981) (three-judge panel); Train\nv. National Resources Defense Council, Inc., 421 U.S. 60 (1975) (construing provision o f Clean Air Act that gave\nstates authority to devise and enforce plans for achieving congressionally defined national air quality standards).\n52 Some recent opinions o f this Office have read Buckley more broadly as repudiating the historical understanding\no f the Appointm ents Clause and endorsing the proposition we reject h ere\xe2\x80\x94 that is, that all persons exercising signifi\xc2\xad\ncant federal authority, by virtue o f that fact alone, must be appointed pursuant to the Appointments Clause. We\nare aware o f four opinions in which our disagreement with this understanding o f Buckley would cause us to reach\na different conclusion on the Appointments Clause question presented. See Constitutionality o f Subsection 4117(b)\n\n142\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nb. The Exercise of Significant Authority. Chief Justice Marshall\xe2\x80\x99s observation\nthat \xe2\x80\x9c [although an office is \xe2\x80\x98an employment,\xe2\x80\x99 it does not follow that every em\xc2\xad\nployment is an office,\xe2\x80\x9d United States v. M aurice, 26 F. Cas. at 1214 points to\na second distinction as well \xe2\x80\x94 although not one that was at issue in Maurice itself.\nAn officer is distinguished from other full-time employees of the federal govern\xc2\xad\nment by the extent of authority he or she can properly exercise. As the Court\nexpressed this in Buckley:\nWe think that the term \xe2\x80\x9c Officers of the United States\xe2\x80\x9d as used\nin Art. II, defined to include \xe2\x80\x9c all persons who can be said to hold\nan office under the government\xe2\x80\x9d in United States v. Germaine,\n[means] that any appointee exercising significant authority pursuant\nto the laws of the United States . . . must . . . be appointed in\nthe manner prescribed by [the Appointments Clause].\n424 U.S. at 125-26 (emphasis added).53 In contrast, \xe2\x80\x9c [e]mployees are lesser func\xc2\xad\ntionaries subordinate to officers of the United States.\xe2\x80\x9d Id. at 126 n.162.\nThe distinction between constitutional officers and other employees is a long\xc2\xad\nstanding one. See, e.g., Burnap v. United States, 252 U.S. 512, 516-19 (1920)\n(landscape architect in the Office of Public Buildings and Grounds was an em\xc2\xad\nployee, not an officer); Second D eputy Com ptroller o f the Currency \xe2\x80\x94 A ppoint\xc2\xad\nment, 26 Op. Att\xe2\x80\x99y Gen. at 628 (Deputy Comptroller of the Currency was \xe2\x80\x9c mani\xc2\xad\nfestly an officer of the United States\xe2\x80\x9d rather than an employee). At an early point,\nthe Court noted the importance of this distinction for Appointments Clause anal\xc2\xad\nysis. See Germaine, 99 U.S. at 509.54\no f Enrolled Bill H.R. 5835, the \xe2\x80\x9cOmnibus Budget Reconciliation Act o f 1990," 14 Op. O.L.C. 154, 155-56 (1990)\n(statutory scheme under which congressional delegations and physicians* organizations of certain states exercise **significant authority\xe2\x80\x9d violates Appointments Clause); Constitutionality o f the Qui Tam Provisions o f the False Claims\nAct, 13 Op. O.L.C. 207, 2 21-24 (1989) (provisions o f False Claims Act authorizing qui tam suits by private parties\nviolate Appointments Clause because qui tam relators exercise \xe2\x80\x9c significant governmental pow er\xe2\x80\x9d ); Representation\no f the United States Sentencing Commission in Litigation, 12 Op. O.L.C. 18, 26 (1988) (private party acting as\ncounsel for United States agency must be appointed pursuant to Appointments Clause); Proposed Legislation to\nEstablish the National Indian Gaming Commission, 11 Op. O.L.C. 73, 74 (1987) (Appointments Clause problems\nraised where state and local officials given authority to waive federal statute). O ur conclusion that the more limited\nhistorical understanding o f the Appointments Clause is correct requires us to disavow the Appointments Clause\nholdings o f those opinions. To the extent that our current reading o f Buckley is inconsistent with the Appointments\nClause reasoning o f other opinions o f this office, that reasoning is superseded. See Common Legislative Encroach\xc2\xad\nments on Executive Branch Authority, 13 Op. O.L.C. 248, 249 (1989).\n33 See Appointments in the Department o f Commerce and Labor, 29 Op. A tt\xe2\x80\x99y Gen. 116, 118-19, 122-23 (1911)\n(official authorized to perform all the duties o f the Commissioner o f Fisheries, who was appointed by the President\nand confirmed by the Senate, was an officer, scientists, technicians, and superintendent of mechanical plant in the\nBureau o f Standards were employees rather than officers); Second Deputy Comptroller o f the Currency\xe2\x80\x94 Appoint\xc2\xad\nment, 26 Op. A tt\xe2\x80\x99y Gen. 627, 628 (1908) ( \xe2\x80\x9c The officer is distinguished from the employee in the greater importance,\ndignity, and independence o f his position\xe2\x80\x9d ; official authorized to exercise powers o f the Comptroller of the Currency\nin the absence o f the Comptroller was clearly an officer.).\n54The status o f certain officials traditionally appointed in modes identical to those designated by the Appointments\nClause is somewhat anomalous. For instance, low-grade military officers have always been appointed by the President\nand confirmed by the Senate and understood to be \xe2\x80\x9c Officers o f the United States\xe2\x80\x9d in the constitutional sense.\nIn Weiss v. United States, 510 U.S. 163, 170 (1994), the Supreme Court recently indicated its agreement with that\nC ontinued\n\n143\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe Supreme Court relied on the officer/employee distinction in its recent deci\xc2\xad\nsion in Freytag v. Commissioner, 501 U.S. 868 (1991). In Freytag, the Court\nrejected the argument that special trial judges of the Tax Court are employees\nrather than officers because \xe2\x80\x9c they lack authority to enter a final decision\xe2\x80\x9d and\nthus arguably are mere subordinates of the regular Tax Court judges.55 Id. at\n881. The Court put some weight on the fact that the position of special trial judge,\nas well as its duties, salary, and mode of appointment, are specifically established\nby statute;56 the Court also emphasized that special trial judges \xe2\x80\x9c exercise signifi\xc2\xad\ncant discretion\xe2\x80\x9d in carrying out various important functions relating to litigation\nin the Tax Court. Id. at 881-82.\nApplying the same understanding of the distinction between officers and em\xc2\xad\nployees, this Office has concluded that the members of a commission that has\npurely advisory functions \xe2\x80\x9c need not be officers of the United States\xe2\x80\x9d because\nthey \xe2\x80\x9c possess no enforcement authority or power to bind the Government.\xe2\x80\x9d Pro\xc2\xad\np o sed Com m ission on Deregulation o f International Ocean Shipping, 7 Op. O.L.C.\n202, 202-03 (1983). For that reason, the creation by Congress of presidential advi\xc2\xad\nsory committees composed, in whole or in part, of congressional nominees or\neven of members of Congress does not raise Appointments Clause concerns.\nSince employees do not wield independent discretion and act only at the direc\xc2\xad\ntion of officers, they do not in their own right \xe2\x80\x9c exercis[e] responsibility under\nthe public laws of the Nation,\xe2\x80\x9d Buckley, 424 U.S. at 131.57 As a constitutional\nunderstanding. It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is\nso limited and subordinate that their analogues in the civil sphere clearly would be employees. There are at least\nthree possible explanations. (1) Congress may make anyone in public service an officer simply by requiring appoint\xc2\xad\nment in one o f the modes designated by the Appointments Clause. The Clause, on this view, mandates officer\nstatus for officials w ith significant governmental authority but does not restrict the status to such officials. This\napparently was the nineteenth-century view. See, e.g., United States v. Perkins, 116 U.S. 483, 484 (1886) (Cadet\nengineer at the Naval A cademy was an officer because \xe2\x80\x9c Congress has by express enactment vested the appointment\no f cadet-engineers in the Secretary o f the Navy and when thus appointed they become officers and not employees.").\nW hile recognizing that C ongress may make anyone in the public service an officer, Attorney General Kennedy\nrejected the argum ent that C ongress evinces and effectuates such an intention merely by providing for the public\nservant to be appointed by a method that coincidentally conforms with the Appointments Clause. See Communications\nSatellite Corporation , 42 Op. A tt\xe2\x80\x99y Gen. 165, 167 (1962) ( \xe2\x80\x9c [I]t does not follow \xe2\x80\x9d from the Constitution that \xe2\x80\x9c every\nappointment authorized by law which is preceded by nomination and confirmation necessarily renders the appointee\nan officer.\xe2\x80\x9d ). (2) Certain officials are constitutional officers because in the early Republic their positions were of\ngreater relative significance in the federal governm ent than they are today. Cf. Buckley, 424 U.S. at 126 (postmasters\nfirst class and clerks o f district courts are officers). (3) Even the lowest ranking military or naval officer is a potential\ncom m ander o f U nited States armed forces in com bat\xe2\x80\x94 and, indeed, is in theory a commander o f large military\nor naval units by presidential direction or in the event o f catastrophic casualties among his or her superiors.\n55 In fact, as the C ourt pointed out, the ch ief judge of the Tax Court can assign special trial judges to render\nfinal decisions in certain types o f cases, a pow er that the government conceded rendered them, in those circumstances,\n\xe2\x80\x9c inferior officers w ho exercise independent authority.\xe2\x80\x9d The Court rejected the argument that special trial judges\ncould be deem ed inferior officers for some purposes and employees for others. Freytag , 501 U.S. at 882.\n56The text o f the A ppointm ents Clause implies that offices in the sense o f the Clause must be established in\nthe Constitution o r by statute. See U.S. C onst, art. II, \xc2\xa72, cl. 2 (specifying certain officers and then referring to\n\xe2\x80\x9c all other O fficers o f the U nited States, w hose Appointments are not herein otherwise provided for, and which\nshall be established by L aw \xe2\x80\x9d ).\n57 That an em ployee may not exercise independent discretion does not, o f course, mean that his or her duties\nmay not encom pass responsibilities requiring the exercise o f judgment and discretion under the ultimate control\nand supervision o f an officer. In Steele v. United States (No. 2), 267 U .S. 505, 508 (1925), the Supreme Court\nnoted that a \xe2\x80\x9c deputy marshal is not in the constitutional sense an officer of the U nited States,\xe2\x80\x9d yet \xe2\x80\x9c is called\nupon to exercise great responsibility and discretion\xe2\x80\x9d in \xe2\x80\x9c the enforcement o f the peace o f the United States, as\n\n144\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nmatter, therefore, an employee may be selected in whatever manner Congress di\xc2\xad\nrects. Conversely, \xe2\x80\x9c any appointee\xe2\x80\x9d in federal service who \xe2\x80\x9c exercis[es] significant\nauthority pursuant to the laws of the United States\xe2\x80\x9d must be an officer in the\nconstitutional sense and must be appointed in a manner consistent with the Ap\xc2\xad\npointments Clause.58 Buckley, 424 U.S. at 126. Congress and the President may\nnot avoid the strictures of the Clause by vesting federal employees with the inde\xc2\xad\npendent or discretionary responsibility to perform any \xe2\x80\x9c significant governmental\nduty.\xe2\x80\x9d Id. at 141.59\nc. Appointment to a Position of Employment within the Federal Government.\nFinally, United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868), and the other\nmajor decisions defining \xe2\x80\x9c Officers of the United States\xe2\x80\x9d all reflect the historical\nunderstanding that a constitutional officer is an individual who is appointed to\nhis or her office by the federal government. The Appointments Clause simply\nis not implicated when significant authority is devolved upon non-federal actors.60\nIn H artwell the Court stated, \xe2\x80\x9c [a]n office is a public station, or employment,\nconferred by the appointment of government. . . . The employment of the defend\xc2\xad\nant was in the public service of the United States.\xe2\x80\x9d 73 U.S. at 393; see also\nUnited States v. Germaine, 99 U.S. 508, 510 (1879) (founders intended appoint\xc2\xad\nment pursuant to the Appointments Clause only for \xe2\x80\x9c persons who can be said\nto hold an office under the government about to be established under the Constitu\xc2\xad\ntion\xe2\x80\x9d ). It is a conceptual confusion to argue that federal laws delegating authority\nto state officials create federal \xe2\x80\x9c offices,\xe2\x80\x9d which are then filled by (improperly\nappointed) state officials. Rather, the \xe2\x80\x9c public station, or employment\xe2\x80\x9d has been\ncreated by state law; the federal statute simply adds federal authority to a pre\xc2\xad\nexisting state office. Accordingly, the substantiality of the delegated authority is\nimmaterial to the Appointments Clause conclusion.61 An analogous point applies\nthat is embraced in the enforcement o f federal law ." But deputy marshals act at the direction o f \xe2\x80\x9c the United States\nmarshal under whom they serve,\xe2\x80\x9d id., who is an officer in the constitutional sense.\n58See Appointment and Removal o f Inspectors o f Customs, 4 Op. A tt\xe2\x80\x99y Gen. 162, 164 (1843) (Congress may\nnot provide for the appointment o f \xe2\x80\x9c any employe(e], coming fairly within the definition of an inferior officer of\nthe government,\xe2\x80\x9d except by a mode consistent with the Appointments Clause).\n39Buckley illustrates this last point. The FEC commissioners appointed by congressional officials were undoubtedly\nemployees o f the federal government but they could not constitutionally exercise the enforcement powers the statute\nattempted to grant them because their mode o f appointment precluded them from being officers. 424 U.S. at 13741.\n60 The delegation to private persons or non-federal government officials of federal-law authority, sometimes incor\xc2\xad\nrectly analyzed as raising Appointments Clause questions, can raise genuine questions under other constitutional\ndoctrines, such as the non-delegation doctrine and the general separation o f powers principle. Compare Confederated\nTribes o f Siletz Indians v. United States, 841 F. Supp. 1479, 1486-89 (D. Or. 1994) (confusing Appointments Clause\nwith separation o f powers analysis in holding invalid a delegation to a state governor), a ffd on other grounds,\n110 F.3d 688 (9th Cir.), cert. denied, 522 U.S. 1027 (1997), with United Slates v. Ferry County, 511 F. Supp.\n546, 552 (E.D. Wash. 1981) (correctly dismissing Appointments Clause argument and analyzing delegation to county\ncommissioners under non-delegation doctrine).\n61 See Seattle Master Builders Ass\'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786\nF.2d 1359, 1365 (9th Cir. 1986) (\xe2\x80\x9c [BJecause the Council members do not serve pursuant to federal law ,\xe2\x80\x9d it is\nContinued\n\n145\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nto delegations made to private individuals: the simple assignment of some duties\nunder federal law, even significant ones, does not by itself pose an Appointments\nClause problem.62\nIn our view, therefore, the lower federal courts have been correct in rejecting\nAppointments Clause challenges to the exercise of federally derived authority by\nstate officials,63 the District of Columbia City Council,64 qui tam relators under\nthe False Claims A ct,65 and plaintiffs under the citizen suit provisions of the\nClean Water A ct.66 The same conclusion should apply to the members of multi\xc2\xad\nnational or international entities who are not appointed to represent the United\nStates.67 We believe that the Appointments Clause doubts sometimes voiced about\n\xe2\x80\x9c immaterial w hether they exercise some significant executive o r administrative authority over federal activity.\xe2\x80\x9d ).\n\ncert, denied , 479 U.S. 1059 (1987).\n62 O ne might also view delegations to private individuals as raising the same considerations as suggested by the\ndistinction draw n earlier between appointee and independent contractor\xe2\x80\x94 so long as the statute does not create such\ntenure, duration, emoluments and duties as would be associated with a public office, the individual is not the occupant\nof a constitutional office but is, rather, a private party who has assumed or been delegated some federal responsibil\xc2\xad\nities.\n63 See, e.g., Seattle Master Builders, 786 F.2d at 1364-66. The particular state officials at issue were serving\non an entity created by an interstate compact established with the consent o f Congress, but that fact is not significant\nfor Appointments Clause purposes. The crucial point was that \xe2\x80\x9c [t]he appointment, salaries and direction\xe2\x80\x9d of the\nofficials were \xe2\x80\x9c state-derived\xe2\x80\x9d : \xe2\x80\x9c the states ultimately empower the [officials] to carry out their duties.\xe2\x80\x9d Id. at 1365.\nThe Supreme C ourt\xe2\x80\x99s recent decision in New York v. United States, 505 U.S. 144 (1992), which held that Congress\ncannot \xe2\x80\x9c com m andeer\xe2\x80\x9d state officials to serve federal regulatory purposes, reenforces this conclusion. Where state\nofficials do exercise significant authority under o r with respect to federal law, they do so as state officials, by\nthe decision and under the ultimate authority o f th e state.\nMetropolitan Washington Airports Authority v. Citizens for the Abatement o f Aircraft Noise, Inc., 501 U.S. 252\n(1991), does not suggest a different conclusion. The constitutional issue in that case was the validity o f a statutory\nprovision subjecting the Airports Authority \xe2\x80\x9c to the veto pow er o f \xe2\x80\x99 a Board of Review composed o f members o f\nCongress purportedly \xe2\x80\x9c acting \xe2\x80\x98in their individual capacities.\xe2\x80\x99 \xe2\x80\x9d Id. at 270. The Supreme Court held that the Board\nin fact acted as an agent o f Congress and that the Board\xe2\x80\x99s veto power therefore represented an unconstitutional\nenlargem ent o f congressional authority. Id. at 272-77. Nothing in the C ourt\xe2\x80\x99s opinion suggests that there would\nhave been any constitutional problem if Congress had delegated the same power to the Authority subject to review\nby the executive branch.\n64 See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 115-17 (D.D.C. 1986).\n63 We believe that United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 757-59 (9th Cir. 1993) (rejecting Appoint\xc2\xad\nm ents C lause challenge to False Claims A ct), cert, denied, 510 U.S. 1140 (1994), reached the correct result but\nthrough an incorrect line o f analysis. See id. at 758 (Clause not violated because of the relative modesty o f the\nauthority exercised by the relator). The better analysis, in our view, is that of the court in United States ex rel.\nBurch v. Piqua Engineering, Inc., 803 F. Supp. 115 (S.D. O hio 1992), which held that \xe2\x80\x9c because qui tam plaintiffs\nare not officers o f the U nited States, the FC A does not violate the Appointments Clause.\xe2\x80\x9d Id. at 120. W e now\ndisapprove the Appointments Clause analysis and conclusion o f an earlier opinion o f this Office, Constitutionality\no f the Qui Tam Provisions o f the False Claims Act, 13 Op. O.L.C. 207 (1989) (arguing that the qui tam provisions\nviolate the Clause).\n66 Here the Court phrased its analysis in term s o f separation o f powers, but the challenge to the statute was,\nat its core, based on the Appointments Clause. See Chesapeake Bay Found, v. Bethlehem Steel Corp., 652 F. Supp.\n620, 624 (D . Md. 1987) (Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), \xe2\x80\x9c does not stand for the proposition\n. . . that private persons may not enforce any federal laws simply because they are not Officers o f the United\nStates appointed in accordance with Article II o f the C onstitution.\xe2\x80\x9d ).\n67 At least where these entities are created on an ad hoc o r temporary basis, there is a long historical pedigree\nfor the argum ent that even the United States representatives need not be appointed in accordance with Article D.