b'Effect of Spending Prohibition on HUD\xe2\x80\x99s Satisfaction\nof Contractual Obligations to ACORN\nSection 163 of division B (\xe2\x80\x9cContinuing Appropriations Resolution, 2010\xe2\x80\x9d) of Public Law\n111-68 does not direct or authorize the Department of Housing and Urban Development to breach a pre-existing binding contractual obligation to make payments to the\nAssociation of Community Organizations for Reform Now or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.\nOctober 23, 2009\n\nMEMORANDUM OPINION FOR THE DEPUTY GENERAL COUNSEL\nDEPARTMENT OF HOUSING AND URBAN DEVELOPMENT\nYou have asked whether section 163 of division B (\xe2\x80\x9cContinuing Appropriations Resolution, 2010\xe2\x80\x9d) of Public Law 111-68, 123 Stat. 2023,\n2053, approved by the President on October 1, 2009, prohibits the Department of Housing and Urban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) from making a\npayment to the Association of Community Organizations for Reform Now\n(\xe2\x80\x9cACORN\xe2\x80\x9d) or its affiliates, subsidiaries, or allied organizations to satisfy\nan existing contractual obligation that arose prior to the enactment of that\nmeasure. We conclude, in agreement with the views we solicited and\nreceived, that the language of section 163 is not clear with respect to\nwhether its prohibition applies in cases where pre-existing law apart from\nsection 163, including the contract itself, compels such a payment and\nwhere, accordingly, failure to make such a payment would subject the\nfederal government to contractual liability. In accord with established\ninterpretive principles for resolving such lack of clarity, we conclude that\nsection 163 does not direct or authorize HUD to refuse payment on binding contractual obligations that predate the Continuing Appropriations\nResolution. 1\nI.\nSection 163 states: \xe2\x80\x9cNone of the funds made available by this joint resolution or any prior Act may be provided to the Association of Commu-\n\n1 This opinion addresses only pre-existing contracts that create binding obligations\nrequiring payment and not those that excuse payment in the relevant circumstances.\n\n339\n\n\x0c33 Op. O.L.C. 339 (2009)\n\nnity Organizations for Reform Now (ACORN), or any of its affiliates,\nsubsidiaries, or allied organizations.\xe2\x80\x9d The term \xe2\x80\x9cprovided to\xe2\x80\x9d has no\nestablished meaning in appropriations law. As explained by the GAO\nRedbook, \xe2\x80\x9c[t]he two basic authorities conferred by an appropriation law\nare the authority to incur obligations and the authority to make expenditures. An obligation results from some action that creates a liability or\ndefinite commitment on the part of the government to make an expenditure. . . . The expenditure is the disbursement of funds to pay the obligation.\xe2\x80\x9d 1 General Accounting Office, Principles of Federal Appropriations\nLaw 5-3 (3d ed. 2004) (\xe2\x80\x9cGAO Redbook\xe2\x80\x9d). Thus, \xe2\x80\x9cobligate\xe2\x80\x9d and \xe2\x80\x9cexpend\xe2\x80\x9d\nare terms of art that generally describe the commitment and payment of\nfunds. See, e.g., 31 U.S.C. \xc2\xa7 1341(a)(1) (2006) (Anti-Deficiency Act)\n(providing that no federal officer or employee may \xe2\x80\x9cmake or authorize an\nexpenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation\xe2\x80\x9d). The term \xe2\x80\x9cexpenditure,\xe2\x80\x9d\nin particular, is broadly defined as \xe2\x80\x9c[t]he actual spending of money; an\noutlay.\xe2\x80\x9d Government Accountability Office, A Glossary of Terms Used\nin the Federal Budget Process 48 (2005) (\xe2\x80\x9cGAO Glossary\xe2\x80\x9d); see also\n1 GAO Redbook at 5-3 (\xe2\x80\x9cThe expenditure is the disbursement of funds to\npay the obligation.\xe2\x80\x9d). And an opinion by the Comptroller General suggests that the word \xe2\x80\x9cexpenditure\xe2\x80\x9d in the Anti-Deficiency Act prohibits an\nagency from making a payment to satisfy a contractual obligation if a\nstatutory or regulatory funding limitation would thereby be exceeded. See\nIn re Currency Exchange Rate Fluctuations, 58 Comp. Gen. 46 (1978).\nBy contrast, as we have noted, the term Congress elected to employ in\nsection 163, \xe2\x80\x9cprovided to,\xe2\x80\x9d has no clearly defined meaning in appropriations law. See, e.g., GAO Glossary (containing no definition of \xe2\x80\x9cprovision\xe2\x80\x9d or \xe2\x80\x9cprovide\xe2\x80\x9d). Moreover, appropriations case law and reference\nmaterials we have consulted, including the GAO Redbook, do not shed\nlight on whether \xe2\x80\x9cprovided to\xe2\x80\x9d in section 163 should be understood to\nprohibit a federal agency from making payments to satisfy pre-existing\ncontractual obligations.\nTo be sure, some common definitions of \xe2\x80\x9cprovide,\xe2\x80\x9d such as \xe2\x80\x9csupply\xe2\x80\x9d or\n\xe2\x80\x9cfurnish,\xe2\x80\x9d American Heritage Dictionary 1411 (4th ed. 2006), would\nappear to describe any transfer of funds, presumably including a transfer\nin satisfaction of an existing obligation. Other definitions, however,\nconnote a discretionary action. For instance, \xe2\x80\x9cprovide\xe2\x80\x9d may mean \xe2\x80\x9ccon340\n\n\x0cEffect of Spending Prohibition on Contractual Obligations to ACORN\n\ntribute,\xe2\x80\x9d Webster\xe2\x80\x99s New International Dictionary 1994 (2d ed. 1958), or\n\xe2\x80\x9cmake available,\xe2\x80\x9d American Heritage Dictionary 1411 (4th ed. 2006), and\n\xe2\x80\x9coffer\xe2\x80\x9d is among its synonyms, Roget\xe2\x80\x99s II: The New Thesaurus 780 (3d\ned. 1995). And in common parlance, the verb \xe2\x80\x9cprovide\xe2\x80\x9d frequently describes discretionary action taken to benefit another. Moreover, several of\nthe word\xe2\x80\x99s definitions incorporate a forward-looking aspect, see, e.g.,\nWebster\xe2\x80\x99s New International Dictionary 1994 (2d ed. 1958) (\xe2\x80\x9cto look out\nfor in advance\xe2\x80\x9d; \xe2\x80\x9cto prepare\xe2\x80\x9d); Black\xe2\x80\x99s Law Dictionary 1224 (6th ed.\n1990) (\xe2\x80\x9c[t]o make, procure, or furnish for future use, prepare\xe2\x80\x9d), consistent\nwith the etymology of \xe2\x80\x9cprovide,\xe2\x80\x9d which derives from the Latin providere,\nmeaning to see before, foresee, or be cautious, 12 Oxford English Dictionary 713 (2d ed. 1989). Definitions of the word \xe2\x80\x9cexpend,\xe2\x80\x9d we note, do\nnot carry a similarly discretionary or forward-looking connotation, in\nkeeping with the etymology of that word, which comes from the Latin\nexpendere, meaning simply to pay or weigh. 5 id. at 561.\nAgainst this background, we find that the relevant text of section 163\nis not clear with respect to the precise question before us. Congress had\navailable to it\xe2\x80\x94and yet did not use\xe2\x80\x94appropriations language that had\npreviously been construed to prohibit payments even on pre-existing\ncontractual obligations. 