b'Authority of the President to Blockade Cuba\nUnder international law, the President may institute a blockade of Cuba as an incident to a state of war,\nand conceivably a blockade could also be justified as a necessary measure of defense.\nThe legality of the blockade could probably be tested by Cuba, by other countries, and by their\nnationals in the courts of the United States, and Cuba and other countries could raise the legality\nissue before the United Nations and the Organization of American States. It is not clear whether this\nissue could be raised before the International Court of Justice.\n\nJanuary 25, 1961\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL*\nIn response to your request, I am transmitting the attached memorandum on the\nabove-entitled subject. In view of the length of the memorandum, I believe it\nwould be helpful to summarize the conclusions reached.\nThe memorandum concludes that the President is authorized to institute a\nblockade as an incident to a state of war. However, a blockade is a belligerent act\nwhich, as a matter of international law, is ordinarily justified only if a state of war,\nlegal or de facto, exists. Conceivably a blockade could also be justified in\ncircumstances in which the blockading country can establish it to be a necessary\nmeasure of defense. Whether the necessary facts required to support such a\ncontention exist, however, is not known to me.\nThe legality of the blockade could probably be tested by Cuba, by other countries, and by their nationals in the courts of the United States. In addition, Cuba\nand other countries could raise the issue of the legality of the blockade before the\nUnited Nations and the Organization of American States. It is not clear whether\nthis issue could be raised before the International Court of Justice.\n*****\nThis is in response to your request for the views of this Office as to the President\xe2\x80\x99s authority to declare a blockade, by the naval air forces of the United States,\nof the ports and coast of Cuba. We first discuss the legal circumstances which\nhave been held to justify the imposition of a blockade, and in this connection the\nPresident\xe2\x80\x99s authority to act. Next, we consider whether under applicable principles\nof law a case may be made for a blockade of Cuba. Finally, we consider the\nquestion of the forums, both domestic and international, which may be available\nfor challenging the validity of a United States blockade of Cuba. In view of the\nway in which the question has been put to us, we have not undertaken in any\nmanner to consult with the Department of State, the expert agency in this field.\n*\nEditor\xe2\x80\x99s Note: The matter preceding the asterisks is the cover memorandum to the Attorney\nGeneral. Assistant Attorney General Kramer signed both the cover and the main memorandum.\n\n195\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nI.\nAt the outset it should be noted that both courts and commentators are agreed\nthat a blockade involves a state of war; i.e., it is the right of a belligerent alone.\nThus, in the Prize Cases, 67 U.S. (2 Black) 635 (1862), in which the Supreme\nCourt sustained the power of the President to proclaim a blockade of the ports of\nthe United States seized by the southern states in rebellion, the decision turned on\nthe question whether a state of war existed. As the Court put it: \xe2\x80\x9cLet us enquire\nwhether, at the time this blockade was instituted, a state of war existed which\nwould justify a resort to these means of subduing the hostile force.\xe2\x80\x9d Id. at 666. The\nCourt concluded that the military insurrection of the Southern States gave rise to a\nstate of war which \xe2\x80\x9c[t]he President was bound to meet . . . in the shape it presented\nitself, without waiting for Congress to baptize it with a name; and no name given\nto it by him or them could change the fact.\xe2\x80\x9d Id. at 669. On this basis, the Court\nheld that the President \xe2\x80\x9chad a right, jure belli, to institute a blockade of ports in\npossession of the States in rebellion, which neutrals are bound to regard.\xe2\x80\x9d Id. at\n671.\nOther decisions of the Supreme Court recognize the principle that blockade is\nan incident of a state of war. In McCall v. Marine Ins. Co., Justice Story, writing\nfor the Court, stated:\nThe right to blockade an enemy\xe2\x80\x99s port with a competent force, is a\nright secured to every belligerent by the law of the nations. No neutral can, after knowledge of such blockade, lawfully enter, or attempt\nto enter, the blockaded port. It would be a violation of neutral character, which, according to established usages, would subject the\nproperty engaged therein to the penalty of confiscation. In such a\ncase, therefore, the arrest and restraint of neutral ships attempting to\nenter the port, is a lawful arrest and restraint by the blockading\nsquadron.\n12 U.S. (8 Cranch) 59, 65 (1814) (emphasis in original). And in Olivera v. Union\nIns. Co., Chief Justice Marshall stated, that \xe2\x80\x9ca belligerent may lawfully blockade\nthe port of his enemy, is admitted.\xe2\x80\x9d 16 U.S. (3 Wheat.) 183, 194 (1818). A\nforthright statement was made by the Supreme Court of West Virginia in the case\nof Grinnan v. Edwards:\nA blockade, is the exercise of belligerent right; before a blockade\ncan be declared, a war must exist; and a blockade lawfully declared,\nis conclusive evidence that a state of war exists between the nation\ndeclaring such a blockade, and the nation whose ports are blockaded.\n21 W. Va. 347, 356 (1883).\n\n196\n\n\x0cAuthority of the President to Blockade Cuba\n\nInternational law experts have the same view of the blockade. George Grafton\nWilson, Professor Emeritus of International Law, Harvard University, states: \xe2\x80\x9cThe\nterm blockade, properly used, involves a state of war.\xe2\x80\x9d 4 Encyclopedia Americana\n98d (1958). In the seventh edition of Oppenheim\xe2\x80\x99s International Law, edited by\nthe late Professor Lauterpacht (subsequently a judge of the International Court of\nJustice), it is stated:\nBlockade is the blocking by men-of-war of the approach to the enemy coast, or a part of it, for the purposes of preventing ingress and\negress of vessels or aircraft of all nations. . . . Although blockade\nis . . . a means of warfare against the enemy, it concerns neutrals as\nwell, because the ingress and egress of neutral vessels are thereby interdicted, and may be punished.\n2 id. at 768 (1952). In a fairly recent article, a blockade is described as the means\nby which a belligerent cuts off \xe2\x80\x9call access to the coast of the enemy.\xe2\x80\x9d S.W.D.\nRowson, Modern Blockade: Some Legal Aspects, 1949 Brit. Y.B. Int\xe2\x80\x99l L. 346,\n349. Our own Department of State took the position in 1919 that no blockade\ncould be instituted absent a state of war. In that year, in connection with a proposal\nthat the Allied Governments blockade Bolshevist Russia, it telegraphed the\nAmerican Commission to Negotiate Peace as follows: \xe2\x80\x9cA blockade before a state\nof war exists is out of the question. It could not be recognized by this Government.\xe2\x80\x9d Scope of Blockade, 7 Hackworth Digest \xc2\xa7 624, at 125.\nA technical departure from the rule that a blockade can be imposed only as an\nincident to a state of war is President McKinley\xe2\x80\x99s action in 1893. On April 20,\n1898, Congress by joint resolution directed the President to use the land and naval\nforces of the United States to compel the Government of Spain to relinquish its\nauthority over Cuba. Pub. Res. No. 55-24, 30 Stat. 738. In accordance with this\nresolution, President McKinley, on April 22, 1898, issued a proclamation instituting a naval blockade of the north coast of Cuba. 14 Compilation of the Messages\nand Papers of the Presidents 6472 (James D. Richardson ed., 1909). It was not\nuntil April 25, 1898, that Congress declared that a state of war with Spain existed.\nPub. L. No. 55-189, 30 Stat. 364 (1898). In the declaration it was stated, however,\nthat a state of war had existed since April 21, 1898. Id. This was, of course, prior\nto the date of the blockade. At best, the departure from the established rule was\nonly a technical one.\nThe other incident that is worthy of note is President Truman\xe2\x80\x99s order in 1950\nblockading Korea. On June 30, 1950, President Truman announced that \xe2\x80\x9c[i]n\nkeeping with the United Nations Security Council\xe2\x80\x99s request for support to the\nRepublic of Korea in repelling the North Korean invaders and restoring peace in\nKorea,\xe2\x80\x9d he had authorized the United States Air Force \xe2\x80\x9cto conduct missions on\nspecific military targets in northern Korea wherever militarily necessary, and had\nordered a naval blockade of the entire Korean coast.\xe2\x80\x9d White House Statement\n\n197\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nFollowing a Meeting Between the President and Top Congressional and Military\nLeaders to Review the Situation in Korea, Pub. Papers of Pres. Harry S. Truman\n513 (1950). It should be observed that, under Article 42 of the United Nations\nCharter, the Security Council is authorized \xe2\x80\x9cto take such action by air, sea or land\nforces as may be necessary to maintain or restore international peace,\xe2\x80\x9d and a\nblockade by Members of the United Nations is expressly included among the\npermissible actions. The Korean blockade is not a precedent here. There the\nblockade was authorized by the United Nations; in the instant case, as we understand it, the United States would proceed unilaterally. Moreover, it would appear\nthat the Korean blockade was justified under the traditional rule that such action\ncan be taken only in connection with a state of war. There was a de facto state of\nwar between North Korea and the United Nations.\nMention should also be made of what is termed a \xe2\x80\x9cpacific blockade.\xe2\x80\x9d This is\nsaid to be \xe2\x80\x9ca blockade during time of peace\xe2\x80\x9d; it has been used by several European\nnations \xe2\x80\x9cas a compulsive means of settling an international difference.\xe2\x80\x9d 2 Oppenheim\xe2\x80\x99s International Law at 144\xe2\x80\x9345; Wilson, 4 Encyclopedia Americana at 98d.\nThere appears to be some question, however, as to whether a pacific blockade is a\npermissible form of international conduct. Professor Hyde states:\nSuch action is to be deemed pacific merely in the sense that the\nblockading State is disposed to remain at peace, while the State\nwhose territory is blockaded does not elect to treat the operation as\none constituting an act of war or as compelling it to make war upon\nits adversary.\n2 Charles Cheney Hyde, International Law, Chiefly As Interpreted and Applied by\nthe United States \xc2\xa7 592, at 179\xe2\x80\x9380 (1922). Professor Hyde notes that, while on\ncertain occasions European countries have found it possible to resort to blockade\nwithout producing a state of war, the United States \xe2\x80\x9chas never had recourse to\npacific blockade.\xe2\x80\x9d Id. at 180. Moreover, the United States appears to have taken\nthe position that a pacific blockade does not authorize the blockading state to\ninterfere with United States shipping. Id. at 180\xe2\x80\x9382.\nAssuming the existence of a state of war, both practice and authority indicate\nthat the President, in the exercise of his constitutional power as Commander in\nChief, can order a blockade of the enemy. President Lincoln took such action in\n1861, and his authority was sustained in the Prize Cases, 67 U.S. (2 Black) 635\n(1863). President Truman took similar action in Korea. With respect to the latter, it\nhas been said that the blockade \xe2\x80\x9cwas supported and respected by other Members\n[of the United Nations] except the members of the Soviet bloc.