\nSee, e.g., Alexander Hamilton, The Defence N o. 37 (Jan. 6, 1796), reprinted in 20 The Papers o f Alexander Hamilton\n13, 20 (H arold C. Syrett ed., 1974):\nAs to what respects the Commissioners agreed to be appointed [under the Jay Treaty with Great Britain],\nthey are not in a strict sense OFFICERS. They are arbitrators between the two Countries. Though in\nthe Constitutions, both o f the U[nited] States and o f most o f the Individual states, a particular mode of\n\n146\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nlegislation requiring the concurrence of state or local officials, Indian tribes, or\nprivate persons as a condition precedent to federal action are equally without\nmerit.68\nDetermining whether an individual occupies a position of private employment\nor federal employment can pose difficult questions. The Supreme Court recently\nset forth rules for making this determination in Lebron v. National Railroad P as\xc2\xad\nsenger Corp., 513 U.S. 374 (1995). There, the Court found itself faced with the\nquestion of whether Amtrak is a private corporation or an agency of the govern\xc2\xad\nment. Amtrak is chartered by Congress and incorporated under the District of\nColumbia Business Corporation Act. Id. at 383-85. The organic statute expressly\nprovides that Amtrak \xe2\x80\x9c shall be operated and managed as a for-profit corporation,\nand is not a department, agency, or instrumentality of the United States Govern\xc2\xad\nment.\xe2\x80\x9d 49 U.S.C. \xc2\xa724301(a)(2)-(3). The Court ruled that this provision \xe2\x80\x9c is as\xc2\xad\nsuredly dispositive of Amtrak\xe2\x80\x99s status as a Government entity for purposes of\nmatters that are within Congress\xe2\x80\x99 control . . . . But it is not for Congress to\nmake the final determination of Amtrak\xe2\x80\x99s status as a government entity for pur\xc2\xad\nposes of determining the constitutional rights of citizens affected by its actions.\xe2\x80\x9d\n513 U.S. at 392.\nHowever, the Court held that an entity is \xe2\x80\x9c what the Constitution regards as\nthe Government,\xe2\x80\x9d if the entity is government-created and government-controlled.\nId. Because Amtrak was created \xe2\x80\x9c by special law, for the furtherance of govern\xc2\xad\nmental objectives,\xe2\x80\x9d it is government-created.69 Id. at 400. Because federally ap\xc2\xad\npointed members of Amtrak\xe2\x80\x99s governing board hold \xe2\x80\x9c voting control\xe2\x80\x9d and there\nis no provision for this government control to sunset, Amtrak is govemment-controlled. See id. at 399-400. The Court contrasted Conrail, which it determined\nis not what the Constitution regards as the government. By statute the federal\ngovernment appoints a voting majority of Conrail\xe2\x80\x99s board of directors. Neverthe\xc2\xad\nless, the Court held that Conrail is not part of the government, because the govern\xc2\xad\nment\xe2\x80\x99s voting control will shift to the private shareholders if Conrail\xe2\x80\x99s debt to\nthe federal government falls below half of its total indebtedness and because\n\xe2\x80\x9c \xe2\x80\x98[t]he responsibilities of the federal directors are not different from those of\nthe other directors \xe2\x80\x94 to operate Conrail at a profit for the benefit of its share\xc2\xad\nholders\xe2\x80\x99\xe2\x80\x94 which contrasts with the public-interest \xe2\x80\x98goals\xe2\x80\x99 set forth in Amtrak\xe2\x80\x99s\nappointing officers is designated, yet in practice it has not been deemed a violation of the provision to\nappoint Commissioners or special Agents for special purposes in a different mode.\nThe traditional view o f the Attorneys General has been that the members of international commissions hold \xe2\x80\x9c an\noffice or employment emanating from the general treaty-making power, and created by it and\xe2\x80\x9d the foreign nation(s)\ninvolved and that members are not constitutional officers. Office\xe2\x80\x94 Compensation, 22 Op. A tt\xe2\x80\x99y Gen. 184, 186 (1898).\n68 Some o f our prior opinions express such concerns. Because that view, we now conclude, cannot be reconciled\nwith Appointments Clause principles o r caselaw, we expressly disavow it.\n69The Court also referred to this as a \xe2\x80\x9c policy-implementing\xe2\x80\x99\' role. Id. at 396. This is to distinguish government\nagencies and instrumentalities, such as Amtrak, from truly private corporations that, though created pursuant to statu\xc2\xad\ntory authority, do not implement any government policy, but instead pursue profit and the policies of their share\xc2\xad\nholders.\n\n147\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ncharter.\xe2\x80\x9d Id. at 399 (quoting Regional R ail Reorganization Act Cases, 419 U.S.\n102, 152 (1974)).70\nd. Sum m ary. An appointee (1) to a position of employment (2) within the federal\ngovernment (3) that carries significant authority pursuant to the laws of the United\nStates is required to be an \xe2\x80\x9c Officer of the United States.\xe2\x80\x9d Each of these three\nconditions is independent, and all three must be met in order for the position\nto be subject to the requirements o f the Appointments Clause.\nWe recently applied this principle in determining whether the Appointments\nClause represents a blanket proscription against participation by the federal gov\xc2\xad\nernment in binding arbitration. Typically, arbitrators are private individuals chosen\nby the parties to the dispute. In a binding arbitration, the decision of the arbitrators\nis mandatory upon the parties, subject only to limited judicial review. The view\nthat the Appointments Clause prohibits federal government participation in binding\narbitration proceeds from the misinterpretation of Buckley discussed above. We\nreasoned that although it is \xe2\x80\x9c beyond dispute that arbitrators exercise significant\nauthority, at least in the context of binding arbitration involving the federal gov\xc2\xad\nernment,\xe2\x80\x9d 71 the standard binding arbitration mechanism does not implicate the\nAppointments Clause. Arbitrators\nare manifestly private actors who are, at most, independent contrac\xc2\xad\ntors to, rather than employees of, the federal government. Arbitra\xc2\xad\ntors are retained for a single matter, their service expires at the\nresolution of that matter, and they fix their own compensation.\n70 In som e passages, the Court spoke in terms o f the First A mendment and individual rights, for instance:\nW e hold that where, as here, the Government creates a corporation by special law, for the furtherance\no f governm ental objectives, and retains fo r itself permanent authority to appoint a majority of the directors\no f that corporation, the corporation is part o f the G overnment for purposes o f the First Amendment.\nId. at 400. We d o not, however, believe that the Court meant to imply that it is within C ongress\xe2\x80\x99s power to exempt\nfederal instrum entalities from the Constitution\xe2\x80\x99s structural requirements, such as the Appointments Clause and the\nseparation o f pow ers doctrine, that apply to all other federal agencies. W e believe instead that the references to\nindividual rights are explained by two considerations. First, the issue in the case was whether Amtrak had violated\nthe petitioner\xe2\x80\x99s First A mendment rights, and so did not raise any structural issues. Second, the Constitution imposes\ncertain obligations on ail government entities, state as well as federal. In other words, not all government entities,\nw ithin Lebron\xe2\x80\x99s definition, are part of the federal government; many are part of a state or local government or\no f an interstate com pact. See id. at 397 (citing Pennsylvania v. Board o f Directors o f City Trusts, 353 U.S. 230\n(1957) (p er curiam)). These latter entities are not subject to the separation o f powers doctrine or the Appointments\nClause. Because the Court was concerned w ith all entities that the Constitution regards as within the government,\nnot just the federal government, it naturally phrased its opinion in terms o f the obligations that apply to all organs\no f governm ent, not just the organs of the federal government. Ultimately, w e can conceive of no principled basis\nfor distinguishing between the status of a federal entity vis-a-vis constitutional obligations relating to individual\nrights and vis-a-vis the structural obligations that the Constitution imposes on federal entities. See Brief of Appellant\nU nited States, Wilkinson v. Legal Servs. Corp., 80 F.3d 535 (D.C. Cir. 1996) (Nos. 95-5144, 91-5174). It therefore\nis not surprising that the Court did not consistently limit its language to individual rights. See, e.g., Lebron, 513\nU.S. at 397 (\xe2\x80\x9c It surely cannot be that government, state o r federal, is able to evade the most solemn obligations\nim posed in the C onstitution by simply resorting to the corporate form.\xe2\x80\x9d ). Thus, we do not believe that Congress\nm ay evade the \xe2\x80\x9c solem n obligations\xe2\x80\x9d of the doctrine o f separation o f powers by resorting to the corporate form\nany more than it m ay evade the obligations o f the Bill o f Rights through this artifice.\n71 Constitutional Limitations on Federal Government Participation in Binding Arbitration, 19 Op. O.L.C. 208,\n2 16(1995 ).\n\n148\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nHence, their service does not bear the hallmarks of a constitutional\noffice \xe2\x80\x94 tenure, duration, emoluments, and continuing duties. Con\xc2\xad\nsequently, arbitrators do not occupy a position of employment with\xc2\xad\nin the federal government, and it cannot be said that they are offi\xc2\xad\ncers of the United States. Because arbitrators are not officers, the\nAppointments Clause does not place any requirements or restric\xc2\xad\ntions on the manner in which they are chosen.\n19 Op. O.L.C. at 216.72 The only case that to our knowledge addresses this ques\xc2\xad\ntion agreed with our analysis and conclusion, and held that the Appointments\nClause does not prohibit the federal government from entering into binding arbitra\xc2\xad\ntion. See Tenaska Wash. Partners v. United States, 34 F. Cl. 434, 440 (1995)\n(\xe2\x80\x9c [T]he OLC Memorandum is a thorough and persuasive analysis.\xe2\x80\x9d ).\n2. Who May Be an Inferior Officer? Since all officers of the United States\nmay be appointed by the President with the advice and consent of the Senate,\nthe only Appointments Clause significance to the distinction between principal\nand inferior officers lies in Congress\xe2\x80\x99s ability to provide for the appointment of\ninferior officers by one of the alternative means listed in the Clause. The Supreme\nCourt has observed that \xe2\x80\x9c [t]he line between \xe2\x80\x98inferior\xe2\x80\x99 and \xe2\x80\x98principal\xe2\x80\x99 officers is\none that is far from clear, and the Framers provided little guidance into where\nit should be drawn.\xe2\x80\x9d Morrison v. Olson, 487 U.S. 654, 671 (1988). Unfortunately,\nthe Court\xe2\x80\x99s own decisions provide only modest additional guidance. In Morrison,\nthe Court declined to \xe2\x80\x9c attempt . . . to decide exactly where the line falls\xe2\x80\x9d be\xc2\xad\ncause it found that the independent counsel \xe2\x80\x9c clearly falls on the \xe2\x80\x98inferior officer\xe2\x80\x99\nside of that line.\xe2\x80\x9d Id. at 671. The Court advanced several factors that pointed\nto that conclusion: (1) The counsel was removable by the Attorney General, thus\nmaking counsel \xe2\x80\x9c to some degree \xe2\x80\x98inferior\xe2\x80\x99 in rank and authority.\xe2\x80\x9d Id. (2) The\ncounsel\xe2\x80\x99s duties were limited, particularly with respect to policy making and ad\xc2\xad\nministration. (3) The counsel\xe2\x80\x99s tenure was limited to the particular \xe2\x80\x9c mission that\n\n72 We nevertheless noted that it is possible for a theoretical binding arbitration mechanism to run afoul o f the\nAppointments Clause. As indicated, arbitrators whose sole or collective decisions are binding on the government\nexercise significant authority. If any such arbitrator were to occupy a position of employment within the federal\ngovernment, that arbitrator would be required to be appointed in conformity with the Appointments Clause. See\nFreytag v. Commissioner, 501 U.S. 868, 881 (1991). Thus, if a federal agency were to conduct binding arbitrations\nand to employ arbitrators with whom it provided all relevant attributes o f an office, all such arbitrators would be\nrequired to be appointed in conformity with the Appointments Clause. See 19 Op. O.L.C. at 216.\n\n149\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nshe was appointed for.\xe2\x80\x9d Id. at 672.73 The Court\xe2\x80\x99s other recent Appointments\nClause decisions shed little additional light on the subject.74\nWe agree with the court of appeals in Silver v. United States Postal Service,\n951 F.2d 1033 (9th Cir. 1991), that the particular factors Morrison discussed do\nnot constitute an exhaustive or exclusive list. See id. at 1040 (\xe2\x80\x9c The nature of\neach government position must be assessed on its own merits.\xe2\x80\x9d ). The Silver court\nnoted that the official at issue in that case, the Postmaster General, \xe2\x80\x9c performs\nmany tasks and has many responsibilities,\xe2\x80\x9d but determined the office to be an\ninferior one because the Postmaster General \xe2\x80\x9c does not have \xe2\x80\x98control\xe2\x80\x99 \xe2\x80\x9d and\n\xe2\x80\x9c serv[es] at the pleasure of the\xe2\x80\x9d Board of Governors of the Postal Service. Id.\nThis approach is consistent with the one we have taken in the past. For example,\nin concluding that United States Attorneys are inferior officers whose appointment\ncould be vested in the Attorney General, we rejected the argument that the con\xc2\xad\nstitutional term \xe2\x80\x9c inferior\xe2\x80\x9d means \xe2\x80\x9c \xe2\x80\x98petty or unimportant\xe2\x80\x99 \xe2\x80\x9d ; instead, we con\xc2\xad\ncluded that the term connotes amenability to supervision by the superior \xe2\x80\x9c in\nwhom the power of appointment is vested.\xe2\x80\x9d United States A ttorneys\xe2\x80\x94 Suggested\nAppointm ent P ow er o f the Attorney G eneral\xe2\x80\x94 Constitutional Law (Article 2, \xc2\xa72,\ncl. 2), 2 Op. O.L.C. 58, 58-59 (1978) (quoting Collins v. United States, 14 Ct.\nCl. 568, 574 (1878)); see also D epartm ent o f Housing and Urban D evelopm ent \xe2\x80\x94\nD elegations o f A uthority\xe2\x80\x94 42 U.S.C. \xc2\xa7 3 533, 3535, 2 Op. O.L.C. 87, 89 (1978)\n\n(deputy assistant secretary, who is subject to direction by an assistant secretary,\nis \xe2\x80\x9c unquestionably\xe2\x80\x9d an inferior officer). In determining whether an officer may\nproperly be characterized as inferior, we believe that the most important issues\nare the extent of the officer\xe2\x80\x99s discretion to make autonomous policy choices and\nthe location of the powers to supervise and to remove the officer. While an officer\nresponsible only to the President for the exercise of significant discretion in deci\xc2\xad\nsion making is probably a principal officer, an officer who is subject to control\nand removal by an officer other than the President should be deemed presump\xc2\xad\ntively inferior.\n73 The Court also com pared the independent counsel\'s status to that o f other officials who had been considered\ninferior officers in earlier decisions. See 487 U.S. at 672-73 (discussing cases dealing with vice-consuls, election\nsupervisors, and U nited States commissioners). The Court also took note o f its \xe2\x80\x9c reference in United States v. Nixon ,\n418 U.S. 683, 694, 696 (1974), to the O ffice o f Watergate Special Prosecutor\xe2\x80\x94 w hose authority was similar to\nthat o f [the independent counsel]\xe2\x80\x94 as a \xe2\x80\x98subordinate officer\' \xe2\x80\x9d and concluded that this characterization was \xe2\x80\x9c con\xc2\xad\nsistent\xe2\x80\x9d with its conclusion that independent counsels are inferior officers. See 487 U.S. at 673.\n74Buckley simply asserted that the m embers o f the FEC were \xe2\x80\x9c at the very least\xe2\x80\x9d inferior officers. Buckley v.\nValeo, 424 U.S. 1, 126 (1976) (per curiam). In Freytag, no one claimed that the special trial judges at issue were\nprincipal, as opposed to inferior, officers; instead, the case involved the distinction between inferior officers and\nemployees. Freytag v. Commissioner, 501 U .S. 868, 8 80-82 (1991). The military judges under review in Weiss,\nlike all com m issioned officers in the armed forces, were appointed with the advice and consent of the Senate. Weiss\nv. United States, 510 U.S. 163, 170 (1994). Justice Souter concurred in the Court\xe2\x80\x99s opinion on the understanding\nthat the military judges at issue there are inferior officers. Id. at 182 (Souter, J., concurring). He reasoned that\nthere were substantial points to be made o n either side o f the question whether they were principal or inferior\npfficers and concluded that the Court should defer \xe2\x80\x9c to the political branches\xe2\x80\x99 [implicit] judgm ent\xe2\x80\x9d that the military\njudges were inferior officers. Id. at 194. A lthough Justice Souter\xe2\x80\x99s admonition that \xe2\x80\x9c it is ultimately hard to say\nw ith any certainty on w hich side of the lin e \xe2\x80\x9d between principal and inferior status a given officer may fall, id.\nat 193, is indubitably correct, the executive branch cannot invoke the principle of judicial deference he properly\nused to decide the issue in Weiss.\n\n150\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\n3. Who May Appoint Inferior Officers? The Appointments Clause does not de\xc2\xad\nfine \xe2\x80\x9c Heads of Departments\xe2\x80\x9d or \xe2\x80\x9c Courts of Law,\xe2\x80\x9d and questions have arisen\nabout which entities are included by these terms within the \xe2\x80\x9c possible repositories\nfor the appointment power.\xe2\x80\x9d Freytag v. Commissioner, 501 U.S. 868, 884 (1991).\nEarlier Attorneys General have accorded these terms a broad construction. See,\ne.g., Authority o f Civil Service Commission to Appoint a Chief Examiner, 37 Op.\nAtt\xe2\x80\x99y Gen. 227 (1933). The same is true of the courts,75 which have held that\nthe Tax Court,76 a special division of a court of appeals created primarily for\nthe purpose of appointing independent counsels,77 and the Governors of the Postal\nService (as a collective head of department),78 can be vested with appointments\npower. The interpretive difficulties lie in determining exactly how broadly the\nterm \xe2\x80\x9c Department\xe2\x80\x9d should be read.\nWe think that the \xe2\x80\x9c Departments\xe2\x80\x9d to which the Appointments Clause refers are\nnot limited to those major divisions of the executive branch that are headed by\nmembers of the President\xe2\x80\x99s cabinet.79 In 1933, Acting Attorney General Biggs\nopined that Congress could authorize the Civil Service Commission to appoint\nan inferior officer. Authority o f Civil Service Commission to A ppoint a C hief Ex\xc2\xad\naminer, 37 Op. Att\xe2\x80\x99y Gen. 227 (1933). His opinion noted that the Commission\n\xe2\x80\x9c ha[d] certain independent executive duties to perform,\xe2\x80\x9d was \xe2\x80\x9c responsible only\nto the Chief Executive,\xe2\x80\x9d id. at 229, and was \xe2\x80\x9c not a subordinate Commission\nattached to one of the so-called executive departments,\xe2\x80\x9d id. at 231. As \xe2\x80\x9c an inde\xc2\xad\npendent division of the Executive Branch,\xe2\x80\x9d he concluded, the Commission was\na \xe2\x80\x9c Department\xe2\x80\x9d for Appointments Clause purposes and its three commissioners,\ncollectively, \xe2\x80\x9c the \xe2\x80\x98head of a Department\xe2\x80\x99 in the constitutional sense.\xe2\x80\x9d Id. The\nfact that the commissioners were not members of the Cabinet was not controlling,\n75 The exception to this broad reading o f the Clause was Buckley\'s unsurprising conclusion that \xe2\x80\x9c neither Congress\nnor its officers [are] included within the language \xe2\x80\x98Heads o f Departments.\xe2\x80\x99 \xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1, 127\n(1976) (per curiam).\n16Freytag, 501 U.S. at 892. The Court in Freytag concluded that it is constitutional for the chief judge o f the\nTax Court to appoint special trial judges because the Tax Court, though an Article I legislative court, \xe2\x80\x9c exercisefs]\njudicial power and perform[s] exclusively judicial functions\xe2\x80\x9d and thus is a \xe2\x80\x9c C ourt[] o f Law \xe2\x80\x9d within the meaning\nof the Clause. Id. Justice Scalia argued in a concurring opinion that the Tax Court should be treated as a \xe2\x80\x9c Depart\xc2\xad\nm ent\xe2\x80\x9d and the chief judge as its \xe2\x80\x9c H ead.\xe2\x80\x9d Id. at 914-22 (Scalia, J., concurring in part and concurring in the judg\xc2\xad\nment). Justice Souter recently has suggested that the opinion o f the Court in Freytag did not actually resolve the\nquestion o f whether the judges o f the Tax Court, including the chief judge, are principal officers. Weiss v. United\nStates, 510 U.S. 163, 192 (1994) (Souter, J., concurring).