2 It instead used a term that could be read to suggest a bar only on payments that result from new discretionary decisions\xe2\x80\x94including, in particular, payments made pursuant to discretionary\nchoices to incur new obligations. Accordingly, although one could read\nthe phrase \xe2\x80\x9cNone of the funds made available by this joint resolution or\nany prior Act may be provided to [ACORN], or any of its affiliates,\nsubsidiaries, or allied organizations\xe2\x80\x9d categorically to prohibit any outlay\nof money to the identified entities, including pursuant to pre-existing\ncontractual obligations, one could also read the phrase not to prohibit\npayments made pursuant to a prior binding contractual duty.\nII.\nIn light of the term Congress chose, we turn to other interpretative tools\nto resolve the question before us. The recent Supreme Court case Chero2 We do not address whether, if Congress had used the phrase \xe2\x80\x9cmay be expended\xe2\x80\x9d in\nsection 163, that phrase would necessarily prohibit payment pursuant to pre-existing legal\nobligations\xe2\x80\x94a question that might depend at least in part on extratextual considerations.\n\n341\n\n\x0c33 Op. O.L.C. 339 (2009)\n\nkee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005), is instructive. There,\ncontracts between the government and Indian tribes provided that the\ntribes would supply health services normally furnished by the government\nand that the government would in turn pay the \xe2\x80\x9ccontract support costs\xe2\x80\x9d the\ntribes incurred. The government subsequently refused to pay the full\ncontract support costs because, it argued, Congress had not appropriated\nsufficient funds. Part of the government\xe2\x80\x99s argument rested on a laterenacted statute that stated: \xe2\x80\x9cNotwithstanding any other provision of law\n[the] amounts appropriated to or earmarked in committee reports for the\n. . . Indian Health Service . . . for payments to tribes . . . for contract\nsupport costs . . . are the total amounts available for fiscal years 1994\nthrough 1998 for such purposes.\xe2\x80\x9d Id. at 645 (quoting section 314 of the\nDepartment of the Interior and Related Agencies Appropriations Act,\n1999, Pub. L. No. 105-277, 112 Stat. 2681, 2682-232, 2681-288 (1998)).\nThe Court noted that, because committee reports in 1994 through 1997\nhad earmarked funds for contract support costs, and because those funds\nhad \xe2\x80\x9clong since been spent,\xe2\x80\x9d this language was \xe2\x80\x9copen to the interpretation\nthat it retroactively bars payment of claims arising under 1994 through\n1997 contracts.\xe2\x80\x9d Id. In the Court\xe2\x80\x99s view, however, the statutory language\nwas also open to a different interpretation that would simply forbid the\n\xe2\x80\x9cuse of unspent funds appropriated in prior years to pay unpaid \xe2\x80\x98contract\nsupport costs.\xe2\x80\x99\xe2\x80\x9d Id. at 646. Thus, the Court concluded:\nOn the basis of language alone we would find either interpretation\nreasonable. But there are other considerations. The first interpretation would undo a binding governmental contractual promise. A\nstatute that retroactively repudiates the Government\xe2\x80\x99s contractual\nobligation may violate the Constitution. And such an interpretation\nis disfavored. This consideration tips the balance against the retroactive interpretation.\nId. (citations omitted); see also Lynch v. United States, 292 U.S. 571, 580\n(1934) (\xe2\x80\x9cCongress was without power to reduce expenditures by abrogating contractual obligations of the United States.\xe2\x80\x9d); United States v. Winstar Corp., 518 U.S. 839, 875\xe2\x80\x9376 (1996) (plurality opinion) (\xe2\x80\x9c[I]t is clear\nthat the National Government has some capacity to make agreements\nbinding future Congresses by creating vested rights, [although the] extent\nof that capacity, to be sure, remains somewhat obscure.\xe2\x80\x9d) (citations omit342\n\n\x0cEffect of Spending Prohibition on Contractual Obligations to ACORN\n\nted); cf. Landgraf v. USI Film Prods., 511 U.S. 244, 271 (1994) (\xe2\x80\x9cThe\nlargest category of cases in which we have applied the presumption\nagainst statutory retroactivity has involved new provisions affecting\ncontractual or property rights, matters in which predictability and stability\nare of prime importance.\xe2\x80\x9d).\nReading section 163 to prohibit payments to ACORN or its affiliates,\nsubsidiaries, or allied organizations to satisfy a binding contractual obligation undertaken before enactment of section 163 would \xe2\x80\x9cundo a binding\ngovernmental contractual promise.\xe2\x80\x9d Cherokee Nation, 543 U.S. at 646. In\naccord with Cherokee Nation, the better reading of the section is therefore\nthat it does not prohibit such payments. This reading of \xe2\x80\x9cprovided to\xe2\x80\x9d is\nespecially appropriate here because, consistent with the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast\nBldg. & Constr. Trades Council, 483 U.S. 568, 575 (1988), it not only\navoids abrogating binding governmental contractual promises but also\navoids the particular constitutional concerns that may be presented by\nreading the statute, which applies to specific named entities, to abrogate\nsuch contracts, including even in cases where performance has already\nbeen completed but payment has not been rendered. 3\nSee, e.g., United States v. Lovett, 328 U.S. 303, 315 (1946) (\xe2\x80\x9c[L]egislative acts, no\nmatter what their form, that apply either to named individuals or to easily ascertainable\nmembers of a group in such a way as to inflict punishment on them without a judicial trial\nare bills of attainder prohibited by the Constitution.\xe2\x80\x9d); Selective Serv. Sys. v. Minn. Pub.\nInterest Research Group, 468 U.S. 841, 853 (1984) (stating that a particular provision\nimposed \xe2\x80\x9cnone of the burdens historically associated with punishment\xe2\x80\x9d because \xe2\x80\x9c\xe2\x80\x98the\nsanction is the mere denial of a noncontractual governmental benefit\xe2\x80\x99\xe2\x80\x9d) (emphasis added)\n(quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)); Nixon v. Adm\xe2\x80\x99r of Gen. Servs.,\n433 U.S. 425, 475\xe2\x80\x9376 (1977) (\xe2\x80\x9c[O]ur inquiry is not ended by the determination that the\nAct imposes no punishment traditionally judged to be prohibited by the Bill of Attainder\nClause. Our treatment of the scope of the Clause has never precluded the possibility that\nnew burdens and deprivations might be legislatively fashioned that are inconsistent with\nthe bill of attainder guarantee. The Court, therefore, often has looked beyond mere\nhistorical experience and has applied a functional test of the existence of punishment,\nanalyzing whether the law under challenge, viewed in terms of the type and severity of\nburdens imposed, reasonably can be said to further nonpunitive legislative purposes.