b'National Archives Access to Taxpayer Information\nN either the S ecretary o f the Treasury nor th e President can perm it the N ational A rchives and Records\nA dm in istratio n to inspect tax returns o r return inform ation pursuant to 44 U.S.C. \xc2\xa7 2906(a)(2) for\np u rp o ses o f appraising the records.\n\nMay 28, 1997\nM\n\nem orandum\n\nO\n\np i n i o n fo r t h e\n\nA c t in g A s s o c ia t e A t t o r n e y G e n e r a l\n\nYou have asked whether we concur in the conclusion of the Civil and Tax\nDivisions that neither \xe2\x80\x9c [t]he Secretary of the Treasury [n]or the President can[]\npermit [the National Archives and Records Administration (\xe2\x80\x9c NARA\xe2\x80\x9d )] to inspect\n[tax] returns or return information pursuant to 44 U.S.C. \xc2\xa7 2906(a)(2) for purposes\nof appraising the records.\xe2\x80\x9d 1 For the reasons set forth below, we do concur.\nSection 2906(a)(2) provides that \xe2\x80\x9c [r]ecords, the use of which is restricted by\nlaw or for reasons of national security or the public interest, shall be inspected\n[by NARA], in accordance with regulations promulgated by the Administrator [of\nGeneral Services] and the Archivist, subject to the approval of the head of the\nagency concerned or of the President.\xe2\x80\x9d Under the Internal Revenue Code, title\n26 o f the U.S. Code, tax returns and tax return information \xe2\x80\x9c shall be confidential\xe2\x80\x9d\nand may not be disclosed by the Internal Revenue Service (\xe2\x80\x9c IRS\xe2\x80\x9d ) \xe2\x80\x9c except as\nauthorized by [title 26].\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6103(a) (Supp. II 1996). Because taxpayer\ninformation is thus \xe2\x80\x9c restricted by law ,\xe2\x80\x9d the question presented turns on whether\nthe Secretary o f the Treasury or the President is authorized by \xc2\xa7 2906(a)(2) to\napprove NARA access to such information, notwithstanding \xc2\xa76103\xe2\x80\x99s prohibition\non disclosure except where authorized by the Internal Revenue Code. There are\nboth narrow and broad bases for concluding that they lack such authority.\n1.\nThe narrow basis relies on the limited scope of \xc2\xa7 2906(a)(2) and therefore\ndoes not even involve consideration of the impact of \xc2\xa7 6103. Section 2906(a)(2)\nis not a freestanding provision applicable to all activities undertaken by NARA\nunder title 44. Rather, it is contained within \xc2\xa7 2906, which is limited to inspections\nof agency records that NARA undertakes under chapter 29 of that title. These\ninspections are not for NARA\xe2\x80\x99s ow n appraisal purposes but rather are for the\npurpose of providing agencies with recommendations on their records management\npractices. The first provision of \xc2\xa7 2906 states as follows:\nIn carrying out their respective duties and responsibilities under this\nchapter , the Administrator o f General Services and the Archivist\n(or the designee of either) m ay inspect the records or the records\n1Memorandum for the Acting Associate Attorney General, from Loretta C Argrett, Assistant Attorney General,\nTax Division, and Frank W Hunger, Assistant Attorney General, Civil Division, Re- Tax Analysis, et al. v. IRS,\net al. No. 1 97CV260 JLG (D.D C.) at 1 (Mar 28, 1997) (attaching separate memoranda from each component\nproviding rationale for this conclusion).\n\n92\n\n\x0cNational Archives Access to Taxpayer Information\n\nmanagement practices and programs of any Federal agency solely\nfo r the purpose o f rendering recommendations f o r the improvement\no f records management practices and programs. Officers and\nemployees of such agencies shall cooperate fully in such inspec\xc2\xad\ntions, subject to the provisions o f paragraphs (2) and (3) of this\nsubsection.\n44 U.S.C. \xc2\xa7 2906(a)(1) (1994) (emphasis added).\nThe underscored language indicates both that the NARA inspection authority\nunder \xc2\xa7 2906(a)(1) is limited to inspections o f agency-records under chapter 29\nand that it is further limited by the special rule on statutorily restricted records\nset forth in \xc2\xa7 2906(a)(2). NARA\xe2\x80\x99s mission under chapter 29 is to \xe2\x80\x9c provide guid\xc2\xad\nance and assistance to Federal agencies with respect to ensuring adequate and\nproper documentation of the policies and transactions of the Federal Government\nand ensuring proper records disposition.\xe2\x80\x9d Id. \xc2\xa7 2904(a) (1994). To assist NARA\nin performing this function, \xc2\xa7 2906(a)(1) authorizes NARA to \xe2\x80\x9c inspect\xe2\x80\x9d agency\nrecords \xe2\x80\x9c solely for the purpose of rendering recommendations for the improve\xc2\xad\nment of records management practices and programs.\xe2\x80\x9d Section 2906(a)(2) is a\nlimitation on the \xc2\xa7 2906(a)(1) authority, providing that where such inspections are\nof statutorily restricted information, they may take place only with the approval\nof the head of the agency concerned or the President.\nThe NARA appraisal function under chapter 33 is separate from its chapter\n29 function of inspecting agency records in order to advise the agencies on their\nrecords management practices. Appraisal is the function that NARA undertakes\nin order to make its own determinations (in contrast to making recommendations\nto agencies) on whether agency records may be destroyed. Under chapter 33,\nNARA\nexamine[s] the lists and schedules [of records agencies propose for\ndestruction] submitted to [NARA] under section 3303 of this title.\nIf [NARA] determines that any of the records listed in a list or\nschedule submitted to [it] do not, or will not after the lapse of the\nperiod specified, have sufficient administrative, legal, research, or\nother value to warrant their continued preservation by the Govern\xc2\xad\nment, [it] may . . . (1) notify the agency to that effect; and (2)\nempower the agency to dispose of those records . . . .\n44 U.S.C. \xc2\xa73303a(a) (1994) (emphasis added). Underscoring the decisionmaking\nauthority NARA has under chapter 33, the statute further provides that these\n\xe2\x80\x9c [authorizations granted [by NARA to agencies] shall be mandatory.\xe2\x80\x9d Id.\n\xc2\xa7 3303a(b).\nEven if \xc2\xa7 2906 did not by its terms limit its application to chapter 29, we believe\nthat it would be difficult to argue that the \xc2\xa7 2906(a)(2) authority is available with\n93\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nrespect to the chapter 33 authority. W e have not identified any provision in chapter\n33 \xe2\x80\x94 or anywhere else in title 44 \xe2\x80\x94 that links the chapter 29 inspection authority\nwith the chapter 33 appraisal authority. For example, the provision granting\nNARA its appraisal authority is written in terms of \xe2\x80\x9c examin[ing] lists and sched\xc2\xad\nules,\xe2\x80\x9d not inspecting the records identified on these lists and schedules. See id.\n\xc2\xa7 3303a(a).\nWe recognize, however, that NARA takes the view that its authorities under\nchapters 29 and 33 are intertwined. See Letter for John Dwyer, Acting Associate\nAttorney General, from Elizabeth A. Pugh, General Counsel, NARA, Re:\nAppraisal o f IRS records containing tax return and return information at 1 (Mar.\n21, 1997) ( \xe2\x80\x9c NARA\xe2\x80\x99s paramount concern is to fulfill its statutory obligation to\nappraise and approve the disposition of IRS\xe2\x80\x99s records. 44 U.S.C. \xc2\xa7\xc2\xa72906; 3303,\n3303a.\xe2\x80\x9d ). Although it may be that there is sufficient past practice by NARA to\nconstitute an administrative construction of title 44 to this effect, the memoranda\nthat have been submitted to you do not address this point. Nonetheless, we have\nproceeded to assume, for the purpose of the following discussion, that the\n\xc2\xa7 2906(a)(2) authority is available for appraisal purposes, so that we could consider\nthe broader question of the interaction of that provision with \xc2\xa7 6103 of the Internal\nRevenue Code.\n2. Our broader basis for concurring in the conclusion reached by the Civil and\nTax Divisions is the longstanding position of this Office that the general access\nprovisions of title 44 do not override the subsequently enacted, more specific\nprohibition of \xc2\xa76103.2 W e have written several memoranda on the relationship\nbetween NARA\xe2\x80\x99s access rights under title 44 and the subsequently enacted disclo\xc2\xad\nsure prohibition of \xc2\xa76103.3 We adhere to our established position, which was\nsummarized in the most recent of these memoranda:\nWe have thoroughly reexamined [the first two] memoranda, and\nwe concur in their conclusion that the statutory provisions generally\n2Section 6103 was adopted in 1976, as part o f the Tax Reform Act of 1976, Pub L. No 94-455, \xc2\xa7 1202, 90\nStat 1520, 1667. The authority to inspect statutonly restricted records contained in \xc2\xa7 2906(a)(2) was first provided\nin 1950, by the Federal Records Act of 1950, Pub L No 754, ch 849, \xc2\xa7 505(a), 64 Stat 578, 585. As first enacted,\nthe inspection could take place only with the approval of the head of the agency possessing the records. Id The\nFederal Records Management Amendments of 1976 added the President as an alternative source of approval Pub\nL No 94-575, \xc2\xa7 2(a)(3), 90 Stat. 2723, 2725 This was done in order to provide \xe2\x80\x9c for a clearly defined process\nin those instances where the [Archivist] and the agency head cannot agree on inspection procedures \xe2\x80\x9d S. Rep No\n94-1326, at 10 (1976), reprinted in 1976 U S C C A N 6150, 6158 Thus, the addition of the President did not\nexpand the substantive reach of \xc2\xa7 2906(a)(2) It merely gave the approval authority under that provision to an addi\xc2\xad\ntional person, which did not amount to a significant change because the President already possessed the authority\nto direct the Archivist and agency heads in their application of this provision, based on his constitutional authority\nto supervise and guide executive branch officials\n3 See Transfer o f Watergate Special Prosecution Force Records to the National Archives\xe2\x80\x94 Income Tax Informa\xc2\xad\ntion\xe2\x80\x94 26 US C. \xc2\xa76I03(a), I Op O L C 216 (1977), Memorandum for Alice Daniel, Assistant Attorney General,\nCivil Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re. Applicability\no f the Non-Disclosure Provisions o f the Tax Reform Act (Nov 7, 1980), Memorandum for Richard K Willard,\nAssistant Attorney General, Civil Division, from Samuel A. Alito, J r , Deputy Assistant Attorney General, Office\nof Legal Counsel, R e\xe2\x80\xa2 Authority o f the FBI to Transfer Restricted Records to the National Archives and Records\nAdministration (Feb 27, 1986) (\xe2\x80\x9c Alito Memorandum\xe2\x80\x9d ).