\n77Morrison v. Olson, 487 U.S. 654 (1988). In Morrison, the Court indicated that there is some \xe2\x80\x9c constitutional\nlimitation on \xe2\x80\x98incongruous\' interbranch appointments,\xe2\x80\x9d id. at 677, despite the broad language the Appointments\nClause uses in describing Congress\xe2\x80\x99s discretion on the subject. A statute vesting in a court the power to appoint\nofficers acting in areas in which judges \xe2\x80\x9c have no special knowledge or expertise,\xe2\x80\x9d id. at 676 n.13, for example,\nmight create tension between the court\xe2\x80\x99s normal functions and \xe2\x80\x9c the performance of [its] duty to appoint.\xe2\x80\x9d Id. at\n676. We think that this limitation is probably o f little practical significance with respect to presidential appointments\nin light of the fact that it is difficult to conceive a plausible argument that vesting the pow er in the Piesident to\nappoint any officer (other, perhaps, than some legislative officers) could ever be constitutionally \xe2\x80\x9c incongruous.\xe2\x80\x9d\n7SSilver v. United States Postal Sen/., 951 F.2d 1033, 1038 (9th Cir. 1991).\n79The Appointments Clause thus differs from Section 4 of the Twenty-fifth Amendment, the language and history\no f which confirm that the \xe2\x80\x9c principal officers o f the executive departments\xe2\x80\x9d it mentions are the members o f the\nCabinet. U.S. Const, amend. XXV, \xc2\xa74; see Freytag , 501 U.S. at 886-87; id. at 917 (Scalia, J., concurring in part\nand concurring in the judgment).\n\n151\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe Acting Attorney General concluded, because the Cabinet itself is not a creation\nof the Constitution. Id . 80 We find this opinion persuasive and note that the Court\xe2\x80\x99s\nopinion in F reytag ultimately reserved the question of whether the heads of enti\xc2\xad\nties other than cabinet-level departments can be vested with the power to appoint\ninferior officers. See Freytag , 501 U.S. at 887 n.4.81 Cf. United States v.\nG erm aine, 99 U.S. 508 (1879) (Commissioner of Pensions, as head of a bureau\nwithin the Interior Department, was not a \xe2\x80\x9c Head of Department\xe2\x80\x9d ) .82\nWe would apply the reasoning of the 1933 opinion in concluding that it is con\xc2\xad\nstitutional for Congress to vest the power to appoint inferior officers in the heads\nof the so-called independent agencies \xe2\x80\x94 those agencies whose heads are not sub\xc2\xad\nject to removal at will by the President and that conventionally are understood\nto be substantially free of policy direction by the President. Except for the attenu\xc2\xad\nated nature of the President\xe2\x80\x99s supervisory authority, most of the independent agen\xc2\xad\ncies are clearly analogous to major executive agencies. They exercise govern\xc2\xad\nmental authority without being subordinated to any broader unit within the execu\xc2\xad\ntive branch, and Congress has implicitly characterized them as \xe2\x80\x9c Departments\xe2\x80\x9d\nfor Appointments Clause purposes by permitting their heads to appoint officials\n80 \xe2\x80\x9c The Cabinet, as such, was not provided for by the Constitution and it follows therefore that the interpretation\no f the C onstitution cannot depend upon such consideration.\xe2\x80\x9d 37 Op. A tt\xe2\x80\x99y Gen. at 231; accord Freytag, 501 U.S.\nat 91 6 -1 7 (Scalia, J., concurring in part and concurring in the judgment).\n81 W hile the opinion o f the Court in Freytag rejected the argument that \xe2\x80\x9c every part o f the Executive Branch\nis a departm ent,\xe2\x80\x9d 501 U.S. at 885, we do not think that the C ourt\xe2\x80\x99s reasoning is inconsistent with the 1933 Justice\nDepartment opinion. The C ourt\xe2\x80\x99s chief concern was that part o f the Appointments Clause\xe2\x80\x99s purpose is to prevent\n\xe2\x80\x9c the dangers posed by an excessively diffuse appointment pow er.\xe2\x80\x9d Id. The Court observed that \xe2\x80\x9c [g]iven the inex\xc2\xad\norable presence o f the administrative state, a holding that every organ in the Executive Branch is a department\nwould m ultiply indefinitely the number o f actors eligible to appoint.\xe2\x80\x9d Id. We do not think that our view that entities\nother than cabinet-level agencies can be \xe2\x80\x9c D epartm ents\xe2\x80\x9d for the purposes o f the Appointments Clause leads to this\nconstitutionally troublesome result. We assum e the continuing validity o f United States v. Germaine, 99 U.S. 508\n(1879), w hich held that the head o f a bureau within an executive branch department was not the head o f a department.\nM ost o f the discrete units o f the executive branch in fact are subordinate to some larger executive agency, and\ntherefore are not departments under Germaine. The Federal Bureau o f Investigation, for example, wields far-reaching\nlaw enforcem ent authority, but as a component o f the Justice Department it is not itself a \xe2\x80\x9c Department\xe2\x80\x9d for purposes\no f the A ppointm ents Clause. Legislation authorizing the appointment o f inferior officers by a subordinate officer\nw ithin a departm ent with the approval o f the head o f the department, see United States v. Hartwell, 73 U.S. (6\nW all.) 385, 3 9 2 -9 4 (1868); see also Germaine, 99 U.S. at 511 (explaining Hartwell), does not transgress this principle\nbecause for constitutional purposes the appointment should be deemed to be made by the department head. We\nalso note that the four concurring Justices in Freytag expressly adopted the reading o f the Appointments Clause\nset forth in the 1933 Attorney General\'s opinion: that \xe2\x80\x9c the term \xe2\x80\x98Departments\xe2\x80\x99 means all independent executive\nestablishm ents.\xe2\x80\x9d 501 U.S. at 919 (Scalia, O \xe2\x80\x99Connor, Kennedy, & Souter, JJ., concurring in part and concurring\nin the judgm ent).\n82 The court o f appeals in Silver found n o constitutional problem with a statute vesting the pow er to appoint\nan inferior officer, the Deputy Postmaster G eneral, in an entity consisting o f the Governors of the Postal Service\n(principal officers w ho are collectively the \xe2\x80\x9c head o f a D epartm ent\xe2\x80\x9d ) and the Postmaster General (an inferior officer\nappointed by the Governors). See 951 F.2d at 1036-41. This conclusion might be justified on either o f two rationales.\n(1) As Justice Souter recently noted, it remains unresolved w hether \xe2\x80\x9c the Appointments Clause envisions appointment\no f som e inferior officers by other inferior officers,\xe2\x80\x9d Weiss v. United States, 510 U.S. 163, 192-93 (1994) (Souter,\nJ., concurring), and it m ay be that there is no constitutional objection to designating one or more inferior officers\nto be the head o f a department with the pow er to make appointments. (2) It might be argued that although as\na general m atter the head o f a department must be a principal officer and a collective head of department must\nconsist o f exclusively principal officers, the association o f an inferior officer with a collective head of department\nin m aking a specific appointment is constitutionally harmless.\n\n152\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nwho plainly are inferior officers.83 Nothing in the original history of the Clause\nsuggests any intention to exclude from the scope of the Clause separate establish\xc2\xad\nments that are not subject to plenary presidential control.84 Finally, in reserving\nthe question of appointments by \xe2\x80\x9c the head of one of the principal agencies,\xe2\x80\x9d\nthe Freytag Court itself included as examples of those agencies the \xe2\x80\x9c independent\xe2\x80\x9d\nFTC and the SEC as well as the clearly executive CIA, which suggests that the\nCourt did not perceive a difference between the two types of agencies, at least\nin the Appointments Clause context. 501 U.S. at 887 n.4. We see no reason to\nexclude the independent regulatory agencies from the class of entities that are\n\xe2\x80\x9c Departments\xe2\x80\x9d for Appointments Clause purposes.\nWe note that, even accepting the reasoning of the 1933 Justice Department opin\xc2\xad\nion, some entities may exercise governmental authority in so limited a manner\nthat they need not be viewed as \xe2\x80\x9c Departments\xe2\x80\x9d even though their heads are re\xc2\xad\nsponsible only to the President. For example, the Committee for Purchase from\nPeople Who Are Blind or Severely Disabled, the members of which are appointed\nby the President alone, 41 U.S.C. \xc2\xa7 46(a), appears to exercise significant authority\nbut is subordinate to no larger executive agency. Id. \xc2\xa7\xc2\xa7 46-48c. Given the narrow\nscope of the Committee\xe2\x80\x99s powers, however, we do not think that the Committee\nnecessarily should be analyzed as a collective head of a department for Appoint\xc2\xad\nments Clause purposes.\n4. Legislation Lengthening the Tenure of an Officer. As the Court held in Buck\xc2\xad\nley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Appointments Clause by\nits terms and its structure prohibits Congress from itself exercising the power to\nappoint \xe2\x80\x9c Officers of the United States.\xe2\x80\x9d The text and structure of the Clause\nreflect a deliberate constitutional choice to deny to the legislature the power to\nselect the individuals who exercise significant governing authority as non-legislative officers of the federal government. See id. at 129-31 (reviewing the debates\nin the Philadelphia convention).85 This choice to exclude Congress as such from\n93 See Freytag, 501 U.S. at 918 (Scalia, J., concurring in part and concurring in the judgment) (noting that most\ninferior officers in independent agencies are appointed by neither the President nor a Cabinet official).\n84 In late-eighteenth century English, the term \xe2\x80\x9c department\xe2\x80\x9d had no specialized governmental or organizational\nmeaning. For example. Dr. Johnson defined \xe2\x80\x9c department\xe2\x80\x9d as \xe2\x80\x9c [sjeparate allotment; province or business assigned\nto a particular person,\xe2\x80\x9d 1 Samuel Johnson, A Dictionary o f the English Language (1755), to which W ebster added\nthe gloss \xe2\x80\x9c in which a class o f duties are allotted to a particular person.\xe2\x80\x9d 1 Noah Webster, American Dictionary\n58 (1828), quoted in Freytag , 501 U.S. at 920 (Scalia, J., concurring in part and concurring in the judgment) (founders\nchose \xe2\x80\x9c Department\xe2\x80\x9d to connote \xe2\x80\x9c separate organization\xe2\x80\x9d ). In its foundational legislation, the First Congress used\nthe word both for the Departments o f Foreign Affairs (later, State) and W ar and for the Department o f the Treasury,\neven though it pointedly did not term Treasury an \xe2\x80\x9c executive departm ent\xe2\x80\x9d as it did State and War. Compare Act\nof July 27, 1789, ch. 4, 1 Stat. 28, 28-29 (establishing the Department o f Foreign Affairs) and Act o f Aug. 7,\n1789, ch. 7, 1 Stat. 49, 49-50 (establishing the Department o f War) with Act o f Sept. 2, 1789, ch. 12, 1 Stal.\n65, 65-67 (establishing the Department o f the Treasury). A substantial body o f scholarship views this terminological\nchoice as reflecting an intention to make Treasury at least partially independent o f the President, although by means\nother than limiting the latter\xe2\x80\x99s removal power. See Lessig & Sunstein, supra note 33, at 27-29; Casper, supra note\n33, at 240-42; Shane, supra note 33, at 615-16.\n85 Buckley noted that the Constitution expressly authorizes the selection o f the Speaker o f the House and the\nPresident pro tempore o f the Senate from among the membership o f those bodies, see U.S. Const, art. I, \xc2\xa7 2 , cl.\nContinued\n\n153\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe appointments process can be set at naught by means other than legislation\novertly vesting in Congress the power of appointment. Accordingly, the executive\nbranch has traditionally viewed statutes that constitute an effective exercise by\nCongress of the power to appoint as violations of the Appointments Clause.\nThis issue sometimes arises in connection with statutes that attempt to extend\nthe tenure of an officer with a set term, thus potentially denying the President\nthe power he or she would otherwise have to reappoint the officer or select some\xc2\xad\none else. In 1951, for example, the President requested the Justice Department\xe2\x80\x99s\nviews on the validity of a statute extending the terms of the members of a commis\xc2\xad\nsion. See D isp la ced Persons Com m ission \xe2\x80\x94 Terms o f M embers, 41 Op. Att\xe2\x80\x99y Gen.\n88 (1951). According to the original legislation creating the commission, the terms\nwere to expire in June 1951, but prior to that date Congress amended the legisla\xc2\xad\ntion to extend the commissioners\xe2\x80\x99 tenure to August 1952. Acting Attorney General\nPerlman advised the President that, while he did not think \xe2\x80\x9c there can be any\nquestion as to the power of the Congress to extend the terms of offices which\nit has created,\xe2\x80\x9d this legislative power is subject \xe2\x80\x9c to the President\xe2\x80\x99s constitutional\npower of appointment and removal.\xe2\x80\x9d Id. at 90. However, because the legislation\ndid not attempt to restrict the President\xe2\x80\x99s authority to remove the commissioners\nat will, it was constitutionally harmless: the President remained free to exercise\nhis appointment power simply by removing the incumbents from office at any\ntime. See id. (\xe2\x80\x9c As so construed, the [extension legislation] presents no constitu\xc2\xad\ntional difficulties.\xe2\x80\x9d ); see also Pension Agents and Agencies, 14 Op. Att\xe2\x80\x99y Gen.\n147, 148-49 (1872) (discussing President\xe2\x80\x99s power to remove officer serving a\nterm extended by statute).86\nWe think that the Department\xe2\x80\x99s 1951 opinion adopted the correct approach to\nthis issue: while the power to lengthen the tenure of an incumbent officer is inci\xc2\xad\ndent to Congress\xe2\x80\x99s general power to create, determine the duties of, and abolish\noffices,87 that power cannot legitimately be employed to produce a result that\nis, practically speaking, a congressional reappointment to office. On this reasoning,\nthe extension of tenure of officers serving at will raises no Appointments Clause\nproblem, but lengthening the term of an officer who may be removed only for\n5; id. art. I, \xc2\xa7 3 , cl. 5, and held that nothing in the Constitution forbids Congress from appointing non-members\nas legislative branch officials to \xe2\x80\x9c perform duties . . . in aid o f those functions that Congress may carry out by\nitself.\xe2\x80\x9d 424 U.S. at 127-28, 139.\n86 In this circum stance, Congress\xe2\x80\x99s action in lengthening an officer\xe2\x80\x99s term does not have the effect of usurping\nthe pow er o f appointment the Constitution vests in the President rather than in Congress. Cf. In re Benny, 812\nF.2d 1133, 1142\xe2\x80\x9443 (9th Cir. 1987) (Norris, J., concurring in the judgment):\n[T]he Appointments Clause precludes Congress from extending the terms of incumbent officeholders. I\nam simply unable to see any principled distinction between congressional extensions o f the terms o f the\nincumbents and more traditional forms o f congressional appointments. Both implicate the identical constitu\xc2\xad\ntional e v il\xe2\x80\x94 congressional selection o f the individuals filling nonlegislative offices.\n87 See Crenshaw v. United States, 134 U .S. 99 (1890), Civil Service Retirement Act \xe2\x80\x94 Postmasters\xe2\x80\x94 Automatic\nSeparation from the Service, 35 Op. Att\xe2\x80\x99y Gen. 309, 314 (1927) ( \xe2\x80\x9c If, as stated in [Embry v. United States, 100\nU.S. 680, 685 (1879),] C ongress may at any time add to or take from compensation fixed, it may also, it would\nseem, by analogy, at any time shorten or lengthen a term o f office.\xe2\x80\x9d ).\n\n154\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ncause would be constitutionally questionable.88 However, this conclusion, which\nwe think sound in principle, has been rejected by the courts in at least one context.\nThe Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No.\n98-353, 98 Stat. 333 (codified as amended in scattered sections of 28 U.S.C.),\nextended the tenure of bankruptcy judges, who can be removed only for cause,\nand that provision has been sustained repeatedly against constitutional challenge.\nThe leading case, In re Benny, 812 F.2d 1133 (9th Cir. 1987), held that a statutory\nextension of tenure \xe2\x80\x9c becomes similar to an appointment\xe2\x80\x9d only \xe2\x80\x9c when it extends\nthe office for a very long time.\xe2\x80\x9d Id. at 1141; see also In re Investment Bankers,\nInc., 4 F.3d 1556, 1562 (10th Cir. 1993) (agreeing with Benny and noting that\nthe contrary Appointments Clause argument \xe2\x80\x9c has been rejected by every court\nthat has considered it\xe2\x80\x9d ), cert, denied, 510 U.S. 1114 (1994). We do not find espe\xc2\xad\ncially persuasive the reasoning of B enny,89 and it is possible that the doctrine\nof Benny is limited to its factual context.90 However, the reasoning set forth in\nBenny and the cases that follow it is susceptible to general application, and it\nis unclear that the courts could repudiate Benny\'s conclusion with respect to other\nofficers without undercutting the legitimacy of those cases.\nThe relevant precedents contemplate a continuum. At the one end is constitu\xc2\xad\ntionally harmless legislation that extends the term of an officer who is subject\nto removal at will. At the other end is legislation, constitutionally objectionable\neven under Benny, that enacts a lengthy extension to a term of office from which\n88 In 1987, this Office issued an opinion that may be read to hold that legislation extending the term o f any\nofficer, even one serving at the pleasure o f the President, is unconstitutional. See Reappointment o f United States\nParole Commissioners, 11 Op. O.L.C. 13S (1987) At the time it was issued, that opinion was directly contrary\nto long-standing executive branch precedent. See, e.g., Displaced Persons Commission\xe2\x80\x94 Terms o f Members, 41 Op.\nA tt\xe2\x80\x99y Gen. at 90-91. W e recently revisited the question presented in the 1987 opinion and concluded that it was\nin error. See Constitutionality o f Legislation Extending the Terms o f Office o f United States Parole Commissioners,\n18 Op. O.L.C. 166 (1994). We therefore reaffirmed the traditional view that legislation extending the term o f an\nofficer subject to removal at will does not violate the Appointments Clause and disavowed our 1987 suggestion\nto the contrary.\n*9 Benny asserted that Wiener v. United States, 357 U.S. 349 (1958), implicitly rejected any Appointments Clause\nargument against term-extension legislation. 812 F.2d at 1141. We think that this overstates Wiener. Wiener dealt\nonly with the President\'s removal pow er and did not consider any issue regarding the Appointments Clause. The\ndate on which the President removed the plaintiff in Wiener from office was in fact within the term of office for\nwhich the plaintiff was originally appointed, although part o f the backpay the plaintiff ultimately recovered was\nfor a period after his original term would have expired. See 357 U.S. at 350-51 (term should have expired on\nMarch 1, 1954 as the law stood at the time plaintiff was appointed; President removed plaintiff on December 10,\n1953; plaintiff recovered backpay for four months after March 1, 1954, because commission\xe2\x80\x99s authorization was\nextended after his appointment). The additional Supreme Court cases that Benny and other opinions have cited are\ndistinguishable. See. e.g., Benny, 812 F.2d at 1141 (citing Shoemaker v. United States, 147 U.S. 282 (1893), which\nupheld legislation imposing additional duties on an officer); In re Tom Carter Enters., 44 B.R. 605, 607 (C.D.\nCal. 1984) (citing Shoemaker and cases dealing with issues under the Contracts Clause and the Philippine O rganic\nAct). Benny also pointed out that the First Congress twice extended the tenure o f the first Postmaster General.\n812 F.2d at 1142. While we agree that this fact supports the argument that Congress generally possesses the power\nto extend terms, the original Postmaster General served at the pleasure o f the President, and thus the First Congress\'s\nactions placed no practical limitation on the appointments power.\n90The result reached in the Benny line o f cases was as a practical m atter much less troublesome than its reverse,\nwhich would have put in question an enormous number o f decisions within the bankruptcy system. It is therefore\npossible to characterize these decisions as a sensible resolution o f a legal quandary, which may have compromised\nconstitutional logic but did so at no real cost to the ultimate purposes o f the Constitution. However, while this\nview of the cases may be quite sensible from a political-science perspective, it leaves the constitutional law on\nthe subject in some disarray.