\xe2\x80\x9d Leland M.\nGoodrich & Anne P. Simons, The United Nations and the Maintenance of International Peace and Security 481 (1955).\n\n198\n\n\x0cAuthority of the President to Blockade Cuba\n\nII.\nThe United States is not in a state of war with Cuba in the traditional sense.\nFrom the facts available to us, it does not appear that Cuba has resorted to military\naction against the United States or that the United States has resorted to such\naction against Cuba. Nor has Congress declared that a state of war exists between\nthe United States and Cuba. Accordingly, the principles of international law, as\npresently developed and followed by the United States, would seem to furnish no\nlegal justification for the imposition by this government of a blockade of Cuba.\nMoreover, to the extent that a pacific blockade is a permissible instrument of\ninternational conduct, resort thereto by the United States would apparently\nrepresent a reversal of United States policy. A further obstacle in this regard is that\nthe blockaded state must also choose not to regard the blockade as an act of war.\nWe are not in a position to judge whether this course would be followed by Cuba.\nIn this posture, we turn to the question whether it is, nevertheless, possible to\nargue that a blockade of Cuba is justifiable. That the United States is engaged in a\n\xe2\x80\x9ccold war\xe2\x80\x9d with major communist nations and with Cuba is plain. To keep\ncommunist imperialism from engulfing the United States is a matter of vital\nnational interest. As one author has put it, with respect to United States policy to\nfurther this interest, and also to keep Axis aggression from American shores\nduring World War II:\nInterventions undertaken to further these interests were lawful if\nthose who authorized them believed that intervention was a last resort to safeguard the nation from extreme peril and proper means of\nintervention were used. . . .\nDoris A. Graber, Crisis Diplomacy: A History of U.S. Intervention Policies and\nPractices 211\xe2\x80\x9312 (1959).\nAn example of the exercise of presidential power of this nature in the naval\nfield is the action of President Roosevelt in 1941, when Nazi power was at its\nzenith and the peril to the United States great. On July 7, 1941, the President sent a\nmessage to Congress announcing that as Commander in Chief he had ordered the\nNavy to take all necessary steps to insure the safety of communications between\nIceland and the United States as well as on the seas between the United States and\nall other strategic outposts and that troops had been sent to Iceland in defense of\nthat country. The President justified these actions on the ground that the United\nStates could not permit \xe2\x80\x9cthe occupation by Germany of strategic outposts in the\nAtlantic to be used as air or naval bases for eventual attack against the Western\nHemisphere.\xe2\x80\x9d Memorandum on the Authority of the President to Repel the Attack\nin Korea, 23 Dep\xe2\x80\x99t of State Bull. 173, 175 (1950).\nIf the President is satisfied, on the basis of the facts known to him, that the\nCuban situation presents a grave threat to the safety of the free nations of the\n\n199\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nWestern Hemisphere, as for example, that they are in imminent danger of attack\nfrom hostile forces stationed in Cuba or en route to Cuba from communist\ncountries, it is arguable that, whatever the earlier history of the doctrine of\nblockade, that concept ought to be accommodated to the situation in hand, not as a\ndevice of making war but as a reasonable and internationally permissible means of\npreventing aggression against peaceful nations. Whatever the facts mobilized to\njustify a blockade, they would receive careful scrutiny in the forums in which the\nlegality of the action is open to challenge. In addition, the reaction of world\nopinion would depend upon the strength of the factual justification for the action.\nWe are not, of course, in any position to know what the actual facts are which\ncould be relied upon as justification, and therefore we cannot possibly assess the\nstrength of the possible factual justification.\nIII.\nThis portion of the memorandum discusses which forums may be available for\nchallenging the validity of a blockade of Cuba.\nA. Domestic Forums\nIn the Prize Cases, 67 U.S. (2 Black) 635, 665 (1863), involving the blockade\nof southern ports during the Civil War, the Supreme Court stated that \xe2\x80\x9c[n]eutrals\nhave a right to challenge the existence of a blockade de facto, and also the\nauthority of the party exercising the right to institute it.\xe2\x80\x9d There several neutral\nvessels were captured and brought in as prizes by public ships of the United\nStates. Libels were filed by the proper United States Attorneys, and in each such\ncase the United States district court pronounced a decree of condemnation on the\nground that the ships had broken or were attempting to break the blockade. The\nowners of the ships appealed from these decrees. And, as pointed out above, the\nSupreme Court held the blockade to be a proper exercise of power by the United\nStates as a belligerent. This method of challenging the validity of a blockade\nwould appear to be available to neutral ships today. If such ships are captured on\nthe ground that they were attempting to break the Cuban blockade, they could be\ntreated as prizes and placed within the prize jurisdiction of the federal district\ncourts, provided the captures could be deemed to have been made \xe2\x80\x9cduring war.\xe2\x80\x9d\n10 U.S.C. \xc2\xa7\xc2\xa7 7651, 7652 (1958).1\nIf the vessels were not placed under prize jurisdiction by the United States\nitself, the ship and cargo owners would not have that avenue of access to our\ncourts. Ling v. 1,689 Tons of Coal, 78 F. Supp. 57 (W.D. Wash. 1942). However,\nin addition to suits in admiralty against the United States under 28 U.S.C. \xc2\xa7 1333\n1\nSection 7651 provides that the prize jurisdiction of the federal courts \xe2\x80\x9capplies to all captures of\nvessels as prize during war by authority of the United States or adopted and ratified by the President.\xe2\x80\x9d\n\n200\n\n\x0cAuthority of the President to Blockade Cuba\n\n(1958), they and others claiming loss by reason of the blockade might be authorized to file suits \xe2\x80\x9cfounded . . . upon the Constitution\xe2\x80\x9d in the Court of Claims pursuant to 28 U.S.C. \xc2\xa7 1491 (1958), or, in certain cases, the district courts, pursuant to\n28 U.S.C. \xc2\xa7 1346 (1958). Furthermore, the blockade might give rise to litigation in\ndomestic courts exclusively between private parties owing to its interference with\nrights under contracts or with other rights. The domestic remedies available for\nchallenging the validity of the blockade would be open to all neutral countries and\ntheir nationals, including those of the Communist bloc. In the absence of a state of\nwar, it might also be possible for Cuban nationals to resort to our courts for the\npurpose of testing the legality of the blockade.\nB. International Forums\nIn addition to the courts of the United States, a number of international forums\nappear to be available in which the legality of the blockade as a matter of international law could be raised. It appears that this question could properly be brought\nbefore (1) the Security Council and General Assembly of the United Nations and\n(2) the Organization of American States. It is unclear whether it could be raised\nbefore the International Court of Justice.\n1. The Charter of the United Nations is a collective treaty concluded for the\npurpose of safeguarding peace, and provides a means for investigating and\ndetermining complaints of alleged aggressive action by a member of State. In our\nopinion, the procedure provided by the U.N. Charter for these purposes would be\navailable to Cuba and other nations affected by the blockade.\nThe matter could be brought either before the General Assembly or the Security\nCouncil. The former, however, is empowered only to discuss problems and make\nrecommendations to the member nations and to the Security Council. U.N. Charter\narts. 10\xe2\x80\x9312. Chapter VII (arts. 39\xe2\x80\x9351) deals with action respecting threats to the\npeace, breaches of the peace and acts of aggression. It provides that \xe2\x80\x9c[t]he Security\nCouncil shall determine the existence of any threat to the peace . . . or decide what\nmeasures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace . . . .\xe2\x80\x9d (art. 39). The Security Council is authorized to\ndecide \xe2\x80\x9cwhat measures not involving the use of armed forces are to be employed\nto give effect to its decisions\xe2\x80\x9d; and it may call upon members of the United\nNations to apply such measures, including various economic sanctions and\nseverance of diplomatic relations (art. 41). As noted earlier, in the event these\nmeasures prove to be inadequate, the Security Council may resort to other action\nto restore peace, including \xe2\x80\x9cblockade, and other operations by air, sea, or land\nforces of members of the United Nations\xe2\x80\x9d (art. 42). For this purpose, the Security\nCouncil may call on all members of the United Nations to contribute to the\nmaintenance of international peace with armed forces, assistance and facilities\n(art. 43). The Charter also provides that nothing in it shall impair the inherent right\nof individual or collective self-defense if an armed attack occurs against a Member\n\n201\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nof the United Nations, until the Security Council has taken the measures necessary\nto maintain international peace (art. 51).\nIt seems reasonably clear that in providing that the Security Council may take\naction to deal with threats to peace, including specifically blockade measures, the\nmembers of the United Nations intended that such action should not be taken\nunilaterally except as provided by Article 51 (where the individual member\nsuffering an armed attack may take such action in self-defense). That the United\nStates, England and France have so construed the U.N. Charter is demonstrated by\nthe position taken by these nations in bringing to the attention of the Security\nCouncil the threat to peace created by the Soviet blockade of West Berlin. It was\nclaimed that the Soviet blockade was a method used for the expansion of its power\nin disregard of its responsibility under international agreements, and that it\nconstituted duress and threat of force wholly inconsistent with the obligations\nimposed on members of the United Nations by the Charter.2 The Security Council\nwas requested to remove the threat to peace, 3 and it took jurisdiction over the\nmatter. However, the Security Council failed to adopt the resolution offered by the\nAllied Powers because of the Soviet veto. U.N. Doc. S/1048 (Oct. 22, 1948);\n1948\xe2\x80\x9349 U.N.Y.B. 286, U.N. Sales No. 1950.I.11.\nAnother case involved the Egyptian blockade of the Suez Canal to prevent\ngoods from reaching the State of Israel. Egypt claimed that the Egyptian-Israel\nArmistice Agreement of 1949 did not end but merely suspended hostilities, that its\nbelligerent rights were left intact, and that it was legally justified in imposing\nrestrictions on the free use of the Canal. When attempts to mediate the dispute\nfailed, Israel brought the matter up for consideration by the Security Council. On\nSeptember 1, 1951, the Security Council passed a resolution which called upon\nEgypt \xe2\x80\x9cto terminate the restrictions on the passage of international commercial\nshipping and goods through the Suez Canal wherever bound and to cease all\ninterference with such shipping beyond that essential to the safety of shipping in\nthe Canal itself and to the observance of the international conventions in force.