b'Constitutional Concerns Presented by Proposed\nOrderly Liquidation Authority Panel\nThe Orderly Liquidation Authority Panel that would be authorized by section 202 of the\nCommittee Print of the Restoring American Financial Stability Act of 2010 would\nhave independent jurisdiction to determine the statutory permissibility of petitions\nissued by the Secretary of the Treasury to appoint the Federal Deposit Insurance Corporation as receiver for certain systemically important financial companies that are in\ndefault or in danger of default. If this Panel\xe2\x80\x94a bankruptcy court tribunal composed of\nthree judges from the U.S. Bankruptcy Court for the District of Delaware who are appointed by the Chief Judge of that court\xe2\x80\x94were deemed to be a part of the Executive\nBranch, its exercise of this jurisdiction would raise both Appointments Clause and\nseparation of powers concerns.\nIf the Panel instead were deemed to be a part of the Judicial Branch, the Appointments\nClause concerns would be mitigated, if not resolved, but the separation of powers concerns would be heightened.\nThe Panel could be located within the Judicial Branch while addressing both the Appointments Clause and separation of powers concerns if Congress were to vest jurisdiction to review receivership petitions in an Article III court, with that court authorized to refer such petitions to the Panel and to withdraw referrals under appropriate\ncircumstances, or if the Panel were to consist of Article III judges rather than bankruptcy judges. This structure, however, would likely prevent the Panel from adjudicating petitions where the financial company consents to the appointment of the FDIC as\nreceiver and thus does not present a justiciable case or controversy.\nApril 19, 2010\n\nLETTER OPINION FOR THE ASSISTANT SECRETARY\nFOR FINANCIAL INSTITUTIONS\nDEPARTMENT OF THE TREASURY\nThis letter is to convey our constitutional concerns regarding the Orderly Liquidation Authority Panel (\xe2\x80\x9cPanel\xe2\x80\x9d) that would be authorized by\nsection 202 of the Committee Print (\xe2\x80\x9cPrint\xe2\x80\x9d) of the Restoring American\nFinancial Stability Act of 2010 (\xe2\x80\x9cAct\xe2\x80\x9d). See S. Comm. on Banking,\nHousing, and Urban Affairs, Restoring American Financial Stability Act\nof 2010, 111th Cong. \xc2\xa7 202 (Comm. Print 2010). As a bankruptcy court\ntribunal with independent jurisdiction to determine the statutory permissibility of petitions issued by the Secretary of the Treasury (\xe2\x80\x9cSecretary\xe2\x80\x9d)\nunder section 202 of the Act, the Panel would constitute an unusual type\nof hybrid adjudicatory entity that defies ready categorization. Congress\xe2\x80\x99s\n126\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nestablishment of such an entity, however it is categorized, would be of\nuncertain constitutionality because it would blur the lines between adjudications conducted by judges who enjoy the Article III protections of\nirreducible salary and life tenure and adjudications conducted by judges\nwho lack those protections. The level of this uncertainty would vary to\nsome extent, however, depending on which branch of government the\nPanel is determined to be located in for constitutional purposes. In our\nview, a court might characterize the Panel as residing in either the Executive Branch or the Judicial Branch. A determination that the Panel resides\nin the Executive Branch would present a relatively lower risk that the\nPanel violates the separation of powers, but would also render the current\nmethod of appointing the Panel\xe2\x80\x99s judges questionable under the Appointments Clause of the Constitution, U.S. Const. art. II, \xc2\xa7 2, cl. 2. A determination that the Panel resides in the Judicial Branch would mitigate, if not\nresolve, these Appointments Clause concerns, but would in turn heighten\nthe potential threat to judicial integrity\xe2\x80\x94and the separation of powers\nconcerns\xe2\x80\x94presented by the Panel\xe2\x80\x99s structure.\nAfter setting forth the statutory background, we consider the Appointments Clause and separation of powers issues that the Print raises, analyzing these issues separately depending on whether the Panel is determined\nto be located for constitutional purposes in the Executive Branch or the\nJudicial Branch. We then describe how the Panel could be structured to\nresolve these issues while still locating it within the Judicial Branch, but\nnote that the Panel, even as restructured, would likely lack authority to\nconsider one class of petitions filed by the Secretary under section 202\xe2\x80\x94\nnamely, those that concern financial companies that have consented to the\nappointment of the Federal Deposit Insurance Corporation (\xe2\x80\x9cFDIC\xe2\x80\x9d) as\ntheir receiver\xe2\x80\x94because such petitions may well not give rise to a justiciable \xe2\x80\x9cCase[]\xe2\x80\x9d or \xe2\x80\x9cControvers[y]\xe2\x80\x9d within the meaning of Article III of the\nConstitution, U.S. Const. art. III, \xc2\xa7 2, cl. 1.\nI.\nThe Print would require the Secretary to appoint the FDIC as receiver\nfor certain systemically important financial companies that are in default or in danger of default, and would establish a comprehensive set\nof procedures to govern the making of such appointments. Print \xc2\xa7\xc2\xa7 202,\n127\n\n\x0c34 Op. O.L.C. 126 (2010)\n\n203. Specifically, the Print would direct the Secretary, upon receiving a\nwritten recommendation regarding a company from the FDIC and the\nBoard of Governors of the Federal Reserve System, to determine\nwhether the company meets the statutory requirements for FDIC receivership. Id. \xc2\xa7 203(a), (b). If the Secretary determines that the company qualifies for receivership, he must petition the Panel for an order\nauthorizing the appointment of the FDIC as receiver, and this petition\nmust be accompanied by notice to the FDIC and the subject company.\nId. \xc2\xa7\xc2\xa7 202(b)(1)(A)(i), 203(b). The Print would establish the Panel within\nthe U.S. Bankruptcy Court for the District of Delaware, and would direct\nthat it be composed of three judges from that court appointed by the\nChief Judge of the court. Id. \xc2\xa7 202(a)(1), (2). The Panel would have\n\xe2\x80\x9coriginal and exclusive jurisdiction of proceedings to consider petitions\nby the Secretary,\xe2\x80\x9d id. \xc2\xa7 202(a)(3), and would be charged with \xe2\x80\x9cestablish[ing] such rules and procedures as may be necessary to ensure the\norderly conduct of [its] proceedings,\xe2\x80\x9d id. \xc2\xa7 202(c)(1).\nWithin twenty-four hours of receiving a petition, the Panel would be\nrequired to issue a \xe2\x80\x9cfinal\xe2\x80\x9d determination regarding whether \xe2\x80\x9csubstantial\nevidence\xe2\x80\x9d supports the Secretary\xe2\x80\x99s determination that \xe2\x80\x9cthe covered financial company is in default or in danger of default.\xe2\x80\x9d Id. \xc2\xa7 202(b)(1)(A)(iii),\n(B). If the Panel determines that there is substantial evidence for the\nSecretary\xe2\x80\x99s determination, it would have to \xe2\x80\x9cissue an order immediately\nauthorizing the Secretary to appoint the [FDIC] as receiver of the . . .\ncompany.\xe2\x80\x9d Id. \xc2\xa7 202(b)(1)(A)(iv). If the Panel determines that there is\nnot substantial evidence for the Secretary\xe2\x80\x99s determination, it would have\nto provide the Secretary with a written statement of the Panel\xe2\x80\x99s reasons\nfor so determining and afford the Secretary an opportunity to amend and\nrefile the petition. Id. Before the Panel could issue its final determination, it would have to provide the covered financial company notice\nand a hearing at which the company \xe2\x80\x9cmay oppose the petition.\xe2\x80\x9d Id.\n\xc2\xa7 202(b)(1)(A)(iii).\nAfter the Panel has issued its final determination, both the Secretary\nand the covered financial company (through its board of directors)\nwould be authorized to appeal that determination to the U.S. Court of\nAppeals for the Third Circuit, although the Third Circuit would have\njurisdiction over appeals by the company only if the company \xe2\x80\x9cdid not\nacquiesce or consent to the appointment of a receiver by the Secretary.\xe2\x80\x9d\n128\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nId. \xc2\xa7 202(b)(2)(A)(i), (ii). Review by the court of appeals would \xe2\x80\x9cbe\nlimited to whether the determination of the Secretary that a covered\nfinancial company is in default or in danger of default is supported by\nsubstantial evidence.\xe2\x80\x9d Id. \xc2\xa7 202(b)(2)(A)(iv). Once the Third Circuit\nhas ruled, the Secretary or the company (through its board of directors)\nwould be authorized to petition the Supreme Court to review that ruling.\nSee id. \xc2\xa7 202(b)(2)(B).\nII.\nThe Panel appears to be a novel type of government entity. It would be\nlocated by statute within the U.S. Bankruptcy Court for the District of\nDelaware, Print \xc2\xa7 202(a)(1); would be composed of bankruptcy judges\nappointed by the Chief Judge of that court, id. \xc2\xa7 202(a)(1), (2); and would\nbe charged with rendering final decisions regarding the Secretary\xe2\x80\x99s authority under the Act to appoint the FDIC as receiver of troubled financial\ncompanies, id. \xc2\xa7 202(b)(1)(A)(iii), (B). We are not aware of any precedent\nfor Congress creating an entity of precisely this type, i.e., one (a) located\nwithin a tribunal that is by statute part of the federal judiciary, see 28\nU.S.C. \xc2\xa7 151 (2006) (describing bankruptcy courts as \xe2\x80\x9cunit[s] of the\ndistrict court\xe2\x80\x9d); (b) composed of non-Article III judges appointed to the\nentity by an officer located by statute in the Judicial Branch, see id.\n\xc2\xa7 152(a)(1) (describing bankruptcy judges as \xe2\x80\x9cjudicial officers of the\nUnited States district court\xe2\x80\x9d); infra note 1; and (c) vested with independent jurisdiction to render final, binding decisions regarding an executive\nagency\xe2\x80\x99s exercise of its statutory authority. And while \xe2\x80\x9cconstitutional\nprinciples of separated powers are not violated . . . by mere anomaly or\ninnovation,\xe2\x80\x9d Mistretta v. United States, 488 U.S. 361, 385 (1989), this\nunconventional structure does, in our view, raise constitutional concerns.\nThe nature of these concerns differs somewhat, however, depending on\nwhether the Panel is properly conceived of as residing for constitutional\npurposes within the Executive Branch or the Judicial Branch. Because\nthe relevant judicial precedents do not afford definitive guidance with\nrespect to locating the Panel in either branch, we consider separately the\ndistinct constitutional concerns raised by each possibility.