\n\n155\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe incumbent may be removed only for cause. Legislation along this continuum\nmust be addressed with a functional analysis. Such legislation does not represent\na formal appointment by Congress and, absent a usurpation of the President\xe2\x80\x99s\nappointing authority, such legislation falls within Congress\xe2\x80\x99s acknowledged au\xc2\xad\nthority\xe2\x80\x94 incidental to its power to create, define, and abolish offices\xe2\x80\x94 to extend\nthe term of an office. As indicated, constitutional harm follows only from legisla\xc2\xad\ntion that has the practical effect of frustrating the President\xe2\x80\x99s appointing authority\nor amounts to a congressional appointment.\nOur recent opinion on legislation extending the terms of members of the United\nStates Sentencing Commission is illustrative of this functional approach. After\nthe Sentencing Commission had been appointed, Congress enacted legislation \xe2\x80\x9c to\nprovide [that] a member of the United States Sentencing Commission may con\xc2\xad\ntinue to serve until a successor is appointed or until the expiration of the next\nsession of Congress.\xe2\x80\x9d Act of Aug. 26, 1992, Pub. L. No. 102-349, 106 Stat.\n933. Commissioners may be removed only for cause. 28 U.S.C. \xc2\xa7991 (a). We con\xc2\xad\ncluded that the statute did not function to violate the President\xe2\x80\x99s appointment\npower. See W hether Members o f the Sentencing Commission Who Were Appointed\nP rio r to the Enactm ent o f a H oldover Statute M ay Exercise H oldover Rights Pur\xc2\xad\nsuant to the Statute, 18 Op. O.L.C. 33 (1994). The statute left the President free\n\nto \xe2\x80\x98 \xe2\x80\x98nominate whomever he wantfed] at precisely the same time as he could before\n[the statute was enacted].\xe2\x80\x9d Id. at 42. We noted that the effect of the legislation\ncould actually be to augment the President\xe2\x80\x99s power by giving him \xe2\x80\x9c the option\nof retaining the holdover officer until he chooses to nominate a successor.\xe2\x80\x9d Id.\nWe acknowledged the argument that the statute might give Congress the oppor\xc2\xad\ntunity to appoint, in effect, an incumbent to a new term because the President\xe2\x80\x99s\nremoval authority is statutorily restricted and the Senate might refuse to confirm\nany presidential nominee in order to retain a congressionally favored incumbent.\nId. But this argument was unavailing for two reasons. First, the argument is unduly\nspeculative insofar as it hypothesizes contumacious conduct on the part of the\nCongress, and whatever danger such a possibility might entail was mitigated by\nthe limitation on the period for which a holdover may continue to serve. Second,\nwe noted that the holdover provision is unarguably valid as applied to Sentencing\nCommissioners who took office after the statute\xe2\x80\x99s enactment. We concluded that\n\xe2\x80\x9c [i]t is simply not persuasive to argue that the President\xe2\x80\x99s appointment power\nis effectively frustrated when incumbent commissioners hold over but not when\nsubsequent commissioners hold over.\xe2\x80\x9d Id.\nWe also found it significant that the holdover statute was neutral in its applica\xc2\xad\ntion. We reserved the question of whether a holdover statute \xe2\x80\x9c might amount to\na prohibited congressional designation, even if the holdover period is for a short\ntime,\xe2\x80\x9d if the statute \xe2\x80\x9c would create or repeal holdover provisions for selective\nmembers of the same commission or for classes of members on the same commis\xc2\xad\n\n156\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nsion, e.g., those appointed on a certain date or those from a particular political\nparty.\xe2\x80\x9d Id. at 46 n.8.\n5. Legislation Imposing Additional Duties on an Officer. The executive branch\nhas consistently maintained that a statute creating a new office and conferring\nit and its duties on the incumbent of an existing office would be unconstitutional\nunder the Appointments Clause.91 Congress\xe2\x80\x99s recognized authority to alter the\nduties and powers of existing offices could be employed to achieve substantially\nthe same result if the legislature were unconstrained in the duties it could add\nto an office.92 The Supreme Court accordingly has interpreted the Constitution\nto limit the legislature\xe2\x80\x99s discretion. The leading case, Shoemaker v. United States,\n147 U.S. 282 (1893), concerned a statute that created a commission to select the\nland for Rock Creek Park in the District of Columbia. Three of the five members\nwere to be appointed by the President and confirmed by the Senate; the persons\nholding two existing federal offices, the chief of engineers of the Army and the\nengineer commissioner of the District, were declared members ex officio. The\nCourt rejected an Appointments Clause challenge to the assignment of the two\nengineers to the new commission:\n[W]e do not think that, because additional duties, germane to the\noffices already held by them, were devolved upon them by the act,\nit was necessary that they should be again appointed by the Presi\xc2\xad\ndent and confirmed by the Senate. It cannot be doubted, and it has\nfrequently been the case, that Congress may increase the power and\nduties of an existing office without thereby rendering it necessary\nthat the incumbent should be again nominated and appointed.\nId. at 301. The legislation at issue was valid, the Court concluded, because the\n\nnew duties assigned to the engineers \xe2\x80\x9c cannot fairly be said to have been dissimilar\nto, or outside of the sphere of,\xe2\x80\x9d the engineers\xe2\x80\x99 existing responsibilities. Id.\n91 See, e.g.. President Buchanan\'s signing statement dated June 25, 1860, relating to the Civil Appropriations\nAct for fiscal year 1861, in 5 James D. Richardson, Messages and Papers o f the Presidents, 1789-1897, at 5 9 7 98 (1897) (construing Act to avoid the constitutional problem).\n92The same possibility is not presented by Congress\xe2\x80\x99s power to reduce or limit the duties of an officer. Except\nwith respect to (certain) constitutional officers. Congress has plenary authority to eliminate offices altogether, subject\nto the general separation o f powers principle. The lesser-included power to take away part of an officer\xe2\x80\x99s authority\ndoes not in itself enable Congress to choose which individual will exercise authority and thus does not implicate\nthe Appointments Clause. Cf. United States v. San Jacinto Tin Co., 125 U.S. 273, 284 (1888) (Congress, as \xe2\x80\x9c the\nlegislative body which created the office\xe2\x80\x9d o f Attorney General, has the authority to put \xe2\x80\x9c restrictions . . . upon\nthe exercise o f [the Attorney General\xe2\x80\x99s] authority\xe2\x80\x9d ).\nIn Crenshaw v. United States, 134 U.S. 99 (1890), the Supreme Court upheld a statute that affected undergraduates\n( \xe2\x80\x9c cadet midshipmen\xe2\x80\x9d ) at the Naval Academy by redesignating them as \xe2\x80\x9c naval cadets\xe2\x80\x9d and restricting the cir\xc2\xad\ncumstances in which they would be commissioned upon graduation. The Court concluded that \xe2\x80\x9c Congress did not\nthereby undertake to name the incumbent o f any office. It simply changed the name, and modified the scope of\nthe duties.\xe2\x80\x9d Id. at 109.\n\n157\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe Shoemaker rule ensures \xe2\x80\x9c that Congress [is] not circumventing the Appoint\xc2\xad\nments Clause by unilaterally appointing an incumbent to a new and distinct of\xc2\xad\nfice.\xe2\x80\x9d W eiss v. U nited States, 510 U.S. 163, 174 (1994). For the imposition of\nnew duties on an officer to be valid under Shoemaker, two requirements must\nbe met. First, as in Shoemaker itself, the legislation must confer new duties on\n\xe2\x80\x9c offices, . . . [not] on any particular officer .\xe2\x80\x9d Olympic Fed. Sav. & Loan A ss\xe2\x80\x99n\nv. D irector, Office o f Thrift Supervision, 732 F. Supp. 1183, 1192 (D.D.C.), appeal\ndism issed a s m oot, 903 F.2d 837 (D.C. Cir. 1990). \xe2\x80\x9c Had the Chief of Engineers\nof the United States Army or the Engineer Commissioner of the District of Colum\xc2\xad\nbia resigned from office after the commission was established, he would no longer\nhave served on the commission \xe2\x80\x94 the new Chief of Engineers or Engineer Com\xc2\xad\nmissioner would have taken over those duties.\xe2\x80\x9d Id. at 1192-93 (discussing facts\nin Shoemaker ). The statute at issue in Olympic Federal, in contrast, abolished\ncertain offices (the three-person Federal Home Loan Bank Board) while simulta\xc2\xad\nneously defining the duties of a new office (the Director of Office of Thrift Super\xc2\xad\nvision (\xe2\x80\x9c OTS\xe2\x80\x9d )) and designating as the first Director the holder of one of the\nabolished offices (the chair of the Federal Home Loan Bank Board). See id. at\n1186. The O lym pic Federal court correctly determined that by doing so the statute\nin effect appointed the particular individual who was chair of the old board to\na new position. Id. at 1193.93\nThe second facet of the Shoemaker rule is the requirement that the new duties\nbe \xe2\x80\x9c germane to the offices already held by\xe2\x80\x9d the affected officers. 147 U.S. at\n301. This inquiry is necessarily case-specific. In Weiss, the Court examined closely\nthe specific duties of military judges and the general responsibilities of military\nand naval officers and concluded that they are so intertwined that the selection\nby the Judges Advocate General of certain military and naval officers to serve\nfor a time as military judges is consistent with the germaneness requirement. 510\nU.S. at 174-76. In giving advice on this issue, we also have looked at the reason\xc2\xad\nableness of assigning the new duties \xe2\x80\x9c in terms of efficiency and institutional con\xc2\xad\ntinuity,\xe2\x80\x9d and we have asked whether \xe2\x80\x9c it could be said that [the officers\xe2\x80\x99] functions\n. . . [with the additional duties] were within the contemplation of those who were\nin the first place responsible for their appointment and confirmation.\xe2\x80\x9d 4B Op.\nO.L.C. at 541.\nThe W eiss decision may have weakened judicial enforcement of Shoemaker\'s\ngermaneness requirement by suggesting that some legislation that adds new duties\n93 The Olympic Federal court thought the legislation would have been valid if Congress had created a threeperson directorate for the OTS and designated the members o f the former board as the directors. The court reasoned\nthat the germ aneness requirement of Shoemaker would be satisfied because OTS was absorbing the duties o f the\nold board as well as acquiring other, related ones. 732 F. Supp. at 1193. W e reached a similar conclusion in 1980\nin opining that Congress could merge the C ourt of Claims and the Court o f Customs and Patent Appeals and designate\nthe m embers o f those courts to serve as members o f the merged court. See Legislation Authorizing the Transfer\no f Federal Judges from One District to Another , 4B Op. O.L.C. 538, 541 (1980). The \xe2\x80\x9c merger situation . . . involves\nthe end o f one institution and the continuance o f its major functions in another,\xe2\x80\x9d and it was reasonable for Congress\n\xe2\x80\x9c to provide in this context for the relocation o f experienced and capable judicial personnel, and for their continuing\nto perform the functions o f the office to which they were originally appointed.\xe2\x80\x9d Id.\n\n158\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nis valid regardless of whether it satisfies the requirement. The opinion of the Court\nstressed the fact that \xe2\x80\x9c [i]n Shoemaker, Congress assigned new duties to two exist\xc2\xad\ning offices, each of which was held by a single officer. This no doubt prompted\nthe [Shoemaker] Court\xe2\x80\x99s description of the argument as being that \xe2\x80\x98while Congress\nmay create an office, it cannot appoint the officer.\xe2\x80\x99 . . . But here the statute au\xc2\xad\nthorized an indefinite number of military judges, who could be designated from\namong hundreds or perhaps thousands of qualified commissioned officers.\xe2\x80\x9d 510\nU.S. at 174. For that reason, the Court concluded, there was \xe2\x80\x9c no ground for sus\xc2\xad\npicion here that Congress was trying to both create an office and also select a\nparticular individual to fill the office.\xe2\x80\x9d Id. The Court nevertheless went on to\nconsider the germaneness issue and concluded that the duties of military judges\nare adequately related to the duties of the commissioned officers from whom the\njudges are selected. Id. at 174-76.\nIn a separate opinion, Justice Scalia argued that \xe2\x80\x9c \xe2\x80\x98germaneness\xe2\x80\x99 is relevant\nwhenever Congress gives power to confer new duties to anyone other than the\nfew potential recipients of the appointment power specified in the Appointments\nClause,\xe2\x80\x9d because \xe2\x80\x9c taking on . . . nongermane duties . . . would amount to as\xc2\xad\nsuming a new \xe2\x80\x98Offic[e]\xe2\x80\x99 within the meaning of Article II, and the appointment\nto that office would have to comply with the strictures of Article II.\xe2\x80\x9d Id. at 196\n(Scalia, J., concurring in part and concurring in the judgment). We find Justice\nScalia\xe2\x80\x99s reasoning persuasive and believe that in an appropriate setting the execu\xc2\xad\ntive branch should urge the Court expressly to accept it. In light of the Weiss\nCourt\xe2\x80\x99s detailed examination of the germaneness issue, this may not require the\nCourt in fact to modify the doctrine of that case because it is unclear to us that\nthe Court actually intended to hold germaneness constitutionally irrelevant in\nWms-type circumstances. The Court may instead simply have been emphasizing\nthe fact that assignment of new and nongermane duties to a few specific officers\nnot only violates the Appointments Clause per se, but also fails under the more\ngeneral anti-aggrandizement principle of its decisions. We believe that it is appro\xc2\xad\npriate, therefore, to review proposed new-duties legislation for germaneness even\nwhere the new duties are assigned to large or indefinite groups.\n6. The Ineligibility and Incompatibility Clauses. The Constitution places two\nimportant restrictions on the universe of persons who may be appointed to serve\nas officers of the United States. U.S. Const, art. I, \xc2\xa76, cl. 2 .94 The Ineligibility\nClause states that \xe2\x80\x98\xe2\x80\x98[n]o Senator or Representative shall, during the Time for which\nhe was elected, be appointed to any civil Office under the Authority of the United\n94 One possible restriction is notable for its absence from the Constitution: although Articles I and II and the\nTwelfth Amendment establish citizenship and age requirements for serving as a member of Congress, the President,\nor the Vice President (and also set varying minimum age requirements), see U.S. Const, art. I, \xc2\xa72, cJ. 2 (Representa\xc2\xad\ntives); id. art. I, \xc2\xa73, cl. 3 (Senators); id art. II, \xc2\xa7 1 , cl. 4 (the President); id. amend. XII (V ice President), the\nConstitution places no such limitations on anyone who becomes an officer through one of the processes prescribed\nby the Appointments Clause.\n\n159\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nStates, which shall have been created, or the Emoluments whereof shall have been\nincreased during such time.\xe2\x80\x9d Id. The Clause \xe2\x80\x9c restricts the President\xe2\x80\x99s power to\nappoint Members of Congress,\xe2\x80\x9d and \xe2\x80\x9c [i]t has long been settled within the execu\xc2\xad\ntive branch that the President, in exercising his powers of appointment under Arti\xc2\xad\ncle II, \xc2\xa72, cl. 2, will not make an appointment in violation of the . . . clause.\xe2\x80\x9d\nM em bers o f Congress Holding Reserve Commissions, 1 Op. O.L.C. 242, 244\n(1977). The most common problem under the Ineligibility Clause arises from leg\xc2\xad\nislation that creates a commission or other entity and simultaneously requires that\ncertain of its members be Representatives or Senators, either ex officio or by selec\xc2\xad\ntion or nomination by the congressional leadership. Unless the congressional mem\xc2\xad\nbers participate only in advisory or ceremonial roles, or the commission itself\nis advisory or ceremonial, the appointment of members of Congress to the com\xc2\xad\nmission would violate the Ineligibility Clause.95\nThe Incompatibility Clause provides that \xe2\x80\x9c no Person holding any Office under\nthe United States, shall be a Member of either House during his continuance in\nOffice.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa76, cl. 2. The Clause is primarily a restriction on\nCongress and its members: the Incompatibility Clause \xe2\x80\x9c disqualifies individuals\nwho have already been appointed from assuming or retaining seats in Congress.\xe2\x80\x9d\nR eserve Commissions, 1 Op. O.L.C. at 244; cf. Members o f Congress Serving\nin the A rm ed Forces, 40 Op. A tt\xe2\x80\x99y Gen. 301 (1943).96 However, the President\xe2\x80\x99s\nduty to take care that the law of the Incompatibility Clause is observed requires\nhim or her to ensure that appointments97 and legislation creating governmental\npositions are consistent with the Clause. See, e.g., C ase o f the Collectorship o f\nN ew O rleans, 12 Op. Att\xe2\x80\x99y Gen. 449, 451 (1868) (\xe2\x80\x9c in view of the\xe2\x80\x9d Incompati\xc2\xad\nbility Clause, an executive officer\xe2\x80\x99s acceptance of a seat in Congress \xe2\x80\x9c must be\nconsidered as having the legal character of a resignation of the office\xe2\x80\x9d ); Appoint\xc2\xad\nm ents to the Commission on the Bicentennial o f the Constitution, 8 Op. O.L.C.\n200, 207-08 (1984) (providing advice about \xe2\x80\x9c various structural arrangements\nwithin the Commission that might be designed to respect the Incompatibility\nClause\xe2\x80\x9d ) .98\n93 A fter FEC v. NRA Political Victory Fund , 6 F.3d 821 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88 (1994),\nit appears that designating a member o f Congress to serve on a commission with any executive functions, even\nin w hat was expressly labeled a ceremonial o r advisory role, may render the delegation o f significant governmental\nauthority to the commission unconstitutional as a violation o f the anti-aggrandizement principle. See id. at 82627.\n96The Incompatibility Clause does not prohibit members o f Congress from serving in positions that are not offices\nin the constitutional sense. See, e.g., Proposed Commission on Deregulation o f international Ocean Shipping, 1\nO p. O .L.C. 202, 2 02-03 (1983) (members o f Congress may serve as members o f a \xe2\x80\x9c purely advisory\xe2\x80\x9d commission\nbecause the members need not be officers).\n97 Cf. Deputizjation o f Members o f Congress as Special Deputy U.S. Marshals, 18 Op. O.L.C. 125, 125 n .l (1994)\n(recognizing Incompatibility Clause requirement but finding it unnecessary to reach that issue).\n98The suggestion in this O ffice\xe2\x80\x99s 1977 opinion on the Clause that \xe2\x80\x9c exclusive responsibility for interpreting and\nenforcing the Incompatibility Clause rests w ith C ongress,\xe2\x80\x9d Reserve Commissions, 1 Op. O.L.C. at 242, thus was\nan overstatement.\n\n160\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\n7. The Recess Appointments Clause. With respect to officers of the United\nStates, the Constitution vests the President with the \xe2\x80\x9c Power to fill up all Vacancies\nthat may happen during the Recess of the Senate, by granting Commissions which\nshall expire at the End of their next Session.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa72, cl. 3. \xe2\x80\x9c A\nlong line of opinions of the Attorneys General, going back to 1823, and which\nhave been judicially approved, has firmly established that . . . [t]he President\xe2\x80\x99s\npower to make recess appointments . . . extends to all vacancies existing during\nthe recess regardless of the time when they arose.\xe2\x80\x9d Recess Appointments \xe2\x80\x94 Com \xc2\xad\npensation, 3 Op. O.L.C. 314, 314 (1979) (citations omitted); accord Executive\nAuthority to Fill Vacancies, 1 Op. Att\xe2\x80\x99y Gen. 631 (1823)." Although there was\nsome early uncertainty about the President\xe2\x80\x99s power to make appointments under\nthe Recess Appointments Clause during intrasession recesses, that question was\nsettled within the executive .branch by an often-cited opinion of Attorney General\nDaugherty concluding that the President is so authorized. Executive P ow er \xe2\x80\x94 R e\xc2\xad\ncess Appointments, 33 Op. Att\xe2\x80\x99y Gen. 20 (1921). The most difficult problem of\ninterpretation under the Clause today is determining how substantial an\nintrasession recess must be to give rise to the President\xe2\x80\x99s power.100 Attorney Gen\xc2\xad\neral Daugherty concluded that a twenty-eight-day recess was sufficient, but cau\xc2\xad\ntioned that \xe2\x80\x9c the term \xe2\x80\x98recess\xe2\x80\x99 must be given a practical construction.