\xe2\x80\x9d);\nsee also Consol. Edison Co. v. Pataki, 292 F.3d 338, 346\xe2\x80\x9349 (2d Cir. 2002) (applying the\nBill of Attainder Clause to a bill that arguably singled out a corporation); cf. Kenneth R.\nThomas, Cong. Research Serv., The Proposed \xe2\x80\x9cDefund ACORN Act\xe2\x80\x9d: Is it a \xe2\x80\x9cBill of\nAttainder?\xe2\x80\x9d (2009) (considering an earlier bill that would have, inter alia, prohibited the\naward of federal contracts or the provision of federal funds to a \xe2\x80\x9ccovered organization,\xe2\x80\x9d\n3\n\n343\n\n\x0c33 Op. O.L.C. 339 (2009)\n\nIII.\nIn sum, section 163 should not be read as directing or authorizing HUD\nto breach a pre-existing binding contractual obligation to make payments\nto ACORN or its affiliates, subsidiaries, or allied organizations where\ndoing so would give rise to contractual liability.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\nwith \xe2\x80\x9corganization\xe2\x80\x9d expressly defined as including ACORN and its affiliates, and concluding that \xe2\x80\x9ca court may have a sufficient basis to overcome the presumption of constitutionality, and find that the proposed [bill] violates the prohibition against bills of attainder\xe2\x80\x9d).\n\n344\n\n\x0c'


b'Constitutionality of the D.C. Voting Rights Act of 2007\nS. 1257, a bill to grant the District of Columbia representation in the House of Representatives as well\nas to provide an additional House seat for Utah, violates the Constitution\xe2\x80\x99s provisions governing the\ncomposition and election of the United States Congress.\n\nMay 23, 2007\n\nTESTIMONY BEFORE THE SUBCOMMITTEE ON THE\nCONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS\nOF THE SENATE COMMITTEE ON THE JUDICIARY\nThank you for the opportunity to discuss the Department\xe2\x80\x99s views on S. 1257, a\nbill to grant the District of Columbia representation in the House of Representatives as well as to provide an additional House seat for Utah. For the same reasons\nstated in the Statement of Administration Policy on the House version of this\nlegislation, the Administration concludes that S. 1257 violates the Constitution\xe2\x80\x99s\nprovisions governing the composition and election of the United States Congress.\nAccordingly, if S. 1257 were presented to the President, his senior advisors would\nrecommend that he veto the bill. I will confine my testimony to the constitutional\nissues posed by the legislation.\nThe Department\xe2\x80\x99s constitutional position on the legislation is straightforward\nand is dictated by the unambiguous text of the Constitution as understood and\napplied for over 200 years. Article I, Section 2 of the Constitution provides:\nThe House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the\nElectors in each State shall have the Qualifications requisite for\nElectors of the most numerous branch of the State Legislature.\n(Emphases added.)\nThis language, together with the language of eleven other explicit constitutional\nprovisions, including the Twenty-Third Amendment ratified in 1961, 1 \xe2\x80\x9cmakes\nclear just how deeply Congressional representation is tied to the structure of\nstatehood.\xe2\x80\x9d 2 The District of Columbia is not a state. In the absence of a constitutional amendment, therefore, the explicit provisions of the Constitution do not\npermit Congress to grant congressional representation to the District through\nlegislation.\n\n1\n\nE.g., U.S. Const. art. I, \xc2\xa7\xc2\xa7 2\xe2\x80\x934; art. II, \xc2\xa7 1, cl. 2; amend. XIV, \xc2\xa7 2; amend. XVII; amend. XXIII,\n\n2\n\nAdams v. Clinton, 90 F. Supp. 2d 35, 47 (D.D.C.) (per curiam), aff\xe2\x80\x99d, 531 U.S. 941 (2000).\n\n\xc2\xa7 1.\n\n147\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nShortly after the Constitution was ratified, the District of Columbia was established as the seat of government of the United States in accordance with Article I,\nSection 8, Clause 17 of the Constitution. The Framers deliberately placed the\ncapital in a federal enclave that was not itself a state to ensure that the federal\ngovernment had the ability to protect itself from potentially hostile state forces.\nThe Framers also gave Congress \xe2\x80\x9cexclusive\xe2\x80\x9d authority to enact legislation for the\ninternal governance of the enclave to be chosen as the seat of government\xe2\x80\x94the\nsame authority Congress wields over the many other federal enclaves ceded by the\nstates.\nBeginning even before the District of Columbia was established as the seat of\ngovernment, and continuing to today, there have been determined efforts to obtain\ncongressional representation for the District. Apart from the various unsuccessful\nattempts to secure such representation through litigation, such efforts have\nconsistently recognized that, because the District is not a state, a constitutional\namendment is necessary for it to obtain congressional representation. S. 1257\nrepresents a departure from that settled constitutional and historical understanding,\nwhich has long been recognized and accepted by even ardent proponents of\nDistrict representation.\nOne of the earliest attempts to secure congressional representation for the seat\nof government was made by no less a constitutional authority than Alexander\nHamilton at the pivotal New York ratifying convention. Recognizing that the\nproposed Constitution did not provide congressional representation for those who\nwould reside in the seat of government, Hamilton offered an amendment to the\nEnclave Clause that would have provided:\nThat When the Number of Persons in the District of Territory to be\nlaid out for the Seat of the Government of the United States, shall\naccording to the Rule for the Apportionment of Representatives and\nDirect Taxes Amount to [left blank] such District shall cease to be\nparcel of the State granting the Same, and Provision shall be made\nby Congress for their having a District Representation in that Body. 3\nHamilton\xe2\x80\x99s proposed amendment was rejected. Other historical materials further\nconfirm the contemporary understanding that the Constitution did not contemplate\ncongressional representation for the District and that a constitutional amendment\nwould be necessary to make such provision. 4 These historical facts refute the\n\n3\n\n5 The Papers of Alexander Hamilton 189\xe2\x80\x9390 (Harold C. Syrett ed., 1962) (emphasis added).\nSee 10 Annals of Cong. 991, 998\xe2\x80\x9399 (1801) (remarks of Rep. John Dennis of Maryland) (stating\nthat because of District residents\xe2\x80\x99 \xe2\x80\x9ccontiguity to, and residence among the members of [Congress],\xe2\x80\x9d\nthat \xe2\x80\x9cthough they might not be represented in the national body, their voice would be heard. But if it\nshould be necessary [that they be represented], the Constitution might be so altered as to give them a\ndelegate to the General Legislature when their numbers should become sufficient\xe2\x80\x9d); see also 5 The\n4\n\n148\n\n\x0cConstitutionality of the D.C. Voting Rights Act of 2007\n\ncontention by proponents of S. 1257 that the Framers simply did not consider the\nlack of congressional representation and, if they had considered it, that they would\nhave provided such representation. In fact, Framers and ratifiers did consider the\nquestion and rejected a proposal for such representation.