\n\n94\n\n\x0cNational Archives Access to Taxpayer Information\n\nempowering the Archivist to obtain . . . records that are subject\nto statutory restrictions . . . do not reach tax returns and tax return\ninformation, which are strictly protected by the Tax Reform Act\nof 1976, 26 U.S.C. 6103. The Tax Reform Act expressly and\nunequivocally prohibited the disclosure of tax returns or tax return\ninformation except as authorized by that Act (26 U.S.C. 6103(a)). .\nThe legislative history of the Act makes clear that these provisions\nexpressed a strong congressional intent to maintain very strict pri\xc2\xad\nvacy for such information. . . . Because neither the statutory lan\xc2\xad\nguage nor legislative history of the Act provides any indication that\nCongress intended to allow the Archives to obtain such information\n. . ., we continue to believe that this specific, subsequent enactment\nmust take precedence over the previously enacted and more general\nterms of the provisions relating to the Archivist. We must assume\nthat the members of Congress who voted for the Tax Reform Act\nunderstood it to mean what the plain language of section 6103(a)\nsays, viz. , that tax returns and tax return information would be dis\xc2\xad\nclosed only under the carefully prescribed conditions set out in the\nAct. We think it is unrealistic to assume that Congress intended\n(but neglected to mention) that such materials would also be subject\nto disclosure under the Archives provisions.\nAlito Memorandum at 1-2 (citations and footnote omitted).\nWe are aware that there is dictum in a D.C. Circuit decision that suggests that\nthe \xc2\xa7 2906(a)(2) authority may override \xc2\xa76103 because the contrary view \xe2\x80\x9c would\neffectively nullify\xe2\x80\x9d the provision. See American Friends Serv. Comm. v. Webster,\n720 F.2d 29, 76 n.75 (D.C. Cir. 1983). However, we adhere to our previously\nstated position that this dictum is incorrect. See Alito Memorandum at 2-3\n( \xe2\x80\x9c because [the D.C. Circuit\xe2\x80\x99s] discussion is dictum, arose in a different context,\nand appears to us to be incorrect, we do not believe that it provides a sufficient\nbasis for agreeing to a plan which, in our view, would violate important privacy\nrights that Congress wished to protect\xe2\x80\x9d ). The Civil Division\xe2\x80\x99s memorandum con\xc2\xad\ntains a persuasive discussion of how giving effect to \xc2\xa76103 does not render\n\xc2\xa7 2906(a)(2) a nullity and how the D.C. Circuit\xe2\x80\x99s view fails to give effect to\n\xc2\xa7 2906(b), which requires compliance \xe2\x80\x9c with all other Federal laws.\xe2\x80\x9d 44 U.S.C.\n\xc2\xa7 2906(b). See Memorandum for the Acting Associate Attorney General, from\nFrank W. Hunger, Assistant Attorney General, Civil Division, Re: Tax Analysts,\ne ta l. v. IRS, e t al., No. 1.97CV260 JLG (D.D.C.) at 9 (Mar. 28, 1997).\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n95\n\n\x0c'


b"Removal of Members of the Commission on\nFederal Laws for the Northern Mariana Islands\nThe basic presum ption underlying the general law on the President\xe2\x80\x99s removal authority is that the\npower to appoint implies the power to remove. Although Congress may alter this presumption\nby an express indication to limit the President\xe2\x80\x99s removal authority, consistent with constitu\xc2\xad\ntional requirements, it has not done so in establishing the Commission on Federal Laws for the\nNorthern M ariana Islands.\nM embers o f the Commission are appointed by the President. The covenant establishing the\nCom mission and its legislative history indicate no intention to restrict Presidential removal\npower. Accordingly, in the absence of any congressional intent to the contrary, the President\nhas the authority to remove Commission members in his discretion, even though the Com m is\xc2\xad\nsion perform s no executive functions and provides services exclusively to the Legislative\nBranch.\n\nApril 14, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nC o un sel\n\nto the\n\nP r e s id e n t\n\nThis memorandum responds to your request for our opinion whether the\nPresident may remove members of the Commission on Federal Laws for the\nNorthern Mariana Islands (Commission). You have transmitted to us two\nmemoranda prepared by different officials of the Department of Interior reach\xc2\xad\ning conflicting conclusions on this question, and have asked us to resolve the\nmatter. The first memorandum, which was prepared by the Assistant Solicitor\nto the Associate Solicitor, Division of General Law, Department of the Interior,\nconcludes that the Commission is an adjunct of Congress and, as such, part of\nthe Legislative Branch. This conclusion rests on a determination that the sole\nfunction of the Commission is to make recommendations to Congress about the\napplicability of laws of the United States to the Northern Mariana Islands,\nwhich recommendations Congress may or may not enact in legislation. This\nmemorandum reasons that because the Commission is part of the Legislative\nBranch, Congress must have intended that the President would not have the\nauthority to remove Commission members in his discretion. The second memo\xc2\xad\nrandum, which was prepared by the Associate Solicitor of the Interior Depart\xc2\xad\nment, concludes that because the President has the authority to appoint Com \xc2\xad\nmission members, the presumption must be that Congress intended that the\nPresident also has the power to remove members at will. This presumption is\nnot found to be overcome by any express indication o f congressional intent to\nlimit Presidential removal authority. Without specifically discussing the ratio\xc2\xad\n\n95\n\n\x0cnale o f the first memorandum, the second memorandum tacitly accepts the\npossibility that the President may have plenary removal authority over advisers\nto the Legislative Branch, at least absent any clear indication to the contrary by\nCongress.\nIn our view, the second of these memoranda more faithfully reflects in its\nreasoning and conclusion the key principles concerning Presidential removal\npower. We believe that the President may, in his discretion, remove Commis\xc2\xad\nsion members, even assuming arguendo that the Commission is an entity\nwhich performs no Executive functions whatsoever and provides services\nexclusively to the Legislative Branch. An important, but not necessarily\ndispositive principle in interpreting statutes regarding matters of removal from\noffice, is that the power to appoint implies the power to remove absent some\naffirmative indication of congressional intent to the contrary. We have found\nno such indication in this instance. Indeed, Congress vested the appointment\npower over members o f this entity in the President without in any way suggest\xc2\xad\ning that the appointing authority did not retain the power of removal.\nIn Part I, we will discuss the background o f this issue; in Part II, we will\nanalyze the pertinent legal issues.\nL B ackground\nThe Commission was established pursuant to a joint resolution adopted in\n1976, which approved the \xe2\x80\x9cCovenant to Establish a Commonwealth of the\nNorthern M ariana Islands in Political Union with the United States of America\xe2\x80\x9d\n(Covenant). Pub. L. No. 94-241, 90 Stat. 263 (1976). The joint resolution\napproving the Covenant in general marked a new stage in the ongoing relation\xc2\xad\nship between the United States and the Northern Mariana Islands (Northern\nMarianas). The Northern Marianas are part o f the Pacific Trust Territories.1\nThe trusteeship arrangement with the Northern Marianas established after\nWorld W ar II eventually will terminate, and the islands will become a Com\xc2\xad\nmonwealth in Political Union with the United States.\nThe function and composition of the Commission are set forth in \xc2\xa7 504 of the\nCovenant, as follows:\nThe P resident will appoint a Commission on Federal Laws to\nsurvey the law s of the U nited States an d to make recommenda\xc2\xad\ntions to the United S tates Congress as to which laws o f the\nU nited States not applicable to the Northern Mariana Islands\nshould be m ade applicable and to what extent and in what\nmanner, an d which applicable law s should be made inappli\xc2\xad\ncable an d to what extent and in what manner. The Commission\n\nwill consist o f seven persons (at least four o f whom will be\n1 In addition to the N orthern Mariana Islands, the Pacific T rust T erritories include Palau. Truk, the M arshall\nIslands, Ponape and Yap. See S. Rep. N o. 596, 94th Cong., 2d Sess. 13 (1976). The m ajor islands o f the\nN orthern M an an as are Saipan, Tinian and R ota.\n\n96\n\n\x0ccitizens of the Trust Territory of the Pacific Islands who are and\nhave been for at least five years domiciled continuously in the\nNorthern Mariana Islands at the time of their appointments) who\nwill be representative of the federal, local, private and public\ninterests in the applicability of laws of the United States to the\nNorthern Mariana Islands. The Commission will make its final\nreport and recommendations to the Congress within one year\nafter the termination o f the Trusteeship Agreement, and before\n\nthat time will make such interim reports and recommendations\nto the Congress as it considers appropriate to facilitate the\ntransition of the Northern Mariana Islands to its new political\nstatus. In formulating its recommendations the Commission will\ntake into consideration the potential effect of each law on local\nconditions within the Northern Mariana Islands, the policies\nembodied in the laws and the provisions and purposes o f the\ncovenant. The United States will bear the cost of the work o f the\nCommission.\nPub. L. No. 94-241, \xc2\xa7 504, 90 Stat. 268 (1976) (emphasis added).2 Thus, the\nPresident appoints the Commission members, and the Commission makes\nrecommendations to Congress about the applicability of United States laws to\nthe Marianas. The Commission\xe2\x80\x99s final report will be made not later than one\nyear after the termination of the trusteeship arrangement with the Marianas.\nThe Commission members are not appointed to determinate, fixed terms of\nservice.3\n\nII. Discussion\nBefore analyzing this particular case, we first consider the broader legal\nprinciples that have been held by the courts to be applicable to questions\nregarding the power of the President to remove his appointees. As we will\ndiscuss below, the fundamental principle applicable in removal cases is that the\npower to appoint implies the power to remove. Congress has, however, fre\xc2\xad\nquently sought to limit the President\xe2\x80\x99s power to remove and replace those\nwhom he (or his predecessor) has appointed to particular positions. Accord\xc2\xad\ningly, it is necessary to turn preliminarily to the intent of Congress and\n2 The C om m ission is the latest in a line o f sim ilar C om m issions w hose purpose has been to advise Congress\non the applicability o f United States laws in different areas. See 30 Stat. 750, 751 (1899) (H aw aii); 45 Stat.