\xe2\x80\x9d\nS.C. Res. 95, U.N. Doc. S/RES/95 (Sept. 1, 1951). When Egypt defied the\nSecurity Council, the Government of Israel brought the matter up again before the\nSecurity Council. 1954 U.N.Y.B. 62, U.N. Sales No. 1955.I.25. On March 19,\n1954, a draft resolution was placed before the Security Council which called upon\nEgypt, \xe2\x80\x9cin accordance with its obligations under the Charter to comply\xe2\x80\x9d with the\n1951 resolution. U.N. Doc. S/3188. Eight members of the Security Council,\nincluding the United States, voted for it, but the Soviet Union vetoed the resolution. 1954 U.N.Y.B. 74.\n2\nStatement by Philip C. Jessup, Deputy U.S. Representative in the Security Council, Review of\nAllied Action on Berlin Blockade, 19 Dep\xe2\x80\x99t of State Bull. 541 (Oct. 31, 1948).\n3\nId. at 547; Statement by Philip C. Jessup, Deputy U.S. Representative in the Security Council, The\nUnited Nations and Specialized Agencies: U.S. Urges Acceptance of Draft Resolution on Berlin Crisis,\n19 Dep\xe2\x80\x99t of State Bull. 572 (Nov. 7, 1948).\n\n202\n\n\x0cAuthority of the President to Blockade Cuba\n\nThus it would appear to be fairly clear from these incidents that blockade\nmeasures taken unilaterally by a nation, other than in self-defense or in a war, and\noutside the framework of the United Nations Charter, are likely to be brought\nbefore, and considered by, the Security Council. Whether the blockade was\nundertaken as a justifiable measure of self-defense would obviously be the issue in\nthe instant situation. Of course, any proposed action in the Security Council would\nbe subject to the veto power of the United States.\n2. The Organization of American States (\xe2\x80\x9cOAS\xe2\x80\x9d), of which both the United\nStates and Cuba are members, is also a forum in which the legality of a Cuban\nblockade could be subjected to investigation and determination. Although there is\nno express reference to blockade in the OAS Charter, there are many provisions\ndesigned to bar unilateral action by any member constituting a threat to the\ncommon peace. See id. arts. 13, 16\xe2\x80\x9318, 24\xe2\x80\x9325, Apr. 30, 1948, 2 U.S.T. 2416,\nT.I.A.S. No. 2361, 119 U.N.T.S. 3.4\nArticle 25 provides that in the event of aggression endangering the peace of\nAmerica, the member States shall apply the measures and procedures established\nin the special treaties on the subject. The pertinent \xe2\x80\x9cspecial\xe2\x80\x9d treaty for security\npurposes appears to be the Rio Pact,5 which is closely linked with the Charter.\nUnder the Rio Pact, an Organ of Consultation (meeting of Foreign Ministers) shall\ngather \xe2\x80\x9cwithout delay\xe2\x80\x9d (art. 3) in case of an armed attack, and \xe2\x80\x9cimmediately\xe2\x80\x9d\n(art. 6) if the integrity or political independence of any American state should be\naffected by an act of aggression or by any fact or situation that might endanger the\npeace of America.\nThe Organ is to decide, by two-thirds vote (art. 17) \xe2\x80\x9cthe measures which must\nbe taken\xe2\x80\x9d for the common defense and preservation of peace (art. 6). Decisions are\nbinding upon all states, except that no state can be required to use armed force\nwithout its consent (art. 20). The measures agreed upon by the Organ shall be\nexecuted through procedures and agencies in existence or those which may be\ncreated (art. 21). It would seem clear that in the circumstances here involved the\nOAS would be authorized to determine whether a blockade is an act of aggression.\nIn its relationships with Cuba, the United States has stated that \xe2\x80\x9cthe proper\nforum for the discussion of any controversies between the Government of Cuba\nand the governments of other American Republics is the Organization of American States.\xe2\x80\x9d Security Council Considers Cuban Complaint: Statement of July 18,\n43 Dep\xe2\x80\x99t of State Bull. 199, 199 (Aug. 8, 1960) (statement of U.S. Representative\nHenry Cabot Lodge) (\xe2\x80\x9cLodge Statement\xe2\x80\x9d). On June 27, 1960, the United States\nGovernment submitted to the Inter-American Peace Committee a memorandum\nentitled Provocative Actions of the Government of Cuba Against the United States\n\nThe text of the OAS Charter appears in 18 Dep\xe2\x80\x99t of State Bull. 666 (May 23, 1948).\nInter-American Treaty of Reciprocal Assistance, opened for signature Sept. 2, 1947, 62 Stat.\n1681, T.I.A.S. No. 1838, reprinted in 17 Dep\xe2\x80\x99t of State Bull. 565 (Sept. 21, 1947).\n4\n5\n\n203\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nWhich Have Served to Increase Tensions in the Caribbean Area, U.N. Doc.\nS/4388 (July 15, 1960), reprinted in 43 Dep\xe2\x80\x99t of State Bull. 79, 79 (July 18, 1960).\nThis memorandum, which sets forth many provocative acts of Cuba in contributing to international tension, was in response to requests made by the Peace\nCommittee under a study assignment given to it by the American Foreign\nMinisters in 1959. Id.; American Foreign Ministers Conclude Santiago Talks, 41\nDep\xe2\x80\x99t of State Bull. 342, 343 (Sept. 7, 1943); Lodge Statement, 43 Dep\xe2\x80\x99t of State\nBull. at 199.\nThe United States Representative to the Security Council has taken the position\nthat the Security Council of the U.N. should take no action on the Cuban complaint until discussions of the problem have taken place in the Organization of\nAmerican States and an attempt to resolve it has been made in that forum. Lodge\nStatement, 43 Dep\xe2\x80\x99t of State Bull. at 200. In Mr. Lodge\xe2\x80\x99s opinion, the procedure\nwas to go to the regional organization first and to the United Nations as a last\nresort. In the event the United States undertook the action here considered,\npresumably the OAS machinery would be available to Cuba as it has been to the\nUnited States.\n3. It is unclear to what extent the International Court of Justice would have\njurisdiction to pass upon the legality of the blockade.\nIt seems doubtful whether the Court could accept jurisdiction if Cuba sought to\ninstitute an action against the United States. In filing its acceptance of the\ncompulsory jurisdiction of the Court, the United States has agreed (except for its\nreservation on domestic matters6) to be bound only \xe2\x80\x9cin relation to any other state\naccepting the same obligation.\xe2\x80\x9d Statute of the International Court of Justice art.\n36(2), June 26, 1945, 59 Stat. 1055, 1060. Cuba has not filed its acceptance of the\ncompulsory jurisdiction of the International Court. It would, therefore, appear that\nCuba has not accepted the same obligation7 as the United States, and that an\nessential condition is lacking for the Court\xe2\x80\x99s exercise of compulsory jurisdiction\nover the United States in a case which Cuba is the plaintiff.\nHowever, even if the validity of the blockade cannot be decided by the Court in\non action to Cuba, it is possible that the question is subject to adjudication in a suit\n6\nOn the basis of the reservation, the United States could defeat the jurisdiction of the court merely\nby asserting that a blockade of Cuba involved a domestic matter.\n7\nOliver J. Lissitzyn, in The International Court of Justice: Its Role in the Maintenance of International Peace and Security (1951), indicates the bases of the Court\xe2\x80\x99s jurisdiction as follows:\n\nThe jurisdiction of the Court over disputes submitted to it as contentious cases rests\nin principle on the consent of the parties. This consent can be given either (1) by a\ndeclaration recognizing as compulsory the jurisdiction of the Court, with or without\nlimitation, under the \xe2\x80\x9coptional clause\xe2\x80\x9d of Article 36 of the Statute, or (2) by an undertaking in any other form to recognize as compulsory the jurisdiction of the Court with\nrespect to a class of existing or future disputes, or (3) by an express or tacit agreement\nto submit a particular dispute to the Court.\nId. at 61.\n\n204\n\n\x0cAuthority of the President to Blockade Cuba\n\nby a third state which is adversely affected by the blockade and which has\naccepted compulsory jurisdiction. In addition it should be noted that Article 96 of\nthe United Nations Charter provides that the General Assembly or the Security\nCouncil may ask the Court for an advisory opinion \xe2\x80\x9con any legal question,\xe2\x80\x9d and\nthat the Assembly may authorize other organs, or specialized agencies to do so.\nThus, although a state is not authorized to request an advisory opinion, it may\npersuade one of the designated organs to make the request.\nHowever the matter is presented, a basic problem for the Court would be\nwhether a blockade raises a political or a legal issue. The U.N. Charter provides\nthat \xe2\x80\x9clegal disputes\xe2\x80\x9d should as a general rule be referred by the parties to the\nInternational Court of Justice in accordance with the provisions of the Statute of\nthe Court (art. 36). The implication is that \xe2\x80\x9cpolitical questions,\xe2\x80\x9d unlike \xe2\x80\x9clegal\nquestions,\xe2\x80\x9d should not, therefore, be decided by the Court. What is a legal, as\nopposed to a political, question presents an extremely difficult issue. See Lissitzyn,\nsupra note 7, at 74. No case of a blockade appears to have been presented to the\nCourt. The closest precedents are the Corfu Channel Case, id. at 78\xe2\x80\x9381, in which\nAlbania\xe2\x80\x99s action in laying a clandestine minefield was treated as a legal question\nwithin the jurisdiction of the Court, and the Fisheries Case (U.K. v. Nor.),\nJudgment, 1951 I.C.J. 116 (Dec. 18), in which the Court accepted jurisdiction over\na dispute between Norway and the United Kingdom as to whether Norway had the\nright to reserve to its nationals fishing rights in certain areas off the Norwegian\ncoast. These precedents do not appear necessarily to control the question presented\nby a blockade. In addition, it is of significance that no attempt has been made to\nbring either the Berlin blockade or the Egyptian blockade of Israel before the\nCourt.\nROBERT KRAMER\nAssistant Attorney General\nOffice of Legal Counsel\n\n205\n\n\x0c'