\n\n129\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nA.\nThere is an argument that the Print establishes the Panel within the Executive Branch for constitutional purposes, on the theory that the Executive Branch is the most plausible location for a non-Article III tribunal\ncharged with adjudicating the permissibility of Executive Branch action\naffecting private rights. Cf. Freytag v. Comm\xe2\x80\x99r, 501 U.S. 868, 909 (1991)\n(Scalia, J., concurring in part and concurring in the judgment, joined by\nO\xe2\x80\x99Connor, Kennedy, and Souter, JJ.) (arguing that \xe2\x80\x9c[legislative] tribunals,\nlike any other administrative board, exercise the executive power, not\nthe judicial power of the United States\xe2\x80\x9d). 1 Further supporting this conclusion is the fact that the creation of such an Executive Branch tribunal\nwould not be clearly inconsistent with constitutional limitations on the\nlegislative assignment of adjudicative functions to non-Article III courts,\nalthough there are aspects of the Panel\xe2\x80\x99s structure that give us some pause\nin this regard.\nThe Supreme Court has explained that Congress has \xe2\x80\x9cwide discretion to\nassign the task of adjudication in cases arising under federal law to [nonArticle III] legislative tribunals,\xe2\x80\x9d Freytag, 501 U.S. at 889, and that \xe2\x80\x9cthe\nconstitutionality of a given congressional delegation of adjudicative\nfunctions to [such a tribunal] must be assessed by reference to the purposes underlying the requirements of Article III,\xe2\x80\x9d CFTC v. Schor, 478 U.S.\n833, 847 (1986). \xe2\x80\x9c[I]n reviewing Article III challenges\xe2\x80\x9d to the establishment of non-Article III courts, the Supreme Court weighs \xe2\x80\x9ca number of\nfactors, none of which [it] has . . . deemed determinative, with an eye to\nthe practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary.\xe2\x80\x9d Id. at 851. Among the\nfactors the Court has focused on \xe2\x80\x9care the extent to which the \xe2\x80\x98essential\nattributes of judicial power\xe2\x80\x99 are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range\n1 The Panel\xe2\x80\x94like the bankruptcy courts\xe2\x80\x94would not constitute an Article III court,\nbecause the bankruptcy judges who would serve on the Panel do not enjoy the constitutional protections\xe2\x80\x94life tenure and an irreducible compensation\xe2\x80\x94that Article III judges\nmust possess. See U.S. Const. art. III, \xc2\xa7 1; 28 U.S.C. \xc2\xa7 152(a)(1) (bankruptcy judges\nappointed to fourteen-year terms); id. \xc2\xa7 152(e) (authorizing removal of bankruptcy\njudges); see generally N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,\n60\xe2\x80\x9361 (1982) (plurality op.).\n\n130\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nof jurisdiction and powers normally vested only in Article III courts, the\norigins and importance of the right to be adjudicated, and the concerns\nthat drove Congress to depart from the requirements of Article III.\xe2\x80\x9d Id.\nHere, the Panel would have the narrow function of adjudicating the\nstatutory permissibility of a single type of action undertaken by the Secretary\xe2\x80\x94albeit one with potentially significant consequences for the subject\nfinancial company\xe2\x80\x94and the government would be a party to the proceedings. In addition, the Panel\xe2\x80\x99s decisions would be subject to review by\nArticle III courts, even though that review would not be de novo. Given\nthese circumstances, Article III would not appear to categorically bar the\nvesting of such a relatively limited adjudicatory function in a tribunal\nsuch as the Panel whose members do not enjoy the constitutional protections afforded Article III judges. See id. at 853\xe2\x80\x9354 (\xe2\x80\x9c\xe2\x80\x98[W]hen Congress\nselects a quasi-judicial method of resolving matters that could be conclusively determined by the Executive and Legislative Branches, the danger\nof encroaching on the judicial powers is less than when private rights,\nwhich are normally within the purview of the judiciary, are relegated as\nan initial matter to administrative adjudication.\xe2\x80\x9d (quoting Thomas v.\nUnion Carbide Agric. Prods. Co., 473 U.S. 568, 589 (1985) (internal\nquotation marks omitted))); cf. N. Pipeline Constr. Co. v. Marathon Pipe\nLine Co., 458 U.S. 50, 67\xe2\x80\x9368 (1982) (plurality opinion) (describing as\nsubject to adjudication in Article I tribunals \xe2\x80\x9cmatters arising between the\nGovernment and persons subject to its authority in connection with the\nperformance of the constitutional functions of the executive or legislative\ndepartments\xe2\x80\x9d and \xe2\x80\x9chistorically [subject to] determin[ation] exclusively by\nthose departments\xe2\x80\x9d (internal quotation marks and citations omitted)).\nWe are somewhat troubled, however, by the fact that the Panel, unlike\nthe other non-Article III tribunals of which we are aware, would be located in an Article III court\xe2\x80\x99s adjunct tribunal\xe2\x80\x94namely, the Bankruptcy\nCourt for the District of Delaware\xe2\x80\x94and composed of non-Article III\njudges of that adjunct who would continue to serve in that capacity. See\nPrint \xc2\xa7 202(a)(1), (2); In re Kilen, 129 B.R. 538, 542 (Bankr. N.D. Ill.\n1991); supra p. 128. Although the Supreme Court has stated that \xe2\x80\x9cCongress may authorize a federal judge, in an individual capacity, to perform\nan executive function without violating the separation of powers,\xe2\x80\x9d it also\nhas suggested that \xe2\x80\x9cthe function of resolving administrative claims\xe2\x80\x9d\ncannot \xe2\x80\x9cbe assigned to a court, or to judges acting as part of a court.\xe2\x80\x9d\n131\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nMistretta, 488 U.S. at 404; cf. Letter for Edward P. Boland, Chairman,\nPermanent Select Committee on Intelligence, U.S. House of Representatives, from John M. Harmon, Assistant Attorney General, Office of Legal\nCounsel, at 2 n.1 (Apr. 18, 1978) (\xe2\x80\x9cHarmon Memo\xe2\x80\x9d) (noting that Supreme\nCourt has raised concerns \xe2\x80\x9cover the assignment of Article III judges to\nnon-Article III tribunals\xe2\x80\x9d (citing Glidden Co. v. Zdanok, 370 U.S. 530,\n540, 561 (1962), Ex parte Bakelite Corp., 279 U.S. 438, 460 (1929))).\nWhether the service of bankruptcy judges on the Panel and the Panel\xe2\x80\x99s\nplacement in a bankruptcy court would transgress this apparent limitation\non congressional authority to assign administrative power to \xe2\x80\x9ccourts\xe2\x80\x9d and\n\xe2\x80\x9cjudges\xe2\x80\x9d is not entirely clear. But we believe that, were the Panel deemed\nto be located in the Executive Branch, those aspects of its structure would\ngive rise to uncertainty regarding its constitutionality because they would\ncreate at least some risk of the Panel \xe2\x80\x9cundermin[ing] the integrity of the\nJudicial Branch.\xe2\x80\x9d Mistretta, 488 U.S. at 404.\nAn even clearer source of constitutional concern, were the Panel determined to be located within the Executive Branch, would be the possibility\nthat the Print\xe2\x80\x99s method of appointing judges to serve on the Panel is\ninconsistent with the Appointments Clause. The Appointments Clause\nprovides that:\n[The President] . . . shall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint Ambassadors, other public\nMinisters and Consuls, Judges of the supreme Court, and all other\nOfficers of the United States, whose Appointments are not herein\notherwise provided for, and which shall be established by Law; but\nthe Congress may by Law vest the Appointment of such inferior\nOfficers, as they think proper, in the President alone, in the Courts of\nLaw, or in the Heads of Departments.\nU.S. Const. art. II, \xc2\xa7 2, cl. 2. Panel members would have been appointed\nas bankruptcy judges by the U.S. Court of Appeals for the Third Circuit,\nsee Print \xc2\xa7 202(a)(2); 28 U.S.C. \xc2\xa7 152(a)(1), and would be appointed to\nthe Panel itself by the Chief Judge of the U.S. Bankruptcy Court for the\nDistrict of Delaware, see Print \xc2\xa7 202(a)(1). Accordingly, if the Appointments Clause governs the means of appointing Panel members, they\nwould have to be inferior officers in order for their appointments to be\nvalid.\n132\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nThe judges serving on the Panel would issue final, binding decisions\ncontrolling the Secretary\xe2\x80\x99s authority to place private companies into\ngovernment receivership, and would appear to satisfy all of the other\nrelevant criteria necessary to qualify as constitutional officers within the\nmeaning of the Appointments Clause. See The Constitutional Separation\nof Powers Between the President and Congress, 20 Op. O.L.C. 124, 148\n(1996) (explaining that \xe2\x80\x9c[a]n appointee (1) to a position of employment\n(2) within the federal government (3) that carries significant authority\npursuant to the laws of the United States is required to be an \xe2\x80\x98Officer of\nthe United States,\xe2\x80\x99\xe2\x80\x9d and must be appointed in conformity with the Appointments Clause); see also Buckley v. Valeo, 424 U.S. 1, 125\xe2\x80\x9326 (1976)\n(per curiam); cf. Freytag, 501 U.S. at 881\xe2\x80\x9382 (special trial judges charged\nwith assisting U.S. Tax Court judges are officers of the United States).\nAccordingly, the critical question concerns whether the Panel members\nwould properly be characterized as principal officers, in which case they\nwould have to be appointed by the President with the advice and consent\nof the Senate, or inferior officers, in which case they could be appointed,\nas the Print provides, by the Chief Judge of the U.S. Bankruptcy Court\nfor the District of Delaware, who would appear to qualify as a \xe2\x80\x9cCourt[] of\nLaw\xe2\x80\x9d within the meaning of the Appointments Clause. Cf. Freytag, 501\nU.S. at 888\xe2\x80\x9392 (Chief Judge of Tax Court is \xe2\x80\x9cCourt[] of Law\xe2\x80\x9d for purposes of Appointments Clause).\nThe Supreme Court has \xe2\x80\x9cnot set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause\npurposes.\xe2\x80\x9d Edmond v. United States, 520 U.S. 651, 661 (1997). In Morrison v. Olson, 487 U.S. 654 (1998), the Court considered four factors in\nholding that an independent counsel authorized by the Ethics in Government Act of 1978, 28 U.S.C. \xc2\xa7\xc2\xa7 591\xe2\x80\x93599, was an inferior officer: (a) the\nindependent counsel was subject to removal by a higher Executive Branch\nofficial (the Attorney General), (b) she performed only limited duties,\n(c) her jurisdiction was narrow, and (d) her tenure was limited. Id. at 671\xe2\x80\x93\n72. The Court later characterized these factors as not \xe2\x80\x9cdefinitive,\xe2\x80\x9d holding\nin Edmond that civilians appointed by the Secretary of Transportation to\nserve as judges on the Coast Guard Court of Criminal Appeals (\xe2\x80\x9cCourt of\nCriminal Appeals\xe2\x80\x9d) were inferior officers. 