\n1253 (1929) (A m erican Samoa); 64 Stat. 3 9 0 (1 9 5 0 ) (Guam ); 68 Stat. 501 (1954) (V irgin Islands). The status\nof the m embers o f the 1899 H aw aiian C om m ission are the subject o f a H ouse Judiciary C om m ittee report. See\nH.R. Rep. No. 2205, 55th Cong., 3d Sess. (1899). The question addressed in that report \xe2\x80\x94 w hether m embers\nof the H awaiian and sim ilar com m issions w ere \xe2\x80\x9cofficers\xe2\x80\x9d o f the U nited States, and thus w hether the\nconstitutional bar on service as civil officers by M embers o f C ongress (some o f whom served on such\nadvisory com m issions) applied \xe2\x80\x94 is not germ ane to this opinion. In o ur view, the issue o f the President\xe2\x80\x99s\nremoval pow er m ay be settled without deciding w hether the C om m ission m em bers are \xe2\x80\x9cofficers\xe2\x80\x99' o f the\nU nited States.\n3 It is o f course possible that the trusteeship agreem ent w ill not actually term inate for som e years.\n\n97\n\n\x0cdetermine whether Congress has sought to restrict the appointing authority\xe2\x80\x99s\nremoval power. If there is persuasive evidence of such a congressional intent, it\nis necessary to determine whether there is any constitutional limit on Congress\xe2\x80\x99\neffort to restrict removal power in a given case.\nThus, our analysis will commence with the basic principles regarding re\xc2\xad\nmoval, and then will focus on the question whether Congress endeavored to\nlimit the President\xe2\x80\x99s removal power in this instance. Because, as we conclude,\nthere is no sufficient basis on which to infer such an intent, we do not reach the\nfurther question whether it would be constitutional for Congress to limit the\nPresident\xe2\x80\x99s removal power in this context.4\nA basic presumption, albeit rebuttable, underlying the general law on the\nPresident\xe2\x80\x99s removal authority is that the power to appoint implies the power to\nremove. This principle has been recognized by Congress and the Supreme\nCourt since the earliest days o f the Republic, and has been ratified repeatedly in\nm odem case law. See 1 Annals of Cong. 469 (1789) (statement of James\nMadison on the floor o f the House of Representatives during the Great Debates\no f 1789); M atter ofH ennen, 38 U.S. (13 Pet.) 230, 259-60 (1839); Blake v.\nU nited States, 103 U.S. 227, 231 (1880); Keim v. United States, 177 U.S. 290,\n293-94 (1900); S h u rtlejf\\. U nited States, 189 U.S. 311,314-15 (1903); M yers\nv. U nited States, 272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367\nU.S. 886, 896-97 (1961); Sampson v. M urray, 415 U.S. 61, 70 n.17 (1974);\nN ational Treasury Employees Union v. Reagan, 663 F.2d 239, 246\xe2\x80\x9448 (D.C.\nCir. 1981); K alaris v. Donovan, 697 F.2d 376, 389 (D.C. Cir. 1983); Martin v.\nReagan, 525 F. Supp. 110, 112 (D. Mass. 1981).\nThis principle applies to the appointments by the President and by other\nExecutive officers, such as department heads, who are appointing officials. A\nfundamental rationale for this principle appears to be the notion that appointing\nauthorities necessarily have some degree o f supervisory responsibility with\nrespect to those whom they appoint. In particular, the appointing authority\nretains a certain duty to assure that the appointed official carries out his duties\nin a satisfactory manner. This idea is reflected in the Supreme Court\xe2\x80\x99s state\xc2\xad\nment in S h u rtleff\\. United States, 189 U.S. at 316, that the principle recognizes\nan \xe2\x80\x9cinherent\xe2\x80\x9d implication of the appointing power:\nThe right o f removal w ould exist if the statute had not contained\na w ord upon the subject. l5l It does not exist by virtue of the\ngrant, but it inheres in the right to appoint, unless limited by\n\nConstitution or statute.\n(Emphasis added.) In another passage in Shurtleff, 189 U.S. at 314-15, the\nCourt explicitly drew the connection between this principle and the notion that\n4 B ecause the C om m ission merely a d v ises Congress and does not exercise purely Executive powers, we\nacknow ledge that the co u rts are most lik e ly to uphold restrictions on Presidential rem oval pow er with respect\nto this type o f entity, if such restrictions are intended by C ongress. C f W iener v. U nited States, 357 U.S. 349\n(1958); H u m p h rey's E xecu to r v. U nited States, 295 U.S. 602 (1935).\n9 T his is the case here. The statute c reating this Com m ission contains not a word on the subject o f removal.\n\n98\n\n\x0can appointing official necessarily has a degree of supervisory responsibility\nwith respect to those whom he appoints. The Court wrote with respect to the\nPresident\xe2\x80\x99s power to remove an official appointed with advice and consent:\nIt cannot now be doubted that in the absence of constitutional\nor statutory provision the President can by virtue of his general\npower of appointment remove an officer, even though appointed\nby and with the advice and consent of the S en ate.. . . Congress\nhas regarded the office as of sufficient importance to make it\nproper to fill it by an appointment to be made by the President\nand confirmed by the Senate. It has thereby classed it as appro\xc2\xad\npriately coming under the direct supervision of the President\nand to be administered by officers appointed by him, (and\nconfirmed by the Senate,) with reference to his constitutional\nresponsibility to see that the laws are faithfully executed. Article\nII, sec. 3.\nId. This emphasis on the appointing authority\xe2\x80\x99s supervisory responsibility for\nofficials whom he appoints also appears in M yers v. United States, 272 U.S. at\n\n119, where the Court wrote:\nThe reason for the. principle is that those in charge of and\nresponsible for administering functions of government who se\xc2\xad\nlect their executive subordinates need in meeting their responsi\xc2\xad\nbility to have the power to remove those whom they appoint.\nIn addition, the basic principle that the power to appoint implies the power to\nremove reflects a practical awareness of the need for a rule for use in cases in\nwhich the governing statute is silent on removal. Absent such a rule, it would\nbe unclear who has the power of removal. By providing that, as a general\nmatter, the appointed official serves at the discretion of the appointing author\xc2\xad\nity, the principle also helps prevent the possibility of an official serving\nindefinitely in his position, a status disfavored under normal understandings of\ntenure of office in the United States. As the Court wrote in M atter o f Hennen,\n38 U.S. at 259:\nAll offices, the tenure of which is not fixed by the Constitution or\nlimited by law, must be held either during good behavior, or (which\nis the same thing in contemplation of law) during the life of the\nincumbent; or must be held at the will and discretion of some\ndepartment of the government, and subject to removal at pleasure.\nIt cannot, for a moment, be admitted, that it was the intention\nof the Constitution, that those offices which are denominated\ninferior offices should be held during life. And if removable at\npleasure, by whom is such removal to be made? In the absence\nof all constitutional provision, or statutory regulation, it would\n\n99\n\n\x0cseem to be a sound and necessary rule, to consider the power of\nremoval as incident to the power of appointment.\nThis general principle accordingly provides the starting point for discussion:\nabsent contrary indication in the governing legislation, the President\xe2\x80\x99s power to\nappoint members o f the Commission implies the President\xe2\x80\x99s power to remove\nsuch members. This approach has the additional virtue of being consistent with\nthe position that the Executive Branch has taken in case after case and legal\nopinion after legal opinion throughout this nation\xe2\x80\x99s history. O f course, it allows\nCongress to alter the starting point by expressing a contrary intent consistent\nwith constitutional requirements. Our task is to determine whether any relevant\nindications o f legislative purpose preclude or overcome the application of the\ngeneral principle in this case. We find no reliable evidence of such an intent,\nand we therefore conclude that the President\xe2\x80\x99s authority to remove Presidential\nappointees from the Commission was not restricted by the Legislature.\nFirst o f all, the Covenant establishing the Commission and the legislative\nhistory o f the Covenant contain no language indicating a specific intention to\nrestrict Presidential removal power. The joint resolution itself is silent on the\nquestion. The legislative history, when it discusses the Commission at all,\ntends simply to repeat the basic provisions of \xc2\xa7 504 of the Covenant, quoted\nabove.6 For example, the legislative history underscores that Congress in\xc2\xad\ntended the President to appoint Commission members, and it reveals no effort\nto require either any congressional participation in the appointing process or\nany limitation on the exercise of removal authority.\nFurthermore, the typical indicia o f congressional intention to restrict Presi\xc2\xad\ndential removal power that have been relied upon by the courts in the leading\ndecisions on this subject in finding such an intention are generally not present\nhere. For example, there is no express or implicit provision limiting removal of\nCommission members for stated \xe2\x80\x9ccauses.\xe2\x80\x9d Cf. Hum phrey\xe2\x80\x99s Executor v. United\nStates, 295 U.S. 602, 619 (1935). Also, there is no provision in the Covenant\nproviding that the Commission\xe2\x80\x99s decisions are to be transmitted directly to\nCongress without any review or comment by concerned Executive officials. Cf.\nW iener v. U nited States, 357 U.S. 349, 352-53 (1958). Nor is there language in\nthe legislative history of w hich we are aware calling generally for the\nCom m ission\xe2\x80\x99s \xe2\x80\x9cindependence\xe2\x80\x9d from Executive oversight. Cf. Humphrey\xe2\x80\x99s\nExecutor, 295 U.S. at 624-25. Finally, the Covenant does not provide for\nspecific, fixed-year terms o f service for Commission members. Cf. id. at\n622-23.