b'Terms of Members of the Civil Rights Commission\nThe six-year term of a member of the United States Commission on Civil Rights runs from the date on\nwhich his or her predecessor\xe2\x80\x99s term ends, not from the date of the member\xe2\x80\x99s appointment.\n\nNovember 30, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked for our opinion about the date on which the terms of the current Chairperson and Vice Chairperson of the United States Commission on Civil\nRights (\xe2\x80\x9cCommission\xe2\x80\x9d) will expire. We conclude that the terms of these two\nmembers will expire on December 5, 2004, six years after the expiration of their\npredecessors\xe2\x80\x99 terms.\nThe Commission, which investigates various forms of discrimination, 42\nU.S.C. \xc2\xa7 1975(a) (2000), consists of eight members. The President appoints four\nmembers, and the President pro tempore of the Senate and the Speaker of the\nHouse of Representatives each appoint two. Id. \xc2\xa7 1975(b). The statute provides\nthat \xe2\x80\x9c[t]he term of office of each member of the Commission shall be 6 years.\xe2\x80\x9d Id.\n\xc2\xa7 1975(c).1\nOn January 26, 1999, President Clinton appointed to the Commission the two\nmembers who are the current Chairperson and Vice Chairperson. In each case, the\nterm of the member\xe2\x80\x99s predecessor had expired on December 5, 1998, and the\ncommissions for the new members were \xe2\x80\x9cfor a term expiring December 5, 2004.\xe2\x80\x9d2\nWe understand that the Chairperson now takes the position that her term expires in\nJanuary 2005.\nIn United States v. Wilson, 290 F.3d 347 (D.C. Cir.), cert. denied, 537 U.S.\n1028 (2002), the Court of Appeals for the D.C. Circuit held that the six-year term\nof a member of the Commission runs from the date on which his or her predecessor\xe2\x80\x99s term ends, not from the date of the member\xe2\x80\x99s appointment. That decision is\nconsistent with the prior opinion of this Office, which also had concluded that a\nmember\xe2\x80\x99s term begins when his or her predecessor\xe2\x80\x99s ends, see Duration of the\nTerm of a Member of the Civil Rights Commission, 25 Op. O.L.C. 225 (2001); the\nDepartment advanced that view in litigation, see, e.g., Opening Brief for Appellants, United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (No. 02-5047) (brief\nfiled Mar. 2002); and the court of appeals agreed.\nThe holding in the Wilson case is squarely applicable here. President Clinton\nhad appointed Victoria Wilson upon the death of her predecessor. Her commission\n\n1\nWith the concurrence of the Commission\xe2\x80\x99s members, the President designates a Chairperson and\nVice Chairperson from among the members. Id. \xc2\xa7 1975(d)(2).\n2\nThe quoted language comes from the records of the State Department, which keeps typed replicas\nof commissions.\n\n291\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstated that her appointment was \xe2\x80\x9c\xe2\x80\x98for the remainder of the term expiring\xe2\x80\x99\xe2\x80\x9d six\nyears after her predecessor\xe2\x80\x99s appointment. 290 F.3d at 350 (quoting commission).\nAfter the termination date in the commission, President Bush appointed a successor, but Ms. Wilson maintained that her term continued until six years after her\nappointment and thus had not ended. In the litigation that followed her refusal to\ngive way to her successor, she pointed out that, before amendments in 1994, the\napplicable statute expressly stated that a Commission member appointed to fill a\nvacancy would serve only the remainder of his or her predecessor\xe2\x80\x99s term, but in\n1994 this language was deleted. Ms. Wilson contended that, in these circumstances, the statutory provision under which \xe2\x80\x9c[t]he term of office of each member of the\nCommission shall be 6 years,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1975(c), unambiguously makes the\nterm run from the time of appointment, and the different date in her commission\ncould not overcome the requirement of the statute.\nAlthough Ms. Wilson prevailed in the district court, a unanimous panel of the\ncourt of appeals reversed that decision and rejected her argument. The court found\nthe phrase \xe2\x80\x9cterm of office\xe2\x80\x9d ambiguous, since the six-year period could \xe2\x80\x9ceither run\nwith the person or with the calendar.\xe2\x80\x9d 290 F.3d at 353. The term would \xe2\x80\x9crun with\nthe person\xe2\x80\x9d if \xe2\x80\x9c[e]ach individual member of the Commission, however appointed,\nwhenever appointed, is entitled to serve a six-year period of time.\xe2\x80\x9d Id. The term\nwould \xe2\x80\x9crun[] with the calendar\xe2\x80\x9d if \xe2\x80\x9ceach member of the Commission must be\nassigned to a fixed, six-year \xe2\x80\x98slot\xe2\x80\x99 of time,\xe2\x80\x9d beginning with the end of his or her\npredecessor\xe2\x80\x99s term. Id. The court then reasoned from a transitional provision in the\n1994 amendment, under which \xe2\x80\x9c[t]he term of each member of the Commission in\nthe initial membership of the Commission [under the amendment] shall expire on\nthe date such term would have expired as of September 30, 1994.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 1975(b)(1). On that date, the members of the Commission were serving staggered terms, with half of the members\xe2\x80\x99 terms expiring every three years. The court\nwrote that this language \xe2\x80\x9cprovides an \xe2\x80\x98anchor\xe2\x80\x99\xe2\x80\x94fixed times for terms of Commissioners to expire,\xe2\x80\x9d corresponding to the staggered terms that the members were\nserving at the time of the 1994 amendment. 290 F.3d at 355. The provision\n\xe2\x80\x9ccreates a pattern of staggered appointments,\xe2\x80\x9d and \xe2\x80\x9c[s]taggered terms must run\nwith the calendar, rather than with the person, to preserve staggering.\xe2\x80\x9d Id.\nTherefore,\nany appointment to fill a vacancy for an unexpired term, such as Ms.\nWilson\xe2\x80\x99s appointment, must only be for the duration of that unexpired term. For it to be otherwise would disrupt the fixed and staggered six-year terms that run with the calendar.\nId. This interpretation, the court went on, was confirmed by \xe2\x80\x9crelevant practices of\nthe Executive Branch,\xe2\x80\x9d creating \xe2\x80\x9cbackground understandings\xe2\x80\x9d that Congress is\n\xe2\x80\x9cpresumed to preserve, not abrogate.\xe2\x80\x9d Id. at 356. President Clinton had followed\nthis practice in appointing Ms. Wilson to the remainder of her predecessor\xe2\x80\x99s term,\n\n292\n\n\x0cTerms of Members of the Civil Rights Commission\n\nas specified in Ms. Wilson\xe2\x80\x99s commission. Id. at 358.3 The court\xe2\x80\x99s conclusion also\nfit with the \xe2\x80\x9c\xe2\x80\x98context\xe2\x80\x99 . . . [of] related provisions in historically antecedent\nstatutes,\xe2\x80\x9d id. at 359 (citation omitted), and it avoided such anomalous results as the\n\xe2\x80\x9cpolitical manipulation\xe2\x80\x9d of \xe2\x80\x9cconcerted resignations near the end of a President\xe2\x80\x99s\nterm\xe2\x80\x9d that would allow new appointments for full six-year periods, id. at 361.\nThere is no fair ground for distinguishing Wilson here. If a member\xe2\x80\x99s six-year\nterm runs with the calendar, the Chairperson\xe2\x80\x99s and the Vice Chairperson\xe2\x80\x99s terms\nmust end on December 5, 2004\xe2\x80\x94six years after their predecessors\xe2\x80\x99 terms expired.\nIt cannot make a difference that these two members were appointed after their\npredecessors\xe2\x80\x99 terms expired, while Ms. Wilson was appointed to fill out the\nunexpired portion of a prior term. In the case of either a delayed appointment or an\nunexpired term, a six-year term calculated from the date of appointment would\n\xe2\x80\x9cdisrupt the fixed and staggered six-year terms that run with the calendar.\xe2\x80\x9d Id. at\n355. To avoid this disruption, the Chairperson\xe2\x80\x99s and Vice Chairperson\xe2\x80\x99s terms\nmust expire on the date given in their commissions, which is six years after their\npredecessors\xe2\x80\x99 terms ended.\nIndeed, the court in Wilson addressed, and dismissed, the possibility that the\nmethod for calculating the terms for delayed appointments might differ from the\nmethod for unexpired terms. Counsel had apparently conceded at oral argument\nthat the current Chairperson\xe2\x80\x99s and Vice Chairperson\xe2\x80\x99s terms ran with the calendar,\nbut tried to distinguish the term of a member appointed to fill a vacancy before a\npredecessor\xe2\x80\x99s term expired. Id.4 The court rejected any distinction between the two\nsituations:\nThis anomalous result [that the two situations would be treated differently] further undermines appellee\xe2\x80\x99s interpretation of the statute.\nWe have difficulty believing that Congress sub silentio created two\ndifferent tracks with full six-year terms for those commissioners who\nsucceeded appointees who by reason of death or resignation did not\nserve out their full terms, but truncated terms for those who succeeded members who served for six years but whose vacancy was not\nimmediately filled by Presidential appointment. Nothing in section\n1975(c) gives any indication that the phrase \xe2\x80\x9cthe term of office of\neach member of the Commission\xe2\x80\x9d has two different meanings for\ntwo distinct classes of commissioner not otherwise recognized in the\nstatute. The lack of such differentiation and appellee\xe2\x80\x99s concession\nthat \xe2\x80\x9cdelayed appointees\xe2\x80\x9d serve terms shortened by the interval between the expiration of the predecessors\xe2\x80\x99 term and the date of their\n3\n\nThe commissions for the current Chairperson and Vice Chairperson also reflect this practice.\nThe current Chairperson and Vice Chairperson had intervened in the Wilson case. Id. at 351\xe2\x80\x9352.\nWe have been unable to determine whether the counsel who made the concession was the one\nrepresenting them or the separate counsel representing Ms. Wilson.\n4\n\n293\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nappointment further supports our interpretation that, read together,\nthe two sentences of [section] 1975(c) [one setting a six-year term,\nthe other providing for terms to expire as they were set to do as of\nSeptember 30, 1994] create fixed six-year terms that run with the\ncalendar.\nId. at 355\xe2\x80\x9356.\nWe understand that a personnel form for the current Chairperson may indicate\nthat her term does not expire until January 2005. The statute, however, sets the\nterms of the members. See, e.g., Quackenbush v. United States, 177 U.S. 20, 27\n(1900) (\xe2\x80\x9cthe terms of the commission cannot change the effect of the appointment\nas defined by the statute\xe2\x80\x9d); Case of Chief Constructor Easby, 16 Op. Att\xe2\x80\x99y Gen.\n656 (1880); Impact of Panama Canal Zone Treaty on the Filling of the Vacancy in\nthe Office of the District Judge for the United States District Court for the District\nof the Canal Zone, 1 Op. O.L.C. 236, 237 n.4 (1977); Memorandum for John W.\nDean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Presidential Commissions at 5 (Dec. 1,\n1971); see also Wilson, 290 F.3d at 358\xe2\x80\x9359. Furthermore, under the statute, it is\nthe President, not the Commission, who makes the appointment to the statutory\nterm, 42 U.S.C. \xc2\xa7 1975(c), and the President\xe2\x80\x99s appointments here, in accordance\nwith the commissions he issued, were for terms ending December 5, 2004. The\npersonnel records of the Commission do not override the statutory requirements.\nWilson, which adopted the statutory interpretation that the Justice Department\nadvanced and that we still hold, disposes of the question you have asked. Consistent with the provisions of the commissions signed by President Clinton, the\nterms for the current Chairperson and Vice Chairperson will expire December 5,\n2004.\nDANIEL L. LEVIN\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n294\n\n\x0c'