\nIn more recent years, major efforts to provide congressional representation for\nthe District were pursued in Congress in the 1960s and 1970s, but on each\noccasion Congress expressly recognized that obtaining such representation would\nrequire either statehood or a constitutional amendment. For example, when the\nHouse Judiciary Committee favorably recommended a constitutional amendment\nfor District representation in 1967, it stated as follows:\nIf the citizens of the District are to have voting representation in the\nCongress, a constitutional amendment is essential; statutory action\nalone will not suffice. This is the case because provisions for elections of Senators and Representatives in the Constitution are stated in\nterms of the States, and the District of Columbia is not a State. 5\nCongress again considered the District representation issue in 1975, and the House\nJudiciary Committee again expressly acknowledged that, \xe2\x80\x9c[i]f the citizens of the\nDistrict are to have voting representation in Congress, a constitutional amendment\nis essential; statutory action will not suffice.\xe2\x80\x9d 6\nOf course, the courts have not directly reviewed the constitutionality of a statute purporting to grant the District representation because, for the reasons so\nforcefully reiterated by the House Judiciary Committee, Congress has not\npreviously considered such legislation constitutionally permissible. But numerous\nfederal courts have emphatically concluded that the existing Constitution does not\npermit the provision of congressional representation for the District. In Adams v.\nClinton, a three-judge court stated, in a decision affirmed by the Supreme Court,\nthat \xe2\x80\x9cthe Constitution does not contemplate that the District may serve as a state\nfor purposes of the apportionment of congressional representatives\xe2\x80\x9d and stressed\nthat Article I \xe2\x80\x9cmakes clear just how deeply Congressional representation is tied to\nthe structure of statehood.\xe2\x80\x9d 90 F. Supp. 2d 35, 46\xe2\x80\x9347, 50 (D.D.C.) (per curiam),\naff\xe2\x80\x99d, 531 U.S. 941 (2000); see generally S. Ry. Co. v. Seaboard Allied Milling\nCorp., 442 U.S. 444, 462 (1979) (stating that summary affirmance is a precedenDocumentary History of the Ratification of the Constitution 621 (John P. Kaminski & Gaspare J.\nSaladino eds., 1998) (statement by Samuel Osgood, a delegate to the Massachusetts ratifying\nconvention, that he could accept the seat of government provision only if it were amended to provide\nthat the District be \xe2\x80\x9crepresented in the lower House,\xe2\x80\x9d though no such amendment was ultimately\nincluded in the amendments recommended by the Massachusetts convention).\n5\nProviding Representation of the District of Columbia in Congress, H.R. Rep. No. 90-819, at 4\n(1967) (emphasis added).\n6\nProviding Representation of the District of Columbia in Congress, H.R. Rep. No. 94-714, at 4\n(1975).\n\n149\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntial ruling on the merits). In Banner v. United States, a panel of the D.C. Circuit\nthat included Chief Justice John Roberts flatly concluded: \xe2\x80\x9cThe Constitution\ndenies District residents voting representation in Congress. . . . Congress is the\nDistrict\xe2\x80\x99s Government, see U.S. Const. art. I, \xc2\xa7 8, cl. 17, and the fact that District\nresidents do not have congressional representation does not alter that constitutional\nreality.\xe2\x80\x9d 428 F.3d 303, 309 (D.C. Cir. 2005) (per curiam). 7 The court added: \xe2\x80\x9cIt is\nbeyond question that the Constitution grants Congress exclusive authority to\ngovern the District, but does not provide for District representation in Congress.\xe2\x80\x9d\nId. at 312. And in explaining why the Constitution does not permit the District\xe2\x80\x99s\ndelegate in Congress to have the voting power of a representative in Michel v.\nAnderson, 817 F. Supp. 126 (D.D.C. 1993), the court stressed that the legislative\npower \xe2\x80\x9cis constitutionally limited to \xe2\x80\x98Members chosen . . . by the People of the\nseveral States.\xe2\x80\x99 U.S. Const. art. I, \xc2\xa7 [2], cl. 1.\xe2\x80\x9d Id. at 140.\nThe numerous explicit provisions of the constitutional text; the consistent construction of those provisions throughout the course of American history by courts,\nCongress, and the Executive; 8 and the historical evidence of the Framers\xe2\x80\x99 and\nratifiers\xe2\x80\x99 intent in adopting the Constitution conclusively demonstrate that the\nConstitution does not permit the granting of congressional representation to the\nDistrict by simple legislation.\nWe are aware of, and not persuaded by, the recent and novel claim that this\nlegislation should be viewed as a constitutional exercise of Congress\xe2\x80\x99s authority\nunder the Enclave Clause, U.S. Const. art. I, \xc2\xa7 8, cl. 17, to \xe2\x80\x9cexercise exclusive\nlegislation\xe2\x80\x9d over the seat of government and other federal enclaves. That theory is\ninsupportable. First, it is incompatible with the plain language of the many\nprovisions of the Constitution that, unlike the Enclave Clause, are directly and\nspecifically concerned with the composition, election, and very nature of the\nHouse of Representatives and the Congress. Those provisions were the very\nlinchpin of the Constitution, because it was only by reconciling the conflicting\nwishes of the large and small states as to representation in Congress that the Great\nCompromise that enabled the Constitution\xe2\x80\x99s ratification was made possible.\n\n7\nJudge Roberts was a member of the D.C. Circuit when Banner was briefed and argued, but was\nserving as Chief Justice when the opinion issued. See Banner, 428 F.3d at 304\xe2\x80\x9305 n.1.\n8\nSee, e.g., Letter for Mr. Benjamin Zelenko, Committee on the Judiciary, House of Representatives, from Martin F. Richman, Acting Assistant Attorney General, Office of Legal Counsel (Aug. 11,\n1967) (expressing the view that \xe2\x80\x9ca constitutional amendment is essential\xe2\x80\x9d for the District to obtain\nvoting representation in Congress in the recommendations for the Committee Report on a proposed\nconstitutional amendment); District of Columbia Representation in Congress: Hearings on S.J. Res. 65\nBefore the Subcomm. on the Constitution of the Comm. on the Judiciary, 95th Cong. 16\xe2\x80\x9329 (1978)\n(statement of John M. Harmon, Assistant Attorney General, Office of Legal Counsel). In endorsing a\nconstitutional amendment as the means of obtaining congressional representation for the District, Mr.