520 U.S. at 653, 661\xe2\x80\x9366.\nIn Edmond, the Court acknowledged that judges on the Court of Criminal Appeals were not limited in \xe2\x80\x9ctenure\xe2\x80\x9d or \xe2\x80\x9cjurisdiction\xe2\x80\x9d as those terms\n133\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nwere used in Morrison. Id. at 661. But the Edmond Court nonetheless\ndeemed them inferior officers because their work was subject to supervision by the Judge Advocate General of the Coast Guard (who controlled\nadministrative matters) and the executive-controlled Court of Appeals for\nthe Armed Forces (which could reverse the lower tribunal\xe2\x80\x99s decisions and\nprevent any final order from being issued). See id. at 664\xe2\x80\x9365. The Court\nsummarized its approach when it stated that \xe2\x80\x9cwe think it evident that\n\xe2\x80\x98inferior officers\xe2\x80\x99 are officers whose work is directed and supervised at\nsome level by others who were appointed by Presidential nomination with\nthe advice and consent of the Senate.\xe2\x80\x9d Id. at 663. In the course of its\nanalysis, the Edmond Court rejected the argument that the judges on the\nCourt of Criminal Appeals were akin to judges on the Tax Court (a nonArticle III court), whom the petitioners argued were principal officers\nunder the Court\xe2\x80\x99s decision in Freytag, 501 U.S. 868. Expressly declining\nto confirm this reading of Freytag, the Edmond Court noted \xe2\x80\x9ctwo significant distinctions between Tax Court judges and Court of Criminal Appeals judges\xe2\x80\x9d that explained why the latter were \xe2\x80\x9cinferior\xe2\x80\x9d officers even\nif the former were not. Edmond, 520 U.S. at 665. First, decisions of the\nTax Court are not appealable to any higher Executive Branch tribunal, but\nonly to Article III courts; and second, \xe2\x80\x9cthere is no officer comparable to a\nJudge Advocate General who supervises the work of the Tax Court, with\npower to determine its procedural rules, to remove any judge without\ncause, and to order any decision submitted for review.\xe2\x80\x9d Id. at 665\xe2\x80\x9366.\nMorrison and Edmond indicate that if the Panel is deemed to be an Executive Branch tribunal, its members could well be principal officers for\npurposes of the Appointments Clause. If so, they could only be appointed\nby the President with the advice and consent of the Senate. Most importantly, the decisions of the Panel, unlike the decisions issued by the\nCourt of Criminal Appeals, would not be reviewable by any superior\nExecutive Branch tribunal or official, but rather would be appealable only\nto Article III courts\xe2\x80\x94the Third Circuit followed by the Supreme Court.\nPrint \xc2\xa7 202(b)(2)(A), (B). Moreover, Panel judges would not be subject\nto removal from the Panel by any higher Executive Branch official\xe2\x80\x94a\nfactor that the Court deemed significant in both Edmond and Morrison.\nSee Edmond, 520 U.S. at 664 (\xe2\x80\x9cIt is conceded by the parties that the Judge\nAdvocate General may also remove a Court of Criminal Appeals judge\nfrom his judicial assignment without cause. The power to remove officers,\n134\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nwe have recognized, is a powerful tool for control.\xe2\x80\x9d); Morrison, 487 U.S.\nat 671 (observing that \xe2\x80\x9cappellant is subject to removal by a higher Executive Branch official\xe2\x80\x9d). 2 Indeed, the Act makes no express provision for\nthe removal of judges from the Panel. The authority of the Chief Judge\nof the U.S. Bankruptcy Court for the District of Delaware to appoint\njudges to the Panel does imply that the Chief Judge may also remove\nthem, see Keim v. United States, 177 U.S. 290, 293 (1900) (\xe2\x80\x9cIn the absence of specific provision to the contrary, the power of removal from\noffice is incident to the power of appointment.\xe2\x80\x9d), but the circumstances\nin which he would be able to do so are not clear. 3\nB.\nAlternatively, there is an argument for locating the Panel within the\nJudicial Branch for constitutional purposes. As noted, the Print would\nIt could be argued that one factor identified in Morrison\xe2\x80\x94limited jurisdiction\xe2\x80\x94\nweighs in favor of deeming the Panel\xe2\x80\x99s judges inferior officers. 487 U.S. at 672. In a\nsense, the Panel does have a relatively narrow jurisdiction, since it is charged solely with\nreviewing the Secretary\xe2\x80\x99s petitions for the appointment of the FDIC as receiver under the\nAct. However, unlike the independent counsel in Morrison, who was responsible for\nhandling only a single investigation, see id. at 672, the Panel could be responsible for\nreviewing numerous petitions, indicating a broader jurisdiction.\n3 Were the Panel to be located in the Executive Branch, there would be the additional\nconstitutional question whether the separation of powers permits the appointment and\nremoval of the members of such an Executive Branch tribunal by judicial officers. Cf.\nMorrison, 487 U.S. at 675\xe2\x80\x9376 (statute providing for interbranch appointments constitutionally impermissible where it would \xe2\x80\x9cimpair the constitutional functions assigned to one\nof the branches\xe2\x80\x9d or \xe2\x80\x9cif there [i]s some incongruity between the functions normally\nperformed by the [appointing] courts and the performance of their duty to appoint\xe2\x80\x9d\n(internal quotation marks omitted)); id. at 682\xe2\x80\x9383 (construing termination provisions of\nthe Ethics in Government Act not to give the Special Division of the U.S. Court of\nAppeals for the D.C. Circuit \xe2\x80\x9canything approaching the power to remove the counsel\nwhile an investigation or court proceeding is still underway,\xe2\x80\x9d and noting that \xe2\x80\x9cthis power\nis vested solely in the Attorney General,\xe2\x80\x9d in concluding that \xe2\x80\x9cthe Special Division\xe2\x80\x99s\npower to terminate does not pose a sufficient threat of judicial intrusion into matters that\nare more properly within the Executive\xe2\x80\x99s authority to require that the Act be invalidated\nas inconsistent with Article III\xe2\x80\x9d); cf. also Freytag, 501 U.S. at 891 (noting that Tax Court,\nwhose judges are appointed by the President, with the advice and consent of the Senate,\nand who are removable by the President for inefficiency, neglect of duty, or malfeasance\nin office, \xe2\x80\x9cremains independent of the Executive and Legislative Branches,\xe2\x80\x9d and \xe2\x80\x9c[i]ts\ndecisions are not subject to review by either the Congress or the President\xe2\x80\x9d).\n2\n\n135\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nstructure the Panel as a tribunal composed of bankruptcy judges appointed\nby the Chief Judge of the U.S. Bankruptcy Court for the District of Delaware, and would locate the Panel within that court, thus perhaps suggesting an intent on the part of its drafters to place the Panel in the same\nbranch of government as the bankruptcy courts. Bankruptcy courts may\nwell reside in the Judicial Branch as a constitutional matter. Cf. United\nStates v. Rowland, 789 F.2d 1169, 1171 (5th Cir. 1986) (characterizing\nbankruptcy courts as part of Judicial Branch); In re 1900 M Rest. Assocs.,\nInc., 319 B.R. 302, 316 (Bankr. D.D.C. 2005) (same); In re Sharon Steel\nCorp., 100 B.R. 767, 775 (Bankr. W.D. Pa. 1989) (same). The statute\ndesignating the bankruptcy courts characterizes them as \xe2\x80\x9cunit[s] of the\ndistrict court,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 151, and another statutory provision characterizes bankruptcy judges \xe2\x80\x9cas judicial officers of the United States district\ncourt,\xe2\x80\x9d id. \xc2\xa7 152(a)(1). Bankruptcy judges are also both appointed by\nand subject to removal by judicial officers. Id. \xc2\xa7 152(a)(1), (e). And,\nfinally, bankruptcy judges function as judicial \xe2\x80\x9cadjuncts\xe2\x80\x9d of the district\ncourts, qualifying for this status because in resolving proceedings arising\nunder the Bankruptcy Code, see title 11, U.S. Code, they act solely by\nreferral from\xe2\x80\x94and under the supervision of\xe2\x80\x94the district courts, which\nhave original jurisdiction over bankruptcy cases and proceedings, 28\nU.S.C. \xc2\xa7 1334 (2006). See Kilen, 129 B.R. at 542; cf. United States v.\nRaddatz, 447 U.S. 667 (1980) (approving use of magistrates as adjuncts to\nArticle III courts).\nIf the Panel were determined to be located in the Judicial Branch, the\nAppointments Clause analysis might differ, such that the Panel members\ncould be deemed inferior rather than principal officers. This conclusion\nis far from certain, however, as the Supreme Court\xe2\x80\x99s precedents do not\nclearly establish how to ascertain the status of non-Executive Branch\nofficers under the Appointments Clause. Nevertheless, decisions addressing the status of Executive Branch officers suggest that a relevant consideration in determining the status of any officer is whether there is some\nlevel of direction and supervision by superior officers within that officer\xe2\x80\x99s\nbranch. Cf. Edmond, 520 U.S. at 663 (\xe2\x80\x9c\xe2\x80\x98inferior officers\xe2\x80\x99 are officers\nwhose work is directed and supervised at some level by others who were\nappointed by Presidential nomination with the advice and consent of the\nSenate\xe2\x80\x9d); id. at 662 (\xe2\x80\x9cGenerally speaking, the term \xe2\x80\x98inferior officer\xe2\x80\x99\nconnotes a relationship with some higher ranking officer or officers below\n136\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nthe President.\xe2\x80\x9d). Here, the Panel members would be \xe2\x80\x9cdirected and supervised at some level,\xe2\x80\x9d id. at 663, by superior officers within the Judicial\nBranch\xe2\x80\x94namely, the Chief Judge of the U.S. Bankruptcy Court for the\nDistrict of Delaware, who may be able to remove them from their Panel\npositions, see supra p. 135, and the Judicial Council of the Third Circuit,\nwhich could remove them from their positions as bankruptcy judges under\ncertain circumstances, see 28 U.S.C. \xc2\xa7 152(e). Moreover, the Third Circuit and the Supreme Court would be authorized to exercise appellate\nreview over the Panel\xe2\x80\x99s decisions. Print \xc2\xa7 202(b)(2)(A), (B). Thus, even\nthough the Panel members might be deemed principal officers if located\nwithin the Executive Branch, due to the lack of higher-level Executive\nBranch supervision, there is an argument that they should be deemed\ninferior officers if located in the Judicial Branch, due to the supervision\nto which they would be subject by Judicial Branch officers. Cf. Landry v.