b'Department of Justice Views on the Bumpers Amendment to\nthe Administrative Procedure Act\n[T h e fo llo w in g le tte r to th e C h a irm an o f th e H ouse Ju d ic ia ry C om m ittee, initially d rafted\nin th e O ffice o f L eg al C ounsel a t th e req u est o f th e A ssistant A tto rn e y G e n e ra l for\nL eg islativ e A ffairs, p resen ts th e D e p a rtm e n t o f J u s tic e \xe2\x80\x99s v iew s on am en d m en ts to th e\nA d m in istrativ e P ro c e d u re A c t\xe2\x80\x99s ( A P A \xe2\x80\x99s) pro v isio n s for ju d ic ia l rev iew o f ag en cy\nactio n p ro p o sed by S en ato r B um pers. In essence, th e so-called B um pers am endm ent\nso u g h t to ach ie v e g re a te r co n g ressio n al c o n tro l o v e r federal ag e n c y ac tio n s by g iv in g\nth e federal c o u rts b ro ad and relativ ely undefined new p o w e rs in rev iew in g ag en cy\nrules. T h e letter poin ts o ut th at th e p ro p o sed am en d m en ts to th e A P A w o u ld tran sfer\nto th e federal c o u rts responsibility fo r m aking p olicy ch o ices n o w m ade by agencies,\nan d th at th ey w o u ld d isru p t th e re g u la to ry p ro cess in m a jo r and unforeseeable w ays.]\n\nMay 13, 1980\nT h e C h a ir m a n\nt h e H ouse\n\nC o m m it t e e o n\nR e p r e s e n t a t iv e s\n\nof th e\nof\n\nthe\n\nJ u d ic ia r y\n\nof\n\nM y D e a r M r . C h a i r m a n : This presents the Department of Justice\xe2\x80\x99s\nviews regarding the so-called Bumpers amendment to the Administra\xc2\xad\ntive Procedure A ct\xe2\x80\x99s (APA\xe2\x80\x99s) provisions for judicial review of agency\naction, as recently revised with the approval of Senator Bumpers. The\nrevised amendment would eliminate any \xe2\x80\x9cpresumption of validity\xe2\x80\x9d that\na reviewing court might accord agency action, except when a rule is to\nbe relied upon as a defense, such as by private parties, in civil or\ncriminal actions. It would amend 5 U.S.C. \xc2\xa7 706(2)(C) b y , requiring a\ncourt, when agency action is challenged as in excess of statutory juris\xc2\xad\ndiction, authority or limitation or short of statutory right, to determine\nthat the action is authorized \xe2\x80\x9cexpressly\xe2\x80\x9d or by \xe2\x80\x9cclear implication\xe2\x80\x9d in\nthe statute or \xe2\x80\x9cother relevant legal materials.\xe2\x80\x9d Finally, it would amend\n5 U.S.C. \xc2\xa7 706(2)(E) by making the \xe2\x80\x9csubstantial evidence\xe2\x80\x9d test applica\xc2\xad\nble to all informal rulemaking conducted pursuant to 5 U.S.C. \xc2\xa7 553 and\nall adjudications under 5 U.S.C. \xc2\xa7 554.\nThese provisions would constitute substantial alterations in existing\nprinciples governing judicial review of agency action and, in our view,\nwould have seriously destabilizing effects on administrative law. They\nwould not, in our view, satisfy the purposes they are said to serve, and\nthey would have major counterproductive consequences, which would\ninclude making the administrative process more confused and prone to\ndelay than it already is. By prompting more and more complex litiga-\n\n631\n\n\x0ction regarding agency action, they would also impose significant bur\xc2\xad\ndens on already overburdened courts.\nAt bottom, the provisions rest on a contradiction. They are put\nforward as a response to a perception that agencies should be more\npolitically accountable to Congress and hence the people, but in fact\nthey would replace the agencies with federal judges, members of the\nbranch of government which is constitutionally immune from the ordi-\'\nnary methods of political accountability that control the exercise of\ndiscretion under law. We doubt that there is any reason to assume, as\nthe Bumpers amendment does, that the judiciary\xe2\x80\x99s conclusions on com\xc2\xad\nplex policy choices arising in administrative proceedings will necessar\xc2\xad\nily be seen by Congress as more \xe2\x80\x9ccorrect\xe2\x80\x9d than those of agencies. It\nmay be anticipated that in the future, as in the past, courts will deter\xc2\xad\nmine in various cases that agencies should have imposed regulatory\nrequirements more rigorous or otherwise different from those they have\nimposed. Cf. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954);\nNatural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 (D .C ..\nCir. 1977). If Congress wishes to make agencies more accountable to its\nwill, it can do so directly, such as by more detailed substantive legisla\xc2\xad\ntion or oversight hearings. To seek to do so indirectly by giving broad,\nnew powers and duties to courts is to risk jeopardizing basic values of\ndemocratic governance, according to which Congress, not the courts,\nshould assume primary responsibility for determinations affecting public\npolicy.\nWe will focus on the three main aspects of the revised Bumpers\namendment.\nI. The \xe2\x80\x9cPresumption of Validity\xe2\x80\x9d\n\nThe revised amendment would provide that a reviewing court shall\nmake determinations about a rule \xe2\x80\x9cwithout according any presumption\nof validity\xe2\x80\x9d to any rule, except where a rule is set up as a defense, such\nas by a private party, to a civil or criminal action.\nThis provision is said to be designed to prevent \xe2\x80\x9cblind or automatic\xe2\x80\x9d\njudicial deference to agency rules. However, it is incorrect as an empir\xc2\xad\nical matter to suggest that courts blindly defer to agencies. The courts\ncan and do \xe2\x80\x9cspeak the final word on interpretation of law, both consti\xc2\xad\ntutional and statutory.\xe2\x80\x9d 1 As to matters involving an admixture of fac\xc2\xad\ntual and policy issues, the Supreme Court has plainly instructed lower\nfederal courts to subject agency rules to a \xe2\x80\x9csearching and careful\xe2\x80\x9d and\n\xe2\x80\x9cthorough, probing, in-depth review.\xe2\x80\x9d Citizens to Preserve Overton Park\nv. Volpe, 401 U.S. 402, 415-16 (1971). The lower federal courts have\n1 R eport o f the A tto rn ey G en eral\'s C om m ittee on A dm inistrative Procedure, Administrative Proce\xc2\xad\ndure in Government Agencies, S. D oc. No. 8, 77th C ong.. 1st Sess. 78 (1941) (hereinafter cited as\nR eport o f the A tto rn ey G en eral\xe2\x80\x99s Com m ittee). See Volkswagenwerk v. FMC. 390 U.S. 261, 272 (1968);\nMorton v. Ruiz, 415 U.S. 199, 237 (1974).\n\n632\n\n\x0cheeded such directions by carefully and thoroughly reviewing agency\nrules.2\nAlthough the phrase \xe2\x80\x9cpresumption of validity\xe2\x80\x9d is undefined, it might\nbe said to encompass a wide variety of doctrines under which courts\nreasonably give weight to agency determinations in view of the agen\xc2\xad\ncy\xe2\x80\x99s specialized experience, familiarity with the underlying statutes and\nimmersion in day-to-day administrative operations that reveal practical\nconsequences of different courses of action.3 If this be its meaning here,\nthen its elimination from the law would be senseless and dangerous in\nterms of its implications for the respective roles of courts and agencies.\nFor instance, it is rational for courts to defer to an agency\xe2\x80\x99s interpre\xc2\xad\ntation of its own statute, barring contrary indication in the legislative\nrecord, because agencies have specialized knowledge and exposure per\xc2\xad\ntinent to the process of properly construing their organic acts. See, e.g.,\nN L R B v. Seven-Up Bottling Co., 344 U.S. 344, 349 (1953); Wilderness\nSociety v. Morton, 479 F.2d 842, 866 (D.C. Cir.) (en banc), cert, denied,\n411 U.S. 917 (1973). Further, it bears noting that historically agencies\nhave been established in order to gain for society the benefits of expert,\nspecialized decisionmaking on complex issues of policy.4 It would be\ninconsistent to rely on such bodies without permitting courts, in the\ncontext of reviewing agency rules, to ascribe to agency determinations\na presumption of validity in appropriate circumstances. There are, as\nJudge Learned Hand noted, issues as to which an agency\xe2\x80\x99s \xe2\x80\x9cspecialized\nexperience equips it with major premises inaccessible to judges.\xe2\x80\x9d N LR B\nv. Universal Camera Corp., 190 F.2d 429, 430 (2d Cir. 1951). It would\nalso be inappropriate in a democratic system to permit courts to substi\xc2\xad\ntute their policy preferences for those of agencies. Since the notion that\ncourts in appropriate cases can accord agency views a presumption of\nvalidity is both a basic tool of rational judicial decisionmaking and a\nbulwark against usurpation by the judiciary of the policy-making role\nof agencies, its elimination would promise to be significantly\ncounterproductive.5\n7See. e.g.. Katharine Gibbs Sch. v. FTC 612 F.2d 658 (2d Cir. 1979); Ethyl Corp. v. EPA. 541 F. 2d 1\n(D .C . C ir.) (en banc), cert, denied, 426 U.S. 941 (1976). Indeed, if courts w ere not carefully review ing\nrules, as w e believe they are, then it w ould be unrealistic at the outset to suppose that courts could be\na reliable means o f preventing agency \' \xe2\x80\x98excess." But the Bum pers am endm ent presumes that courts\nshould be relied on to prevent such \xe2\x80\x9cexcess.\xe2\x80\x99* T h ere is thus a deep incoherence in the argum ent for the\nam endm ent: it asserts (w rongly, in o u r view ) that courts blindly defer to agencies, and it w ould seek\nto rely on co u rts (inappropriately, in o ur view ) to rem edy the problem o f agency \xe2\x80\x9cexcess.\xe2\x80\x9d\n3 See generally W oodw ard & Levin, In Defense o f Deference: Judicial Review o f Agency Action, 31 Ad.\nL. Rev. 329, 331-35, 337-38 (1979).\n*See J. Landis, T h e A dm inistrative Process (1938). See also R eport o f the A ttorney G e n eral\xe2\x80\x99s\nCom m ittee, note 1 supra, at 77: \xe2\x80\x9c [W]e expect judicial review to check\xe2\x80\x94not to supplant\xe2\x80\x94adm inistra\xc2\xad\ntive action. R eview must not be so extensive as to destroy (he values\xe2\x80\x94expertness, specialization, and\nthe like\xe2\x80\x94w hich . . . w ere sought in the establishm ent o f adm inistrative agencies.1\'\n5 It is no response to suggest that legal issues can be distinguished from \xe2\x80\x9c fact" and \xe2\x80\x9c policy" issues,\nand that only the first set o f issues w ould be affected by the elimination o f any presum ption o f validity\no f rules. It has been long recognized that there is no such \xe2\x80\x9c fixed distinction\xe2\x80\x9d in adm inistrative law, see,\ne.g.. Dickinson, A dm inistrative Justice and the Suprem acy o f L aw 55 (1959), for m any issues subsume\nlegal, factual, and policy questions.\n\n633\n\n\x0cIts elimination would also undermine necessary certainty and stability\nin the law. An agency rule would need only to be challenged in court\nto lose its status as presumably valid until found otherwise. The prod\xc2\xad\nucts of federal agencies thus would be unreasonably denied the basic\nprotection normally accorded most acts of individuals and groups,\nnamely, the assumption that until proven otherwise, actors in society\nwill be presumed to have behaved legally.\nII. \xe2\x80\x9cExpress\xe2\x80\x9d or \xe2\x80\x9cClear\xe2\x80\x9d Authority for Agency Action\n\nThe revised Bumpers amendment would provide that whenever\nagency action is challenged as not authorized by statute, the reviewing\ncourt must determine that it is authorized \xe2\x80\x9cexpressly\xe2\x80\x9d or \xe2\x80\x9cby clear\nimplication\xe2\x80\x9d in view of the statutory language and \xe2\x80\x9cother relevant legal\nmaterials.\xe2\x80\x9d\nThis provision is said to be a means of preventing excursions by\nagencies beyond their statutory bounds. However, that purpose is al\xc2\xad\nready served by existing standards of judicial review, which require a\ncourt to set aside agency action found to be in excess of statutory\njurisdiction, authority or limitations, or short of statutory rights. See\n5 U.S.C. \xc2\xa7 706(2)(C). Accordingly, there is no need to alter existing law\nto further the aim claimed for this provision, at least with respect to\nstandards of judicial review.\nAlso, the proposed language raises the possibility that courts, in\nreviewing agency action, could be unable to use the flexible tools of\nstatutory construction that have evolved as the necessary concomitants\nof broad delegations to agencies. For instance, if a statute does not\nexplicitly anticipate a particular problem that arises in its implementa\xc2\xad\ntion, and if the legislative history is silent on the point in issue\xe2\x80\x94as\nhappens not infrequently\xe2\x80\x94a court would likely inquire whether the\nagency action is consistent with and \xe2\x80\x9creasonably related to the purposes\nof the enabling legislation. . . .