\xe2\x80\x9d Id. at 2425. We agree with his view that the President has discretion to make a goodfaith determination of whether a given recess is adequate to bring the Clause into\nplay.101 Giving advice on how the President may properly exercise that discretion\nhas proven a difficult task. See Recess Appointments During an Intrasession R e\xc2\xad\ncess, 16 Op. O.L.C. 15 (1992) (eighteen-day recess a sufficient period, particularly\nin light of the fact that except for a brief formal session on January 3, the Senate\nwould actually be absent for fifty-four days); Recess Appointments, 3 Op. O.L.C.\nat 316 (President may make recess appointments \xe2\x80\x9c during a summer recess of\nthe Senate of a month\xe2\x80\x99s duration\xe2\x80\x9d ).\n8. Acting and Interim Appointments. Early Attorneys General repeatedly opined\nthat the President enjoyed a constitutional power of appointment empowering the\nPresident to make temporary or a d interim appointments to offices in cases of\n" T h e most thorough judicial treatment o f the issue, which quotes extensively from Attorney Genera) W irt\xe2\x80\x99s 1823\nopinion, is United States v. Allocco, 200 F. Supp. 868 (S.D.N.Y. 1961), affd, 305 F.2d 704 (2d Cir. 1962), cert,\ndenied , 371 U.S. 964 (1963).\n100 There must be a vacancy in order for the President to exercise the authority granted by the Recess Appointments\nClause. See Recess Appointments, 3 Op. O.L.C. at 317 (the power to make a \xe2\x80\x9c recess appointment presupposes\nthe existence o f a vacancy,\xe2\x80\x9d and an appointment cannot in itself remove an incumbent so as to create a vacancy).\nIn many situations, whether a vacancy exists will depend on the correct interpretation of a holdover provision in\nthe statute creating the office. The scanty case law on this issue \xe2\x80\x94 which is a matter o f statutory construction rather\nthan o f constitutional law \xe2\x80\x94 is not easily reconciled. Compare Staebler v. Carter, 464 F. Supp. 585 (D.D.C. 1979),\nwith Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, Nos. 93-5287 & 93-5289, 1994 WL\n163761 (D .C Cir. Mar. 9, 1994).\n101 \xe2\x80\x9c In this connection I think the President is necessarily vested with a large, although not unlimited, discretion\nto determine when there is a real and genuine recess making it impossible for him to receive the advice and consent\no f the Senate. . . . But there is a point, necessarily hard o f definition, where palpable abuse o f discretion might\nsubject his appointment to review.\xe2\x80\x9d 33 Op. A tt\xe2\x80\x99y Gen. at 25.\n\n161\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nneed without conforming to the requirements of the Appointments or Recess Ap\xc2\xad\npointments Clause.102 Their initial reaction to congressional legislation on the sub\xc2\xad\nject of vacancies was therefore to view it as having neither the purpose nor the\neffect of supplanting the President\xe2\x80\x99s preexisting constitutional authority. See Office\nand D uties o f A ttorney General, 6 Op. Att\xe2\x80\x99y Gen. 326, 352 (1854) (\xe2\x80\x9c Perhaps\nthe truer view of the question is to consider the . . . statutes as declaratory only,\nand to assume that the power to make such temporary appointment is a constitu\xc2\xad\ntional one.\xe2\x80\x9d ). After the enactment of the Vacancies Act of 1868, ch. 227, 15\nStat. 168, however, the Attorneys General treated the Act as providing the exclu\xc2\xad\nsive means of making temporary appointments to those offices covered by the\nstatute. See, e.g., Appointments A d Interim, 17 Op. Att\xe2\x80\x99y Gen. 530 (1883); A p\xc2\xad\npointm ents A d Interim, 16 Op. Att\xe2\x80\x99y Gen. 596, 596-97 (1880) (authority to fill\nvacancy in the office of Navy Secretary is \xe2\x80\x9c a statutory power,\xe2\x80\x9d and when the\npower is exhausted, \xe2\x80\x9c the President is remitted to his constitutional power of ap\xc2\xad\npointment\xe2\x80\x9d ). A 1904 opinion attempted to synthesize the older and the more re\xc2\xad\ncent views, treating as reasonable and legitimate Congress\xe2\x80\x99s wish to cabin presi\xc2\xad\ndential discretion to make interim appointments while the Senate is in session,\nbut describing as a \xe2\x80\x9c fundamental right as Chief Executive\xe2\x80\x9d the President\xe2\x80\x99s author\xc2\xad\nity \xe2\x80\x9c to make such a temporary appointment, designation, or assignment of one\nofficer to perform the duties of another whenever the administration of the Gov\xc2\xad\nernment requires it.\xe2\x80\x9d Temporary Recess Appointments, 25 Op. Att\xe2\x80\x99y Gen. 258,\n261 (1904); see also Promotion o f M arine Officer, 41 Op. Att\xe2\x80\x99y Gen. 291, 294\n(1956) (President has the constitutional authority to appoint \xe2\x80\x9c key military per\xc2\xad\nsonnel to positions of high responsibility\xe2\x80\x9d without following statutory procedures).\nThere is little modem case law on the President\xe2\x80\x99s power to make temporary\nappointments to offices requiring Senate confirmation.103 The \xe2\x80\x9c leading\xe2\x80\x9d judicial\ndecision is a brief per curiam court of appeals opinion denying a motion for a\nstay of the district court\xe2\x80\x99s mandate pending appeal, Williams v. Phillips, 482 F.2d\n669 (D.C. Cir. 1973) (per curiam).104 Because of its procedural posture, Williams\nl02See, e.g., Appointment o f Acting Purser, 6 Op. A tt\xe2\x80\x99y Gen. 357, 365 (1854) (executive power o f \xe2\x80\x9c filling up\na vacancy by an appointment o f one to act ad interim, and for a particular exigency, in a distant service\xe2\x80\x99\xe2\x80\x99 could\nbe exercised to make temporary appointment o f acting purser despite statutory prohibition on anyone acting as purser\nprior to Senate confirm ation); Executive Power o f Appointment, 4 Op. A tt\xe2\x80\x99y Gen. 248, 248 (1843) (appointment\npow er is derived from the President\xe2\x80\x99s Take C are Clause duty, \xe2\x80\x9c an obligation imposed by the constitution, and from\nthe authority o f which no m ere act of legislation can operate a dispensation,\xe2\x80\x99\xe2\x80\x99 although President could not pay\ninterim appointees without an appropriation).\n103 Indeed, at least one court has indicated a judicial willingness to defer to the views of the Attorney General\non the President\xe2\x80\x99s authority to make temporary appointments. See Olympic Federal Sav. & Loan Ass\'n v. Director,\nOffice o f Thrift Supervision, 732 F. Supp. 1183, 1197-98 (D.D.C.) (\xe2\x80\x9c The Attorney General is charged with responsi\xc2\xad\nbility for ensuring that only lawfully appointed officials act on behalf o f the United States, and consequently his\ninterpretation o f law on this subject is entitled to great deference.\xe2\x80\x9d ), appeal dismissed as moot, 903 F.2d 837 (D.C.\nCir. 1990).\n104 Williams was a challenge to the legality of actions taken by the acting director o f the Office of Economic\nO pportunity on the ground that the President lacked authority to appoint an acting director of that office and to\ncontinue the interim appointment for over four months without submitting to the Senate any nomination to the position\no f director. The district court declared the President\xe2\x80\x99s action unlawful. The court o f appeals refused to grant a stay\no f the district co u rt\'s order because in its judgm ent the acting director had failed to show the requisite likelihood\no f success on the merits The brief discussion in Williams o f the merits emphasized that Article II \xe2\x80\x9c unequivocally\n\n162\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ndid not actually resolve the constitutional issue, but it suggested somewhat ob\xc2\xad\nliquely that what non-statutory power the President possesses to make interim\nappointments to offices requiring Senate confirmation can be employed only for\na \xe2\x80\x9c reasonable time required by the President to select persons for nomination.\xe2\x80\x9d\nId. at 671. Looking to the thirty-day period that was, at the time, permitted tem\xc2\xad\nporary appointments under the Vacancies Act for an indication of what a reason\xc2\xad\nable period would be, Williams concluded that even if the implied power existed,\na four-and-a-half-month period without any nomination was unreasonable. Id. at\n670-71.105 Since Williams was decided, the Vacancies Act has been amended\nto provide for an initial appointment period of 120 days. Up to two extensions,\neach lasting 120 days, may be made depending on the specific circumstances of\nthe vacancy. Moreover, the Vacancies Act also tolls the running of these periods\nwhen particular conditions obtain. See 5 U.S.C. \xc2\xa7 3348. * Thus, the Vacancies Act\nallows temporary appointments, in appropriate circumstances, of durations well\nin excess of even one year. Accordingly, we would not currently view a fourand-a-half-month temporary appointment as necessarily exceeding a reasonable\nduration, provided that a nomination is submitted to the Senate.\nOn the assumption that Williams can be read to indicate that \xe2\x80\x9c [t]o keep the\nGovernment running calls for the designation of acting officials to fill vacancies\nin the absence of express statutory authority,\xe2\x80\x9d Departm ent o f Energy \xe2\x80\x94 Vacancies,\n2 Op. O.L.C. 113, 117 (1978) (citing Williams), we have argued that the reason\xc2\xad\nableness of a given interim appointment should be measured not by a per se rule\nbut by a variety of pragmatic factors. Those factors include \xe2\x80\x9c the difficulty of\nfinding suitable candidates,\xe2\x80\x9d id. at 118, \xe2\x80\x9c the specific functions being performed\nby the [interim officer]; the manner in which the vacancy was created (death,\nlong-planned resignation) . . . and particular factors affecting the President\xe2\x80\x99s\nchoice [such as] a desire to appraise the work of [the interim officer] or the Presi\xc2\xad\ndent\xe2\x80\x99s ability to devote attention to the matter.\xe2\x80\x9d Status o f the Acting D irector,\nOffice o f M anagem ent and Budget, 1 Op. O.L.C. 287, 290 (1977). However, given\nthe ambiguity of the Williams opinion, we have urged caution, even when the\nrelevant department head has statutory authority to designate another official to\nserve in an acting capacity. See Acting Officers, 6 Op. O.L.C. 119, 121-22 (1982).\nWe recently revisited the vacancies question in relation to the United States\nCommission on Civil Rights. The Commission is headed by an eight-member\nrequires an officer o f (he United States to be confirmed by the Senate unless different provision is made.** The\ncourt nevertheless observed that \xe2\x80\x9c [i]t could be argued\xe2\x80\x9d that the President has 4ian implied power, in the absence\no f limiting legislation . . . to appoint an acting director for a reasonable period o f tim e before submitting the nom ina\xc2\xad\ntion of a new director to the Senate\xe2\x80\x9d 482 F.2d at 670.\n>05 O ur opinions have struggled with the meaning o f Williams. See, e.g.. Power o f the President to Designate\nActing Member o f the Federal Home Loan Bank Board , 1 Op. O.L.C. 150, 151-52 (1977) (court o f appeals* opinion\nin Williams \xe2\x80\x9c can perhaps be read as disagreeing with\xe2\x80\x9d the argument that the President has no non-statutory authority\nor \xe2\x80\x9c as perhaps agreeing\xe2\x80\x9d that he does have such authority, \xe2\x80\x9c in the absence o f a limiting statute,\xe2\x80\x9d subject, o f\ncourse, to the condition that he must submit a nomination within a reasonable time).\n\xe2\x80\x99 Editor\'s Note: The Vacancies Act has been amended by the Federal Vacancies Reform Act o f 1998, Pub. L.\nNo. 105-277, Div. C, tit. I, \xc2\xa7 151(a), 112 Stat. 2681.\n\n163\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ncommittee that works on a part-time basis, while its day-to-day functioning is\nadministered by a staff director. The statute creating the position of staff director\nvests the authority to appoint the staff director in the President, subject to the\nconcurrence of a majority of the members of the Commission. In keeping with\nthe Department of Justice\xe2\x80\x99s long-standing position, we concluded that, when con\xc2\xad\nfronted with a vacancy in the position of staff director, the President has constitu\xc2\xad\ntional authority to appoint an acting staff director, unless Congress had statutorily\nlimited this authority. We stated:\nThe President\xe2\x80\x99s take care authority to make temporary appointments\nrests in the twilight area where the President may act so long as\nCongress is silent, but may not act in the face of congressional\nprohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.\n579, 637 (1952) (Jackson, J., concurring). Thus, the Vacancies Act,\n5 U.S.C. \xc2\xa7\xc2\xa73345-3348, constitutes a restriction on the President\xe2\x80\x99s\nauthority, as opposed to a source of power. If it applies to a given\nposition, the Vacancies Act constitutes the sole means by which\na temporary appointment to that position may be made.\nMemorandum for Neil Eggleston, Associate Counsel to the President, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Appointment\no f an Acting Staff D irector o f th e United States Commission on Civil Rights at\n3 (Jan. 13, 1994).\nWe concluded that Congress had not limited the President\xe2\x80\x99s constitutional au\xc2\xad\nthority with respect to the appointment of an acting staff director of the Civil\nRights Commission. The Vacancies Act does not apply to the position of staff\ndirector.106 In addition, the statute creating the position is silent on the subject\nof temporarily filling a vacancy in that position. Consequently, we concluded that\nthe President was free to exercise his constitutional authority to appoint an acting\nstaff director.107\n9. O ther Issues of Combined, Collective, and Intertoranch Authority and the\n\nAppomtmemts Clause. The Appointments Clause prohibits Congress or the Presi\xc2\xad\ndent from obscuring the lines of authority and responsibility within the federal\nl06The Vacancies Act only applies to tem porary appointments \xe2\x80\x9c [w]hen an office[]\xe2\x80\x9d is vacant. 5 U.S.C. \xc2\xa73346\n(emphasis added). Because the staff director for the Commission on C ivil Rights is not a constitutional officer,\nthe Vacancies A ct does not apply. See Olympic Fed. Sav. & Loan Ass\'n v. Director, Office o f Thrift Supervision,\n732 F. Supp. 1183, 1195 (D .D .C .) (finding that \xe2\x80\x9c officer\xe2\x80\x9d as used in the Vacancies Act, 5 U.S.C. \xc2\xa73346, means\n\xe2\x80\x9c constitutional officer\xe2\x80\x9d ), appeal dismissed as moot, 903 F.2d 837 (D.C. Cir. 1990). Indeed, since the Commission\nis an exclusively investigatory and advisory body, see Hannah v. Larche, 363 U.S. 420, 441 (1960), none of the\npositions at the C om m ission are constitutional offices. See Statement on Signing the United States Commission on\nCivil Rights Act o f 1983, 2 Pub. Papers o f R onald Reagan 1634, 1635 (Nov. 30, 1983) (statement by the Department\no f Justice). A ccordingly, the Vacancies Act d o es not apply to the Commission at all.\n107 A federal district court ruled to the contrary, but its decision has been vacated. See George v. Ishimaru, 849\nF. Supp. 68 (D.D.C. 1994), vacated as moot. No. 94-5111, 1994 W L 517746 (D.C. Cir. Aug. 25, 1994).\n\n164\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ngovernment: the political branches cannot vest the power to perform \xe2\x80\x9c a significant\ngovernmental duty\xe2\x80\x9d of an executive, administrative, or adjudicative nature in any\nfederal official who is not appointed in a manner consistent with the Clause. Buck\xc2\xad\nley v. Valeo, 424 U.S. 1, 141 (1976) (per curiam). The Clause, however, does\nnot prohibit creative combinations of officers and authorities as long as a person\nor body with legitimate appointing authority under the Clause has appointed \xe2\x80\x94\nand therefore is accountable for\xe2\x80\x94 all federal officials with such power. Cf. Weiss\nv. United States, 510 U.S. 163, 191-92 (1994) (Souter, J., concurring); Silver v.\nUnited States Postal Serv., 951 F.2d 1033, 1040-41 (9th Cir. 1991).\nThe Appointments Clause therefore does not forbid the exercise of authority\nby a decision-making body with a collective head that consists of principal officers\nand an inferior officer removable by them. See Silver, 951 F.2d at 1040-41. Nor\nis the Clause offended by the delegation of concurrent authority to a Senate-con\xc2\xad\nfirmed officer and her deputy when the latter is appointed by a head of department.\nSee Departm ent o f Housing and Urban D evelopm ent\xe2\x80\x94 D elegations o f Authority,\n2 Op. O.L.C. 87, 89-91 (1978). In both cases all of the officials performing sig\xc2\xad\n\nnificant governmental duties are validly appointed officers.\nThe exercise of authority by a group of principal officers, some of whom serve\nat the President\xe2\x80\x99s pleasure while others are removable by the President only for\ncause, presents no Appointments Clause issue: once again, the Clause\xe2\x80\x99s procedures\nfor appointing federal officials so that they may wield \xe2\x80\x9c significant authority\xe2\x80\x9d\nhave been met. The Clause\xe2\x80\x99s strictures are likewise satisfied by arrangements in\nwhich a head of department, pursuant to a statute, designates a subordinate to\nsit in his or her stead on a commission or board: if the designation by the head\nwere authorized by statute, then it would itself be an appointment in conformity\nwith the Clause, and even if it were not, the designee would be acting for or\non behalf of the head of department, whose actions, for constitutional purposes,\nare the head\xe2\x80\x99s.\nFinally, the Appointments Clause does not invalidate commissions composed\nof members or appointees from more than one branch of the government. M istretta\nv. United States, 488 U.S. 361, 412 (1989), upheld the constitutionality of the\nSentencing Commission, which includes at least three federal judges and the Attor\xc2\xad\nney General as an ex officio non-voting member, while Buckley concluded that\na commission consisting of a mixture of presidential appointees and members of\nCongress selected by the Speaker and President p ro tempore can validly exercise\n\xe2\x80\x9c powers . . . essentially of an investigative and informative nature,\xe2\x80\x9d 424 U.S.\nat 137. Interbranch entities are subject to constitutional review on other grounds,\nincluding the anti-aggrandizement and general separation of powers principles, but\ntheir interbranch nature does not in itself raise any Appointments Clause question.\n\n165\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nC. Removal Power Issues\n1. The Executive\xe2\x80\x99s Removal Power. The first great constitutional debate in the\nFirst Congress concerned the power to remove officers of the United States. A\nwide range of views was expressed over the respective roles\xe2\x80\x94 or lack thereof\xe2\x80\x94\nof the President and Congress in removal m atters,108 but ultimately, as the Su\xc2\xad\npreme Court has interpreted the \xe2\x80\x9c Decision of 1789,\xe2\x80\x9d Congress rejected a legisla\xc2\xad\ntive role in removal in favor of recognizing plenary presidential power over offi\xc2\xad\ncers appointed by the President with the advice and consent of the Senate. See\nBow sher v. Synar, 478 U.S. 714, 723-24 (1986); see also M yers v. United States,\n272 U.S. 52, 111-44 (1926) (discussing debates and subsequent acquiescence in\nthe legislative decision).\nThe nineteenth-century Justices interpreted the First Congress\xe2\x80\x99s actions as illus\xc2\xad\ntrative of a more general principle that \xe2\x80\x9c the power of removal [is] incident to\nthe power of appointment.\xe2\x80\x9d Ex p a rte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).\nThus, it was determined that inferior officers appointed by a department head\nwere not removable by the President (absent statutory authorization to do so) but\nby the secretary who appointed them and that a new appointment by the proper\nofficer amounted to a removal of the previous incumbent by operation of law.\nId. at 260-61; accord The P resident and Accounting Offices, 1 Op. Att\xe2\x80\x99y Gen.\n624 (1823). In U nited States v. Perkins, 116 U.S. 483 (1886), the Court held\nthat \xe2\x80\x9c when Congress, by law, vests the appointment of inferior officers in the\nheads of departments, it may limit and restrict the power of removal as it deems\nbest for the public interest.\xe2\x80\x9d Id. at 485. Although the Court did not address any\nquestions about presidential removal powers, its reasoning about Congress\xe2\x80\x99s au\xc2\xad\nthority to limit department heads\xe2\x80\x99 removal power could logically be applied to\nthe President with respect to inferior officers whose appointment is vested by stat\xc2\xad\nute in the President alone.109 The power to suspend an officer, finally, was held\nto be \xe2\x80\x9c an incident of the power of removal.