\nFDIC, 204 F.3d 1125, 1143 (D.C. Cir. 2000) (noting that \xe2\x80\x9cit has long\nbeen settled that federal magistrates are \xe2\x80\x98inferior Officers\xe2\x80\x99 under Article\nII\xe2\x80\x9d). 4\nBut even if Appointments Clause concerns might be diminished by a\ndetermination that the Panel is located within the Judicial Branch for\nconstitutional purposes, such a determination would heighten the separation of powers concerns presented by the Panel\xe2\x80\x99s hybrid structure. Although the Panel would carry out an adjudicative function\xe2\x80\x94deciding\nwhether particular petitions by the Secretary for the appointment of the\nFDIC as receiver satisfy the relevant statutory criteria\xe2\x80\x94its status as a\nnon-Article III court would mean that it could not exercise Article III\njudicial power. See N. Pipeline Constr. Co., 458 U.S. at 59 (\xe2\x80\x9cThe judicial\npower of the United States must be exercised by courts having the attributes prescribed in Art. III.\xe2\x80\x9d). As a general matter, Congress may delegate\nto the Judicial Branch functions that do not constitute the exercise of\nArticle III judicial power only if those additional functions \xe2\x80\x9cdo not trench\nupon the prerogatives of another Branch and . . . are appropriate to the\ncentral mission of the Judiciary.\xe2\x80\x9d Mistretta, 488 U.S. at 388. For example,\nThis conclusion should not be taken as expressing a view on the status under the Appointments Clause of district judges, who of course enjoy life tenure, U.S. Const. art. III,\n\xc2\xa7 1, and thus are not removable except by impeachment. See Weiss v. United States, 510\nU.S. 163, 191 (1994) (Souter, J., concurring) (stating view that district court judges are\nprincipal officers).\n4\n\n137\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nCongress may assign authority other than Article III judicial power to\nadjuncts of Article III courts, as it has done with respect to magistrate\njudges and bankruptcy judges. See, e.g., Raddatz, 447 U.S. 667. In addition, the Supreme Court has approved Congress\xe2\x80\x99s creation within the\nJudicial Branch of certain entities charged with exercising rulemaking and\nadministrative functions, including the U.S. Sentencing Commission, the\nJudicial Councils, the Judicial Conference of the United States, the Administrative Office of the United States Courts, and the Rules Advisory\nCommittees. See Mistretta, 488 U.S. at 386\xe2\x80\x9389.\nWe are not aware of any precedent, however, for Congress\xe2\x80\x99s creation\nwithin the Judicial Branch of a tribunal, like the Panel, composed of nonArticle III judges and possessing the independent jurisdiction\xe2\x80\x94outside of\nthe control or supervision of any Article III court\xe2\x80\x94to make binding, final\ndecisions regarding the Executive\xe2\x80\x99s exercise of statutory authority. Such\na Panel could not be characterized as an adjunct of an Article III court in\nthe way that bankruptcy judges and magistrate judges function as adjuncts\nof the district courts. The Panel instead would have \xe2\x80\x9cexclusive and original\xe2\x80\x9d jurisdiction to determine whether the Secretary\xe2\x80\x99s petitions satisfy the\nrelevant statutory criteria, Print \xc2\xa7 202(a)(3), and neither a district court\nnor a court of appeals could withdraw the Panel\xe2\x80\x99s jurisdiction. Moreover,\nthe Third Circuit and the Supreme Court could exercise only limited\nappellate review of the Panel\xe2\x80\x99s decisions. See id. \xc2\xa7 202(b)(2)(A), (B).\nThus, the Panel\xe2\x80\x99s functions would not appear to \xe2\x80\x9cbe limited in such a way\nthat \xe2\x80\x98the essential attributes\xe2\x80\x99 of judicial power are retained in [some\noverseeing] Art. III court.\xe2\x80\x9d N. Pipeline Constr. Co., 458 U.S. at 81 (quoting Crowell v. Benson, 285 U.S. 22, 51 (1932)).\nTo be sure, as we have explained, although the Panel\xe2\x80\x99s location within\nan adjunct to an Article III court and its composition of non-Article III\njudges in active service on that adjunct raise some constitutional concerns,\nwe do not believe that the Constitution bars Congress from statutorily\nvesting the underlying adjudicative function in an Executive Branch\ntribunal of some kind. See supra pp. 130\xe2\x80\x93131. But for a Judicial Branch\ntribunal to be comprised as this one is would raise special constitutional\nconcerns and, in our view, pose a serious \xe2\x80\x9cthreat[]\xe2\x80\x9d to \xe2\x80\x9cthe institutional\nintegrity of [that branch].\xe2\x80\x9d Mistretta, 488 U.S. at 383 (internal quotation\nmarks omitted). Specifically, although Article III\xe2\x80\x99s structural protections\ndo not bar federal courts from using non-Article III judicial officers \xe2\x80\x9cto\n138\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nsupport judicial functions, as long as a[n Article III] judicial officer\nretains and exercises ultimate responsibility,\xe2\x80\x9d United States v. Johnson,\n48 F.3d 806, 809 (4th Cir. 1995), Article III may prevent the \xe2\x80\x9celevat[ion]\xe2\x80\x9d\nof non-Article III judicial officers from \xe2\x80\x9cadjunct [status] to the functional\nequivalent of an Article III judge,\xe2\x80\x9d Thomas v. Arn, 474 U.S. 140, 154\n(1985). This risk would be heightened by the service of bankruptcy judges\non the Panel because such service would involve those non-Article III\njudges exercising authority both as adjuncts to an Article III court and\nunder a source of jurisdiction independent of any Article III court. See\nsupra pp. 131\xe2\x80\x93132.\nThe purposes underlying Article III\xe2\x80\x99s guarantees of undiminished compensation and lifetime tenure to federal judges would afford the structural\nreasons for a possible separation of powers-based objection to the Panel\nwere it located within the Judicial Branch. Those guarantees \xe2\x80\x9cprotect the\nrole of the independent judiciary within the constitutional scheme of\ntripartite government and assure impartial adjudication in federal courts.\xe2\x80\x9d\nUnion Carbide, 473 U.S. 582\xe2\x80\x9383. By creating the Panel within the Judicial Branch and designating non-Article III officers who also function as\njudicial adjuncts to serve on it, Congress would be enabling the Panel to\ndraw on the \xe2\x80\x9creputation for impartiality and nonpartisanship\xe2\x80\x9d so critical\nto the legitimacy of Article III courts and the non-Article III officers who\nsupport them as adjuncts. Mistretta, 488 U.S. at 407. But the Panel members would lack the very Article III protections designed to insulate Article III judges from political pressures on their decisionmaking. And\nthe Panel, by virtue of its independent statutory jurisdiction, would be\nfree of the \xe2\x80\x9c\xe2\x80\x98total control and jurisdiction\xe2\x80\x99\xe2\x80\x9d of an Article III court that the\nSupreme Court has suggested is necessary to ensure that the actions of\njudicial adjuncts (such as magistrate judges and bankruptcy judges) are\nconsistent with the separation of powers. Peretz v. United States, 501 U.S.\n923, 937 (1991) (quoting Raddatz, 447 U.S. at 681). The resulting blurring of the lines between judicial functions and other governmental functions\xe2\x80\x94i.e., between the actions of tribunals subject to Article III\xe2\x80\x99s protections, either directly or by virtue of adjunct status, and the actions of a\ntribunal such as the Panel that is not so protected\xe2\x80\x94might be thought to\npose a particular threat to the integrity of the Judicial Branch. Cf. Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537,\n544 (9th Cir. 1984) (en banc) (Kennedy, J.) (identifying possibility that\n139\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nCongress\xe2\x80\x99s provision for reference of court cases to a magistrate may\nthreaten \xe2\x80\x9cthe integrity of the judiciary\xe2\x80\x9d by \xe2\x80\x9cinvad[ing] the power of a\ncoordinate branch or permitting an improper abdication of that branch\xe2\x80\x99s\ncentral authority\xe2\x80\x9d).\nOn this view, the Panel would be different in kind from both judicial\nadjuncts and those entities exercising rulemaking and administrative\npowers of a non-Article III nature that the Supreme Court has to this point\nallowed to be placed in the Judicial Branch. Because the Panel would\nexercise independent adjudicative authority of a type not given to those\nadjuncts and other Judicial Branch entities, it would raise separation of\npowers concerns they do not. Indeed, in concluding that the placement of\nthe Sentencing Commission within the Judicial Branch was consistent\nwith the separation of powers, the Mistretta Court expressly noted that the\nCommission lacked the power to \xe2\x80\x9cbind or regulate the primary conduct of\nthe public,\xe2\x80\x9d 488 U.S. at 396\xe2\x80\x94a power that the Panel would possess by\nvirtue of its control over the Secretary\xe2\x80\x99s petition authority. See 20 Op.\nO.L.C. at 168 n.116 (noting that \xe2\x80\x9cquestions would arise under current\nconstitutional doctrine as to the legitimacy . . . of an Article III nonjudicial entity \xe2\x80\x98bind[ing] or regulat[ing] the primary conduct of the public\xe2\x80\x99\xe2\x80\x9d (quoting Mistretta, 488 U.S. at 396)). Thus, by creating an entity\nwithin the Judiciary that looks and functions like a court or a judicial\nadjunct, but that is composed of members who are not subject to either\nArticle III\xe2\x80\x99s guarantees of independence or the supervision of an Article\nIII court, the Print would appear to risk eroding the Judiciary\xe2\x80\x99s reputation\nfor neutrality. Ultimately, Congress\xe2\x80\x99s exercise of the authority to create\nsuch tribunals could threaten the Judicial Branch with the \xe2\x80\x9c\xe2\x80\x98emasculati[on]\xe2\x80\x99\xe2\x80\x9d against which the Supreme Court has warned. Peretz, 501 U.S. at\n937 (quoting Schor, 478 U.S. at 850). 5\n\nThe majority opinion in Freytag, although touching on related themes, does not establish the constitutionality of placing an entity such as the Panel within the Judicial\nBranch. In Freytag, the Court held that the special trial judges who assist Tax Court\njudges are inferior officers and can be appointed by the Chief Judge of the Tax Court.