\xe2\x80\x9d Thorpe v. Housing Authority o f the City\no f Durham, 393 U.S. 268, 280-81 (1969); See Mourning v. Family Publi\xc2\xad\ncations Service, Inc., 411 U.S. 356, 369 (1973). It might be argued that,\nunder the proposed language, such a perfectly appropriate judicial\ninquiry would be barred by the requirement that agency action be\nauthorized \xe2\x80\x9cexpressly\xe2\x80\x9d or by \xe2\x80\x9cclear implication,\xe2\x80\x9d whatever those terms\nmay precisely mean. Such an argument fails to recognize that under\nstatutes conferring broad powers on agencies, agencies often must\nassess widely competing values, interests or other factors in light of the\n634\n\n\x0claw, and frequently a given statute cannot plausibly be construed\n\xe2\x80\x9cclearly\xe2\x80\x9d to authorize or require one specific result of such a\nparticularistic, policy-laden assessment.\nIn addition, the free-wheeling use by courts of a \xe2\x80\x9cclear implication\xe2\x80\x9d\nor \xe2\x80\x9cclear statement\xe2\x80\x9d doctrine, such as reflected in the proposed lan\xc2\xad\nguage, could represent a dangerous arrogation by the courts of the\npolicy-making discretion that Congress has delegated to agencies.\nIII. The \xe2\x80\x9cSubstantial Evidence\xe2\x80\x9d Standard\nThe revised Bumpers amendment would amend the APA by making\nthe \xe2\x80\x9csubstantial evidence\xe2\x80\x9d standard applicable to all rulemaking and\nadjudication, even if they are not required by statute to be conducted\non the record after opportunity for an agency hearing. Under the APA,\nthe substantial evidence standard only applies to formal \xe2\x80\x9con the record\xe2\x80\x9d\ndecisionmaking, which usually involves a trial-type hearing. See\n5 U.S.C. \xc2\xa7\xc2\xa7 556, 557 & 706(2)(E).\nThis proposal rests on the mistaken premise that a higher standard of\nreview of factual issues than that afforded by the \xe2\x80\x9carbitrary and capri\xc2\xad\ncious\xe2\x80\x9d standard of review is needed. In fact, courts aggressively review\nfactual issues arising in informal rulemaking under the arbitrary and\ncapricious standard.6 There is simply no demonstrated need to alter the\npresent standard in order to prompt careful and searching judicial\nreview.\nAlthough the term \xe2\x80\x9csubstantial evidence\xe2\x80\x9d is not a talismanic phrase\nof determinate meaning,7 it involves, under the APA, a review of the\nwhole record underlying the agency action. See Universal Camera Corp.\nv. NLRB, 340 U.S. 474, 488 (1951). Informal rulemaking is not required\nto have any \xe2\x80\x9crecord\xe2\x80\x9d encapsulating all the evidence on which a deci\xc2\xad\nsion is based. At the most basic level, then, it is difficult to understand\nhow a \xe2\x80\x9csubstantial evidence\xe2\x80\x9d standard could be used across the board\nwith respect to all informal rulemaking.8\nAlso, many, if not most, of the crucial determinations pertinent to\ninformal rulemaking are of a general policy nature, and do not turn on\nthe existence or nonexistence of specific \xe2\x80\x9cfacts\xe2\x80\x9d so much as they turn\n\xe2\x80\x98 See. e.g.. South Terminal Corp. v. EPA. 504 F.2d 646, 671-76 (1st Cir. 1974); State o f Texas v. EPA,\n499 F.2d 289, 297 (5th Cir. 1974). See also Union Oil Co. o f Cal. v. FPC. 542 F.2d 1036, 1041-44 (9th\nCir. 1976).\n1 See Associated Industries o f New York State, Inc. v. U.S. Dept, o f Labor, 487 F.2d 342, 349 (2d Cir.\n1973).\n\naSee S. B reyer & R. Stew art, A dm inistrative L aw and R egulatory Policy 195 (1979) (\xe2\x80\x9c Since it\npresum es review on the basis o f all o f the relevant evidence, the substantial evidence standard in any\nevent w ould be inappropriate in informal decision-making, w hich does not generate a trial-type record\ncontaining all o f the relevant evidence.\xe2\x80\x9d ).\n\n635\n\n\x0con the evaluation of probabilities, the balancing of objectives and the\nselection of methods to achieve given ends within statutory limits. It\nwould be erroneous to assume that such decisions can be easily assimi\xc2\xad\nlated into a model of review designed especially for factual questions\naired and tested in \xe2\x80\x9con the record\xe2\x80\x9d proceedings. One could expect\nconsiderable confusion about the way in which any \xe2\x80\x9csubstantial evi\xc2\xad\ndence\xe2\x80\x9d standard should apply with respect to such issues in informal\nrulemaking.\nAlso, one could expect confusion about the proper procedures that\nshould be used to generate a \xe2\x80\x9crecord\xe2\x80\x9d subject to review under a\nsubstantial evidence standard. At a minimum, agencies likely would\nmove toward more formalized procedures in order to guard against\npossible adverse rulings by courts that the record was insufficient or\nimproperly compiled.9 This would make the administrative process\nslower and less efficient, the opposite of the results said by proponents\nof the Bumpers amendment to be sought. This would also make not\nonly regulation but also ^-regulation harder and more costly, further\ninterposing counterproductive tendencies in the administrative process.\nIt is not a sufficient response to note that in some statutes, Congress\nhas applied a substantial evidence standard to rulemaking not involving\nthe full procedural formalities under 5 U.S.C. \xc2\xa7\xc2\xa7556 & 557. First, in\nsuch statutes, Congress has addressed the issue of what other than\nnotice-and-comment procedures are required, thereby helping to obvi\xc2\xad\nate what would be one of the central confusions flowing from this\nproposal. Further, it simply does not follow from the fact that Congress\nhas applied a substantial evidence standard to certain \xe2\x80\x9chybrid\xe2\x80\x9d proce\xc2\xad\ndures, that the standard should be applied to all informal rulemaking.\nEven in the context of particular statutes, the combination of \xe2\x80\x9chybrid\xe2\x80\x9d\nprocedures and a substantial evidence test has contributed to confusion\nand an \xe2\x80\x9cabsence of statutory harmony with respect to the nature and\nscope of review.\xe2\x80\x9d Associated Industries v. Dept, o f Labor, supra n. 7, 487\nF.2d at 345. This sort of confusion would be multiplied should this\nproposal, imposing a higher standard of review without consideration\nof its appropriateness in a particular substantive context and without\ngiving any attention to attendant procedural requirements under spe\xc2\xad\ncific statutes, be adopted.\n\n9 See Industrial Union Dept.. AFL-C IO v. Hodgson. 499 F.2d 467, 474 (D .C . Cir. 1974). But see\nVermont Yankee Nuclear Power Co. v. Natural Resources Defense Council. 435 U.S. 519 (1978).\nCompare. Mobil Oil Corp. v. FPC. 483 F.2d 1238 (D .C . C ir. 1973), with Phillips Petroleum Co. v. FPC,\n475 F.2d 842, 851-52 (10th Cir. 1973), cert, denied sub nom. Chevron Oil Co.. Western Division v. FPC.\n414 U.S. 1146(1974).\n\n636\n\n\x0cV. Conclusion\n\nWe believe that the revised Bumpers amendment, like the original\nBumpers amendment, is an inappropriate means for achieving the de\xc2\xad\nsired goals of reforming the administrative process. Both would predict\xc2\xad\nably prompt substantial counterproductive consequences. Both would\nupset long-established legal principles and foster basic confusion in\nadministrative law while complicating and delaying the implementation\nand enforcement of statutes.\nSincerely,\nA\n\nlan\n\nA. P arker\n\nAssistant Attorney General\nOffice o f Legislative Affairs\n\n637\n\n\x0c'


b'January 2, 1979\n\n79-1\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nENERGY\nDepartment of Energy\xe2\x80\x94Civil Service Commission\xe2\x80\x94\nNumber of Supergrade Positions the Secretary of\nEnergy May Fill Pursuant to the Department of\nEnergy Organization Act (42 U.S.C. \xc2\xa7 7101)\n\nThis responds to your request for our opinion concerning the authority\nof the Secretary of Energy (Secretary) under the Department of Energy\nOrganization Act (DEOA) or (Act)1 to fill 20 supergrade positions\noriginally authorized by the Economic Stabilization Act of 1970 (ESA)2\nand carried forward by the Emergency Petroleum Allocation Act o f 1973\n(EPAA).J We conclude that the interpretation of the DEOA by the Civil\nService Commission (CSC) is correct and that those positions are not\navailable to the Secretary.\nThe 20 supergrade positions at issue were created by \xc2\xa7 212(d) of the ESA4\nand carried forward by \xc2\xa7 5(a) of the EPA A.5 When the Federal Energy\nAdministration of 1974 (FEAA) was enacted,6 President Nixon delegated\nhis authority under the EPAA to the Federal Energy Administration\n\n1 Pub. L. No. 95-91, 91 Stat. 565 (1977), codified at 42 U.S.C. \xc2\xa7 7101 et seq. 1 Pub. L. No. 91-379, 84 Stat. 796 (1970), as amended by Pub. L. No. 91-558, Title II,\n\xc2\xa7 201, 84 Stat. 1468 (1970), Pub. L. No. 92-8, \xc2\xa7 2, 85 Stat. 13 (1971), Pub. L. No. 92-15, \xc2\xa7 3,\n85 Stat. 38 (1971), Pub. L. No. 92-210, \xc2\xa7 2, 85 Stat. 743 (1971), Pub. L. No. 93-28, \xc2\xa7\xc2\xa7 2-8,\n87 Stat. 27 (1973), reprinted at 12 U.S.C. \xc2\xa7 1904 note.\n1 15 U.S.C. \xc2\xa7 751 etseq.\n\xe2\x80\xa2 Pub. L. No. 92-210, \xc2\xa7 212(d), 85 Stat. 743, 751 (1971), reads as follows:\n(1) In addition to the number of positions which may be placed in GS-16, 17, and 18,\nunder section 5108 of title 5, United States Code, not to exceed twenty positions may be\nplaced in GS-16, 17, and 18, to carry out the functions under this title.\n(2) The authority under this subsection shall be subject to the procedures prescribed\nunder section 5108 of title 5, United States Code, and shall continue only for the dura\xc2\xad\ntion of the exercise of functions under this title.\n\xe2\x80\x99 15 U.S.C. \xc2\xa7 754(a)(1)(B).\n\xe2\x80\x98 15 U.S.C. \xc2\xa7 761 et seq.\n\n1\n\n\x0c(FEA) Administrator.7 The DEO A transferred all the functions of the\nFEA to the Secretary," and saved all authority available to the President\nimmediately prior to the effective date of the Act.9 It is arguable that the\nauthority for the 20 supergrades has never lapsed and presently resides in\nthe Secretary. You contend that \xc2\xa7 621(d) of the DEOA expressly preserves\nthe \xc2\xa7 212(d) authority by providing that the Secretary may fill 200 super\xc2\xad\ngrade positions \xe2\x80\x9c in addition to the number of positions which may be\nplaced at GS-16, GS-17 and GS-18 under section 5108 of title 5, United\nStates Code, under existing law, or under this A ct.\xe2\x80\x9d 10\nAlthough your contention is not without force, our analysis of the statu\xc2\xad\ntory structure and purpose leads us to conclude as follows: (1) recognition\nof the 20 additional supergrade positions would be inconsistent with the Act\nand congressional intent; (2) the phrase \xe2\x80\x9c under existing law\xe2\x80\x9d in \xc2\xa7 621(d)\nwas not intended to refer to \xc2\xa7 212(d) of the ESA; and thus (3) the authority\nprovided by \xc2\xa7 212(d) is not available to the Secretary.\nSupergrade Positions Under DEOA\nSection 621 of the Act gives the Secretary the authority to fill a total of\n689 supergrade positions. Some must be filled pursuant to the civil service\nlaws, others are exempt, and still others are initially exempt but will eventu\xc2\xad\nally be covered." The CSC contends that the 689 positions represent the\n\n7 Exec. Order No. 11790, \xc2\xa7 2(a), 39 F.R. 23185 (1974).\n\xe2\x96\xa0 \xc2\xa7 301(a), 42 U.S.C. \xc2\xa7 7151(a).\n* \xc2\xa7 708, 42 U.S.C. \xc2\xa7 7298.\n10 42 U.S.C. \xc2\xa7 7231(d).\n" \xc2\xa7 621, 42 U.S.C. \xc2\xa7 7231, provides, in relevant part:\n(b)(1) Subject to the limitations provided in paragraph (2) and to the extent the\nSecretary deems such action necessary to the discharge of his functions, he may ap\xc2\xad\npoint not more than three hundred eleven of the scientific, engineering, professional,\nand administrative personnel of the department without regard to the civil service laws,\nand may fix the compensation of such personnel not in excess of the maximum rate\npayable for GS-18 of the General Schedule under section 5332 of Title 5 [United States\nCode].