\nThis last point is worthy of particular note. Although the mere presence of a\nstatutory provision for a specific term of service has not been deemed a\nsufficient basis on which to infer a legislative purpose of restricting Presiden\xc2\xad\ntial removal authority,7 the absence of any fixed-year term of service buttresses\n6S ee S. Rep. No. 5 9 6 .94th Cong., 2d S ess. 5 (1976); H.R. Rep. No. 3 6 4 ,94th Cong , 1st Sess. 9 (1975); 122\nC ong. R ec. 4 1 8 7 -2 3 2 (1976); 121 Cong. R ec. 23662-73 (1975).\n7 R ather, it has been interpreted as providing a lim it on the period for w hich an appointee can serve without\nreappointm ent. See Parsons v. United S tates, 167 U .S. 324, 338 (1897).\n\n100\n\n\x0cthe argument that the President has removal authority in this case. Commission\nmembers are to serve not longer than one year after the termination of the\ntrusteeship agreement with the Northern Mariana Islands.8 Although this pro\xc2\xad\nvision establishes some outer limit of service, it does not establish any definite,\nfixed term of service. To the contrary, given that the trusteeship agreement\nconceivably could last for a substantial length of time, the linkage between its\ncontinuance and the Commission\xe2\x80\x99s existence establishes that Commission\nmembers would, if not removable by someone, serve for an indefinite period.\nBecause, as a general matter, good behavior is presumed, an official who can\nbe removed during an indefinite term of service only by way of impeachment,\nor for \xe2\x80\x9ccause\xe2\x80\x9d as a result of \xe2\x80\x9cbad behavior,\xe2\x80\x9d is considered to have the possibil\xc2\xad\nity of life tenure. Cf. S h u rtle jf\\. United States , 189 U.S. at 316; M atter o f\nHennen, 38 U.S. at 260; K alaris v. Donovan, 697 F.2d 376, 398 (D.C. Cir.\n1983); see also D eCastro v. B oard o f Com m \xe2\x80\x99rs o f San Juan, 322 U.S. 451,462\n(1944); Reagan v. United States, 182 U.S. 419, 426-27 (1901). Accordingly,\nthe presumption against the possibility of life tenure supports the view that the\nPresident has removal authority in this case.\nAnother factor which must be noted is that Congress has provided for the\nCommission\xe2\x80\x99s funding through a line item in the Department of the Interior\xe2\x80\x99s\nappropriation for territorial affairs. See Pub. L. No. 96-126, 93 Stat. 954, 969\n(1979). The source of funding by itself is not necessarily a determinative\nindication of an entity\xe2\x80\x99s status as in the Executive or Legislative Branch. See\nEltra Corp. v. Ringer, 579 F.2d 294, 301 (4th Cir. 1978). Nevertheless, the fact\nthat Congress has provided for the Commission to receive its funds from the\nInterior Department\xe2\x80\x99s appropriation is a further indication, albeit relatively\nslight, that Congress did not intend to establish the kind of independence from\nthe Executive Branch that normally accompanies restrictions on Presidential\nremoval authority.\nIt might be argued that H um phrey\xe2\x80\x99s Executor, 295 U.S. at 624\xe2\x80\x9425, provides\nsupport for a contrary argument. In H umphrey\xe2\x80\x99s Executor, the Court held that\nthe President did not have unlimited removal authority with respect to mem\xc2\xad\nbers o f the Federal Trade Commission. Although much of the Court\xe2\x80\x99s opinion\ndealt with the constitutional questions raised by the case, the Court did discuss\nthe statute involved. One of the factors relied upon in its statutory construction\nwas the fact that the FTC performed \xe2\x80\x9cquasi- legislative\xe2\x80\x9d functions, namely,\nrulemaking, which the Court concluded were intended by Congress to be\nperformed by an entity independent of the President\xe2\x80\x99s plenary removal author\xc2\xad\nity. In the present case, it might be suggested that the Northern Mariana Islands\nCommission\xe2\x80\x99s sole function is to advise Congress in aid of its legislative\npower, and thus it should be viewed as an arm of Congress. From this premise,\nit might be argued that one should infer that Congress did not intend to allow\n8 Section 504 o f the Covenant establishing the Commission provides that the Com m ission will make its\nfinal report w ithin one year o f the term ination o f the trusteeship agreem ent. Hence, the C om m ission is to go\nout o f existence after that time.\n\n101\n\n\x0cthe President to remove Commission members, i.e., members of a Congres\xc2\xad\nsional entity, in his unfettered discretion.\nAlthough the foregoing argument is by no means frivolous, we do not\nbelieve that H um phrey\xe2\x80\x99s Executor provides support for the interpretation that\nthe President lacks removal power over members of this Commission. The\nCourt in H um phrey\xe2\x80\x99s Executor noted that several indicia of congressional\nintent, taken together, existed to support the conclusion that Congress intended\nto limit the President\xe2\x80\x99s removal authority. See 295 U.S. at 624-26. Not the least\nof these factors was an explicit statutory provision limiting the grounds for\nremoval. In addition, the FTC Commissioners served for a specified term of\nyears, and according to the Court, the legislative history made clear that\nCongress expected them to act independently of Executive Branch influence.\nFurthermore, unlike the FTC, the Commission here does not exercise quasi\xc2\xad\nlegislative powers. It performs merely an advisory function. A body such as\nthis might provide advice to any branch of government. Its function, therefore,\ndoes not by itself suggest the need for its separateness from the Executive\nBranch. See id.; see also M artin v. Reagan, 525 F. Supp. 110, 112-13 (D.\nMass. 1981). Thus, the situation in H um phrey\xe2\x80\x99s Executor is fundamentally\ndistinguishable from the situation in this case.9\nEven if we grant that the Commission is an arm of Congress, and thus\nentirely part of the Legislative Branch (a conclusion which we do not reach and\ndo not intend by anything articulated herein to prejudge), it does not follow that\nthe President cannot remove the Commissioners in his discretion.10 If the\nCommission is entirely part of the Legislative Branch, Congress did not have to\nvest appointment power in the President. But it did so nonetheless. This grant\nof the appointment power has tw o key implications.\nFirst, because the appointment power by itself is by no means an insignifi\xc2\xad\ncant power with respect to appointed officials, Congress clearly acceded at\nleast to a significant degree of Presidential supervision of Commission mem\xc2\xad\nbers. See Shurtleff v. United States, 189 U.S. 311, 315 (1903).11 Second,\n9 W e also believe that th is case is c learly distinguishable from W iener v. United States, 357 U.S. 349\n(1958). T h at case involved an adjudicatory body, the W ar C laim s Com m ission, w hose statute provided that\nits decisio n s w ere to be free from review b y any other official o f the U nited States. See id. at 354-55 In\ncontrast, no adjudicatory functions such a s those in Wiener are perform ed by the C om m ission and no\nconcom itant need exists for \xe2\x80\x9cindependence\xe2\x80\x9d from the Executive. In addition, there is no sim ilar statutory\nprovision in th is case indicating an intent to shield the C om m ission's decisions from review by other\nofficials. Cf. B orders v. Reagan, 518 F. Supp. 250 (D D.C. 1981); Lew is v. Carter, 436 F. Supp. 958 (D.D.C.\n1977).\nW e add that the argum ent based on the functions o f the Com m ission is more central with respect to the\nconstitu tio n al question w hether Congress c an lim it Presidential rem oval power. C f H um phrey's Executor,\n295 U.S. a t 6 3 1 -3 2 . As noted at the outset, w e do not need to reach this issue, given that we are able to resolve\nthe question on the basis o f an analysis o f th e statute and the principle that the pow er to appoint im plies the\npow er to rem ove.\n10 W e note th at, in a d ifferen t context, th e C om ptroller G eneral has concluded that the C om m ission is a\nL egislative Branch entity. See Comp. Gen. O p. No. B -202206 (June 16, 1981).\n11 As the C ourt noted in Keim v. United States, 177 U.S. 290, 293 (1900): \xe2\x80\x9cThe appointm ent to an official\nposition in the G overnm ent, even if it be sim ply a clerical position, is not a m ere ministerial act, but one\ninvolving the exercise o f judgm ent. The appointing pow er m ust determ ine the fitness o f the applicant;\nw hether o r not he is the proper one to discharge the duties o f the position.\xe2\x80\x9d\n\n102\n\n\x0cbecause the law is that the power to appoint implies as a basic underlying\nproposition the power to remove, and because we must assume that Congress\nwas aware of the law, Congress may reasonably be said to have taken for\ngranted in this case that the President would have the power to remove Com\xc2\xad\nmission members appointed by him or a previous President. If Congress had\nrejected these implications, it easily could have provided for some other\nmethod of appointment or specifically limited the President\xe2\x80\x99s power to remove\nthe Commissioners.\n\nConclusion\nTo summarize, we believe that the Congress is undoubtedly aware that the\npower to appoint has been held throughout this nation\xe2\x80\x99s history to imply the\npower to remove, and that Congress has within its control the ability to\novercome this presumption, at least as a statutory matter. In construing the\nrelevant statutory materials in this case, we have found no intent to restrict the\nPresident\xe2\x80\x99s removal power and some slight indication that potential removal by\nthe President actually was intended (no term specified, the failure to designate\nsomeone else to exercise removal authority, and other factors discussed herein).\nWe conclude that the President has the authority to remove Commission\nmembers in his discretion.\nT h eo do re B . O lson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n103\n\n\x0c"