\nLike the Panel, the Tax Court is a non-Article III tribunal charged by Congress with\nmaking decisions regarding \xe2\x80\x9cmatters that involve the application of legal standards to\nfacts and [that] affect private interests.\xe2\x80\x9d Union Carbide, 473 U.S. at 583. In determining\nthat the Tax Court is a \xe2\x80\x9cCourt[] of Law\xe2\x80\x9d within the meaning of the Appointments Clause,\nthe Court did describe the Tax Court as \xe2\x80\x9cexercis[ing] judicial, rather than executive,\n5\n\n140\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nThese concerns could be addressed by making the Panel, still composed\nof bankruptcy judges, a true adjunct of an Article III court, with the relationship between the two tribunals structured in a manner similar to the\nrelationship between the district courts and the bankruptcy courts under\ncurrent law. This modification would require at a minimum vesting jurisdiction to review receivership petitions in an Article III court, with that\ncourt authorized to refer such petitions to the Panel and to withdraw\nreferrals under appropriate circumstances. Such an adjunct structure\nwould ensure that the Panel members are subject to sufficient supervision\nto constitute inferior officers, and thus properly appointed by a \xe2\x80\x9cCourt[]\nof Law.\xe2\x80\x9d And such a structure would also guard against the possible threat\nto the integrity of the Article III judiciary that would arise from vesting\nbinding adjudicative authority in a bankruptcy court tribunal that lacks the\nessential attributes of an Article III court and does not function as an\nadjunct to such a court. The constitutional concerns we have identified\ncould also be addressed by providing for the service on the Panel of\nArticle III judges rather than bankruptcy judges. The Panel members\nwould then be appointed by the President with the advice and consent of\nthe Senate, thereby satisfying the Appointments Clause, see Shoemaker v.\nUnited States, 147 U.S. 282, 301 (1893) (officer can be assigned additional duties \xe2\x80\x9cgermane\xe2\x80\x9d to those the officer already performs without the need\nfor a separate appointment), and would retain the essential attributes of\nArticle III judges, thereby resolving the separation of powers concerns\nidentified above. 6\n\nlegislative, or administrative, power\xe2\x80\x9d and as \xe2\x80\x9cindependent of the Executive and Legislative Branches.\xe2\x80\x9d Freytag, 501 U.S. at 890\xe2\x80\x9391. The Freytag Court was not presented with\nthe question of which branch the Tax Court is located in for constitutional purposes,\nhowever, and we do not read the majority opinion to resolve definitively that the Tax\nCourt is located in the Judicial Branch\xe2\x80\x94let alone that its placement in the Judicial Branch\nwould be consistent with the separation of powers. We are particularly reluctant to read\nthe majority opinion as resolving this question in light of the persuasive four-justice\nconcurrence, which argued that all legislative tribunals \xe2\x80\x9cexercise the executive power, not\nthe judicial power of the United States\xe2\x80\x9d and that only adjudicative decisionmakers who\n\xe2\x80\x9cpossess life tenure and a permanent salary\xe2\x80\x9d may exercise the latter power. Id. at 909, 911\n(Scalia, J., concurring, joined by O\xe2\x80\x99Connor, Kennedy, and Souter, JJ.).\n6 We do not address whether the brevity of the period the Print would allow for the\nPanel to reach a final decision\xe2\x80\x94twenty-four hours, Print \xc2\xa7 202(b)(1)(A)(iii)\xe2\x80\x94would raise\nany constitutional concerns under the Due Process Clause or the separation of powers.\n\n141\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nIII.\nSo long as the Panel is located within the Judicial Branch, however,\nwhether as an Article III court or as an adjunct to an Article III court,\nthere is considerable doubt whether the Panel could adjudicate petitions\nfiled by the Secretary concerning companies that have affirmatively\nconsented to the appointment of the FDIC as their receiver. Such petitions\nlikely would not give rise to a \xe2\x80\x9cCase[]\xe2\x80\x9d or \xe2\x80\x9cControvers[y]\xe2\x80\x9d within the\nmeaning of Article III of the Constitution, U.S. Const. art. III, \xc2\xa7 2, cl. 1.\nMoreover, even in cases in which the company that is the subject of the\npetition does not affirmatively consent to receivership but simply acquiesces by choosing not to appear before the Panel, there is some question\nwhether the \xe2\x80\x9ccase or controversy\xe2\x80\x9d requirement would be met.\nService of Article III judges on the Panel would appear to render the\nPanel an \xe2\x80\x9cinferior Court[]\xe2\x80\x9d under Article III. Id. art. III, \xc2\xa7 1; see also id.\nart. I, \xc2\xa7 8, cl. 9 (authorizing Congress \xe2\x80\x9c[t]o constitute Tribunals inferior to\nthe supreme Court\xe2\x80\x9d); Harmon Memo at 1\xe2\x80\x932 (tribunal composed of Article\nIII judges designated by a judicial officer constitutes Article III court).\nBecause \xe2\x80\x9cArticle III of the Constitution limits federal-court jurisdiction to\n\xe2\x80\x98Cases\xe2\x80\x99 and \xe2\x80\x98Controversies,\xe2\x80\x99\xe2\x80\x9d Massachusetts v. EPA, 549 U.S. 497, 516\n(2007), the jurisdiction of a Panel composed of Article III judges would\nbe so limited as well. The \xe2\x80\x9ccase or controversy\xe2\x80\x9d requirement also likely\nwould apply to the Panel were it structured simply as an adjunct to an\nArticle III court, because in that case the Act presumably would render\nthe Panel\xe2\x80\x99s jurisdiction completely derivative of the jurisdiction possessed\nby the Article III court. Cf. Kilen, 129 B.R. at 543 (holding that \xe2\x80\x9c[i]n\nestablishing the bankruptcy courts of the United States, Congress assigned\nto those courts the resolution of certain disputes that otherwise could be\nresolved by the Article III district court,\xe2\x80\x9d that \xe2\x80\x9c[b]y definition . . . those\ndisputes must involve cases or controversies or Congress could not have\nassigned them initially to the district court to resolve,\xe2\x80\x9d and that, therefore,\n\xe2\x80\x9cby statute . . . bankruptcy courts are limited to resolving disputes involving actual cases or controversies\xe2\x80\x9d).\n\nSee Miller v. French, 530 U.S. 327, 349\xe2\x80\x9350 (2000) (reserving the question whether Congress\xe2\x80\x99s imposition of a very brief period for resolution of a case before an Article III court\ncould violate due process or the separation of powers).\n\n142\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\nAs the Supreme Court has explained, \xe2\x80\x9c[a] justiciable controversy is . . .\ndistinguished from a difference or dispute of a hypothetical or abstract\ncharacter; from one that is academic or moot. . . . The controversy must\nbe definite and concrete, touching the legal relations of parties having\nadverse legal interests.\xe2\x80\x9d Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,\n240 (1937) (internal citations omitted). Thus, \xe2\x80\x9cjudicial power . . . is the\nright to determine actual controversies arising between adverse litigants.\xe2\x80\x9d\nMuskrat v. United States, 219 U.S. 346, 361 (1911). \xe2\x80\x9cIt is an essential\nprerequisite of a case or controversy to have at least two genuinely adverse parties, for otherwise there is no need for adjudication.\xe2\x80\x9d Harmon\nMemo at 5.\nMany Panel proceedings would present the degree of adverseness necessary to satisfy the \xe2\x80\x9ccase or controversy\xe2\x80\x9d requirement. Companies subject to a petition would be afforded notice and an opportunity to appear\nbefore the Panel. Print \xc2\xa7 202(b)(1)(A)(i), (iii). If a company appears and\nchallenges the petition, that would create sufficient adverseness. Even if a\ncompany chooses not to appear, the Panel proceeding might still satisfy\nthe requisites of Article III so long as the company does not affirmatively\nindicate its consent to the receivership, although the question is a close\nand uncertain one. If a company did affirmatively accept the receivership,\nhowever, that acceptance likely would undermine the adverseness needed\nto make jurisdiction proper under Article III.\nAs this Office has previously stated, although \xe2\x80\x9cthe usual case or controversy involves the presence of the adverse parties and an opportunity\nfor them to present arguments to the court, . . . this is not an absolutely\nnecessary requirement.\xe2\x80\x9d Harmon Memo at 5. In Pope v. United States,\n323 U.S. 1 (1944), for example, the Supreme Court held that a contractor\xe2\x80\x99s suit against the government seeking payment for prior work was\njusticiable even though Congress had by statute essentially \xe2\x80\x9cconsented to\njudgment in an amount to be ascertained by reference to [certain] specified data\xe2\x80\x9d and the government had not contested the suit. Id. at 11. The\nCourt stated that \xe2\x80\x9c[w]hen a plaintiff brings suit to enforce a legal obligation it is not any the less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment, because the\nplaintiff\xe2\x80\x99s claim is uncontested or incontestable.\xe2\x80\x9d Id. Moreover, federal\ncourts may \xe2\x80\x9cparticipate in the issuance of search warrants and review\napplications for wiretaps, both of which may require a court to consider\n143\n\n\x0c34 Op. O.L.C. 126 (2010)\n\nthe nature and scope of criminal investigations on the basis of evidence\nor affidavits submitted in an ex parte proceeding.\xe2\x80\x9d Morrison, 487 U.S. at\n681 n.20 (internal citations omitted); see also Harmon Memo at 3 (mechanism for review by Article III judges of ex parte government applications for electronic surveillance warrants satisfies \xe2\x80\x9ccase or controversy\xe2\x80\x9d\nrequirement). Federal courts also may adjudicate ex parte petitions for\nnaturalization under the Immigration and Nationality Act, even though in\nmost such cases the United States does not appear as an adverse party\nand, as a result, there are no conflicting positions for the court to resolve.\nSee Tutun v. United States, 270 U.S. 568, 577 (1926); Harmon Memo at\n6. As we have observed, all of the above proceedings satisfy the Article\nIII requirement of adverseness because, \xe2\x80\x9cwhile they may formally take\nplace ex parte, they also implicate a potentially adverse party competent\nto challenge the result of the proceedings either in that forum or at a later\ndate.