\xe2\x80\x9d B um ap v. United States, 252 U.S.\n512, 515 (1920) (relying primarily on nineteenth-century precedents). The Court\xe2\x80\x99s\nconclusions in Hennen, Perkins, and B um ap remain good law .110\n108 Professor G erhard C asper has identified seven \xe2\x80\x9c major positions [in the First Congress] on the question of\nthe location o f the removal pow er," ranging from the view that the President has illimitable authority to remove\nany non-judicial officer to the argument that Congress has plenary discretion over removal issues under the Necessary\nand Proper Clause. See Casper, supra note 33, at 234-35.\n109 \xe2\x80\x9c The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and\nregulate the removal by such laws as C ongress may enact in relation to the officers so appointed. The head of\na D epartm ent has no constitutional prerogative o f appointment to offices independently of the legislation o f Congress,\nand by such legislation he must be governed, not only in m aking appointments, but in all that is incident th e re to /\xe2\x80\x99\nPerkins, 116 U.S. at 485. The President sim ilarly \xe2\x80\x9c has no constitutional prerogative" to make appointments without\nsenatorial advice and consent \xe2\x80\x9c independently\xe2\x80\x9d o f congressional authorization\xe2\x80\x94 that is, the President may make\nappointm ents without the advice and consent o f the Senate only if Congress authorizes the President to do so. See\nM yers, 272 U.S. at 161-62 (noting without deciding the question).\nl,0 W e do not read Morrison v. Olson, 487 U.S. 654 (1988), to cast any doubt on the continuing vitality of\nthese decisions. See id. at 689 n.27, 690 n.29 (im plicitly reaffirming Perkins).\n\n166\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nThe seminal twentieth-century cases on removal, Myers and Humphrey\xe2\x80\x99s Execu\xc2\xad\ntor v. United States, 295 U.S. 602 (1935), both addressed the power to remove\nofficers appointed by the President with the advice and consent of the Senate.\nMyers held unconstitutional a statute requiring Senate approval of the President\xe2\x80\x99s\ndecision to remove certain postmasters. The Court based its holding in part on\nits interpretation of the \xe2\x80\x9c Decision of 1789\xe2\x80\x9d and on its understanding of the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional role. \xe2\x80\x9c Made responsible under the Constitution for the effec\xc2\xad\ntive enforcement of the law, the President needs as an indispensable aid to meet\nit the disciplinary influence upon those who act under him of a reserve power\nof removal. . . . Each head of a department is and must be the President\xe2\x80\x99s alter\nego in the matters of that department where the President is required by law to\nexercise authority.\xe2\x80\x9d 272 U.S. at 132-33. An illimitable removal power, M yers\nconcluded, is a necessary incident to the President\xe2\x80\x99s power and responsibility to\ntake care that the laws are faithfully executed. Id. at 163-64.111\nAny suggestion in M yers that the Supreme Court would invalidate all limitations\non the President\xe2\x80\x99s power to remove officers appointed with the advice and consent\nof the Senate was firmly repudiated less than a decade later by Humphrey\xe2\x80\x99s Execu\xc2\xad\ntor. The case concerned the President\xe2\x80\x99s power to remove a member of the Federal\nTrade Commission (\xe2\x80\x9c FTC\xe2\x80\x9d ) on the grounds of policy differences, despite the\nexistence of a for-cause removal provision in the statute establishing the Commis\xc2\xad\nsion.112 The Court dismissed M yers as inapposite because a postmaster is \xe2\x80\x9c an\nexecutive officer restricted to the performance of executive functions,\xe2\x80\x9d and \xe2\x80\x9c the\nnecessary reach of the decision\xe2\x80\x9d only \xe2\x80\x9c goes far enough to include all purely\nexecutive officers [and] no farther.\xe2\x80\x9d 295 U.S. at 6 27-28.113 By contrast, the Court\nexamined the functions of the FTC and concluded that it was \xe2\x80\x9c an administrative\nbody\xe2\x80\x9d exercising \xe2\x80\x9c quasi-legislative or quasi-judicial powers,\xe2\x80\x9d rather than an\nagency of the executive branch. Id. at 628. The Court reasoned that Congress\npossesses the authority in creating such a body \xe2\x80\x9c to require [it] to act in discharge\nof [its] duties independently of executive control.\xe2\x80\x9d Id. at 629.114 In Wiener v.\n111 The Court dismissed the argument that the rationale for giving the President plenary removal authority over\nheads of department and other great officers o f state simply did not apply to postmasters with the observation that\nCongress could extend civil service tenure protection to the latter simply by vesting their appointment 4>in the head[]\no f de p artm e n t] to which they belong.\xe2\x80\x9d 272 U.S. at 174.\nn 2 The statute establishing the FTC included a provision stating that a commissioner \xe2\x80\x9c may be removed by the\nPresident for inefficiency, neglect o f duty, or malfeasance in office,\xe2\x80\x9d which the Court construed as intended \xe2\x80\x9c to\nlimit the executive power o f removal to the causes enumerated, the existence o f none of which is claimed h ere.\xe2\x80\x9d\nHumphrey\xe2\x80\x99s Ex\xe2\x80\x99r , 295 U.S. at 623, 626.\n1,3 Humphrey\'s Executor expressly repudiated the language in Myers suggesting that the President\xe2\x80\x99s general execu\xc2\xad\ntive powers and Take Care Clause responsibilities rendered it unconstitutional for Congress to reduce or eliminate\npresidential control over the administration o f federal law. \xe2\x80\x9c In the course of the opinion [in Myers], expressions\noccur which tend to sustain the government\xe2\x80\x99s contention, but these are beyond the point involved and, therefore,\ndo not come within the rule o f stare decisis. In so far as they are out o f harmony with the view s here set forth,\nthese expressions are disapproved.\xe2\x80\x9d Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r, 295 U.S. at 626.\n114 See also id. at 628:\nThe Federal Trade Commission is an administrative body created by Congress to carry into effect legislative\npolicies embodied in the [Federal Trade Commission Act, 15 U.S.C. \xc2\xa7\xc2\xa741-42] in accordance with the\nContinued\n\n167\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nUnited States, 357 U.S. 349 (1958), the Court extended the scope of Humphrey\xe2\x80\x99s\nExecutor by inferring the existence of a for-cause limitation on the President\xe2\x80\x99s\n\npower to remove an officer with quasi-adjudicatory functions, even in the absence\nof an express statutory removal restriction.115\nThe rationale in Humphrey\'s Executor for upholding Congress\xe2\x80\x99s power \xe2\x80\x9c to for\xc2\xad\nbid [the commissioners\xe2\x80\x99] removal except for cause\xe2\x80\x9d was in fact identical to that\nfor recognizing the President\xe2\x80\x99s plenary removal power over \xe2\x80\x9c purely executive of\xc2\xad\nficers.\xe2\x80\x9d \xe2\x80\x9c [I]t is quite evident that one who holds his office only during the pleas\xc2\xad\nure of another, cannot be depended upon to maintain an attitude of independence\nagainst the latter\xe2\x80\x99s will.\xe2\x80\x9d 295 U.S. at 629. The constitutionality of congressional\nlimitations on presidential removal authority thus depended under Humphrey\xe2\x80\x99s Ex\xc2\xad\necutor on the legitimacy of a legislative decision to reduce or eliminate the Presi\xc2\xad\ndent\xe2\x80\x99s control over a particular agency or officer, and that in turn depended on\nthe nature of the functions performed by the agency or officer.116\nIn M orrison v. Olson, 487 U.S. 654 (1988), the Supreme Court upheld a provi\xc2\xad\nsion of the Ethics in Government Act that forbids the removal of an independent\ncounsel appointed under the Act except for cause. The Court explained that under\n\xe2\x80\x9c [t]he analysis contained in our removal cases,\xe2\x80\x9d the constitutional question is\nwhether Congress has \xe2\x80\x9c interfere[d] with the President\xe2\x80\x99s exercise of the \xe2\x80\x98executive\npower\xe2\x80\x99 and his constitutionally appointed duty to \xe2\x80\x98take care that the laws be faith\xc2\xad\nfully executed.\xe2\x80\x99 \xe2\x80\x9d Id. at 689-90. Morrison reasoned that the Attorney General\nretained adequate control over the independent counsel to safeguard \xe2\x80\x9c the Presi\xc2\xad\ndent\xe2\x80\x99s ability to perform his constitutional duty.\xe2\x80\x9d Id. at 691.\nlegislative standard therein prescribed, an d to perform other special duties as a legislative or as a judicial\naid. . . . Tts duties are performed without executive leave and, in the contemplation o f the statute, must\nbe free from executive control.\n115 The rationale o f Wiener, which is essentially that Congress must have implied a for-cause removal restriction\nw hen the Court believes that the functions o f th e agency dem and such tenure protection, 357 U.S. at 353-56, seems\nquestionable. There w ould be nothing illogical in a legislative decision, for example, to protect against review or\nrevision o f the decisions o f the agency, see id. 354-55, while placing the agency\xe2\x80\x99s decisionmakers within the control\no f the President. Congress has made such decisions from the beginning o f the Republic. To the extent that Wiener\nassum es that control is and ought to be a binary matter\xe2\x80\x94 either plenary or non-existent\xe2\x80\x94 its reasoning is difficult\nto reconcile with more recent separation o f pow ers decisions that reject such an either/or approach to presidential\ncontrol. See, e.g., Morrison v. Olson, 487 U.S. 6 5 4 (1988). Despite these possible flaws in its logic, however, Wiener\'s\nholding continues to be followed. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (con\xc2\xad\ncluding that the mem bers o f the Federal E lection Commission probably are removable only for cause despite the\nabsence o f an explicit statutory restriction on rem oval), cert, dismissed, 513 U.S. 88 (1994).\n1I6C ongress\xe2\x80\x99s decision was considered legitim ate in Humphrey\'s Executor because the Court viewed the FTC\nas \xe2\x80\x9c a body o f experts\xe2\x80\x9d \' \xe2\x80\x98charged with the enforcement o f no policy except the policy o f the law\xe2\x80\x9d and concluded\nthat \xe2\x80\x9c [s]uch a body cannot in any proper sense be characterized as an arm or an eye o f the executive.\xe2\x80\x9d 295 U.S.\nat 624, 628. We do not find the Court\'s reasoning in Humphrey\'s Executor completely persuasive. The Court\xe2\x80\x99s\nassertion about the FT C \xe2\x80\x99s \xe2\x80\x9c enforcement of n o policy except the policy o f the law ,\xe2\x80\x9d id. at 624, does not differentiate\nthe FTC, except perhaps as a m atter of degree, from the many undoubtedly executive agencies upon which Congress\nimposes mandatory duties. The Court also stated that an FTC member is \xe2\x80\x9c an officer who occupies no place in\nthe executive departm ent,\xe2\x80\x9d but the Court m ay only have meant that the FTC is \xe2\x80\x9c an agency of the legislative or\njudicial departm ents o f the government,\xe2\x80\x9d id. at 628, in which case questions would arise under current constitutional\ndoctrine as to the legitim acy o f an Article I entity exercising law-making authority without following bicameralism\nand presentm ent, see INS v. Chadha, 462 U .S . 919 (1983), o r o f an A rticle in non-judicial entity \xe2\x80\x9c bind[ing] or\nregulat[ing] the prim ary conduct o f the pu b lic,\xe2\x80\x9d Mistretta v. United States, 488 U.S. 361, 396 (1989). W e do not\nthink that the \xe2\x80\x9c independent\xe2\x80\x9d regulatory agencies could be viewed today as w ithin the legislative or judicial branches.\nSee id. at 387 n.14 (SEC is \xe2\x80\x9c not located in the Judicial Branch\xe2\x80\x9d ).\n\n168\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nMorrison\'s broader significance is defined by the office in question. The re\xc2\xad\nmoval restriction upheld in Morrison concerned an inferior officer with a sharply\nlimited and highly unusual function, the investigation of particular allegations\nabout the conduct of high-ranking executive branch officials. In that context, al\xc2\xad\nthough it declined to decide \xe2\x80\x9c exactly what is encompassed within the term \xe2\x80\x98good\ncause,\xe2\x80\x99 \xe2\x80\x9d the Court held that \xe2\x80\x9c because the independent counsel may be terminated\nfor \xe2\x80\x98good cause,\xe2\x80\x99 the Executive . . . retains ample authority to assure that the\ncounsel is competently performing his or her statutory responsibilities in a manner\nthat comports with the provisions of the Act.\xe2\x80\x9d 487 U.S. at 692. The Morrison\nCourt thus had no occasion to consider the validity of removal restrictions affect\xc2\xad\ning principal officers, officers with broad statutory responsibilities, or officers in\xc2\xad\nvolved in executive branch policy formulation.117\n\nThe Supreme Court\xe2\x80\x99s removal cases establish a spectrum of potential conclu\xc2\xad\nsions about specific removal limitations. At one end of the spectrum, restrictions\non the President\xe2\x80\x99s power to remove officers with broad policy responsibilities in\nareas Congress does not or cannot shelter from presidential policy control clearly\nshould be deemed unconstitutional. We think, for example, that a statute that at\xc2\xad\ntempts to limit the President\xe2\x80\x99s authority to discharge the Secretary of Defense\nwould be plainly unconstitutional and that the courts would so hold.118 As the\nCourt stated in M orrison, M yers \xe2\x80\x9c was undoubtedly correct . . . in its broader\nsuggestion that there are some \xe2\x80\x98purely executive\xe2\x80\x99 officials who must be removable\nby the President at will if he is to be able to accomplish his constitutional role.\xe2\x80\x9d\n487 U.S. at 69 0 .119 At the other end of the spectrum, we believe that for-cause\nand fixed-term limitations on the power to remove officers with adjudicatory du\xc2\xad\nties affecting the rights of private individuals will continue to meet with consistent\njudicial approval: the contention that the essential role of the executive branch\nwould be imperiled by giving a measure of independence to such officials is un\xc2\xad\ntenable under both precedent and principle.\n,17A much older decision, Shurtleff v. United Stales, 189 U.S. 311 (1903), had held that a for-cause provision\ndid not oust the President\'s power, derived from the power o f appointment, to remove an officer at will, but after\nHumphrey\'s Executor, Shurtleff appeared confined to its factual setting (where the official\xe2\x80\x99s tenure had no fixed\ntermination). See Kalaris v. Donovan, 697 F.2d 376, 395 & n.76 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983).\nBowsher, however, cited Shurtleff in connection with a more general suggestion that \xe2\x80\x9c the enumeration o f certain\nspecified causes o f rem oval\xe2\x80\x99\xe2\x80\x99 may not 4\'exclud[e] the possibility o f removal for other causes.\xe2\x80\x99\xe2\x80\x99 478 U.S. at 729.\nBowsher and Morrison together suggest that a generous reading o f the President\xe2\x80\x99s (or a department head\xe2\x80\x99s) power\nto remove an inferior officer for cause may be essential to the constitutionality o f removal restrictions concerning\neven those officers whose functions are narrow.\n1,8The Tenure o f Office Act o f 1867, ch. 154, 14 Stat. 430, expressly provided the Secretaries of W ar and the\nNavy, among others, with terms longer than that o f the President who appointed them, subject only to presidential\nremoval with the coi^ent o f the Senate. President Andrew Johnson\xe2\x80\x99s attempt to remove the Secretary of W ar was\nthe legal basis for his impeachment and near-removal from office. The Act had been passed over President Johnson\xe2\x80\x99s\nconstitutionally based veto.\n119 With respect to an officer serving at the President\xe2\x80\x99s pleasure, the President may remove the incumbent by\ndirect order o r by appointing his or her successor after receiving the advice and consent o f the Senate. See, e.g.,\nQuackenbush v. United States, 177 U.S. 20, 25 (1900); Presidential Appointees\xe2\x80\x94 Resignation Subject to the Appointment and Qualification o f a Successor, 3 Op. O.L.C. 152 (1979).\n\n169\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nBetween these two extremes, the arguments are less clear, and it is imperative\nthat the executive branch carefully examine removal limitations in pending legisla\xc2\xad\ntion for their impact on the President\xe2\x80\x99s ability to exercise his or her constitutional\npowers and carry out his or her duties. In situations in which Congress does not\nenact express removal limitations, we believe that the executive branch should\nresist any further application of the Wiener rationale, under which a court may\ninfer the existence of a for-cause limit on presidential removal, except with respect\nto officers whose only functions are adjudicatory.120 In reviewing pending legisla\xc2\xad\ntion, furthermore, we should be aware that legislative silence about the President\xe2\x80\x99s\nremoval power over administrative agency officers invites judicial policy choices\nthat may be contrary to those the President or Congress intended.\n2. Congressional Removal Power. Unless it limits its own discretion by statute,\nCongress enjoys plenary authority to remove its own officers, as do the individual\nhouses of Congress.121 In addition, Congress has the general authority to legislate\nin ways that in fact terminate an executive branch officer\xe2\x80\x99s or employee\xe2\x80\x99s tenure\nby defunding a position, for example, or by legislating mandatory retirement rules\nthat apply to incumbents.122 The executive branch, however, has long maintained\nthat the Constitution does not permit this legislative authority to be deployed abu\xc2\xad\nsively as a de facto removal power. See C ivil Service Retirement A c t \xe2\x80\x94 Post\xc2\xad\nm asters\xe2\x80\x94 Autom atic Separation fro m the Service, 35 Op. Att\xe2\x80\x99y Gen. 309, 31215 (1927) (deeming mandatory retirement statute constitutional because it could\nnot fairly be viewed as an encroachment on the President\xe2\x80\x99s removal power). The\nSupreme Court\xe2\x80\x99s decisions confirm the executive position. In Myers v. United\nStates, 272 U.S. 52 (1926), the Court at one point portrayed the issue before it\nin terms of congressional aggrandizement, id. at 161, and modem decisions have\nredescribed the enduring rationale of M yers in anti-aggrandizement terms. See\nM orrison v. Olson, 487 U.S. 654, 686 (1988) (\xe2\x80\x9c [T]he essence of the decision\nin M yers was the judgment that the Constitution prevents Congress from\n\xe2\x80\x98draw[ing] to itself . . . the power to remove.\xe2\x80\x99 \xe2\x80\x9d ) (quoting M yers, 272 U.S. at\n161); B ow sher v. Synar, 478 U.S. 714, 724-26 (1986). Legislation that can prop\xc2\xad\nerly be described as exercising the power of removal is unconstitutional, therefore,\nbecause it amounts to an attempt on Congress\xe2\x80\x99s part \xe2\x80\x9c to gain a role in the removal\nof executive officials other than its established powers of impeachment and con\xc2\xad\n,20O n the basis o f precedent, and in light o f the understandable tendency of Article 111 judges to value tenure\nprotection positively, it is safe to assume that courts will continue to apply Wiener with respect to officials whose\nprim ary duties involve the adjudication of disputes involving private persons.\n121 The tw o houses o f Congress also have complementary roles in the congressional power to impeach and remove\nany civil officer o f the United States. See U.S. Const, art. 1, \xc2\xa72, cl. 5; id. art. I, \xc2\xa73 , cl. 6.\n122C ongress\'s authority in this regard is bounded, to be sure, by independent constitutional limitations such as\nthe Bill o f A ttainder Clause, U.S. Const, art. I, \xc2\xa7 9 , cl. 3. See United States v. Lovett, 328 U.S. 303 (1946) (provision\nin an appropriations statute prohibiting the paym ent o f compensation to three specified executive branch employees\nbecause o f their political beliefs was an unconstitutional bill o f attainder).\n\n170\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nviction.\xe2\x80\x9d M orrison, 487 U.S. at 686.123 We think, for example, that \xe2\x80\x9c ripper\xe2\x80\x9d\nlegislation that ostensibly abolished an office while simultaneously proceeding to\nrecreate it would be a transparent, and unconstitutional, attempt to remove the\nofficer in question and therefore would violate the anti-aggrandizement principle.\nSee Constitutionality o f Proposed Legislation Requiring Renomination and Recon\xc2\xad\nfirm ation o f Executive Branch Officers Upon the Expiration o f a Presidential\nTerm, 11 Op. O.L.C. 25, 26 (1987).