b'The President\xe2\x80\x99s Power to Remove Members of the Federal\nCouncil on the Aging\nThe text and legislative history of the statute creating the Federal Council on the Aging\nindicate that Congress did not intend to restrict the President\xe2\x80\x99s power to remove his\nappointees to the Council. Neither the Council\xe2\x80\x99s \xe2\x80\x9cindependence\xe2\x80\x9d in terms o f its mem\xc2\xad\nbership and staff, nor its function o f providing advice to Congress necessarily suggest\nthat Congress intended to restrict the President\xe2\x80\x99s power o f free removal which is\nordinarily incident to his pow er of appointment.\nBecause the structure and functions of the Federal Council on the Aging establish that it\nis a purely executive body, Congress could not constitutionally limit the President\xe2\x80\x99s\npower to remove its members.\n\nNovember 13, 1981\nMEMORANDUM OPINION FOR THE COUNSEL TO THE\nPRESIDENT\nYou have asked for our opinion whether the President has the power\nto remove the members of the Federal Council on the Aging (the\nCouncil). In the absence of any evident congressional intent to limit the\nPresident\xe2\x80\x99s power of removal, and on the basis of well-settled principles\nof constitutional law, we conclude, for reasons set forth below, that the\nPresident does have the power to remove Council members.\nI. The Council\n\nThe Council is established pursuant to 42 U.S.C. \xc2\xa7 3015 (1976 &\nSupp. Ill 1979). Its fifteen members are appointed by the President with\nthe advice and consent of the Senate to serve three-year terms. Id.\n\xc2\xa7 3015(a). According to the statute, members \xe2\x80\x9cshall be appointed so as\nto be representative of rural and urban older Americans, national orga\xc2\xad\nnizations with an interest in aging, business, labor, and the general\npublic. At least five of the members shall themselves be older individ\xc2\xad\nuals.\xe2\x80\x9d Id. \xc2\xa7 3015(a). Since 1978 amendments, no full-time officer or\nemployee of the federal government may be appointed as a member of\nthe Council, id. 42 U.S.C. \xc2\xa7 3015(a) (Supp. Ill 1979); and the Secretary\nof Health and Human Services and the Commissioner on Aging are no\nlonger ex officio members of the Council. The statute does not expressly\nprovide for removal of Council members, nor does it expressly insulate\nthem from removal at the pleasure of the President.\n337\n\n\x0cBecause the nature of the functions performed has come to be the\nfocus of the removal power as a matter of determining both congres\xc2\xad\nsional intent and the limits of congressional power to restrict the Presi\xc2\xad\ndent\xe2\x80\x99s power to remove his appointees, we set out the Council\xe2\x80\x99s duties\nin full. As prescribed by statute, the Council shall:\n(1) advise and assist the President on matters relating to\nthe special needs of older Americans;\n(2) assist the Commissioner [on Aging] in making the\nappraisal of [personnel] needs [in the field of aging] re\xc2\xad\nquired by section 3032 . . .;\n(3) review and evaluate, on a continuing basis, Federal\npolicies regarding the aging and programs and other ac\xc2\xad\ntivities affecting the aging conducted or assisted by all\nFederal departments and agencies for the purpose of ap\xc2\xad\npraising their value and their impact on the lives of older\nAmericans;\n(4) serve as a spokesman on behalf of older Americans\nby making recommendations to the President, to the Sec\xc2\xad\nretary [of Health and Human Services], the Commis\xc2\xad\nsioner, and to the Congress with respect to Federal poli\xc2\xad\ncies regarding the aging and federally conducted or as\xc2\xad\nsisted programs and other activities relating to or affect\xc2\xad\ning them;\n(5) inform the public about the problems and needs of\nthe aging, in consultation with the National Information\nand Resource Clearing House for the Aging, by collecting\nand disseminating information, conducting or commission\xc2\xad\ning studies and publishing the results thereof, and by issu\xc2\xad\ning publications and reports; and\n(6) provide public forums for discussing and publicizing\nthe problems and needs of the aging and obtaining infor\xc2\xad\nmation relating thereto by conducting public hearings,\nand by conducting or sponsoring conferences, workshops,\nand other such meetings.\n42 U.S.C. \xc2\xa7 3015(d) (1976 & Supp. Ill 1979).\nThe Council is further directed to undertake a thorough study and\nevaluation of federal and federally assisted programs for older Ameri\xc2\xad\ncans, including\n(A) an examination of the fundamental purposes of such\nprograms, and the effectiveness of such programs in at\xc2\xad\ntaining such purposes;\n(B) an analysis o f the means to identify accurately the\nelderly population in greatest need of such programs; and\n338\n\n\x0c(C) an analysis of numbers and incidence of low-income\nand minority participants in such programs.\n42 U.S.C. \xc2\xa7 3015(g)(2) (Supp. Ill 1979). The study may also include\n(A) an exploration of alternative methods for allocating\nfunds under such programs to States, State agencies on\naging, and area agencies on aging in an equitable and\nefficient manner, which will accurately reflect current\nconditions and insure that such funds reach the areas of\ngreatest current need and are effectively used for such\nareas;\n(B) an analysis of the need for area agencies on aging to\nprovide direct services within the planning and service\narea; and\n(C) an analysis of the number of nonelderly handi\xc2\xad\ncapped-in need of home delivered meal services.\n42 U.S.C. \xc2\xa7 3015(g)(3) (Supp. Ill 1979).\nThe statute also authorizes staff personnel for the Council and re\xc2\xad\nquires the head of each federal department and agency to provide the\nCouncil with information and other assistance. 42 U.S.C. \xc2\xa7 3015(e)\n(Supp. Ill 1979). At least annually, and more often as the Council\ndeems advisable, the Council is required to report its findings and\nrecommendations to the President, who then transmits the report to\nCongress, with his comments and recommendations. Id. \xc2\xa7 3015(f).\nII. Statutory Interpretation\n\nIn the context of a statute that is silent on the issue of the President\xe2\x80\x99s\nremoval power, it is sometimes difficult to separate the statutory analy\xc2\xad\nsis from the constitutional analysis. Nevertheless, we focus initially on\nthe statutory scheme and the legislative history because of the familiar\ninjunction that decision on constitutional grounds should be avoided if\na statutory ground is sufficient. See Ashwander v. Tennessee Valley\nAuthority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The\nstatute itself, as we have noted, is silent on the question of removal.\nNevertheless, the history of the Council indicates that Congress could\nnot have intended that its members would not be freely removable by\nthe President.\nThe Council is the most recent successor to various presidential\nadvisory commissions on the aging. National conferences on aging were\nheld in 1950 and 1952. On March 21, 1956, President Eisenhower\nsummarized recent and proposed actions of the federal government\naffecting older citizens and announced his intention to create a federal\ncouncil on aging. Established in April 1956, this first council was\ncomposed of representatives of various government agencies. The\ncouncil called for another conference on aging, which was held in June\n339\n\n\x0c1956. Following two congressionally authorized studies of problems\nrelated to the aging, the White House Conference on Aging Act of\n1958 (Pub. L. No. 85-908, 72 Stat. 1746) was passed to provide for a\nWhite House Conference on Aging, to be called by the President in\n1961. The Conference made recommendations for continuing and ex\xc2\xad\npanding federal and state programs for the elderly, including establish\xc2\xad\nment of a federal coordinating agency. See generally S. Rep. No. 247,\n89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Ad. News\n1884.\nAs a follow-up to the Conference, President Kennedy established the\nPresident\xe2\x80\x99s Council on Aging in May 1962. Exec. Order No. 11,022, 3\nC.F.R. 602 (1959-1963 Comp.). This Council was also composed of\nCabinet officers and other federal officials and was directed to study\nthe problems of the aging and make recommendations to the President\nfor policies and programs.\nThe first statutory authority for an advisory council on aging was\nprovided by the Older Americans A ct of 1965, 42 U.S.C. \xc2\xa7 3001 et seq.\n(1976 & Supp. Ill 1979) which established an Advisory Committee on\nOlder Americans comprised of the Commissioner on Aging and fifteen\nmembers appointed by the Secretary of Health, Education, and Welfare\n(HEW). The Committee was to advise the Secretary on matters bearing\non his responsibilities under the Act and related activities of the De\xc2\xad\npartment of HEW. Members were selected with experience in the field\nof interest in the particular problems of aging. See generally, H.R. Rep.\nNo. 1203, 92d Cong., 2d Sess. 8 (1972); H.R. Rep. No. 1150, 95th\nCong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Ad. News 3388,\n3392. In 1967, the Secretary was authorized to provide staff for the\nAdvisory Committee.\nBy 1972, Congress noted that the problems, issues, and recommenda\xc2\xad\ntions of the White House Conference on Aging went far beyond the\nactivities of the Department of HEW. The House Committee on Edu\xc2\xad\ncation and Labor accordingly recommended the establishment of a\npresidential advisory committee. The bill, H.R. 15657, 92d Cong., 2d\nSess. (1972), would have replaced the Advisory Committee with a\nnational advisory council to \xe2\x80\x9cadvise and assist the President on matters\nrelating to the special needs of older Americans.\xe2\x80\x9d The Senate version\nof the bill would have established the Older Americans Advocacy\nCommission, \xe2\x80\x9ccharged with the duty of advocating the interests of\nolder Americans throughout the whole range of federal activities.\xe2\x80\x9d See\nH.R. Rep. No. 43, 93d Cong., 1st Sess. 10, reprinted in 1973 U.S. Code\nCong. & Ad. News 1327, 1336. The Commission would also have been\nempowered to evaluate existing programs to inform the public about\nthe needs and concerns o f the aging and the relevant federal activities.\nId.\n\n340\n\n\x0cThe bill as it emerged from the conference committee was the origin\nof the present Federal Council on the Aging. The committee adopted\nthat name and consolidated the functions as provided in the House and\nSenate bills. The bill was later vetoed by the President, but it provided\nthe basis for the 1973 amendments to the Older Americans Act of 1965,\nwhich did establish the Council. The House committee in 1973 repeated\nthe conference statement that \xe2\x80\x9c \xe2\x80\x98[i]t is the intention of the conferees that\nthis body function as more than a passive advisory body, and that it\nwork to actively promote the interests of older Americans throughout\nthe whole range of federal policies and programs affecting them.\xe2\x80\x99 \xe2\x80\x9d\n1973 U.S. Code Cong. & Ad. News, supra, at 1336. The Council was\nfurther charged with undertaking three studies of benefit programs,\ntaxes, and transportation needs.\nThe Older Americans Act was amended again in 1978. The House\nreport explained that \xe2\x80\x9c[a]s a spokesman and advocate on behalf of the\nelderly, the committee believes that the Council should have a greater\ndegree of independence.