\xe2\x80\x9d Memorandum for Sheryl L. Walter, Office of Legislative Affairs,\nfrom Robert Delahunty, Special Counsel, Office of Legal Counsel, Re:\nDraft Bill Entitled the \xe2\x80\x9cIdentity Theft Victim Assistance Act of 2001\xe2\x80\x9d at 3\n(Feb. 6, 2001). For example, as the Court noted in Tutun with respect to\nnaturalization proceedings, \xe2\x80\x9c[t]he United States is always a possible adverse party\xe2\x80\x9d to a claim for citizenship. 270 U.S. at 577.\nWhether a financial company subject to a petition that chooses not to\nappear before the Panel might be said to be \xe2\x80\x9ca possible adverse party\xe2\x80\x9d in\nthis sense is not clear. The Print deprives the Third Circuit of jurisdiction\nover company appeals if the company \xe2\x80\x9cacquiesce[d] or consent[ed] to the\nappointment of a receiver by the Secretary.\xe2\x80\x9d Print \xc2\xa7 202(b)(2)(A)(ii).\nAnd it appears that such a company would be statutorily foreclosed from\nattacking a receivership order in any collateral proceeding. See Print\n\xc2\xa7 202(a)(3) (granting Panel \xe2\x80\x9coriginal and exclusive jurisdiction of proceedings to consider petitions by the Secretary\xe2\x80\x9d). 7 One could argue that\nIn a case involving an ex parte proceeding under 12 U.S.C. \xc2\xa7 192, which requires the\nComptroller of the Currency and the FDIC to obtain judicial approval before selling the\nassets of a failed bank, the U.S. Court of Appeals for the Seventh Circuit indicated (but\ndid not decide) that the possible availability of a subsequent opportunity to challenge the\noutcome of the proceeding could be relevant to whether that proceeding constitutes a\njusticiable case or controversy. See FDIC v. Bank One, Waukesha, 881 F.2d 390, 394\n(1989). We do not discern any obvious way, however, in which the outcome of a Panel\nproceeding could be challenged in a later proceeding. See Print \xc2\xa7 202(a)(3).\n7\n\n144\n\n\x0cConstitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel\n\neven more so than a naturalization proceeding, a Panel proceeding\xe2\x80\x94on\nwhich would turn the government\xe2\x80\x99s assumption of control of significant\namounts of private property\xe2\x80\x94would present sufficient inherent adverseness between the legal interests of the government and a private party to\nsatisfy Article III, even if the private party does not appear to protect its\ninterests. But we are not confident that we understand sufficiently the\neconomic circumstances that would give rise to a petition, or the manner\nin which the compressed time frame for Panel consideration of a petition\nwould unfold in practice, to deem such an argument persuasive.\nWhatever the answer in the case of a company that simply failed to\nappear before the Panel, a proceeding concerning a financial company\nthat had affirmatively consented to its placement in FDIC receivership\nwould seem to lack the adverseness necessary to support the jurisdiction\nof an Article III tribunal. Such a company would not have interests that\nare \xe2\x80\x9cpresent[ly] or possibl[y] adverse\xe2\x80\x9d to those of the government. Muskrat, 219 U.S. at 357. Accordingly, a Panel proceeding concerning such a\nconsenting company likely would not present \xe2\x80\x9cthe honest and actual\nantagonistic assertion of rights\xe2\x80\x9d necessary to \xe2\x80\x9csafeguard . . . the integrity\nof the judicial process.\xe2\x80\x9d United States v. Johnson, 319 U.S. 302, 305\n(1943) (internal quotation marks omitted). Indeed, Panel consideration of\na petition concerning such a company would seem to raise the same sorts\nof concerns as an advisory opinion, requiring \xe2\x80\x9clegal judgment upon\nissues which remain unfocused because they are not pressed before the\nCourt with that clear concreteness provided when a question emerges\nprecisely framed and necessary for decision from a clash of adversary\nargument.\xe2\x80\x9d United States v. Fruehauf, 365 U.S. 146, 157 (1961). Therefore, we are concerned that a Panel proceeding concerning a consenting\ncompany would not qualify as a justiciable \xe2\x80\x9ccase or controversy.\xe2\x80\x9d See,\ne.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 47\xe2\x80\x9348\n(1971) (case dismissed based on lack of case or controversy where both\nsides argued that an anti-busing law was constitutional, thus \xe2\x80\x9cconfront[ing]\xe2\x80\x9d the Court \xe2\x80\x9cwith the anomaly that both litigants desire precisely the same result\xe2\x80\x9d); Brown v. Watkins Motor Lines, Inc., 596 F.2d 129\n(5th Cir. 1979) (court lacked jurisdiction to reduce attorney\xe2\x80\x99s fee to\nwhich plaintiff\xe2\x80\x99s attorney and victorious plaintiff had agreed where no\nparty was challenging the fee). And although the Court held in Pope that\na contractor\xe2\x80\x99s statutorily authorized suit was justiciable even though the\n145\n\n\x0c34 Op. O.L.C. 126 (2010)\n\ngovernment had essentially \xe2\x80\x9cconsented to judgment,\xe2\x80\x9d that decision is\nreadily distinguishable. 323 U.S. at 11. Unlike the contractor\xe2\x80\x99s suit, \xe2\x80\x9cin\nwhich the existence, validity and extent of the [government\xe2\x80\x99s] obligation,\nthe existence of the data, and the correctness of the computation [could]\nbe put at issue,\xe2\x80\x9d id., a Panel proceeding involving a company that has\nconsented to receivership would present no issues still open for dispute\nbetween the parties. 8\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n8 Citing the Supreme Court\xe2\x80\x99s decision in Ullmann v. United States, 350 U.S. 422\n(1956), the Harmon Memo observed that \xe2\x80\x9cthe Court has held the process of issuing an\norder conferring immunity to be a judicial function,\xe2\x80\x9d even though \xe2\x80\x9cthere might be no\nadverse interests before the court [in such a proceeding]\xe2\x80\x9d because \xe2\x80\x9call parties involved\nmay actually want immunity conferred.\xe2\x80\x9d Harmon Memo at 6; see also Morrison, 487 U.S.\nat 681 n.20 (noting role of federal courts in \xe2\x80\x9ccompelling the testimony of witnesses\xe2\x80\x9d).\nAlthough Ullmann did hold that Article III permits a court to compel a witness\xe2\x80\x99s testimony, the witness in the case affirmatively contested the government\xe2\x80\x99s application for a\ncourt order and indeed was convicted of contempt when he continued to refuse to testify\nafter the order was issued. See Ullmann, 350 U.S. at 425, 434.\n\n146\n\n\x0c'


b'Application of the Appointments Clause to a Statutory\nProvision Concerning the Inspector General Position at\nthe Chemical Safety and Hazard Investigation Board\nA statutory provision declaring that the Inspector General of the Environmental Protection Agency\n\xe2\x80\x9cshall, by virtue of such appointment, also hold the position of Inspector General\xe2\x80\x9d of the Chemical\nSafety and Hazard Investigation Board does not violate the Appointments Clause of the Constitution, because it constitutes the permissible addition of germane duties to an office, rather than\nappointment to a new office.\n\nJuly 27, 2006\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nCHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD\nCongress has provided that the Inspector General of the Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) \xe2\x80\x9cshall, by virtue of such appointment, also hold the position\nof Inspector General\xe2\x80\x9d of the Chemical Safety and Hazard Investigation Board\n(\xe2\x80\x9cCSHIB\xe2\x80\x9d or \xe2\x80\x9cBoard\xe2\x80\x9d). Pub. L. No. 109-54, 119 Stat. 499, 543 (2005). The Board\nhas requested our opinion on whether this provision violates the Constitution\xe2\x80\x99s\nAppointments Clause, U.S. Const. art. II, \xc2\xa7 2, cl. 2, on the ground that Congress,\nrather than the President or an appropriate department head, has thereby appointed\nthe EPA Inspector General to the distinct office of Inspector General of the Board.\nIn considering this question, we have received and benefited from extensive\nsubmissions by both the Board and the EPA Inspector General. We conclude that\nthe provision is constitutional. It constitutes the permissible addition of germane\nduties to an office, rather than appointment to a new office.\nI.\nCongress established the Board in the 1990 amendments to the Clean Air Act,\ncodified in relevant part at 42 U.S.C. \xc2\xa7 7412(r)(6) (2000). The members of the\nBoard are appointed by the President, with the advice and consent of the Senate, to\nfive-year terms. Id. \xc2\xa7 7412(r)(6)(B).\nThe Board has three primary statutory duties: (1) to \xe2\x80\x9cinvestigate . . . , determine\nand report\xe2\x80\x9d the facts and cause \xe2\x80\x9cof any accidental release [of a \xe2\x80\x98hazardous\nsubstance into the ambient air,\xe2\x80\x99 id. \xc2\xa7 7412(r)(2)] resulting in a fatality, serious\ninjury or substantial property damages\xe2\x80\x9d; (2) to \xe2\x80\x9cissue periodic reports\xe2\x80\x9d to various\nentities, \xe2\x80\x9cincluding the [EPA] and the [Department of Labor\xe2\x80\x99s] Occupational\nSafety and Health Administration, concerned with the safety of chemical production, processing, handling and storage,\xe2\x80\x9d in which the Board is to recommend\nchanges in regulation or policy by the EPA or the Labor Department in this area;\nand (3) to \xe2\x80\x9cestablish by regulation\xe2\x80\x9d binding rules for \xe2\x80\x9creporting accidental releases\ninto the ambient air.\xe2\x80\x9d Id. \xc2\xa7 7412(r)(6)(C). Under certain circumstances, the EPA or\n\n92\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nthe Labor Department is required to respond with reasons for rejecting any Board\nrecommendation or at least to consider the Board\xe2\x80\x99s recommendations. Id.\n\xc2\xa7 7412(r)(6)(H)\xe2\x80\x93(K). The EPA must \xe2\x80\x9cprovide to the Board such support and\nfacilities as may be necessary for operation of the Board\xe2\x80\x9d and is authorized to\nenforce the Board\xe2\x80\x99s reporting regulations; the Board in turn \xe2\x80\x9cmay use any\ninformation gathering authority of [EPA] under this chapter,\xe2\x80\x9d id. \xc2\xa7 7412(r)(6)(P),\n(O) & (M), although it has its own statutory authority to gather information, id.\n\xc2\xa7 7412(r)(6)(L). Finally, the Board is not \xe2\x80\x9cresponsible to or subject to supervision\nor direction, in carrying out any duties under this subsection, of any officer or\nemployee or agent of the [EPA], the Department of Labor or any agency.\xe2\x80\x9d Id.\n\xc2\xa7 7412(r)(6)(R). 1 Although Congress established the Board in 1990, the Board\nreceived no funding until Fiscal Year 1998. See Pub. L. No. 105-65, 111 Stat.\n1344, 1368 (1997).