\nHarmon discussed the alternative ways of obtaining such representation, particularly the option of\nstatehood legislation. Conspicuous by its absence was any suggestion that such representation could be\nprovided through legislation granting the District a seat.\n\n150\n\n\x0cConstitutionality of the D.C. Voting Rights Act of 2007\n\nConsequently, every word of Article I\xe2\x80\x99s provisions concerning the composition\nand election of the House and the Senate\xe2\x80\x94and particularly the words repeatedly\nlinking congressional representation to \xe2\x80\x9ceach State\xe2\x80\x9d or \xe2\x80\x9cthe People of the several\nStates\xe2\x80\x9d\xe2\x80\x94was carefully chosen. In contrast, the Enclave Clause has nothing to do\nwith the composition, qualifications, or election of members of Congress. Its\nprovision for \xe2\x80\x9cexclusive legislation\xe2\x80\x9d concerns legislation respecting the internal\noperation of \xe2\x80\x9csuch District\xe2\x80\x9d and other enclaves. The Enclave Clause gives\nCongress extensive legislative authority \xe2\x80\x9cover such District,\xe2\x80\x9d but that authority\nplainly does not extend to legislation affecting the entire nation. S. 1257 would\nalter the very nature of the House of Representatives. By no reasonable construction can the narrowly focused provisions of the Enclave Clause be construed to\ngive Congress such sweeping authority.\nSecond, whatever power Congress has under the Enclave Clause is limited by\nthe other provisions of the Constitution. As stated by the Supreme Court in Binns\nv. United States, 194 U.S. 486 (1904), the Enclave Clause gives Congress plenary\npower over the District \xe2\x80\x9csave as controlled by the provisions of the Constitution.\xe2\x80\x9d\nId. at 491. As the Supreme Court has further explained, the Clause gives Congress\nlegislative authority over the District and other enclaves \xe2\x80\x9cin all cases where\nlegislation is possible.\xe2\x80\x9d 9 The composition, election, and qualifications of members\nof the House are expressly and specifically governed by other provisions of the\nConstitution that tie congressional representation to statehood. The Enclave Clause\ngives Congress no authority to deviate from those core constitutional provisions.\nThird, the notion that the Enclave Clause authorized legislation establishing\ncongressional representation for the seat of government is contrary to the contemporary understanding of the Framers and the consistent historical practice of\nCongress. As I mentioned earlier, the amendment unsuccessfully offered by\nAlexander Hamilton at the New York ratifying convention to authorize such\nrepresentation when the seat of government\xe2\x80\x99s population reached a certain level\npersuasively demonstrates that the Framers did not read the Enclave Clause to\nauthorize or contemplate such representation. Other contemporaneous historical\nevidence reinforces that understanding. See supra note 4. Moreover, Congress\xe2\x80\x99s\nconsistent recognition in practice that constitutional amendments were necessary\nnot only to provide congressional representation for the District, but also to grant it\nelectoral votes for President and Vice President under the Twenty-Third Amendment, belies the notion that the Enclave Clause has all along authorized the\nachievement of such measures through simple legislation. Given the enthusiastic\nsupport for such measures by their congressional proponents, it is simply implausible that Congress would not previously have discovered and utilized that\nauthority as a means of avoiding the enormous difficulties of constitutional\namendment.\n9\n\nO\xe2\x80\x99Donoghue v. United States, 289 U.S. 516, 539 (1993) (citation omitted).\n\n151\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nFourth, the proponents\xe2\x80\x99 interpretation of the Enclave Clause proves far too\nmuch; the consequences that would necessarily flow from acceptance of that\ntheory demonstrate its implausibility. As the Supreme Court has recognized, \xe2\x80\x9c[t]he\npower of Congress over federal enclaves that come within the scope of Art. I, \xc2\xa7 8,\ncl. 17, is obviously the same as the power of Congress over the District of\nColumbia.\xe2\x80\x9d 10 It follows that if Congress has constitutional authority to provide\ncongressional representation for the District under the Enclave Clause, it has the\nsame authority for the other numerous federal enclaves (such as various military\nbases and assorted federal lands ceded by the states). But that is not all. The\nSupreme Court has also recognized that Congress\xe2\x80\x99s authority to legislate respecting the U.S. territories under the Territories Clause, U.S. Const. art. IV, \xc2\xa7 3, cl. 2,\nis equivalent to its \xe2\x80\x9cexclusive legislation\xe2\x80\x9d authority under the Enclave Clause. See,\ne.g., Binns, 194 U.S. at 488. If the general language of the Enclave Clause\nprovides authority to depart from the congressional representational provisions of\nArticle I, it is not apparent why similar authority does not reside in the Territories\nClause, which would enable Congress to enact legislation authorizing congressional representation for Puerto Rico, the Virgin Islands, and other territories.\nThese unavoidable corollaries of the theory underlying S. 1257 demonstrate its\ninvalidity. Given the great care with which the Framers provided for state-based\ncongressional representation in the Composition Clause and related provisions, it\nis implausible to suggest that they would have simultaneously provided for the\nsubversion of those very provisions by giving Congress carte blanche to create an\nindefinite number of additional seats under the Enclave Clause.\nFinally, we note that the bill\xe2\x80\x99s proponents conspicuously fail to address another\nlogical consequence that flows from the Enclave Clause theory: If Congress may\ngrant the District representation in the House by virtue of its purportedly expansive authority to legislate to further the District\xe2\x80\x99s general welfare, it follows\nlogically that it could use the same authority to grant the District (and other\nenclaves and territories) two Senators as well.\nAt bottom, the theory that underlies S. 1257 rests on the premise that the Framers drafted a Constitution that left the door open for the creation of an indefinite\nnumber of congressional seats that would have fatally undermined the carefully\ncrafted representation provisions that were the linchpin of the Constitution. Such a\npremise is contradicted by the historical and constitutional record.\nThe clear and carefully phrased provisions for state-based congressional representation constitute the very bedrock of our Constitution. Those provisions have\nstood the test of time in providing a strong and stable basis for the preservation of\nconstitutional democracy and the rule of law. If enacted, S. 1257 would undermine\nthe integrity of those critical provisions and open the door to further deviations\n\n10\n\nPaul v. United States, 371 U.S. 245, 263\xe2\x80\x9364 (1963).\n\n152\n\n\x0cConstitutionality of the D.C. Voting Rights Act of 2007\n\nfrom the successful framework that is our constitutional heritage. If the District is\nto be accorded congressional representation without statehood, it must be accomplished through a process that is consistent with our constitutional scheme, such as\namendment as provided by Article V of the Constitution.\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n153\n\n\x0c'