\xe2\x80\x9d 1978 U.S. Code Cong. & Ad. News, supra, at\n3398. The changes that were made \xe2\x80\x9cto strengthen the independence of\nthe Council,\xe2\x80\x9d ibid., were precluding full-time employees of the federal\ngovernment from membership on the Council and specifically authoriz\xc2\xad\ning staff for the Council. The first change was intended \xe2\x80\x9cto eliminate\nthe potential for conflicts of interest\xe2\x80\x9d and thereby improve the Coun\xc2\xad\ncil\xe2\x80\x99s objectivity in making recommendations. Id. at 3398. The second\nchange was designed to relieve the Council\xe2\x80\x99s dependence for staff on\nthe Administration on Aging in the belief that the Council \xe2\x80\x9ccould be\nmore effective in obtaining information on advising the President and\nthe Congress.\xe2\x80\x9d Id. at 3399.\nAt no time in the long evolution of the present Council did Congress\nexpress any intent to limit presidential control, including removal, over\nthe membership. Prior to the statutory authorization in 1965, of course,\nthere could have been no serious contention whatsoever that the presi\xc2\xad\ndential appointees were not freely removable. And at no time in the\ncourse of enacting the various statutes creating or affecting the Council\ndid Congress ever express a contrary belief or intent.\nWe do not regard the latest House report\xe2\x80\x99s use of the word \xe2\x80\x9cinde\xc2\xad\npendence\xe2\x80\x9d as requiring a different conclusion.1 The report specifically\nexplains that the \xe2\x80\x9cindependence\xe2\x80\x9d desired for the Council would affect\nits relationship to other federal agencies, especially the Commission on\nAging, and not the President. This \xe2\x80\x9cindependence,\xe2\x80\x9d in terms of Council\nmembership and staff, would avoid conflicts of interest and improve the\nobjectivity and efficiency of the Council. Recognizing the President\xe2\x80\x99s\n\xe2\x80\x98The concept o f \xe2\x80\x9cindependence\xe2\x80\x9d also appears in the context of the description of the Older\nAmericans A dvocacy Commission as created by the Senate version of the 1972 bill. W hatever was\nmeant by the reference, however, the structure did not prevail in the conference committee, which\nadopted the House version. See S. Conf. Rep. No. 1287, 92d Cong., 2d Sess. 46 (1972). The bill, in any\nevent, was vetoed.\n\n341\n\n\x0cpower to remove creates no conflict of interest. Successor appointees\nmust still exclude full-time federal employees. Nor does removal of the\nCouncil\xe2\x80\x99s members directly affect its staff. In any event, \xe2\x80\x9cindepend\xc2\xad\nence\xe2\x80\x9d was desired with the specific intent to improve the Council\xe2\x80\x99s\nability to perform its duty of advising the President. The relationship\nand responsiveness of the Council to the President was strengthened,\nnot weakened. The removal power is consistent with this relationship.2\nIII. Constitutional AasAysis\n\nWe examine briefly the relevant principles of constitutional law by\nway of reinforcing our conclusion that the statute does not limit the\nPresident\xe2\x80\x99s power to remove Council members.3\nWe start with the long established rule that \xe2\x80\x9c[i]n the absence of all\nconstitutional provision or statutory regulation, it would seem to be a\nsound and necessary rule, to consider the power of removal as incident\nto the power of appointment.\xe2\x80\x9d In re Hennen, 38 U.S. (13 Pet.) 230, 259\n(1839); see also Myers v. United States, 272 U.S. 52 (1926); Sampson v.\nMurray, 415 U.S. 61, 70 n.17 (1974). The mere specification of a term of\noffice is not such a specific provision. See Parsons v. United States, 167\nU.S. 324 (1897); Martin v. Tobin, 451 F.2d 1335 (9th Cir. 1971). Under\nthe general rule, the President\xe2\x80\x99s power to appoint the Council members\nempowers him to remove them.4\nExceptions to this rule are narrowly defined. Congress can constitu\xc2\xad\ntionally restrict the President\xe2\x80\x99s power to remove a federal officer only\nif he or she is a member o f a so-called \xe2\x80\x9cindependent\xe2\x80\x9d agency, not part\nof the Executive Branch, and the agency\xe2\x80\x99s primary functions are quasi\xc2\xad\nlegislative or quasi-judicial and \xe2\x80\x9crequire absolute freedom from Execu\xc2\xad\ntive interference.\xe2\x80\x9d Wiener v. United States, 357 U.S. 349, 353 (1958); see\nHumphrey\'s Executor v. United States, 295 U.S. 602 (1935).\nAlthough closely allied to the Commission on Aging, which is estab\xc2\xad\nlished in the Office of the Secretary of Health and Human Services, see\n42 U.S.C. \xc2\xa73011(a) (1976 & Supp. I ll 1979), the Council is not ex\xc2\xad\npressly lodged within an executive department. The Council\xe2\x80\x99s func2 W e attribute very little significance to the fact that the Council, as recently as 1978, was thought\nto be a source of advice to Congress itself. Congress may, of course, utilize its own committees for the\ngathering of information, or it may, through its own offices, appoint advisory committees to assist it in\nthe perform ance o f its legislative functions. If, however, Congress creates by statute an advisory body\nwhose primary responsibility is to advise the Executive and, in doing so, Congress places the power of\nappointm ent in the President, we believe that Congress must be assumed to have been aware that as a\npractical matter, the appointees w ould be dependent on the President as appointing authority, rather\nthan Congress, and that as a constitutional matter, the power of free removal would inhere in the\nstructure chosen.\n3T he statute, o f course, must be construed to avoid an unconstitutional result. International Ass\xe2\x80\x99n o f\nMachinists v. Street, 367 U.S. 740, 749 (1961); Crowell v. Benson, 285 U S. 22, 62 (1932).\n4T he requirement under the statute of Senate advice and consent to the presidential appointees does\nnot in and o f itself limit the President\xe2\x80\x99s power of removal. C f Myers v. United States, 272 U.S. 52,\n119-25 (1926).\n\n342\n\n\x0ctions, however, leave no doubt that it is executive in nature. We\nexamine both what the Council does and what it does not do.\nBy congressional intent expressed in the legislative history and by\ndesign embodied in the statute, the Council is an advisory body. It was\nintended, and its duties as prescribed by statute effectuate the intent,\nthat the Council advise, assist, review, evaluate, advocate, inform, and\nstudy. The recipients of the Council\xe2\x80\x99s advice, assistance, and recom\xc2\xad\nmendations are primarily the President, the Secretary of Health and\nHuman Services, and the Commissioner on Aging; 5 and generally, the\nadvice, assistance, and recommendations are intended to enhance the\nrecipient\xe2\x80\x99s own performance of statutory responsibilities. In the context\nof examining the nature of the functions of another advisory body\ncreated to advise an executive department, the District Court for the\nDistrict of Massachusetts recently recognized that giving advice and\nmaking recommendations \xe2\x80\x9cfall into the category of \xe2\x80\x98purely executive.\xe2\x80\x99 \xe2\x80\x9d\nMartin v. Reagan, 525 F. Supp. 110, 113 (D. Mass. 1981) (National\nInstitute of Justice Advisory Board). See also Patino v. Reagan, Civil\nNo. S -81-469 MLS (E.D. Cal. Sept. 29, 1981) (same).\nIf the executive nature of the Council\xe2\x80\x99s duties left any doubt regard\xc2\xad\ning the inability of Congress to limit the President\xe2\x80\x99s power to remove\nits members, any such doubt is overcome by the fact that the Council\nperforms no quasi-legislative or quasi-judicial functions as those func\xc2\xad\ntions are described in the cases. See Humphrey\xe2\x80\x99s Executor v. United\nState, supra;6 Wiener v. United States, supra.7 In short, there is no basis\nfor concluding that the Council\xe2\x80\x99s functions \xe2\x80\x9crequire absolute freedom\nfrom Executive interference.\xe2\x80\x9d Wiener, 357 U.S. at 353.\nIn sum, the text and history of the statute, as interpreted in light of\nthe relevant constitutional principles, impose no limitation on the Presi\xc2\xad\ndent\xe2\x80\x99s power to remove members of the Council. The President, there\xc2\xad\nfore, has authority to remove them at his pleasure.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n* Reports to Congress are passed first to the President for his comments and recommendations. See\n42 U.S.C. \xc2\xa7 3015(0\xe2\x80\x98 Members o f the Federal Trade Commission were held to be protected from removal because the\nCommission was "an administrative body created by Congress to carry into effect legislative policies\nembodied in the statute in accordance with the legislative standard therein prescribed, and to perform\nother specified duties as a legislative or as a judicial aid.\xe2\x80\x9d 295 U.S. at 628.\n\xe2\x80\x99 Members o f the W ar Claims Commission were held to be protected from removal because they\nhad the responsibility to adjudicate claims against the United States \xe2\x80\x9caccording to the law,\xe2\x80\x9d Le., \xe2\x80\x9con\nthe merits o f each claim, supported by evidence and governing legal considerations." 357 U.S. at 355.\n\n343\n\n\x0c'


b"Acceptance of Legal Fees by United States Attorney\nU nited S tates A ttorney would be prohibited by 18 U .S .C . \xc2\xa7 205(1) from accepting an attorney\xe2\x80\x99s fee\ngenerated in a case that he handled while in private practice, if the lawsuit were determ ined to\nco nstitute a claim against the U nited States, and if his interest in the fee was o f a contingent nature\nat th e tim e he began government service.\nW h eth er a m atter in litigation constitutes a claim against the United States for purposes of 18 U .S .C .\n\xc2\xa7 205 dep en d s not upon whether th e U nited States is a plaintiff o r defendant, but upon w hether the\nU nited States has a significant m onetary interest at stake in the lawsuit.\n\nNovember 4, 1982\nMEMORANDUM OPINION FOR THE DIRECTOR,\nEXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS\nYou have asked for our views on the propriety of a United States Attorney\naccepting an attorney\xe2\x80\x99s fee generated in a case that he handled while in private\npractice. While we do not have sufficient information to reach a conclusive\ndetermination on this question, the following discussion should assist you in\nmaking your decision in the matter.\nYou have advised us that prior to his appointment as United States Attorney,\nMr. A negotiated a proposed settlement for his clients in a suit you characterized\nas \xe2\x80\x9c a title dispute between relatives\xe2\x80\x9d where the United States was named as a\n\xe2\x80\x9c nominal party\xe2\x80\x9d because the farm er\xe2\x80\x99s Home Administration (FmHA) held a\nmortgage on the property. Mr. A states that although he negotiated the settlement\nprior to assuming his position as the United States Attorney, a final consent\ndecree was not entered in the case until the defendants were able to obtain a loan\nfrom the FmHA to pay the settlement. The settlement was entered approximately\na year and a half after Mr. A assumed his position as the United States Attorney.