\n\nThe executive branch also has resisted attempts by the Senate to \xe2\x80\x9c reconsider\xe2\x80\x9d\nthe nomination of an officer to whose appointment that body has already given\nits advice and consent once the President has taken steps to complete the appoint\xc2\xad\nment. In 1931, for example, President Hoover declined to return to the Senate\nresolutions notifying him that it had confirmed three nominees to the Federal\nPower Commission. The President explained that \xe2\x80\x9c the return of the documents\nby me and reconsideration by the Senate would be ineffective to disturb the ap\xc2\xad\npointees in their offices. I cannot admit the power in the Senate to encroach upon\nExecutive functions by removal of a duly appointed executive officer under the\nguise of reconsideration of his nomination.\xe2\x80\x9d Message to Senate, January 10, 1931,\nquoted in United States v. Smith, 286 U.S. 6, 28 n.3 (1932); see also Smith, 286\nU.S. at 37-48 (discussing historical practice). Such senatorial action is both an\nunconstitutional attempt to remove the officer and a violation of the anti-aggran\xc2\xad\ndizement principle, in that it is a legislative attempt to exercise power after the\nconstitutionally prescribed role of the legislative body has been completed.124\nD. Issues Involving the Boundaries of the Legislative Sphere\nThe Supreme Court decisions articulating the Court\xe2\x80\x99s anti-aggrandizement prin\xc2\xad\nciple make it plain that Congress\xe2\x80\x99s formal authority is limited to the enactment\nof legislation and activities in aid of the legislative process such as investigation\nand oversight. The Gramm-Rudman Act\xe2\x80\x99s vesting in a congressional agent of the\npower to exercise policy-making control over the post-enactment decisions of ex\xc2\xad\necutive officials is the paradigmatic example of congressional action in violation\nof this limitation. See Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating the\nrelevant provision of the Act). Respect for Congress\xe2\x80\x99s legitimate and broad author\xc2\xad\nity to legislate is consistent with our duty as officials of the executive branch\n123 One could also describe the reasoning directly in terms o f the impeachment and removal powers. See U.S.\nConst, art. I, \xc2\xa7 2 , cl. 5 (giving House the \xe2\x80\x9c sole Power o f Im peachment\xe2\x80\x9d ); id. art. I, \xc2\xa73, cl. 6 (giving Senate the\n\xe2\x80\x9c sole Power to try all Impeachments\xe2\x80\x9d ); id. art. II, \xc2\xa7 4 ("President, Vice President and all civil O fficers\xe2\x80\x9d are subject\nto impeachment and removal). These powers stem from \xe2\x80\x9c (ejxplicit and unambiguous provisions of the Constitution\n[that] prescribe and define\xe2\x80\x9d the only means by which Congress may remove officers. INS v. Chadha, 462 U.S.\n919. 945 (1983).\n124 In Smith the Supreme Court rejected a challenge to the right o f one o f President Hoover\xe2\x80\x99s appointees to sit\non the Federal Power Commission, but based its holding on its construction o f the Senate\xe2\x80\x99s rule permitting reconsider\xc2\xad\nation. The Court thus did not reach the Executive\xe2\x80\x99s constitutional arguments. See 286 U.S. at 34 ( \xe2\x80\x9c [W]e have,\ntherefore, no occasion to consider the constitutional objection.\xe2\x80\x9d ).\n\n171\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nto identify instances in which Congress transgresses the boundaries of its constitu\xc2\xad\ntional sphere of operations.\n1. The Paradox of Congressional Agencies. From reading the bare text of the\nConstitution, one might not expect there to exist any formally separate entities\nwithin the legislative branch other than the two houses themselves. From an early\ndate, however, Congress has created distinct agencies, under its special super\xc2\xad\nvision, for various purposes. Some of these agencies, or the officers who head\nthem, exercise authority that seems incompatible or at least difficult to reconcile\nwith the Supreme Court\xe2\x80\x99s anti-aggrandizement decisions. Of special interest are\nthe Smithsonian Institution (and its subordinate bureaus, such as the John F. Ken\xc2\xad\nnedy Center for the Performing Arts (\xe2\x80\x9c J.F.K. Center\xe2\x80\x9d )), the Library of Congress,\nthe General Accounting Office (\xe2\x80\x9c GAO\xe2\x80\x9d ) (headed by the Comptroller General),\nthe Government Printing Office (\xe2\x80\x9c GPO\xe2\x80\x9d ), and the Office of the Architect of the\nCapitol.125 The head of each of these agencies exercises authority with respect\nto executive officials or private persons that could be seen as problematic under\nB owsher v. Synar, 478 U.S. 714 (1986), which held unconstitutional the Comp\xc2\xad\ntroller General\xe2\x80\x99s exercise of controlling authority over executive branch budgeting.\nWe believe that many of the powers currently exercised by the presently existing\ncongressional agencies may be deemed constitutionally harmless. Most of the\nfunctions undertaken by the Library of Congress, the basic accounting tasks of\nthe GAO, and all of the duties of the Architect of the Capitol can comfortably\nbe described as in aid of the legislative process. See Springer v. Philippine Islands,\n277 U.S. 189, 202 (1928). The activities undertaken by the Smithsonian and its\nbureaus also seem to fit under a broad construction of that concept, a construction\nthat is supported by historical practice stretching far back into the antebellum Re\xc2\xad\npublic. Cf. Springer, 277 U.S. at 211 (Holmes, J., dissenting) (\xe2\x80\x9c Congress long\nago established the Smithsonian Institution, to question which would be to lay\nhands on the Ark of the Covenant.\xe2\x80\x9d ). The GPO\xe2\x80\x99s involvement in executive branch\nprinting is also supported by a substantial historical pedigree, see Act of June\n23, 1860, 12 Stat. 117, but in the twentieth century the executive branch has re\xc2\xad\npeatedly been compelled to resist congressional attempts to empower the GPO\nto exercise genuine discretion over executive decisions.126 The review authority\nof the Librarian of Congress over the Copyright Arbitration Royalty Panel, see\n17 U.S.C. \xc2\xa7\xc2\xa7801-803, is permissible because the Librarian\xe2\x80\x99s tenure is not pro\xc2\xad\ntected by an explicit for-cause removal limitation, and we therefore infer that the\n125 The com position o f the Smithsonian\xe2\x80\x99s Board o f Regents and o f the Board of Trustees of the J.F.K. Center\npresents a separate problem under Buckley v. Valeo , 424 U.S. 1 (1976) (per curiam), because members o f Congress\nserve on these boards through appointment by the Speaker and the President pro tempore. See 20 U.S.C. \xc2\xa742 (Regents\no f Smithsonian); id. \xc2\xa77 6 h (a) (Trustees of J.F.K. Center).\n126 U nder the m odem understanding of the separation o f powers, we do not think that Congress vaJidly can empow er the G PO to play any role that is not purely ministerial with respect to the executive branch.\n\n172\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nPresident has at least the formal power to remove the Librarian at w ill.127 We\nnote that the historical lineage of, and long-standing acquiescence of the Presidents\nin, these legislative agencies and most of their activities are important to our con\xc2\xad\nclusion that those activities are constitutionally permissible: we think it highly\ndoubtful that Congress constitutionally could create new legislative agencies with\noperational powers, or afford existing agencies novel powers, with respect to exec\xc2\xad\nutive officials or private persons.\nOur conclusion about the limits on Congress\xe2\x80\x99s authority to create legislative\nbranch agencies with powers reaching beyond the legislative branch is consistent\nwith the decision in Hechinger v. Metropolitan Washington A irports Authority,\n36 F.3d 97 (D.C. Cir. 1994), cert, denied, 513 U.S. 1126 (1995), where the court\nof appeals held unconstitutional Congress\xe2\x80\x99s response to the Supreme Court\xe2\x80\x99s deci\xc2\xad\nsion in M etropolitan Washington Airports Authority v. Citizens fo r the Abatement\no f Aircraft Noise, Inc., 501 U.S. 252 (1991) ( \xe2\x80\x9c M WAA"). After MWAA struck\ndown a congressionally constituted board with the power to review and reverse\nthe decisions of the Airports Authority, Congress created a similar, congressionally\ncontrolled board of review with the power to delay, but not to control, the\nAuthority\xe2\x80\x99s implementation of decisions. The court rejected the argument that the\nnew board\xe2\x80\x99s powers were constitutional because of this distinction: the very pur\xc2\xad\npose of this board was to bring congressional policy views to bear on the decisions\nof the Authority by enabling congressional agents to participate directly in the\nAuthority\xe2\x80\x99s decision-making processes. Under the Supreme Court\xe2\x80\x99s rigorous un\xc2\xad\nderstanding of the anti-aggrandizement principle, any such extension of legislative\npower beyond the legislative sphere is invalid. We therefore believe that Hech\xc2\xad\ninger was correctly decided.\n2. Reporting Requirements. Many statutes empower executive branch agencies\nto take certain actions only after a specified period following the provision of\nnotice or of a report to Congress. The Department of Justice has long acknowl\xc2\xad\nedged the constitutionality of such report-and-wait provisions, see, e.g., Constitu\xc2\xad\ntionality o f P roposed Legislation Affecting Tax Refunds, 37 Op. Att\xe2\x80\x99y Gen. 56,\n63 (1933) (\xe2\x80\x9c No one would question the power of Congress to provide for delay\nin the execution of . . . an administrative order.\xe2\x80\x9d ), and the Supreme Court in\nINS v. Chadha, 462 U.S. 919 (1983), \xe2\x80\x9c specifically recognized\xe2\x80\x9d report-and-wait\nrequirements \xe2\x80\x9c as a constitutionally acceptable alternative to the legislative veto.\xe2\x80\x9d\nImplementation o f the B id P rotest Provisions o f the Competition in Contracting\nAct, 8 Op. O.L.C. 236, 246 (1984); see Chadha, 462 U.S. at 935 n.9, 955 n.19.\n\nWhile individual instances of congressional investigation and oversight may be\nobjectionable on policy grounds, and in certain situations may involve information\n127 Formal removal authority is sufficient to render the Librarian subject to the President\xe2\x80\x99s control for constitutional\npurposes. See Bowsher v. Synar, 478 U.S. 714, 726-27 (1986). We think that under Bowsher the fact that a President\nis highly unlikely to remove a Librarian is legally irrelevant. Id. at 727 n.5.\n\n173\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nwith respect to which the President is constitutionally entitled to assert executive\nprivilege, the conduct of investigation into, and oversight concerning, executive\nactions is generally well within the power of Congress. See Buckley v. Valeo,\n424 U.S. 1, 137-38 (1976) (per curiam ).128 Report-and-wait provisions generally\nare constitutional means of assisting Congress in carrying out these legitimate ac\xc2\xad\ntivities. 129\nSimple reporting requirements, which again are sometimes objectionable on pol\xc2\xad\nicy grounds, are clearly constitutional as a general matter. \xe2\x80\x9c Congress may at all\ntimes call on [the heads of executive departments] for information or explanation\nin matters of official duty.\xe2\x80\x9d Office and D uties o f Attorney General, 6 Op. Att\xe2\x80\x99y\nGen. 326, 344 (1854); see Chadha, 462 U.S. at 955 n.19; see also Duties o f the\nAttorney G eneral, 1 Op. Att\xe2\x80\x99y Gen. 335, 336 (1820) (Congress could, by legisla\xc2\xad\ntion, require the Attorney General to prepare a report on claims against the United\nStates). In the past, this Office has made constitutional objections to so-called\n\xe2\x80\x9c concurrent\xe2\x80\x9d reporting provisions that require an executive agency to submit a\ngiven report simultaneously to the President and Congress. See Constitutionality\no f Statute Requiring Executive A gency to Report D irectly to Congress, 6 Op.\nO.L.C. 632 (1982); Inspector G eneral Legislation, 1 Op. O.L.C. 16, 17 (1977).\nThe argument is that such provisions interrupt the lines of responsibility within\nthe executive branch and interfere with a presidential prerogative to control the\npresentation of the executive branch\xe2\x80\x99s views to Congress. On the other hand, advo\xc2\xad\ncates of such provisions might argue that a concurrent reporting provision does\nnot, as a formal matter, enlarge congressional powers at the expense of the Execu\xc2\xad\ntive, because the power to require information is well within Congress\xe2\x80\x99s legitimate\nlegislative authority.\nWe think that concurrent reporting requirements are best analyzed under the\ngeneral separation of powers principle. That principle first requires an inquiry into\n\xe2\x80\x9c the extent to which\xe2\x80\x9d a given reporting provision \xe2\x80\x9c prevents the Executive Branch\nfrom accomplishing its constitutionally assigned functions.\xe2\x80\x9d Nixon v. Adminis\xc2\xad\n128 The Constitution presupposes that all executive branch action is taken under the legal authority of officers\no f the United States and that it is those officers (and not their subordinates) who are constitutionally responsible\nfor those actions. See U.S. Const, an. n, \xc2\xa7 4 (civil officers may be impeached). It is our view, therefore, that the\nexecutive branch is generally entitled to resist congressional demands that employees be questioned about their actions\nand that as a m atter o f constitutional com ity Congress ordinarily is obligated to respect an executive decision to\nsend a superior officer to present testimony and answer questions about the actions o f a subordinate officer. (This\ndoes not apply to congressional investigations connected with impeachment or with other legitimate investigations\ninto the actions o f specific officers.). Although the details o f executive responses to congressional demands for infor\xc2\xad\nm ation have changed somewhat, the general principle that Congress ought not employ its powers o f investigation\nto disrupt the lines o f responsibility and authority within the executive branch is very old. See Thomas Jefferson,\nO pinion o f the Cabinet (Apr. 2, 1792), in 1 The Writings o f Thomas Jefferson 304 (Andrew A. Lipscomb ed.,\n1903) (advising President Washington \xe2\x80\x9c that neither the committee nor [the] House [of Representatives] had a right\nto call on the Head o f a Department, who a n d whose papers were under the President aJone, but that the committee\nshould instruct their chairman to move the H ouse to address the President").\n129 This is not to say that an unconstitutional report-and-wait provision cannot be imagined. A provision that\nimposed so lengthy a delay as to in effect nullify the Executive\xe2\x80\x99s pow er to take action substantively authorized\nby the Constitution or a statute might be invalid as a violation o f the anti-aggrandizement or general separation\no f powers principle.\n\n174\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ntrator o f Gen. Servs., 433 U.S. 425, 443 (1977) (citation omitted). Many conceiv\xc2\xad\n\nable concurrent reporting requirements, particularly ones touching on the Presi\xc2\xad\ndent\xe2\x80\x99s responsibility for the conduct of foreign affairs and for national defense,\nwould have a serious negative impact on the President\xe2\x80\x99s performance of his \xe2\x80\x9c con\xc2\xad\nstitutionally assigned functions.\xe2\x80\x9d A statutory requirement that the Secretary of\nState report simultaneously to the President and Congress on the status of United\nStates relations with a given foreign power, for instance, would fall within that\ndescription.130 Similarly, legislation that attempted to impose concurrent reporting\nrequirements across a broad spectrum of executive branch activities might well\nconstitute so serious an interference with the President\xe2\x80\x99s fulfillment of his obliga\xc2\xad\ntions under the Take Care Clause, U.S. Const, art. II, \xc2\xa73, that it should be deemed\ninvalid. The courts, however, might uphold the validity of a concurrent reporting\nrequirement imposed for a legitimate congressional purpose on a specific agency\nwith limited, domestic, and purely statutory duties.\nAs a practical political matter, concurrent reporting requirements clearly weaken\nthe President\xe2\x80\x99s control over the executive branch and by doing so increase con\xc2\xad\ngressional leverage on the President and other officials of the executive branch.\nBy doing so they impair the Constitution\xe2\x80\x99s \xe2\x80\x9c \xe2\x80\x98great principle of unity and responsi\xc2\xad\nbility in the Executive department.\xe2\x80\x99 \xe2\x80\x9d M yers v. United States, 272 U.S. 52, 131\n(1926) (quoting James Madison in 1 Annals of Congress 499 (Joseph Gales ed.,\n1789)). For this reason, we think the presumption should be that the executive\nbranch will object to any concurrent reporting provision in proposed legislation.\n3. Congressional Agents in Non-Legislative Contexts. The Supreme Court\xe2\x80\x99s de\xc2\xad\ncisions make it clear that legislation placing members or agents of Congress on\na board or commission that is outside the legislative branch is immediately sus\xc2\xad\npect. The constitutional \xe2\x80\x9c location\xe2\x80\x9d of a given entity is not a matter of congres\xc2\xad\nsional fiat; Congress cannot define away an anti-aggrandizement problem simply\nby declaring that a given entity is within or without the legislative branch.131\nThe question is, we think, a matter of the relationship between the entity\xe2\x80\x99s func\xc2\xad\ntions and the formal powers Congress can assert over and through it. In M etropoli\xc2\xad\ntan Washington A irports Authority v. Citizens fo r the Abatement o f A ircraft Noise,\nInc., 501 U.S. 252 (1991), for example, the board at issue was the board of review\nof an entity, the Airports Authority, created by a compact between Virginia and\nthe District of Columbia, and the review board members were appointed by the\n130 Moreover, such a provision ought to fail the courts\' final test under general separation of powers analysis \xe2\x80\x94\nwhether (he statute\xe2\x80\x99s impact on the executive \xe2\x80\x9c is justified by an overriding need to promote objectives within the\nconstitutional authority o f Congress.\xe2\x80\x9d Administrator o f Gen. Servs., 433 U.S. at 443. The hypothesized reporting\nrequirement could seriously impair the President\xe2\x80\x99s ability to formulate foreign policy and conduct negotiations and\naddresses an area in which Congress\xe2\x80\x99s constitutional authority is limited.\n131 The result in Bowsher v. Synar, 478 U.S. 714 (1986), for example, would not be changed by a statute providing\nthat the General Accounting Office is an executive branch agency. Through (he Comptroller G eneral, an official\nremovable by Congress, (he legislature would still be exercising ultimate authority over executive decisions. In fact,\n(he Compiroller General does have obligations to the executive branch as well as to Congress. See Bowsher, 478\nU.S. at 746 (Stevens, J., concurring in judgment).\n\n175\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nAuthority. However, by federal legislative mandate, the Authority was compelled\nto appoint a review board made up exclusively of members of Congress selected\nfrom a pool determined by Congress. See id. at 268-69. Congress\xe2\x80\x99s agents on\nthe board thus were able to exercise ultimate control over important operational\ndecisions of the Airports Authority, in violation of the Constitution\xe2\x80\x99s constraints\non the exercise of congressional power. Id. at 275-77.\nThe Court of Appeals for the D.C. Circuit recently came to a similar conclusion\nin FEC v. NRA P olitical Victory Fund, 6 F.3d 821 (D.C. Cir. 1993), cert, dis\xc2\xad\nm issed, 513 U.S. 88 (1994), in striking down part of a section of the Federal\nElection Campaign Act, 2 U.S.C. \xc2\xa7437c(a)(l). That section provides that the Sec\xc2\xad\nretary of the Senate and Clerk of the House or their designees are to be members\nof the Federal Election Commission \xe2\x80\x9c ex officio and without the right to vote.\xe2\x80\x9d\nThe Secretary and the Clerk are self-evidently agents of Congress, but the Com\xc2\xad\nmission argued that their presence was constitutionally harmless because their only\nformal role was informational and advisory. The court rejected the argument, rea\xc2\xad\nsoning that the very point of placing the Secretary and Clerk on the Commission\nwas to influence the Commission\xe2\x80\x99s actions and that\nCongress must limit the exercise of its influence, whether in the\nform of advice or not, to its legislative role. . . . What the Con\xc2\xad\nstitution prohibits Congress from doing, and what Congress does\nin this case, is to place its agents \xe2\x80\x9c beyond the legislative sphere\xe2\x80\x9d\nby naming them to membership on an entity with executive powers.