b'Scope of the Attorney General\xe2\x80\x99s Authority to Assign\nDuties Under 21 U.S.C. \xc2\xa7 878(a)(5)\nUnder 21 U.S.C. \xc2\xa7 878(a)(5), the Attorney General may authorize the Drug Enforcement Administration to investigate possible violations of federal law, even if those violations do not concern the\nnarcotics laws.\n\nMarch 24, 2003\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nThis memorandum will confirm our oral advice that, under 21 U.S.C.\n\xc2\xa7 878(a)(5) (2000), the Attorney General may authorize the Drug Enforcement\nAdministration (\xe2\x80\x9cDEA\xe2\x80\x9d) to investigate possible violations of federal criminal law,\nwhether or not they arise from investigations of possible narcotics violations.\nReaching this conclusion, we disavow an earlier opinion in which our Office\narrived at the contrary result. Memorandum for George W. Calhoun, Senior\nCounsel, Office of the Associate Attorney General, from Douglas W. Kmiec,\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of\nState and Local Law Enforcement Officers Under 21 U.S.C. 878 (June 29, 1988)\n(\xe2\x80\x9c1988 Opinion\xe2\x80\x9d).\nUnder 21 U.S.C. \xc2\xa7 878(a), the Attorney General may authorize any officer or\nemployee of the DEA or any state or local law enforcement officer to undertake\nthe following activities:\n(1) carry firearms;\n(2) execute and serve search warrants, arrest warrants, administrative\ninspection warrants, subpoenas, and summonses issued under the authority of the United States;\n(3) make arrests without warrant (A) for any offense against the\nUnited States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause\nto believe that the person to be arrested has committed or is committing a felony;\n(4) make seizures of property pursuant to the provisions of this subchapter; and\n(5) perform such other law enforcement duties as the Attorney General may designate.\nUnder the general delegation of the Attorney General\xe2\x80\x99s powers in 28 C.F.R. \xc2\xa7 0.15\n(2002), you may exercise the Attorney General\xe2\x80\x99s authority under subsection (a)(5)\n\n87\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nto enable the DEA to \xe2\x80\x9cperform such other law enforcement duties as the Attorney\nGeneral may designate.\xe2\x80\x9d The DEA asked you to approve its participation in the\ninvestigation of possible federal crimes relating to a series of killings by a sniper\nin the Washington, D.C., metropolitan area.\nOur 1988 Opinion concluded that \xe2\x80\x9csection 878(a)(5) pertains to general law\nenforcement work which, while not limited to the investigation of the drug laws,\nnevertheless arises from or is supplementary to it.\xe2\x80\x9d 1988 Opinion at 3; see also\nMemorandum for Arnold I. Burns, Deputy Attorney General, from Charles J.\nCooper, Assistant Attorney General, Office of Legal Counsel, Re: Federal Bureau\nof Investigation (FBI) Authority to Deputize State and Local Law Enforcement\nOfficers in Drug Enforcement Investigations (July 24, 1987) (section 878 enables\nthe DEA officers and employees and state and local law enforcement officers to\n\xe2\x80\x9cperform other law enforcement duties in controlled substance investigations as\ndetermined by the Attorney General\xe2\x80\x9d). We based this conclusion on the \xe2\x80\x9cplacement [of section 878] within the Comprehensive Drug Abuse Prevention and\nControl Act.\xe2\x80\x9d Id. We also argued that the legislative history of the provision \xe2\x80\x9cis\nnot inconsistent with this conclusion.\xe2\x80\x9d Id. Although the 1988 Opinion directly\naddressed the Attorney General\xe2\x80\x99s conferring authority on state and local law\nenforcement officials, its reasoning was equally applicable to grants of authority to\nthe DEA; and indeed the 1988 Opinion cited, in support of its conclusion, \xe2\x80\x9cthe\nestablished principle that a federal agency is precluded from using appropriated\nfunds to finance activities that lie outside of that agency\xe2\x80\x99s statutory purpose.\xe2\x80\x9d Id.\nat 3 n.3 (emphasis added; citation omitted). Here, because the sniper investigation\nhas no known link to any drug offense, the 1988 Opinion would preclude authorizing the DEA\xe2\x80\x99s participation under section 878.1\nSection 878(a)(5) permits the Attorney General to assign the DEA \xe2\x80\x9csuch other\nlaw enforcement duties as the Attorney General may designate.\xe2\x80\x9d By its terms, the\nprovision does not limit these \xe2\x80\x9claw enforcement duties\xe2\x80\x9d to narcotics cases, and\n\xe2\x80\x9c[a]bsent a clearly expressed legislative intention to the contrary, [the] language\n[of the statute] must ordinarily be regarded as conclusive.\xe2\x80\x9d See Consumer Prod.\nSafety Comm\xe2\x80\x99n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). In its breadth,\nsubsection (a)(5) contrasts with subsection (a)(4), which specifically refers to\nnarcotics offenses by stating that the Attorney General may authorize officials to\n\xe2\x80\x9cmake seizures of property pursuant to the provisions of this subchapter.\xe2\x80\x9d It\ncontrasts, too, with various other provisions of the same subchapter. See 21 U.S.C.\n\xc2\xa7\xc2\xa7 871(a) (2000) (delegation of any \xe2\x80\x9cfunctions under this subchapter\xe2\x80\x9d); 871(b)\n(authority to issue rules \xe2\x80\x9cfor the efficient execution of [the Attorney General\xe2\x80\x99s]\nfunctions under this subchapter\xe2\x80\x9d); 871(c) (acceptance of gifts \xe2\x80\x9cfor the purpose of\n\n1\n\nWe do not address whether another means might be available to enable the DEA to participate in\nthe investigation, see 28 U.S.C. \xc2\xa7\xc2\xa7 509 and 510 (2000), and what consequences, under appropriations\nlaw, would follow from the use of such other means.\n\n88\n\n\x0cAttorney General\xe2\x80\x99s Authority to Assign Duties Under 21 U.S.C. \xc2\xa7 878(a)(5)\n\npreventing or controlling the abuse of controlled substances\xe2\x80\x9d); 872(a) (2000)\n(educational and research programs relating to laws concerning drugs). \xe2\x80\x9c\xe2\x80\x98[W]here\nCongress includes particular language in one section of a statute but omits it in\nanother section of the same Act, it is generally presumed that Congress acts\nintentionally and purposely in the disparate inclusion or exclusion.