\nDuring this year and a half, Mr. A\xe2\x80\x99s former clients were represented by another\nlawyer, who has tendered to Mr. A $1,265.50, which constitutes one-half of the\ncontingent fee collected from the clients.1\n\n1 We presume that the 50-50 split of any attorney\xe2\x80\x99s fee collected was agreed upon between the lawyers before Mr.\nA assumed his position as United States Attorney. We also understand that the total attorney\xe2\x80\x99s fee collected was\nbased upon M r A \xe2\x80\x99s original agreement w ith his clients that they would pay as an attorney's fee one-third of any\namount recovered in the suit.\n\n602\n\n\x0cAs you know, the applicable conflict of interest statute is 18 U.S.C. \xc2\xa7 205. In\npertinent part this statute prohibits officers or employees of the United States\nfrom receiving any share of or interest in any claim against the United States. 18\nU.S.C. \xc2\xa7 205(1). As a preliminary matter, you will want to determine whether\nthis suit can reasonably be said to constitute a \xe2\x80\x9c claim against the United States.\xe2\x80\x9d\nIn our view, this is primarily a question of fact that you must determine by\nreviewing the nature of the interests of the FmHA in this lawsuit.2\nAs you know, there is some judicial authority to support the proposition that\nnot every case involving the monetary interests of the government necessarily\nconstitutes a claim against the United States. In United States v. 679.19 Acres cf\nLand, 113 F. Supp. 590, 593 (D.N.D. 1953) the court held that the predecessor\nstatute to \xc2\xa7 205( 1) did not bar an employee of the Soil Conservation Service from\ntestifying under subpoena as an expert witness in a land condemnation suit. In\nreaching this conclusion, the court stated that the suit did not constitute a claim\nagainst the United States because the United States was the plaintiff rather than\nthe defendant in the suit. While we agree with the court that giving expert\ntestimony was not within the intended purview of \xc2\xa7 205 as it then read,3 we do not\nagree that the position of the United States as plaintiff or defendent is controlling\nin determining the application of \xc2\xa7 205(1). Rather, we suggest that the inquiry\ninto whether a matter is a claim against the United States should be focused on\nwhether the United States has a significant monetary interest at stake in the\nlawsuit. See also Office of Legal Counsel Memorandum of November 9,1966, to\nthe Assistant Attorney General, Land and Natural Resources Division.\nIf you determine that this lawsuit does constitute a claim against the United\nStates, the transaction described in your memorandum would seem to fall within\nthe prohibition of \xc2\xa7 205( 1). If, however, the problem of this contingent fee had\nbeen raised at the time Mr. A was appointed United States Attorney, it may have\nbeen possible to arrange for him to receive quantum meruit compensation for his\npast service without contravening \xc2\xa7 205(1). More specifically, Mr. A might have\neliminated his interest in the claim by (1) reducing his fee to a sum certain\ncalculated on the basis of work actually performed (rather than percentage of the\namount recovered) and (2) collecting this amount (or a lesser amount discounted\nto account for the speculative nature of the fee entitlement) from his succeeding\ncounsel. As you know, the Department routinely recommends this method to\nincoming attorneys who must eliminate contingent fee interests in litigation\ninvolving the United States. See e.g .. Office of Legal Counsel Memorandum of\nNovember 9, 1966, supra.\nWe recognize that it is not factually possible to turn back the clock in this case\nto remove the contingent nature of the tendered fee. On the other hand, a\nthorough review of the facts may reveal that the contingent aspect of this fee was\neffectively eliminated by the settlement agreement arranged prior to Mr. A \xe2\x80\x99s\n2 We are not in a position to make this determination based on the scant facts provided by Mr. A, and we will defer\nlo your judgment on this point.\n3 This view was incorporated into the statute when it was amended in 1962 See 18 U.S C \xc2\xa7 205 (last clause)\n[exempting the giving of testimony under oath from the application of the statute].\n\n603\n\n\x0cassumption of federal office.4 If your review of the facts convinces you that this\nwas the case, we would not object to after-the-fact arrangement of the sort\ndescribed above. That would simply mean that Mr. A \xe2\x80\x99s fee would have to be\nscrutinized and, if necessary, reduced to ensure that it represents no more than a\nfair hourly fee for services actually rendered.\nIn the future you may wish to take steps to encourage employees to make\narrangements to eliminate contingent fees at the time that they begin government\nservice. In the case of persons required to file financial disclosure forms, you will\nhave an opportunity to raise and resolve such problems at the time that you review\ntheir financial disclosure reports. In some cases this issue will be raised by the\nreport itself in the section disclosing relationships with former employers, in our\nview it would be a good practice to question prospective employees specifically\nabout any interests in contingent fees, whether or not the issue is raised in their\nreports.\nT h eo d o re B. O\n\nlso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n4 In reviewing the facts, you should inquire into the reasons why (1) the settlement was not made final for a year\nand a half, (2) Mr. A was willing to give a full 5 0 percent o f the fee to the succeeding counsel, and (3) the FmHA was\nwilling to fund the settlement In addition, you should satisfy yourselves that Mr A played no role, as the United\nStates Attorney, in convincing the FmHA to provide the loan that funded the settlement.\n\n604\n\n\x0c"


b'Whether Conflict of Interest Laws Apply to a Person\nAssisting a Supreme Court Nominee\nOn the facts described, former Senator Fred Thompson would not be an \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d of the\nfederal government if he assisted a Supreme Court nominee during the process of confirmation by\nthe Senate, and as a consequence the federal conflict of interest laws would not apply to him.\n\nJuly 22, 2005\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether, for purposes of the federal conflict of interest laws,\nformer Senator Fred Thompson would be an \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d of the federal\ngovernment if he assisted a Supreme Court nominee during the process of\nconfirmation by the Senate. On the facts as you have described them, we believe\nthat Mr. Thompson would not be an \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d and that, as a\nconsequence, the conflict of interest restrictions would not apply to him.\nAs you have explained the facts to us, Mr. Thompson informed the President\nthat he was available to assist the nominee, to advocate the nominee\xe2\x80\x99s confirmation, and to advise the nominee about how to deal with members of the Senate.\nThe President encouraged such an arrangement, but the nominee will decide\nwhether to take up Mr. Thompson\xe2\x80\x99s offer. The nominee, rather than anyone at the\nWhite House, will have the authority to end the arrangement at any time. Mr.\nThompson will report to the nominee, not to the White House. He will not hold\nhimself out as speaking for the government. Mr. Thompson will represent the\nnominee only for purposes of his nomination to the Supreme Court and only in his\ncapacity as a nominee, not in his capacity as a sitting federal judge. Although Mr.\nThompson will consult and work with government personnel, he will not be under\ntheir direction or control, and he, in turn, will not direct or control government\npersonnel, for example by calling or chairing meetings of government personnel.\nHe will not have an office in a federal building or otherwise have the right of an\nemployee to use government facilities. The government will not pay for his\nservices or cover his expenses.\nAs we have previously explained, the application of the principal conflict of\ninterest restrictions governing the Executive Branch depends on the meaning of\nthe terms \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee.\xe2\x80\x9d See Application of Conflict of Interest Rules\nto Appointees Who Have Not Begun Service, 26 Op. O.L.C. 32 (2002) (\xe2\x80\x9cConflict\nof Interest Rules\xe2\x80\x9d). The major conflict of interest provisions\xe2\x80\x94the criminal conflict\nof interest laws, 18 U.S.C. \xc2\xa7\xc2\xa7 202\xe2\x80\x93209 (2000); the directives in Executive Order\n12674, Principles of Ethical Conduct for Government Officers and Employees,\n3 C.F.R. 215 (1989 Comp.); and the Standards of Ethical Conduct for Employees\nof the Executive Branch, 5 C.F.R. pt. 2635 (2005) (\xe2\x80\x9cStandards of Ethical Conduct\xe2\x80\x9d)\xe2\x80\x94all apply only to \xe2\x80\x9cofficers\xe2\x80\x9d and \xe2\x80\x9cemployees\xe2\x80\x9d of the federal government.\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nTitle 18 does not define \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee,\xe2\x80\x9d but we have found the definitions in title 5 to be \xe2\x80\x9c\xe2\x80\x98the most obvious source of a definition\xe2\x80\x99 for title 18 purposes.\xe2\x80\x9d Applicability of Executive Order No. 12674 to Personnel of Regional Fishery\nManagement Councils, 17 Op. O.L.C. 150, 154 (1993) (\xe2\x80\x9cFishery Management\nCouncils\xe2\x80\x9d) (quoting Conflict of Interest\xe2\x80\x94Status of an Informal Presidential\nAdvisor as a \xe2\x80\x9cSpecial Government Employee,\xe2\x80\x9d 1 Op. O.L.C. 20 (1977) (\xe2\x80\x9cInformal\nPresidential Advisor\xe2\x80\x9d)). The title 5 definitions set up a three-part test. Under\n5 U.S.C. \xc2\xa7 2104 (2000), an \xe2\x80\x9cofficer\xe2\x80\x9d is someone who is (1) \xe2\x80\x9crequired by law to be\nappointed in the civil service by [the President, a court of the United States, the\nhead of an Executive agency, or the Secretary of a military department] acting in\nan official capacity,\xe2\x80\x9d (2) \xe2\x80\x9cengaged in the performance of a Federal function under\nauthority of law or an Executive act,\xe2\x80\x9d and (3) \xe2\x80\x9csubject to the supervision\xe2\x80\x9d of the\nPresident or the head of an executive agency or military department. Under\n5 U.S.C. \xc2\xa7 2105 (2000), the term \xe2\x80\x9cemployee\xe2\x80\x9d covers an \xe2\x80\x9cofficer\xe2\x80\x9d and any person\nwho is engaged in federal functions, but is appointed and supervised by specified\nfederal officials other than those able to appoint and supervise \xe2\x80\x9cofficers.