\n6 F.3d at 827 (citation omitted). We believe that NRA Political Victory Fund was\ncorrectly decided: however modest the ability of Congress\xe2\x80\x99s agents to influence\nthe Commission\xe2\x80\x99s actions may have been formally, the statute placed the agents\nintended to communicate that influence within the very heart of an agency charged\nwith enforcing federal law. The anti-aggrandizement principle properly can be in\xc2\xad\nterpreted to forbid even modest attempts by Congress to intervene in the enforce\xc2\xad\nment of the laws once \xe2\x80\x9c its participation [in the passage of legislation] ends.\xe2\x80\x9d\nB ow sher v. Synar, 478 U.S. 714, 733 (1986).\nE. The General Separation of Powers Principle\nThe proper application of the general separation of powers principle is highly\nspecific to context, and thus few generalizations are possible. For example, in\nthe past we have expressed concern that legislation delegating federal authority\nto state or local officials or private persons could undermine the executive\nbranch\xe2\x80\x99s ability to carry out its functions and thereby violate the principle. See,\ne.g.. Constitutional Limits on \xe2\x80\x9c Contracting Out\xe2\x80\x9d Departm ent o f Justice Functions\n\n176\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nunder OMB Circular A -7 6 , 14 Op. O.L.C. 94, 99-101 (1990).132 We continue\n\nto believe that such delegations can raise questions with respect to the constitu\xc2\xad\ntional separation of powers,133 and that in certain circumstances, a congressional\ndelegation of authority to non-federal officials or to private parties might have\na significant impact on the executive branch\xe2\x80\x99s ability to fulfill its constitutional\nfunctions. If so, the delegation might be invalid under the general separation of\npowers principle.134\n132 The delegation question actually at issue in our 1990 opinion concerned OMB requirements to contract out\ngovernmental work. Executive branch delegations to non-federal entities, we now think, are properly analyzed as\nraising issues about the Executive\'s statutory authority to delegate.\n133 In theory, C ongress\xe2\x80\x99s authority to delegate law-making authority to anyone, including the President, is limited\nby the non-delegation doctrine, which prohibits standardless grants o f legislative power. That doctrine is, however,\nessentially moribund in the courts. See, e.g., Yakus v. United States, 321 U.S. 414 (1944) (upholding broad delega\xc2\xad\ntion). In any event, the problem o f delegation in the separation o f powers context is not, or not primarily, one\no f congressional failure to specify the limits and standards relevant to the delegated authority, but rather the inter\xc2\xad\nference with executive (or judicial) branch functions created by the bestowal o f federal-law authority on non-federal\nentities. Cf. Currin v. Wallace, 306 U.S. 1, 15-16 (1939) (upholding statute requiring supermajority vote by partici\xc2\xad\npants in regulated activity before executive branch could take certain action).\n134A common form o f \xe2\x80\x9c delegation\xe2\x80\x9d \xe2\x80\x94 the grant o f authority to state, local, or tribal officials or to private parties\nto stop federal action by declining to consent to it \xe2\x80\x94 is unlikely to present a constitutional problem. Such legislation\nmerely sets a condition on the executive branch\xe2\x80\x99s exercise o f authority that the Executive would not possess at\nall in the absence o f the legislation. In upholding a statute requiring a supermajority of regulated farmers to agree\nbefore the Secretary o f Agriculture could exercise certain powers, the Supreme Court rejected the argument that\nthe statute impermissibly delegated legislative power, reasoning that such legislation does not, strictly speaking, in\xc2\xad\nvolve a delegation o f authority to the farmers at all. See Currin v. Wallace, 306 U.S. 1, 15-16 (1939). By requiring\nthe Secretary, as one o f the prerequisites to the exercise o f power granted him by statute, to ascertain the agreement\no f a certain percentage o f those who would be affected, the statute at issue in Currin had done nothing but add\nanother condition to the availability o f the power. Id. at 15 ( \xe2\x80\x9c Congress has merely placed a restriction upon its\nown regulation by withholding its operation as to a given market \'unless two-thirds o f the growers voting favor\nit.*\xe2\x80\x9d ).\nA recent district court opinion that reached the opposite conclusion illustrates, in our judgment, the fallacy involved\nin attempting to discern a separation o f powers problem in this sort o f legislation. See Confederated Tribes o f Siletz\nIndians v. United States, 841 F. Supp. 1479 (D. Or. 1994), a ffd on other grounds, 110 F.3d 688 (9th Cir.), cert,\ndenied, 522 U.S. 1027 (1997). The statute at issue prohibits the location o f gaming establishments on land acquired\nby the Department o f the Interior in trust for the benefit of a Native American tribe when the land in question\nis off-reservation. The statute permits the Secretary to grant a waiver o f the prohibition, but requires him or her\nto obtain the concurrence o f the relevant state governor before finally approving the waiver. The district court denied\nthat the act was similar for constitutional purposes to the legislation upheld in Currin or the False Claims Act\nprovisions sustained in the qui tam cases: \xe2\x80\x9c Instead we have a statute in which Congress delegates to a state official\nthe power to veto a favorable determination by an official o f the Executive Branch who was legislatively charged\nwith making that determ ination.\xe2\x80\x9d 841 F. Supp. at 1488. Therefore, the court concluded, the provision requiring\nthe governor\xe2\x80\x99s concurrence violated the Appointments Clause and the general separation o f powers principle. Id.\nat 1489. W e think that the district court went wrong in its description o f the legislation it was reviewing: the only\nfinal determination the Secretary is \xe2\x80\x9c legislatively charged with m aking\xe2\x80\x9d under 25 U.S.C. \xc2\xa7 2 7 l9 (b )(l)(A ) is a deter\xc2\xad\nmination that the statutory conditions \xe2\x80\x94 inter alia, that the relevant governor concurs in the Secretary\xe2\x80\x99s findings\nthat granting the w aiver will be beneficial to the tribe and harmless to its neighbors\xe2\x80\x94 have been satisfied. The\ngovernor\xe2\x80\x99s concurrence, from the Secretary\xe2\x80\x99s perspective, is as much a fact about the world as the predicted effects\no f the casino (or the concurrence o f the supermajority o f farmers at issue in Currin)\', it is one more condition\nthat must be met before the Secretary can exercise the waiver power Congress has provided, albeit a condition\nthat the Secretary may be able to satisfy using different methods (persuasion, for example) than those employed\nin satisfying other conditions (economic forecasts o f the impact o f a casino, for example).\nFor somewhat similar reasons, there is no separation o f powers problem with legislation that defines a federal\nrole of law by reference to state or foreign law. The Supreme Court held in United States v. Sharpnack, 355 U.S.\n286 (1958), that the Constitution permits Congress to provide for the application, as bases for federal prosecution,\no f subsequently enacted state criminal laws in federal enclaves. The Court concluded that such a prospective congres\xc2\xad\nsional adoption o f \xe2\x80\x9c future state legislative action in connection with the exercise o f federal legislative pow er\xe2\x80\x9d does\nnot involve \xe2\x80\x9c a delegation by Congress o f its legislative authority to the States\xe2\x80\x9d at all. Id. at 294. On the basis\nContinued\n\n177\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nF. Statutory Construction\nIssues involving the constitutional separation of powers between the President\nand Congress most often arise in the context of a statute that raises or proposed\nlegislation that would raise questions under one of the three headings we have\nidentified. For this reason, it is worth recalling the \xe2\x80\x9c cardinal principle\xe2\x80\x9d of statu\xc2\xad\ntory interpretation that statutes be construed to avoid raising serious constitutional\nquestions, where such a construction is reasonably available. See, e.g., Crowell\nv. Benson, 285 U.S. 22 (1932).\nAn important subset of these questions relate to statutes that do not plainly\nstate that they apply to the President. The Supreme Court and this Office have\nadhered to a plain statement rule: statutes that do not expressly apply to the Presi\xc2\xad\ndent must be construed as not applying to the President, where applying the statute\nto the President would pose a significant question regarding the President\xe2\x80\x99s con\xc2\xad\nstitutional prerogatives. See, e.g., Franklin v. M assachusetts, 505 U.S. 788, 80001 (1992); A pplication o f 28 U.S.C. \xc2\xa7 4 5 8 to Presidential Appointments o f Federal\nJudges, 19 Op. O.L.C. 350 (1995). This principle has two sources in the constitu\xc2\xad\ntional context within which the Congress drafts statutes. The first is the interpre\xc2\xad\ntive canon of avoiding serious constitutional questions. See, e.g., Edward J.\nD eB artolo Corp. v. F lorida Gulf C oast Bldg. & Constr. Trades Council, 485 U.S.\n568, 575 (1988).\nThe second source is the constitutional principle of separation of powers. The\npurpose of the constitutional separation of powers is to prevent an excessive accu\xc2\xad\nmulation of authority in any of the three branches of the federal government.\nThe plain statement safeguards \xe2\x80\x9c the \xe2\x80\x98usual constitutional balance\xe2\x80\x99 \xe2\x80\x9d of power.\nW ill v. M ichigan D ept, of S tate Police, 491 U.S. 58, 65 (1989) (quoting\nA tascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)); see Franklin, 505\nU.S. at 800-01. Given the central position that the separation of powers doctrine\noccupies in the Constitution\xe2\x80\x99s design, this rule also serves to \xe2\x80\x9c assure! ] that the\nlegislature has in fact faced, and intended to bring into issue, the critical matters\xe2\x80\x9d\nof the balance of power among the three branches of the federal government.\nSee U nited States v. Bass, 404 U.S. 336, 349 (1971).\nThis plain statement rule has been applied frequently by the Supreme Court\nas well as this Office with respect to statutes that might otherwise be susceptible\nof an application that would affect the President\xe2\x80\x99s constitutional prerogatives, were\none to ignore the constitutional context. For instance, in Franklin the Court was\ncalled upon to determine whether the Administrative Procedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ),\n5 U.S.C \xc2\xa7701, authorized \xe2\x80\x9c abuse of discretion\xe2\x80\x9d review of final actions by the\no f Sharpnack\'s reasoning, we think that no special separation o f powers issues are raised by the role o f the states\nunder such legislation. The courts of appeals have applied the rationale o f Sharpnack to a variety o f federal statutes\nthat require consideration o f state or foreign laws in determining the application o f federal law. See, e.g.. United\nStales v. Rioseco, 845 F.2d 299, 302 (11th Cir. 1988) ( \xe2\x80\x9c Congress has delegated no power, but has itself set out\nits policies and has implemented them.\xe2\x80\x9d ).\n\n178\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\nPresident. The APA authorizes review of final actions by an \xe2\x80\x9c agency,\xe2\x80\x9d which\nit defines as \xe2\x80\x9c each authority of the Government of the United States.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7701(b)(1). From this definition, the APA expressly exempts Congress, the courts,\nthe territories, and the District of Columbia government.\nEven though the statute defined \xe2\x80\x9c agency\xe2\x80\x9d in a way that could include the Presi\xc2\xad\ndent and did not list the President among the express exceptions to the APA,\nJustice O\xe2\x80\x99Connor wrote for the Court,\n[t]he President is not explicitly excluded from the APA\xe2\x80\x99s purview,\nbut he is not explicitly included, either. Out of respect for the sepa\xc2\xad\nration of powers and the unique constitutional position of the Presi\xc2\xad\ndent, we find that textual silence is not enough to subject the Presi\xc2\xad\ndent to the provisions of the APA. We would require an express\nstatement by Congress before assuming it intended the President\xe2\x80\x99s\nperformance of his statutory duties to be reviewed for abuse of dis\xc2\xad\ncretion.\n505 U.S. at 800-01 (emphasis added). To amplify, she continued, \xe2\x80\x9c [a]s the APA\ndoes not expressly allow review of the President\xe2\x80\x99s actions, we must presume that\nhis actions are not subject to its requirements.\xe2\x80\x9d Id. at 801. Numerous other Su\xc2\xad\npreme Court decisions employ this approach. See, e.g.. Public Citizen v. United\nStates D e p \xe2\x80\x99t o f Justice, 491 U.S. 440 (1989) (holding that the Federal Advisory\nCommittee Act does not apply to committees that advise the President on the\ndischarge of his exclusive constitutional functions because doing so would raise\nserious separation of powers questions); Sale v. Haitian Centers Council, Inc.,\n509 U.S. 155 (1993) (refusing to give the Refugee Act extraterritorial application\nbecause doing so could conflict with the President\xe2\x80\x99s constitutionally committed\nauthority); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the President im\xc2\xad\nmune from suit because Congress had failed to create a cause of action expressly\nagainst the President of the United States).\nIn addition to the Supreme Court precedents, this Office has frequently applied\nthe plain statement rule in the context of the separation of powers between the\nexecutive and legislative branches. For example, we were asked whether the Age\nDiscrimination in Employment Act (\xe2\x80\x9c ADEA\xe2\x80\x9d ), 29 U.S.C. \xc2\xa7\xc2\xa7621-634, prohibits\nthe President from considering the age of judicial candidates when determining\nwhom to nominate for federal judgeships. See Judges \xe2\x80\x94 Appointment\xe2\x80\x94 Age F ac\xc2\xad\ntor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be read\nto apply to the presidential appointment of federal judges:\nThe power to appoint Federal judges, who hold office on good be\xc2\xad\nhavior, is by tradition and design one of the most significant powers\ngiven by the Constitution to the President. It provides one of the\n179\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nfew administrative mechanisms through which the President can\nexert a long-term influence over the development and administra\xc2\xad\ntion of law in the courts. The President\xe2\x80\x99s present power to exert\nthat influence to the fullest by preferring candidates for appointment\nwho are likely to have long, rather than short, careers on the bench\nis therefore a matter of constitutional significance. Whether Con\xc2\xad\ngress could deny the President that power by requiring him to dis\xc2\xad\nregard utterly the age of candidates for appointment has never been\nconsidered by the courts, but because of the gravity of the constitu\xc2\xad\ntional questions it raises, we would be most reluctant to construe\nany statute as an attempt to regulate the President\xe2\x80\x99s choice in that\nway, absent a very clear indication in the [statute].\nId. at 389. >35\n\nHI. Constitutional Requirements and Policy Concerns\nThe conclusion that a particular provision of proposed legislation probably\nwould not be held unconstitutional by the courts is not equivalent to a determina\xc2\xad\ntion that the legislation is constitutional per se. The judiciary is limited, properly,\nin its ability to enforce the Constitution, both by Article Ill\xe2\x80\x99s requirements of\njurisdiction and justiciability and by the obligation to defer to the political\nbranches in cases of doubt or where Congress or the President has special constitu\xc2\xad\ntional responsibility.136 In such situations, the executive branch\xe2\x80\x99s regular obliga\xc2\xad\ntion to ensure, to the full extent of its ability, that constitutional requirements\nare respected is heightened by the absence or reduced presence of the courts\xe2\x80\x99\nordinary guardianship of the Constitution\xe2\x80\x99s requirements. Furthermore, even where\non any view the letter of the Constitution is satisfied, the Constitution\xe2\x80\x99s intention\nto separate the federal government\xe2\x80\x99s powers can appropriately be invoked as a\nsound reason for objecting to legislation that undermines or imperils that separa\xc2\xad\n135 See also Application o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges, 19 Op. O.L.C. 350\n(1995); Constraints Imposed by 18 U.S.C. \xc2\xa71913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-05 (1989); Prosecu\xc2\xad\n\ntion fo r Contempt o f Congress o f an Executive Branch Official Who Has Asserted a Claim o f Executive Privilege,\n8 Op. O .L.C. 101 (1984); Memorandum for Richard T. Burress, Office o f the President, from Laurence H. Silberman,\nD eputy A ttorney G eneral, Re: Conflict o f Interest Problems Arising out o f the President\'s Nomination o f Nelson\nA. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974);\nM emorandum for Egil Krogh, Staff Assistant to the Counsel to the President, from William H. Rehnquist, Assistant\nAttorney G eneral, Re: Closing o f Government Offices in Memory o f Former President Eisenhower (Apr. 1, 1969).\n136This last point is true not only with respect to true \xe2\x80\x9c political questions,\xe2\x80\x9d i.e., constitutional issues the resolution\no f which is com m itted by the Constitution to (one of) the political branches, but also as to areas which, although\nnot absolutely insulated from judicial review, demand extraordinary judicial respect for the decisions o f a coordinate\nbranch. See, e.g.. United States v. Butenkot 494 R 2 d 593, 603, 605 (3d Cir.) (en banc) (broad presidential power\nto order covert surveillance for foreign affairs and national security purposes does not \xe2\x80\x9c justify completely rem oving\xe2\x80\x9d\njudicial enforcem ent o f the Fourth Amendment; however, the \xe2\x80\x9c strong public interest\xe2\x80\x9d in "the efficient operation\no f the E xecutive\'s foreign policy-making apparatus\xe2\x80\x9d should make a court \xe2\x80\x9c wary o f interfering\xe2\x80\x9d ), cert, denied, 419\nU.S. 881 (1974).\n\n180\n\n\x0cThe Constitutional Separation o f Powers Between the President and Congress\n\ntion. The constitutional separation of powers, to make the point in a different\nway, is a political as well as a legal principle.137\nThe Constitution demands of the executive and legislative branches alike an\n\xe2\x80\x9c ethic of institutional responsibility\xe2\x80\x9d in defending their respective roles in the\noverall constitutional structure.138 For example, legislation that attempts to struc\xc2\xad\nture the very details of executive decision making, or that imposes onerous and\nrepetitive reporting requirements on executive agencies, is troubling from a separa\xc2\xad\ntion of powers standpoint even if the individual statutes could not easily be de\xc2\xad\nscribed in themselves as unconstitutional. The overall effects of such micro\xc2\xad\nmanagement for the constitutional separation of powers obviously can be tremen\xc2\xad\ndous, and yet it is unlikely that judicial intervention can or would preserve the\nconstitutional balance. The executive branch thus has the primary responsibility\nfor presenting, in as forceful and principled a way as possible, the separation of\npowers problems with all legislation that has such effects. In carrying out this\nOffice\xe2\x80\x99s various roles in the Executive\xe2\x80\x99s review of existing and proposed legisla\xc2\xad\ntion, we intend to bear this obligation in mind, and we are pleased to be of assist\xc2\xad\nance to other components of the executive branch in their efforts to analyze, from\na policy standpoint as well as from a strictly legal perspective, the impact of\nlegislation on the constitutional separation of congressional and presidential pow\xc2\xad\ners.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n137 Justice Robert Jackson once wrote that \xe2\x80\x9c [i]t is hard to conceive a task more fundamentally political than\nto maintain amidst changing conditions the balance between the executive and legislative branches o f our federal\nsystem. \xe2\x80\x9d Robert H. Jackson, The Supreme Court in the American System o f Government 62 (1955).\n138 See Richard A. Champagne, Jr., The Separation o f Powers, Institutional Responsibility, and the Problem o f\nRepresentation, 75 Marq. L. Rev. 839, 844 (1992).\n\n181\n\n\x0c'