\xe2\x80\x99\xe2\x80\x9d Russello v.\nUnited States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472\nF.2d 720, 722 (5th Cir. 1972)). The language of section 878(a)(5) thus gives no\nwarrant for restricting the provision to the investigation of offenses connected with\nnarcotics cases.\nThe legislative history, moreover, confirms what the words of the statute say.\nAccording to the House Report, subsection (a)(5) \xe2\x80\x9cis not aimed at any particular\nfunction, but provides the Attorney General with flexibility in the utilization of\nenforcement personnel wherever and whenever the need arises.\xe2\x80\x9d H. Rep. No. 911444, pt. I, at 53\xe2\x80\x9354 (1970). The Senate Report uses similar language, although\nomitting the phrase \xe2\x80\x9cwherever and whenever the need arises.\xe2\x80\x9d S. Rep. No. 91-613,\nat 30 (1969). The legislative intent was thus to give the Attorney General broad\nflexibility, without regard to the \xe2\x80\x9cparticular function\xe2\x80\x9d to be performed.\nIn 1988, we relied on the \xe2\x80\x9cinclusion of subsection (a)(5) in the Comprehensive\nDrug Abuse Prevention and Control Act\xe2\x80\x9d to arrive at the conclusion that the\nprovision allows the Attorney General to confer additional powers only in\nconnection with narcotics cases. 1988 Opinion at 3. Whatever weight the inclusion\nof the provision in that statute would deserve if the statutory language were\nunclear, the clear statutory language dictates the result we reach. In 1988, we also\ndismissed the legislative history, by arguing that \xe2\x80\x9cthere is no indication in the\n[House Committee] report that Congress intended section 878(a)(5) to give the\nAttorney General authority to use state and local law enforcement personnel [the\nsubject of that opinion] for needs which did not arise in the course of a Title 21\ndrug investigation.\xe2\x80\x9d 1988 Opinion at 3. By the same token, however, the legislative history in no way suggests any limitation to investigations under title 21 but\ninstead uses language that is far more general: the authority to be conferred is \xe2\x80\x9cnot\naimed at any particular function,\xe2\x80\x9d is intended to give the Attorney General\n\xe2\x80\x9cflexibility,\xe2\x80\x9d and (according to the House Report) enables the Attorney General to\nuse law enforcement personnel \xe2\x80\x9cwherever and whenever the need arises.\xe2\x80\x9d The\nlegislative history, accordingly, squares with and reinforces the statutory language.2\n\n2\nAt the same time Congress enacted section 878(a)(5), it broadened the existing arrest authority of\nDEA agents, so that they could make arrests for any offenses against the United States, not just for drug\noffenses. 21 U.S.C. \xc2\xa7 878(a)(3); see H. Rep. No. 91-1444, pt. I, at 53. The reasoning of the 1988\nOpinion would appear to limit this authority to arrests arising from offenses connected with narcotics\ncases. Our reasoning here, however, entails the conclusion that subsection (a)(3) is not so restricted.\n\n89\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nWe therefore believe that, under 21 U.S.C. \xc2\xa7 878(a)(5), the Attorney General\nmay authorize the DEA to investigate federal crimes that are unconnected to\nnarcotics cases.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n90\n\n\x0c'


b'Removal of the Assistant Secretary of Commerce\nby the Appointment of a Successor\nThe removal from office of the Assistant Secretary of Commerce can be properly effected merely by\nthe appointment of a successor by the President with the advice and consent of the Senate.\n\nJune 10, 1935\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nIn accordance with your request I have considered the question whether the\nremoval from office of Assistant Secretary of Commerce Mitchell can be effected\nby the appointment by the President of his successor and confirmation of the\nappointment by the Senate.\nIt appears that Mr. Mitchell was appointed to the office of Assistant Secretary\nof Commerce by the President by and with the advice and consent of the Senate\npursuant to section 8 of the Act of May 20, 1926, Pub. L. No. 69-254, 44 Stat.\n568, 573. This section in no wise restricts the authority of the President to remove\nan incumbent from such office. It is understood that the resignation of Mr.\nMitchell has been requested but that he has declined to resign, and that the\nPresident desires, if it can legally be done, to remove him from office merely by\nthe appointment of his successor.\nThe question involved was considered by the Supreme Court of the United\nStates in Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839). That case involved the\nvalidity of the appointment of a clerk of the District Court of the United States for\nthe Eastern District of Louisiana by the Judge of the District Court. While Hennen\nwas serving as clerk of that Court, to which office he had been duly appointed, the\njudge of the district court executed and delivered to John Winthrop a commission\nappointing him as clerk. Proceedings in mandamus were brought to require the\njudge to restore Hennen to the office. Discussing the effect of the appointment of\nHennen\xe2\x80\x99s successor, the Court said:\nThe law giving the District Courts the power of appointing their\nown Clerks, does not prescribe any form in which this shall be done.\nThe petitioner alleges that he has heard and believes that Judge Lawrence did, on the 18th day of May, 1838, execute and deliver to John\nWinthrop, a commission or appointment as clerk of the District\nCourt for the eastern district of Louisiana, and that he entered upon\nthe duties of the office, and was recognised by the judge as the only\nlegal clerk of the District Court. And in addition to this, notice was\ngiven by the judge to the petitioner, of his removal from the office of\nclerk, and the appointment of Winthrop in his place; all of which was\namply sufficient, if the office was held at the discretion of the Court,\nThe power vested in the Court was a continuing power; and the mere\n\n28\n\n\x0cRemoval of the Assistant Secretary of Commerce by the Appointment of a Successor\n\nappointment of a successor would, per se, be a removal of the prior\nincumbent, so far at least as his rights were concerned. How far the\nrights of third persons may be affected is unnecessary now to consider. There could not be two clerks at the same time. The offices\nwould be inconsistent with each other, and could not stand together.\nId. at 261.