\xe2\x80\x9d See\nConflict of Interest Rules, 26 Op. O.L.C. at 33. For both \xe2\x80\x9cofficers\xe2\x80\x9d and \xe2\x80\x9cemployees,\xe2\x80\x9d therefore, the test is essentially the same. 1\nThe executive order reaches \xe2\x80\x9cemployees,\xe2\x80\x9d a term that covers \xe2\x80\x9cany officer[s] or\nemployee[s] of an agency.\xe2\x80\x9d Exec. Order No. 12674, \xc2\xa7 503(b). We have concluded\nthat these terms in the executive order \xe2\x80\x9care identical in scope and meaning with\nthe terms \xe2\x80\x98officer\xe2\x80\x99 and \xe2\x80\x98employee\xe2\x80\x99 as used in 5 U.S.C. \xc2\xa7\xc2\xa7 2104 and 2105.\xe2\x80\x9d Fishery\nManagement Councils, 17 Op. O.L.C. at 153. Furthermore, because the Standards\nof Ethical Conduct implement the executive order, we have found the same\ndefinitions applicable to the implementing regulations as well as the executive\norder. Id. at 150 n.2, 158.\nIn each instance, therefore, the application of the conflict of interest rules depends on the meaning of \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee,\xe2\x80\x9d and those terms take their\nmeaning from the three-part test derived from title 5: (1) \xe2\x80\x9crequired by law to be\nappointed in the civil service by [a federal official] acting in an official capacity,\xe2\x80\x9d\n(2) \xe2\x80\x9cengaged in the performance of a Federal function under authority of law or an\nExecutive act,\xe2\x80\x9d and (3) \xe2\x80\x9csubject to the supervision\xe2\x80\x9d of federal officials. A person is\nan \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d only if he meets all three requirements. See Conflict of\n\n1\nFor purposes of the conflict of interest laws, title 18 does define a subclass of \xe2\x80\x9cemployees.\xe2\x80\x9d The\nterm \xe2\x80\x9cspecial Government employee\xe2\x80\x9d includes \xe2\x80\x9can officer or employee of the executive . . . branch of\nthe United States Government . . . who is retained, designated, appointed, or employed to perform, with\nor without compensation, for not to exceed one hundred and thirty days during any period of three\nhundred and sixty-five consecutive days, temporary duties, either on a full-time or intermittent basis.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 202(a) (2000). This definition itself depends on the meaning of the terms \xe2\x80\x9cofficer\xe2\x80\x9d and\n\xe2\x80\x9cemployee,\xe2\x80\x9d which are not defined in section 202(a).\n\n128\n\n\x0cWhether Conflict of Interest Laws Apply to Person Assisting Supreme Court Nominee\n\nInterest Rules, 26 Op. O.L.C. at 35 (citing McCarley v. MSPB, 757 F.2d 278, 280\n(Fed. Cir. 1985)).\nOn the facts you have described, none of the three requirements would be\nsatisfied. For purposes of the conflict of interest restrictions, therefore, Mr.\nThompson would not be an \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee.\xe2\x80\x9d\nFirst, Mr. Thompson would not be appointed in the civil service by a federal\nofficial. In Informal Presidential Advisor, we observed that this requirement\nsuggests \xe2\x80\x9ca formal relationship between the individual and the Government,\xe2\x80\x9d\n1 Op. O.L.C. at 21, and that \xe2\x80\x9c[i]n the usual case, this formal relationship is based\non an identifiable act of appointment,\xe2\x80\x9d id. Here, there will be no formal act of\nappointment by a federal official. Indeed, although the President has responded\npositively to Mr. Thompson\xe2\x80\x99s offer to be available to assist the nominee, the\nchoice to use Mr. Thompson\xe2\x80\x99s services will be left to the nominee, acting in his\npersonal capacity.\nTo be sure, \xe2\x80\x9can identifiable act of appointment may not be absolutely essential\nfor an individual to be regarded as an officer or employee in a particular case\nwhere the parties omitted it for the purpose of avoiding the application of the\nconflict of interest laws or perhaps where there was a firm mutual understanding\nthat a relatively formal relationship existed.\xe2\x80\x9d Id.; see also Ass\xe2\x80\x99n of Am. Physicians\n& Surgeons v. Clinton, 187 F.3d 655, 662 (D.C. Cir. 1999). On the present facts,\nhowever, the absence of a formal appointment does not arise from an attempt to\ncircumvent the conflict of interest laws. Because none of the three requirements is\nmet, the absence of a formal appointment does not avoid a conclusion that would\notherwise be reached about application of conflict of interest rules. Instead, the\nabsence of an appointment reflects that the federal government has only an\ninformal relationship with Mr. Thompson.\nSecond, Mr. Thompson will not be \xe2\x80\x9cengaged in the performance of a Federal\nfunction under authority of law or an Executive act.\xe2\x80\x9d He will advocate the\nnominee\xe2\x80\x99s confirmation and will advise the nominee about dealing with the\nSenate. In this role, he will not purport to speak for the government. He therefore\nwill be performing the function of a private advocate taking part in the debates and\nproceedings on confirmation, rather than the function of a government official. See\nOffice of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d), Letter to a Designated Agency Ethics\nOfficial, Informal Advisory Ltr. 95x8, 1995 WL 855434, at *7 (July 10) (a person\nwould not be an employee where, \xe2\x80\x9cpursuant to the proposed arrangement, [he]\nwould be working . . . as a representative of [an outside person or group], not the\nUnited States, and . . . would not be authorized to speak, or purport to speak, on\nbehalf of the agency\xe2\x80\x9d); cf., e.g., 5 C.F.R. \xc2\xa7 2635.807(b) (2005) (restricting an\nemployee\xe2\x80\x99s references to his official position when he is speaking or writing in a\nprivate capacity). Furthermore, he will not be directing the actions of federal\nofficials, for example by \xe2\x80\x9ccoordinating the Administration\xe2\x80\x99s activities in [this]\nparticular area,\xe2\x80\x9d Informal Presidential Advisor, 1 Op. O.L.C. at 23, or by calling\n\n129\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nor chairing meetings of government personnel, id. He will consult and work with\ngovernment officials, but in this respect he will be in the same position as many\nrepresentatives of outside persons or groups who share interests with the government. Such cooperation does not mean that the representative of the outside person\nor group is performing a federal function.\nThird, Mr. Thompson will not be subject to the direction of federal officials. To\nthe extent that Mr. Thompson is not determining his own activities, the nominee in\nhis private capacity will direct what Mr. Thompson does. See OGE, Memorandum\nto Designated Agency Ethics Officials, General Counsels and Inspectors General\nRegarding Summary of Ethical Requirements Applicable to Special Government\nEmployees, Informal Advisory Mem. 00x1, 2000 WL 33407342, at *2 (Feb. 15)\n(\xe2\x80\x9cSummary of Ethical Requirements\xe2\x80\x9d) (although the degree of control over shortterm employees need not be as great as over permanent employees, \xe2\x80\x9csupervision\nor operational control remains an important attribute of employee status\xe2\x80\x9d). The\nnominee, moreover, will decide whether his assistance will be used at all and, if\nso, for how long. The power to end Mr. Thompson\xe2\x80\x99s service, which the nominee\nrather than the government will have, is \xe2\x80\x9ca key indicator of supervision.\xe2\x80\x9d OGE,\nLetter to an Individual, Informal Advisory Ltr. 01x11, 2001 WL 34091920, at *2\n(Nov. 29); see Fishery Management Councils, 17 Op. O.L.C. at 155\xe2\x80\x9356.\nInformal Presidential Advisor observed that this third part of the test \xe2\x80\x9chas been\nof importance in the conflict-of-interest area primarily in determining whether an\nindividual is an independent contractor rather than an employee and therefore not\nsubject to the conflict-of-interest laws.\xe2\x80\x9d 1 Op. O.L.C. at 21. Mr. Thompson will\nnot be working for the government and will not even be the government\xe2\x80\x99s\nindependent contractor; it is therefore unnecessary to use the test to draw that\ndistinction here. Nevertheless, we note that the factors by which independent\ncontractors are distinguished from employees point, overwhelmingly, to the\nconclusion that Mr. Thompson is not an employee of the government. He does not\ntake instructions from the government or receive government training; his work is\nnot integrated into the government\xe2\x80\x99s business; he does not have a continuing\nrelationship with the government; the government does not set his hours of work;\nhe is not required to report to the government on his activities; he is not paid by\nthe government; the government is not responsible for his expenses; the government cannot discharge him; he furnishes his own materials (such as they are); he\nmay do other work at the same time; and he may quit without liability. See Hosp.\nRes. Pers., Inc. v. United States, 68 F.3d 421, 427 (11th Cir. 1995) (cited in OGE,\nSummary of Ethical Requirements, 2000 WL 33407342, at *15 n.4). Furthermore,\nalthough Mr. Thompson may consult with officials on government premises, he\nwould not have an office in a government building or otherwise have the right to\nuse government facilities that employees enjoy. Cf. Informal Presidential Advisor,\n1 Op. O.L.C. at 21 (a person is probably an employee if he \xe2\x80\x9cworks on Government\npremises under the direction of Government personnel and performs work of a\nkind normally handled by Government employees\xe2\x80\x9d). Mr. Thompson does render\n\n130\n\n\x0cWhether Conflict of Interest Laws Apply to Person Assisting Supreme Court Nominee\n\nhis services personally, see Hosp. Res. Pers., 68 F.3d at 427, and it may be that a\nlower level of control is necessary to find that professional services, as opposed to\nnonprofessional ones, involve the level of supervision that could make someone an\nemployee, see OGE, Summary of Ethical Requirements, 2000 WL 33407342, at\n*15 n.3. But an examination of the usual factors dictates the conclusion here that\nthe government would not control Mr. Thompson\xe2\x80\x99s activities.\nWe therefore conclude that Mr. Thompson, on the facts as stated, would not be\nan \xe2\x80\x9cofficer\xe2\x80\x9d or \xe2\x80\x9cemployee\xe2\x80\x9d subject to the federal conflict of interest rules.\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n131\n\n\x0c'