\n(2) The Secretary\xe2\x80\x99s authority under this subsection to appoint an individual to such\na position without regard to the civil service laws shall cease\n(A) when a person appointed, within four years after the effective date of this\nchapter, to fill such position under paragraph (1) leaves such position, or\n(B) on the day which is four years after such effective date, whichever is later.\n(c)(1) Subject to the provisions of chapter 51 of Title 5 [United States Code], but not\xc2\xad\nwithstanding the last two sentences of section 5108(a) of such title, the Secretary may\nplace at GS-16, GS-17, and GS-18, not to exceed one hundred seventy-eight positions of\nthe positions subject to the limitation of the first sentence of section 5108(a) of such title.\n(2) Appointments under this subsection may be made without regard to the provi\xc2\xad\nsions of section 3324 of Title 5 [United States Code], relating to the approval by the Civil\nService Commission of appointments under GS-16, GS-17, and GS-18 if the individual\nplaced in such position is an individual who is transferred in connection with a transfer\no f functions under this chapter and who, immediately before the effective date of this\n, chapter, held a position and duties comparable to those of such position.\n(3) The Secretary\xe2\x80\x99s authority under this subsection with respect to any position\nshall cease when the person first appointed to fill such position leaves such position.\n(Continued)\n\n2\n\n\x0ctotal number of supergrade positions presently available to the Secretary.\nThe Department of Energy (DOE) asserts that \xc2\xa7 621 is not exclusive and\nthat the 689 figure is not an absolute limit. Resolution of this issue requires\na detailed analysis of the history of \xc2\xa7 621.\nThe provisions concerning supergrade positions underwent substantial\nchange as the DEOA progressed through Congress. The Senate bill,\nS. 826, gave the Secretary the authority to fill 600 \xe2\x80\x9c scientific, engineering,\nprofessional, and administrative\xe2\x80\x9d supergrade positions without regard to\ncivil service laws.12 It further provided:\nIn addition to the number of positions which may be placed in\ngrades GS-16, 17, and 18 under section 5332 of title 5, United\nStates Code, under existing law or this Act, not to exceed one\nhundred and fifty positions may be placed in grades GS-16, 17,\nand 18 to carry out functions under this Act. Positions estab\xc2\xad\nlished by this subsection shall be subject to standards and pro\xc2\xad\ncedures under chapter 51 of title 5, United States Code.15\nThe bill, as passed by the Senate, vested the Secretary with the authority to\nfill 750 supergrade positions. It thus provided for approximately 75 more\nsupergrade positions than were authorized for the agencies to be merged\ninto DO E.14 These extra positions, it was asserted, would allow for \xe2\x80\x9c room\nfor growth\xe2\x80\x9d in the new department.15 The provisions concerning super\xc2\xad\ngrades received virtually no attention in Senate deliberations on the DEOA.\nIn the House, the supergrade positions were a major subject of discus\xc2\xad\nsion. H.R. 6804 as reported by the House Committee on Government\n\n(Continued)\n(d)\nIn addition to the number of positions which may be placed at GS-16, GS-17, and\nGS-18 under section 5108 of Title 5 [United States Code], under existing law, or under\nthis chapter and to the extent the Secretary deems such action necessary to the discharge\nof his functions, he may appoint not more than two hundred of the scientific, engineer\xc2\xad\ning, professional, and administrative personnel without regard to the civil service laws\nand may fix the compensation of such personnel not in excess of the maximum rate\npayable for GS-18 of the General Schedule under section 5332 of Title 5 [United States\nCode].\n12 S. 826, 95th Cong., 1st sess. \xc2\xa7 611 (1977).\n\'> Id., \xc2\xa7 612(b).\n\'* See Department of Energy Organization Act; Hearings on H.R. 4263 Before the Sub\xc2\xad\ncommittee on Legislation and National Security of the House Committee on Government\nOperations, 95th Cong., 1st sess. 83-84 (1977) (testimony of James R. Schlesinger); Federal\nPersonnel for the Proposed Department of Energy: Hearings on H.R. 4263 Before the Sub\xc2\xad\ncommittee on Employee Ethics and Utilization o f the House Committee on Post Office and\nCivil Service, 95th Cong., 1st sess. 3 (1977) (statement of Robert F. Allnutl, Acting Assistant\nAdministrator for Administration, Energy Research and Development Administration\n(ERDA)). H.R. 4263 was the companion bill to S. 826.\nPresumably, DOE would assert that under the Senate bill the Secretary was not limited to\n750 supergrade positions because \xc2\xa7 612(b) includes the phrase \xe2\x80\x9c in addition to the number of\npositions which may be placed * * * under existing law.\xe2\x80\x9d However, we are satisfied that\nthe original bill did intend to limit the total number of positions to 750 and that the phrase\n\xe2\x80\x9c under existing law\xe2\x80\x9d was not intended to increase the number.\n" Hearings Before the Subcommittee on Employee Ethics, supra, note 14 at 16.\n\n3\n\n\x0cOperations gave the Secretary the authority to appoint, without regard to\nthe civil service laws, \xe2\x80\x9c not more than the number of scientific, engineer\xc2\xad\ning, and professional supergrade personnel\xe2\x80\x9d then authorized for ERD A .\'6\nFurthermore, the Secretary could fill up to 105 supergrade positions \xe2\x80\x9c in\naddition to the number of positions which may be placed in grade 16, 17\nand 18 of the General Schedule under section 5108 of title 5, United States\nCode, or under * * * the A ct.\xe2\x80\x9d 17\nBy these provisions, the Government Operations Committee sought to\ntransfer to the newly established DOE all the supergrade positions\nauthorized for the agencies to be merged into DOE. The Committee\ncarefully identified 689 extant supergrade positions:\nEnergy Research and Development Administration 511\nFederal Energy Administration\n105\nFederal Power Commission\n52\nDepartment of the Interior\n11\nOther agencies________________________________\n10\n689\nH.R. 6804 carried over 511 scientific, engineering, and professional posi\xc2\xad\ntions then authorized for ERDA and 105 positions then authorized for\nFEA. The Committee Report provided for the 105 FEA supergrade posi\xc2\xad\ntions because they were \xe2\x80\x9c authorized pursuant to the provisions of the\nFEA Act which will terminate upon enactment of this legislation.\xe2\x80\x9d \' 8 No\nmention was made of the remaining transferred positions since they were\n\xe2\x80\x9c presently authorized under civil service laws and will continue to be so\nafter the positions are transferred to DOE.\xe2\x80\x9d 19 Thus, unlike the Senate bill,\nthe House bill, as originally reported, sought to limit the number of super\xc2\xad\ngrade positions in DOE to those then existing in agencies to be merged into\nthe new department: \xe2\x80\x9c The intent of the committee is to make no change in\nexisting law regarding supergrade positions in the affected agencies, except\nto impose a ceiling at the current level of such positions connected with all\ntransferred functions.\xe2\x80\x9d 20\nThe House Committee on Post Office and Civil Service proposed\namendments to H.R. 6804 on the subject of the number of exempt\nsupergrade positions, and it requested sequential referral of the bill after\nthe Government Operations Committee refused to accept these amend\xc2\xad\nments. The Civil Service Committee believed that H.R. 6804, as reported,\nwould \xe2\x80\x9c dangerously dilute existing controls over a bureaucracy which is\nrapidly becoming uncontrollable;\xe2\x80\x9d it was \xe2\x80\x9c deeply concerned\xe2\x80\x9d about the\nprovisions giving the Secretary authority to fill large numbers of\n\n11 H.R. 6804, 95th Cong., 1st sess. \xc2\xa7 607 (1977).\n\xe2\x80\x9d Id., \xc2\xa7 608(b).\n" H. Rept. 346, Part I, 95th Cong., 1st sess. 12, 28 (1977).\n" Id., at 12.\n20 Id., at 12.\n\n4\n\n\x0csupergrade positions outside the purview of the civil service laws and\nestablishing a special authority for 105 supergrades.21 Accordingly, the\nCommittee proposed amendments, later accepted by the House, giving the\nSecretary the authority to fill 350 supergrade positions subject to the civil\nservice laws22 and only 200 supergrade positions exempted from the civil\nservice laws.23 However, while the Committee changed the method of ap\xc2\xad\npointment, it did not seek to alter the total number of supergrades pro\xc2\xad\nvided for by the Government Operations Committee:\nThis committee understands that it is the intent of the Govern\xc2\xad\nment Operations Committee to provide supergrade authorization\nin H.R. 6804 to an extent equivalent to that existing under pres\xc2\xad\nent law. No new authorization, that is, authorization in excess of\nthat provided under existing law, is intended.24\nThe Conference Committee adopted \xc2\xa7 621 of the Act as a compromise be\xc2\xad\ntween the House and Senate bills.25 The Act provides for (1) 311 scientific,\nengineering, professional, and administrative supergrades,26 (2) 178 su\xc2\xad\npergrade positions to be allocated from CSC\xe2\x80\x99s pool under 5 U.S.C. 5108,27\nand 200 supergrade positions exempt from the civil service laws. While\nthere is no stated reason for selecting these individual figures,28 we believe\nthat the Conference adopted the House\xe2\x80\x99s proposal and \xe2\x80\x9c [t]he conferees\nagreed to assign to DOE 689 supergrade positions which represent the\nsame number of positions as are presently authorized for functions to\nbe transferred to DOE.\xe2\x80\x9d 29 Representative Schroeder, a conferee and\nmember of the House Committee on Post Office and Civil Service,\ndefended the conference report before the House, stating, \xe2\x80\x9c [W]e retained\nthe House position and there will be no more supergrades in the new\n\n21 H. Rept. 346, Part II, 95th Cong., 1st sess. 5 (1977).\n11 These supergrade positions would be allocated to the agency from the CSC pool of\nsupergrade positions authorized for the Federal Government as a whole, pursuant to 5\nU.S.C. 5108. Accordingly, the House adopted an amendment to \xc2\xa7 5108 increasing the pool\nby 350. H.R. 6804, 95th Cong., 1st sess. \xc2\xa7 7l4(c)(1977).\n21 While the amendments of the Committee on the Post Office and Civil Service only\nauthorized the total of 550 exempt and nonexempt supergrade positions for DOE, the Com\xc2\xad\nmittee noted that 73 additional positions were already allocated by CSC from its \xc2\xa7 5108 pool\nto existing agencies and would be transferred to DOE. Furthermore, CSC could allocate addi\xc2\xad\ntional supergrades to DOE to fill \xe2\x80\x9c professional engineering positions primarily concerned\nwith research and development and professional positions in the physical and natural sci\xc2\xad\nences and medicine\xe2\x80\x9d which are excepted from the overall pool limit. See 5 U.S.C. \xc2\xa7 5108.\n24 H. Rept. 346, Part II, at 7. See 123 C on g . R ec . H. 5280 (daily ed., June 2, 1977)\n(remarks of Representative Schroeder); id. at H. 5283 (remarks of Representative Gilman).\n21 The provisions concerning supergrade positions adopted by the Conference are substan\xc2\xad\ntially different from both the Senate and House bills. Indeed, Representative Bauman\nasserted that the Conference exceeded its mandate in devising the new provisions. 123 C o n g .\nRec . H. 8250 (daily ed., Aug. 2, 1977).