\nThe Inspector General Act (\xe2\x80\x9cIG Act\xe2\x80\x9d) creates an Inspector General (\xe2\x80\x9cIG\xe2\x80\x9d),\nappointed by the President with the advice and consent of the Senate, and a\ncorresponding Office of Inspector General, for the Executive Branch departments\nand enumerated major agencies, administrations, and other \xe2\x80\x9cestablishments,\xe2\x80\x9d\nincluding the EPA. 5 U.S.C. app., IG Act \xc2\xa7\xc2\xa7 2, 3 & 11 (2000). For several other\n\xe2\x80\x9cdesignated Federal entities,\xe2\x80\x9d a category that includes Amtrak and many regulatory commissions, the Act creates an IG, with a corresponding Office, appointed\nby the head of the entity rather than the President. Id. \xc2\xa7 8G.\nIGs have the duties (1) to \xe2\x80\x9caudit[] and investigat[e] . . . the programs and operations\xe2\x80\x9d of their agencies; (2) to seek ways \xe2\x80\x9cto promote economy, efficiency, and\neffectiveness in the administration of,\xe2\x80\x9d and \xe2\x80\x9cto prevent and detect fraud and abuse\nin,\xe2\x80\x9d the \xe2\x80\x9cprograms and operations\xe2\x80\x9d of their agencies; and (3) \xe2\x80\x9cto provide a means\nfor keeping the head[s]\xe2\x80\x9d of their agencies, as well as Congress, \xe2\x80\x9cinformed about\nproblems and deficiencies relating to the administration of such programs and\noperations and the necessity for and progress of corrective action.\xe2\x80\x9d Id. \xc2\xa7 2 (stating\npurposes); see id. \xc2\xa7 4(a) (specifying duties). We have explained that \xe2\x80\x9cCongress\nintended the [IG] to be an objective official free from general regulatory responsibilities who investigated the employees and operations of the Department, as well\nas its contractors, grantees, and other recipients of federal funds, so as to root out\nwaste and fraud.\xe2\x80\x9d Inspector General Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. 54, 55 (1989) (\xe2\x80\x9cIG Authority\xe2\x80\x9d).\n\n1\nWhen signing the 1990 amendments, the President noted \xe2\x80\x9cserious constitutional concerns\xe2\x80\x9d with\nprovisions, now codified at 42 U.S.C. \xc2\xa7 7412(r)(6)(B) & (R) (2000), that restrict presidential removal\nof Board members and review of and policy guidance to the Board (provisions he believed \xe2\x80\x9cseverable\xe2\x80\x9d)\nand that \xe2\x80\x9cinvade the deliberative processes of the executive branch\xe2\x80\x9d by requiring the Board to transmit\nits reports to Congress concurrently with their transmission within the Executive Branch. See Statement\non Signing the Bill Amending the Clean Air Act (Nov. 15, 1990), 2 Pub. Papers of Pres. George Bush\n1602, 1603\xe2\x80\x9304 (1990). These provisions do not affect our analysis.\n\n93\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nUnder the IG Act, an entity that is neither an enumerated department or other\nestablishment nor a designated federal entity falls into the residual category of\n\xe2\x80\x9cFederal entity.\xe2\x80\x9d 5 U.S.C. app., IG Act \xc2\xa7 8G(a)(1). The head of a \xe2\x80\x9cFederal entity\xe2\x80\x9d\nmust prepare annually a report stating \xe2\x80\x9cwhether there has been established in the\nFederal entity an office that [would] meet the requirements\xe2\x80\x9d for an IG Office in a\ndesignated federal entity. Compare id. \xc2\xa7 8G(h)(2)(A) with id. \xc2\xa7 8G(b). If not, the\nreport must \xe2\x80\x9cspecif[y] the actions taken by the Federal entity otherwise to ensure\nthat audits are conducted of its programs and operations.\xe2\x80\x9d Id. \xc2\xa7 8G(h)(2)(B).\nAs it is not specifically listed in the IG Act, the Board falls into this residual\ncategory. But in successive appropriations for the Board beginning with Fiscal\nYear 2001, Congress provided that \xe2\x80\x9cthere shall be an [IG] at the Board who shall\nhave the duties, responsibilities, and authorities specified in the Inspector General\nAct of 1978.\xe2\x80\x9d Pub. L. No. 106-377, app. A, 114 Stat. 1441, 1441A-36 (2000).\nCongress repeated this language in the 2002 appropriation, adding \xe2\x80\x9chereafter\xe2\x80\x9d at\nthe beginning. Pub. L. No. 107-73, 115 Stat. 651, 679 (2001). Congress further\nprovided that \xe2\x80\x9can individual appointed to the position of the [IG] of the Federal\nEmergency Management Agency (FEMA) shall, by virtue of such appointment,\nalso hold the position of [IG] of the Board.\xe2\x80\x9d 114 Stat. at 1441A-36. FEMA then\nhad a presidentially appointed IG. 5 U.S.C. app., IG Act \xc2\xa7 11(2). For Fiscal Year\n2004, following FEMA\xe2\x80\x99s absorption into the new Department of Homeland\nSecurity, Congress transferred the Board\xe2\x80\x99s IG function to the EPA IG, by providing that \xe2\x80\x9cthe individual appointed to the position of [IG] of the [EPA] shall, by\nvirtue of such appointment, also hold the position of [IG] of the Board.\xe2\x80\x9d Pub. L.\nNo. 108-199, 118 Stat. 3, 399 (2004). Congress has repeated this provision for\nFiscal Years 2005 and 2006. See Pub. L. No. 108-447, 118 Stat. 2809, 3322\n(2004); Pub. L. No. 109-54, 119 Stat. at 543.\nII.\nAs explained below, we find no violation of the Appointments Clause in Congress\xe2\x80\x99s transfer of the Board\xe2\x80\x99s IG function to the EPA IG. After setting out the\napplicable rules, we resolve two preliminary questions and then show how\nCongress\xe2\x80\x99s direction to the EPA IG to serve as Board IG is the addition of\ngermane duties to the office of EPA IG, which is permissible under the Appointments Clause.\nA.\nThe Constitution\xe2\x80\x99s Appointments Clause provides for offices to be \xe2\x80\x9cestablished\nby law.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 2; see also United States v. Maurice, 26 F. Cas.\n1211, 1213\xe2\x80\x9314 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice). That\nclause also provides four specific means of appointing persons to hold established\noffices. The default is that officers be appointed by the President with the advice\n\n94\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nand consent of the Senate, but Congress \xe2\x80\x9cmay by Law vest the Appointment of\nsuch inferior Officers, as they think proper, in the President alone, in the Courts of\nLaw, or in the Heads of Departments.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 2. As the\nSupreme Court has put it, \xe2\x80\x9cThat all persons who can be said to hold an office\nunder the government about to be established under the Constitution were intended\nto be included within one or the other of these modes of appointment there can be\nbut little doubt.\xe2\x80\x9d United States v. Germaine, 99 U.S. 508, 510 (1878); see Buckley\nv. Valeo, 424 U.S. 1, 126 (1976) (per curiam) (same); see also id. at 128\xe2\x80\x9331\n(discussing proposals rejected at the Constitutional Convention to vest appointment power in Congress). Thus, Congress may create offices, and may choose\namong a few means of filling inferior offices, but may not itself fill any office\nsubject to the Appointments Clause.\nGiven this division of authority, \xe2\x80\x9ca statute creating a new office and conferring\nit and its duties on the incumbent of an existing office would be unconstitutional\nunder the Appointments Clause.\xe2\x80\x9d The Constitutional Separation of Powers\nBetween the President and Congress, 20 Op. O.L.C. 124, 157 (1996) (\xe2\x80\x9cSeparation\nof Powers\xe2\x80\x9d) (emphasis added). As a corollary, Congress may not \xe2\x80\x9calter the duties\nand powers of existing offices . . . to achieve substantially the same result.\xe2\x80\x9d Id.;\nsee Shoemaker v. United States, 147 U.S. 282, 300 (1893) (\xe2\x80\x9c[W]hile Congress\nmay create an office, it cannot appoint the officer.\xe2\x80\x9d); Weiss v. United States, 510\nU.S. 163, 174 (1994) (Congress may not \xe2\x80\x9ccircumvent[] the Appointments Clause\nby unilaterally appointing an incumbent to a new and distinct office\xe2\x80\x9d); Pres. James\nBuchanan, Letter to the House of Representatives (June 25, 1860), in 7 A Compilation of the Messages and Papers of the Presidents 3128, 3129 (James D.\nRichardson ed., 1897) (\xe2\x80\x9cIt has been alleged . . . that this clause is unconstitutional\nbecause it has created a new office and has appointed Captain Meigs to perform its\nduties. If it had done this, it would have been a clear question, because Congress\nhave no right to appoint to any office.\xe2\x80\x9d). But where Congress has simply \xe2\x80\x9cincrease[d] the power and duties of\xe2\x80\x9d positions, and the new duties are \xe2\x80\x9cgermane to\nthe offices already held by\xe2\x80\x9d the incumbents, the Supreme Court has found no\ninfirmity. Shoemaker, 147 U.S. at 301; see also id. at 289 (Congress may \xe2\x80\x9cintrust\nthe performance of particular duties to officials already charged with duties of the\nsame general description\xe2\x80\x9d) (describing holding of lower court); Weiss, 510 U.S. at\n174\xe2\x80\x9376; id. at 195\xe2\x80\x9396 (Scalia, J., concurring in part and concurring in judgment).\nThis Office has concurred in that view. Separation of Powers, 20 Op. O.L.C. at\n157\xe2\x80\x9359; Status of the Director of Central Intelligence Under the National Security\nIntelligence Reform Act of 2004, 29 Op. O.L.C. 28, 36 n.2 (2005) (\xe2\x80\x9cStatus of\nDCI\xe2\x80\x9d).\nWe have indicated that it is helpful, in applying Shoemaker\xe2\x80\x99s \xe2\x80\x9cgermaneness\xe2\x80\x9d\ntest, to ask whether an officer\xe2\x80\x99s functions, with the addition by Congress to his\noriginal duties, \xe2\x80\x9ccould be said\xe2\x80\x9d to have been \xe2\x80\x9c\xe2\x80\x98within the contemplation of those\nwho were in the first place responsible for [his] appointment and confirmation,\xe2\x80\x99\xe2\x80\x9d\n\n95\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nand we also have considered \xe2\x80\x9cthe reasonableness of assigning the new duties \xe2\x80\x98in\nterms of efficiency and institutional continuity.\xe2\x80\x99\xe2\x80\x9d Separation of Powers, 20 Op.\nO.L.C. at 158 (quoting Legislation Authorizing the Transfer of Federal Judges\nFrom One District to Another, 4B Op. O.L.C. 538, 541 (1980) (\xe2\x80\x9cTransfer of\nFederal Judges\xe2\x80\x9d)). Shoemaker itself restated its germaneness test in two parts,\nconcluding that \xe2\x80\x9cthe duty which the military officers in question were called upon\nto perform cannot fairly be said to have been dissimilar to, or outside of the sphere\nof, their official duties.\xe2\x80\x9d 147 U.S. at 301. The latter phrase suggests an inquiry into\nwhat the appointing authority reasonably could have anticipated as within the\n\xe2\x80\x9csphere of\xe2\x80\x9d an office at the time of the last appointment before its duties increased.