\nThe Hennen case is cited with approval in Blake v. United States, 103 U.S. (13\nOtto) 227 (1880). In that case suit was instituted in the Court of Claims by Blake\nto recover the amount alleged to be due him by way of salary as post-chaplain in\nthe Army from April 28, 1869, to May 14, 1878. On December 24, 1868, Blake\nwrote a letter of complaint which was treated by the Secretary of War as a\nresignation from office. His successor was appointed by the President and the\nappointment was confirmed by the Senate. Blake contended that at the time his\nletter was addressed to the Secretary of War he was insane to the extent that he\nwas irresponsible for his acts, and consequently that his supposed resignation was\ninoperative and did not have the effect of vacating the office. The question passed\nupon by the Court was: \xe2\x80\x9cDid the appointment of Gilmore, by and with the advice\nand consent of the Senate, to the post-chaplaincy held by Blake, operate, proprio\nvigore, to discharge the latter from the service, and invest the former with the\nrights and privileges belonging to that office?\xe2\x80\x9d Id. at 230.\nThe Court answered the question in the affirmative, and in the course of its\nopinion stated:\nIt results that the appointment of Gilmore, with the advice and\nconsent of the Senate, to the office held by Blake, operated in law to\nsupersede the latter, who thereby, in virtue of the new appointment,\nceased to be an officer in the army from and after, at least, the date at\nwhich that appointment took effect,\xe2\x80\x94and this, without reference to\nBlake\xe2\x80\x99s mental capacity to understand what was a resignation. He\nwas, consequently, not entitled to pay as post-chaplain after July 2,\n1870, from which date his successor took rank. Having ceased to be\nan officer in the army, he could not again become a post-chaplain,\nexcept upon a new appointment, by and with the advice and consent\nof the Senate.\nId. at 237.\nThis principle is also recognized in Wallace v. United States, wherein the Court\nstates:\nWhile, thus, the validity and effect of statutory restrictions upon\nthe power of the President alone to remove officers of the Army and\nNavy and civil officers have been the subject of doubt and discussion, it is settled, McElrath v. United States, 102 U.S. 426; Blake v.\n\n29\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nUnited States, 103 U.S. 227; Keyes v. United States, 109 U.S. 336;\nMullan v. United States, 140 U.S. 240, that the President with the\nconsent of the Senate may effect the removal of an officer of the\nArmy or Navy by the appointment of another to his place, and that\nnone of the limitations in the statutes affects his power of removal\nwhen exercised by and with the consent of the Senate. Indeed the\nsame ruling has been made as to civil officers. Parsons v. United\nStates, 167 U.S. 324.\n257 U.S. 541, 545 (1922).\nThe practice of removing incumbents from office by the appointment of their\nsuccessors by the President and the confirmation of such appointments by the\nSenate has existed from an early date. In Myers v. United States, Mr. Justice\nBrandeis, in his dissenting opinion, states:\nFrom the foundation of the Government to the enactment of the\nTenure of Office Act, during the period while it remained in force,\nand from its repeal to this time, the administrative practice in respect\nto all offices has, so far as appears, been consistent with the existence in Congress of power to make removals subject to the consent\nof the Senate. The practice during the earlier period was described\nby Webster in addressing the Senate on February 16, 1835:\n\xe2\x80\x9cIf one man be Secretary of State, and another be appointed, the\nfirst goes out by the mere force of the appointment of the other,\nwithout any previous act of removal whatever. And this is the\npractice of the government, and has been, from the first. In all the\nremovals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to\nthe contrary. There is no such thing as any distinct official act of\nremoval. I have looked into the practice, and caused inquiries to\nbe made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office; and the President could only act, in such cases,\nby causing some proper record or entry to be made, as proof of\nthe fact of removal. I am aware that there have been some cases\nin which notice has been sent to persons in office that their services are, or will be, after a given day, dispensed with. These are\nusually cases in which the object is, not to inform the incumbent\nthat he is removed, but to tell him that a successor either is, or by\na day named will be, appointed.\xe2\x80\x9d 4 Works, 8th ed., 189.\n\n30\n\n\x0cRemoval of the Assistant Secretary of Commerce by the Appointment of a Successor\n\nIn 1877, President Hayes, in a communication to the Senate in response to a resolution requesting information as to whether removals\nhad been made prior to the appointment of successors, said:\n\xe2\x80\x9cIn reply I would respectfully inform the Senate that in the instances referred to removals had not been made at the time the\nnominations were sent to the Senate. The form used for such\nnominations was one found to have been in existence and heretofore used in some of the Departments, and was intended to inform\nthe Senate that if the nomination proposed were approved it\nwould operate to remove an incumbent whose name was indicated. R.B. Hayes.\xe2\x80\x9d 7 Messages and Papers of the President, 481.\nBetween 1877 and 1899, the latest date to which the records of\nthe Senate are available for examination, the practice has, with few\nexceptions, been substantially the same. It is, doubtless, because of\nthis practice, and the long settled rule recently applied in Wallace v.\nUnited States, 257 U.S. 541, 545, that this Court has not had occasion heretofore to pass upon the constitutionality of the removal\nclause.\n272 U.S. 52, 259\xe2\x80\x9361 (1926) (emphasis in original; footnotes omitted).\nIn footnote 28 of Mr. Justice Brandeis\xe2\x80\x99s dissenting opinion, it is stated:\nSince the enactment of the Tenure of Office Act various forms\nhave been used to nominate officials to succeed those whose removal is thereby sought. Examination of their use over a period of thirtytwo years indicates that no significance is to be attached to the use of\nany particular form. Thus the nomination is sometimes in the form\nA.B. vice C.D. \xe2\x80\x9cremoved\xe2\x80\x9d; sometimes it is \xe2\x80\x9cto be removed\xe2\x80\x9d; sometimes \xe2\x80\x9cremoved for cause\xe2\x80\x9d; sometimes \xe2\x80\x9cwhose removal for cause is\nhereby proposed.\xe2\x80\x9d\nId. at 259\xe2\x80\x9360.\nIn view of the foregoing, I am of the opinion that the removal of Mr. Mitchell\nfrom office can be properly effected by the appointment of his successor by the\nPresident and confirmation thereof by the Senate.\nANGUS D. MACLEAN\nAssistant Solicitor General*\n*\nEditor\xe2\x80\x99s Note: The version of this opinion in the Unpublished Opinions of the Assistant Solicitor\nGeneral contains the following postscript: \xe2\x80\x9cMr. Mitchell\xe2\x80\x99s commission contains no fixed term,\naccording to my information, but provides that he is to hold \xe2\x80\x98subject to the conditions prescribed by\nlaw.\xe2\x80\x99\xe2\x80\x94A.D.M.\xe2\x80\x9d\n\n31\n\n\x0c'