\n2\xe2\x80\x98 These positions would initially be filled without regard to the civil service laws but would\nbe subject to the civil service laws as soon as the original appointee left office or after 4 years,\nwhichever is later. \xc2\xa7 621(b), 42 U.S.C. \xc2\xa7 7231(b).\n2,To accommodate these new \xe2\x80\x9c pool\xe2\x80\x9d positions, \xc2\xa7 710(b) o f the Act added 489 positions to\nthe \xc2\xa7 5108 pool.\n21 The number 178 for \xc2\xa7 621(c) appears to represent FEA\xe2\x80\x99s authorization (105) plus 73\nsupergrades assigned to agencies other than ERDA.\n\xe2\x80\x9d S. Rept. 367, 95th Cong., 1st sess. 93 (1977).\n\n5\n\n\x0cagency than there are in all agencies that are consolidated into the Depart\xc2\xad\nment of Energy * * * [I]t was very hard to get the Senate to yield to the\nHouse position of no new additional supergrades.\xe2\x80\x9d 30\nWe believe that Congress intended to give the Secretary the authority to\nfill only 689 supergrade positions in the new department\xe2\x80\x94the number\nthen authorized in the \xe2\x80\x9c other agencies that are being melded into the\nDepartment of Energy.\xe2\x80\x9d 31 Representative Horton explained, \xe2\x80\x9c what we\ndid when we got to the conference was to determine that there are now 689\nauthorized supergrades.\xe2\x80\x9d 32\nThe DOE argues that, while it is clear that \xc2\xa7 621 was intended to\nauthorize only 689 positions, that number was not an overall limit under\nthe Act and was not intended to override additional sources of appoint\xc2\xad\nment authority. We disagree. It is clear that Congress intended to\nauthorize in \xc2\xa7 621 all the supergrade positions then authorized for the\npreexisting agencies and administrations. It calculated the number of\nauthorized positions as 689.\nMoreover, we believe that the 689 figure already includes the 20 super\xc2\xad\ngrades at issue here; thus to read the Act as preserving \xc2\xa7 212(d) would be to\ndouble-count these positions.\nAs noted above, the EPAA carried forward \xc2\xa7 212(d) of the ESA. One\nyear after passage of the EPAA, Congress enacted the FEAA. That Act\ndid not repeal the EPAA; and \xc2\xa7 7(a) provided:\nIn addition to the number of positions which may be placed in\nGS-16, 17, and 18 under existing law, not to exceed 91 positions\nmay be placed in GS-16, 17, and 18 to carry out the functions\nunder this chapter: Provided, That the total number of positions\nwithin the Administration in GS-16, 17, 18 shall not exceed\n105 * * * . [15 U.S.C. \xc2\xa7 766(a)(1).]\nPresumably the 20 supergrade positions carried forward by the EPAA\nwould be included in the phrase \xe2\x80\x9c under existing law.\xe2\x80\x9d\nWhen Congress tallied up the total number of supergrades, it counted\nFEA\xe2\x80\x99s share as 105. It appears to have included the 20 supergrade posi\xc2\xad\ntions in the 105,33 and it made no mention of, or provision for, \xc2\xa7 212(d) of\nthe ESA. Thus, either Congress treated \xc2\xa7 212(d) of the ESA as merged into\nFEA\xe2\x80\x99s share or it transferred to the Secretary the portion of \xc2\xa7 212(d)\nauthority given to the FEA Administrator. In either case, to permit the\nSecretary to fill additional supergrade positions beyond the 689 authorized\nby \xc2\xa7 621 would be to double-count at least a portion of the positions\nauthorized by \xc2\xa7 212(d) of the ESA.34\n\n10 123 C o n g . R ec . H. 8257 (daily ed., Aug. 2, 1977).\n\nJ1 Id., at H. 5281 (daily ed., June 2, 1977).\n\xe2\x80\x9d Id., at H. 8262 (daily ed., Aug; 2, 1977).\n\xe2\x80\x9d See Hearings, supra, at 626, note 14 (table compiled by Comptroller General indicating\nthat 105 FEA positions to be transferred to DOE include the 20 authorized by the ESA).\n14 It may be argued that \xc2\xa7 7(a) merely \xe2\x80\x9c held in abeyance\xe2\x80\x9d a portion of the authority to ap\xc2\xad\npoint the 20 supergrades (given the fact that the FEA Administrator could appoint 91\n(Continued)\n\n6\n\n\x0cFurther, we believe that the phrase \xe2\x80\x9c under existing laws\xe2\x80\x9d in \xc2\xa7 621(d)\nwas not intended to resurrect or recognize \xc2\xa7 212(d) of ESA.\nThe relevant statutory language provides:\nIn addition to the number of positions which may be placed at\nGS-16, GS-17, and GS-18 under section 5108 of Title 5, [United\nStates Code] under existing law, or under this chapter and to the\nextent the Secretary deems such action necessary to the discharge\nof his functions, he may appoint not more than two hundred of\nthe scientific, engineering, professional, and administrative\npersonnel without regard to the civil service laws and may fix the\ncompensation of such personnel not in excess of the maximum\nrate payable for GS-18 of the General Schedule under section\n5332 of Title 5 [United States Code].35 [Emphasis added.]\nThe language of \xc2\xa7 621(d) is not readily susceptible to a satisfactory\nparsing and there are two possible interpretations of this subsection. On\nthe one hand, the use of the word \xe2\x80\x9c under\xe2\x80\x9d in three subsequent phrases\nseparated by commas may be interpreted to identify three sources of\nsupergrade positions, namely, (1) section 5108, (2) \xe2\x80\x9c existing law,\xe2\x80\x9d and (3)\nthe provisions of the Act.\nAlternatively, this subsection may be interpreted to contemplate only\ntwo sources of supergrade authority: (1) section 5108, and (2) the provi\xc2\xad\nsions of the Act, so that the phrase \xe2\x80\x9c under existing law\xe2\x80\x9d would refer to\nthe number of supergrade positions authorized and allocated by CSC.36\nUnder this interpretation, the Secretary would have the authority to ap\xc2\xad\npoint 200 supergrades in addition to those supergrade positions authorized\nelsewhere in the Act and any supergrade positions that CSC has already\nallocated or may allocate from its section 5108 pool.\nNeither interpretation is entirely satisfactory. Under the first reading\n(urged by DOE), the phrase \xe2\x80\x9c under section 5108 of title 5, United States\nCode,\xe2\x80\x9d is redundant because it would be clearly included in the phrase\n\xe2\x80\x9c under existing law.\xe2\x80\x9d Under the second interpretation (urged by CSC),\n\n(Continued)\nsupergrades up to a limit of 105 positions overall) and that this restriction was lifted once the\nlimit of 105 was terminated. This interpretation would, however, effectively authorize new\nsupergrade positions\xe2\x80\x94a result contrary to congressional intent. As indicated by the House\nCommittee on Government Operations, its intent was to \xe2\x80\x9c impose a ceiling [on supergrade\npositions] at the current level.\xe2\x80\x9d H. Rept. 346, part I, at 12. To the extent the full power to ap\xc2\xad\npoint under \xc2\xa7 212(d) of the ESA was suspended by the FEAA, such a suspension was carried\nforward by the DEOA.\nThe probability that Congress considered \xc2\xa7 212(d) of the ESA to have merged into \xc2\xa7 7(a) of\nthe FEAA may explain why the DEOA makes no mention of \xc2\xa7 212(d), although it repeals\n\xc2\xa7 7(a) of the FEAA and states that \xc2\xa7 161(d) o f the Atomic Energy Act (also relating to ap\xc2\xad\npointment of personnel) shall not apply to functions transferred under the DEOA. See\n\xc2\xa7 709(a)(2), (c)(2).\n\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7231(d) [Emphasis added.]\nIt should be recalled that at the time of the passage of the Act, 73 supergrade positions\nhad already been allocated by CSC from its \xc2\xa7 5108 pool to functions that were to be trans\xc2\xad\nferred to DOE. See H. Rept. 346, Part II, at 7.\n\n7\n\n\x0cthe phrase \xe2\x80\x9c under existing law\xe2\x80\x9d appears to add nothing to the phrase\n\xe2\x80\x9c under section 5108.\xe2\x80\x9d 37\nWe find the interpretation of the statute rendered by CSC more persua\xc2\xad\nsive and we do not believe that the phrase \xe2\x80\x9c under existing law\xe2\x80\x9d was\nintended to collect unexpired or unrepealed grants of authority for\nsupergrade positions. Accepting DOE\xe2\x80\x99s interpretation of the phrase and in\xc2\xad\ncluding the 20 supergrade positions authorized by \xc2\xa7 212(d) of the ESA\nwould be contrary to the intent of Congress to limit DOE to 689 positions.\nWe believe that \xc2\xa7 621(d) authorized the Secretary to fill up to 200 exempt\nsupergrade positions in addition to the supergrade positions he may fill pur\xc2\xad\nsuant to other provisions of the Act or as are allocated to DOE by CSC.\nWe concur with CSC\xe2\x80\x99s statement that by authorizing 689 positions\n\xe2\x80\x9c Congress was well aware of all the laws under which energy functions\nwere performed and that Congress\xe2\x80\x99 purpose was to merge and consolidate\nthe laws and their functions into the newly created functions of DOE.\xe2\x80\x9d\nAlso, we believe that the number of authorized positions was not an ab\xc2\xad\nsolute limit. At a request, additional positions may be allocated to DOE by\nCSC pursuant to 5 U.S.C. \xc2\xa7 5108. However, at its commencement, the\nnew department was authorized only 689 supergrade positions.\nWe do not believe that \xc2\xa7 212(d) of the ESA survived the passage of\nDEOA.3*\nJo h n M . H a rm o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\xe2\x80\x9d The legislative history is of little assistance in construing the language of \xc2\xa7 621(d). The\nconference report does not explain the origin or meaning of the phrase.\nThe original Senate bill, S. 826, 95th Cong., 1st sess. \xc2\xa7 612(b) (1977), used the phrase\n\xe2\x80\x9c under existing law\xe2\x80\x9d in the following context:\nIn addition to the number of positions which may be placed in grades GS-16, 17, and 18\nunder section 5332 o f title 5, United States Code, under existing law or this Act, not to\nexceed one hundred and fifty positions may be placed in grades GS-16, 17 and 18 to\ncarry out functions under this Act. [Emphasis added.)\nIf the phrase were intended to identify additional supergrade positions, S. 826 would\nhave to be read as authorizing at least 125 positions (from FEAA and ESA) beyond the\n750 explicitly provided for. Yet it is clear that this accretion in supergrade positions was\nnot intended by the bill. See S. Rept. 367, at 92-93 and note 14, supra. Rather, the\nphrase most probably refers to positions already authorized and allocated pursuant to 5\nU.S.C. \xc2\xa7 5108. But see \xc2\xa7 7(a) of the FEAA (phrase \xe2\x80\x9c under existing law\xe2\x80\x9d in context\nsimilar to \xc2\xa7 621(d) of DEOA appears to refer to other laws authorizing supergrade posi\xc2\xad\ntions and not merely 5 U.S.C. \xc2\xa7 5108).\n3* We are aware that implied repeals o f specific statutory provisions are disfavored. See,\nUnited States v. United Continental Tuna Corp., 425 U.S. 164, 168-69 (1976); Regional Rail\nReorganization A ct Cases, 419 U.S. 102, 133-34 (1974). Although it is the duty of courts to\nstrive to interpret statutory language to further coexistence of two potentially conflicting\nstatutes, see, Morton v. Mancari, 417 U.S. 535, 551 (1974), we do not believe that the clear\nintent of Congress should be ignored in order to save an otherwise displaced statutory subsec\xc2\xad\ntion. Furthermore, DEOA is a reorganization act that supplants a number o f earlier statutes\nin the same field of law. It thus appears more analogous to a statute that substitutes for an\nearlier statute, see, Posadas v. National City Bank, 296 U.S. 497, 503 (1936) and Plains Elec.\nGeneration and Transmission Cooperations, Inc. v. Pueblo o f Laguana, 542 F. (2d) 1375\n(10th Cir. 1976), than a general statute in one area of law that conflicts with a specific statute\nin another area of law. See, Regional Rail Reorganization A ct Cases, supra, and Morton v.\nMancari, supra.\n\n8\n\n\x0c'