\nCf. Olympic Fed. Sav. & Loan Ass\xe2\x80\x99n v. Director, Office of Thrift Supervision, 732\nF. Supp. 1183, 1193 (D.D.C. 1990) (finding violation where Congress largely\ncontinued powers of three-person board but consolidated them in single, designated, pre-existing officer); Weiss, 510 U.S. at 175 (in applying germaneness analysis\nto military officers holding the position of military judge, looking to a \xe2\x80\x9clong\ntradition\xe2\x80\x9d of the roles of military officers \xe2\x80\x9cin the operation of the military justice\nsystem\xe2\x80\x9d). In advising that it would not violate the Appointments Clause to merge\nthe Court of Claims and the Court of Customs and Patent Appeals without\nreappointing the judges, we reasoned \xe2\x80\x9cthat the functions of judges on the new\ncourt were sufficiently like those in the positions being abolished to view the\nlegislative redesignations as a modification of an existing position under Shoemaker,\xe2\x80\x9d and added that \xe2\x80\x9cit could be said that the judges\xe2\x80\x99 functions on the merged\ncourt were within the contemplation of those who were in the first place responsible for their appointment and confirmation.\xe2\x80\x9d Transfer of Federal Judges, 4B Op.\nO.L.C. at 541.\nB.\nBefore reaching the germaneness inquiry with regard to the Board, we must\nresolve two preliminary questions. First, Congress has not conferred new duties on\na particular person which would plainly violate the Constitution. It has conferred\nnew duties on a particular office, regardless of who may hold it: Whoever holds\none particular IG office (first at FEMA and then at EPA) also assumes the IG\nduties for the Board. Congress has, through the language of the Fiscal Year 2002\nappropriation, permanently established the position of Board IG. Yet it has\ncontinued to designate the EPA IG to fill that position in annual appropriations\n(and it conceivably could seek to re-assign the duty each year). Should that\npractice continue, one might argue that each annual provision works a new\nAppointments Clause violation. 2 But the question whether such uses of annual\n2\nAlthough Congress has power to add to or subtract from the duties of an office, it conceivably\ncould abuse that power to the point of unconstitutionality. The issue would be similar to one that can\narise with Congress\xe2\x80\x99s power to abolish an office. Congress may do so, even though such action\n\n96\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nappropriations violate or would violate the Appointments Clause begs the question\nwe must answer under Shoemaker. If the position of IG of the Board is properly\nunderstood as an addition to the duties of the EPA IG rather than the creation of a\nnew office, then Congress in annually so providing is merely repeating the same\npermissible grant of authority to the EPA IG, which is within its rights. The limit\nto such a practice in the context of the Appointments Clause is imposed by the\ngermaneness test itself, not by any separate rule.\nSecond, one might think it unnecessary to consider germaneness when legislation uses words that establish a distinct position and designate the incumbent of an\nexisting office to hold that new position. Here, Congress has provided that\n\xe2\x80\x9chereafter there shall be an Inspector General at the Board,\xe2\x80\x9d 115 Stat. at 679, and\n\xe2\x80\x9can Inspector General\xe2\x80\x9d does, in general, hold a distinct office. Furthermore,\nCongress has, in assigning the functions of the Board IG to the EPA IG, consistently referred to \xe2\x80\x9cthe position\xe2\x80\x9d of Board IG, e.g., 118 Stat. at 398, a term that\ncould be a synonym for \xe2\x80\x9coffice.\xe2\x80\x9d The term \xe2\x80\x9cposition\xe2\x80\x9d may suggest more than a\nmere addition of duties to the office of EPA IG. It may be argued in this way that\nCongress has created a new office.\nThe better view, however, is that one must look not to the labels that Congress\nhas used but to the particular duties that it has added to an office; the germaneness\ntest is the proper mechanism for assessing this question. The Appointments Clause\nspeaks of the power to appoint \xe2\x80\x9cOfficers.\xe2\x80\x9d An officer holds an office, and an\n\xe2\x80\x9coffice\xe2\x80\x9d for purposes of the Clause \xe2\x80\x9cis essentially a collection of duties and\nauthorities,\xe2\x80\x9d rather than \xe2\x80\x9ca title\xe2\x80\x9d or label. Status of DCI, 29 Op. O.L.C. at 30\xe2\x80\x9331;\nsee United States v. Hartwell, 73 U.S. 385, 393 (1867) (\xe2\x80\x9cThe term [\xe2\x80\x98office\xe2\x80\x99]\nembraces the ideas of tenure, duration, emolument, and duties.\xe2\x80\x9d). Thus, we have\nconcluded that the position of Director of the Central Intelligence Agency, created\nby intelligence-reform legislation, is merely \xe2\x80\x9ca continuation of the office of\xe2\x80\x9d\nDirector of Central Intelligence, notwithstanding a change in title, reduction of\nduties, and some other changes. Our conclusion rested primarily on a comparison\nof duties. See Status of DCI, 29 Op. O.L.C. at 31\xe2\x80\x9332. When Congress adds rather\nthan subtracts duties, there is a risk that it has created a new office and purported\nto fill it, which the Constitution forbids. But the way to answer that question is\nthrough a germaneness analysis of the duties in issue. Id. at 36 n.2.\nThe facts and reasoning of Shoemaker confirm this duties-based approach.\nThere, Congress had created a five-member commission with authority to select\nand to secure the purchase of land for Rock Creek Park in the District of Columbia. The statute provided \xe2\x80\x9c[t]hat the Chief of Engineers of the United States Army,\nthe Engineer Commissioner of the District of Columbia, and three citizens to be\neffectively removes an officer. But Congress may not abuse this power through \xe2\x80\x9cripper\xe2\x80\x9d legislation, by\nnominally abolishing one office, simultaneously creating a \xe2\x80\x9cnew\xe2\x80\x9d but essentially identical office, and\nthen requiring a new appointment. See Status of DCI, 29 Op. O.L.C. at 34\xe2\x80\x9335.\n\n97\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nappointed by the President, by and with the advice and consent of the Senate, be,\nand they are hereby, created a commission.\xe2\x80\x9d Act of Sept. 27, 1890, ch. 1001, \xc2\xa7 2,\n26 Stat. 492, 492 (1890). Congress had created five new positions of \xe2\x80\x9ccommissioner\xe2\x80\x9d; three of the commissioners were to be selected in the way that officers\nordinarily are appointed, yet Congress had designated the remaining two commissioners to be the holders of certain existing offices.\nThe Shoemakers thus had a credible objection \xe2\x80\x9cthat two members of the commission were appointed by Congress.\xe2\x80\x9d 147 U.S. at 288. They argued that \xe2\x80\x9cthe act\nitself defines these park commissioners to be public officers, because it prescribes\nthat three of them are to be civilians, to be nominated by the President and\nconfirmed by the Senate,\xe2\x80\x9d and \xe2\x80\x9cthe other two are likewise \xe2\x80\x98officers,\xe2\x80\x99 whose\nappointment should have\xe2\x80\x9d conformed to the Appointments Clause. Id. at 300. Yet\nthe Supreme Court unanimously rejected this argument:\n[W]e do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it\nwas necessary that they should be again appointed by the President\nand confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that\nthe incumbent should be again nominated and appointed.\n....\n[I]n the present case, the duty which the military officers in question\nwere called upon to perform cannot fairly be said to have been dissimilar to, or outside of the sphere of, their official duties.\nId. at 301. The Court considered not the different titles of commissioner, Chief of\nEngineers, and Engineer Commissioner, but rather the relationship of the \xe2\x80\x9cadditional duties\xe2\x80\x9d and increased \xe2\x80\x9cpower and duties\xe2\x80\x9d of a commissioner to the preexisting \xe2\x80\x9cofficial duties\xe2\x80\x9d of those military offices. Although the three civilian\ncommissioners might hold offices, it did not follow that the two ex officio\ncommissioners each held a new, additional office. The lower court likewise had\nreasoned \xe2\x80\x9cthat it was not unconstitutional for the legislature to intrust the performance of particular duties to officials already charged with duties of the same\ngeneral description.\xe2\x80\x9d Id. at 289. A focus on form likely would have produced a\ndifferent result.\nThe Supreme Court again followed a duties-based analysis a hundred years\nlater in Weiss. Congress had created the distinct positions of military judges (who\npresided over courts-martial) and provided for them to be selected from among\nqualified military officers. As military officers, the judges already had been\nappointed by the President with the advice and consent of the Senate, but they\n\n98\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nwere to be selected as judges by a Judge Advocate General, not the head of a\ndepartment. 510 U.S. at 167\xe2\x80\x9368. In addition, there was no dispute that military\njudges \xe2\x80\x9cact as \xe2\x80\x98Officers\xe2\x80\x99 of the United States.\xe2\x80\x9d Id. at 169. Yet, as in Shoemaker,\nthe Court concluded unanimously that another appointment was not needed,\nrejecting the argument \xe2\x80\x9cthat the position of military judge is so different from\nother positions to which [a military] officer may be assigned.\xe2\x80\x9d Id. at 170. The\nCourt made two factual points: (1) \xe2\x80\x9c[a]lthough military judges obviously perform\ncertain unique and important functions, all military officers, consistent with a long\ntradition, play a role in the operation of the military justice system,\xe2\x80\x9d and (2) \xe2\x80\x9cthe\nposition of military judge is less distinct from other military positions than the\noffice of full-time civilian judge is from other offices in civilian society.\xe2\x80\x9d Id. at\n175.\nC.\nThus, one cannot answer the Appointments Clause question simply by noting\nCongress\xe2\x80\x99s reference to the \xe2\x80\x9cposition\xe2\x80\x9d of Board IG. The question, instead, is\nwhether the duties of IG of the Board are \xe2\x80\x9cgermane\xe2\x80\x9d to those of the EPA IG. We\nconclude that they are.\nThe general duties of the Board IG and the EPA IG are defined identically, by\nthe same statute. The duties of the EPA IG, since the office\xe2\x80\x99s creation, have been\ndefined by those sections of the Act that set out the duties of any IG. See 5 U.S.C.\napp., IG Act \xc2\xa7 4(a) (defining \xe2\x80\x9cthe duty and responsibility of each [IG]\xe2\x80\x9d); id. \xc2\xa7 2\n(stating purposes of IG Offices); id. \xc2\xa7 11(2) (requiring an IG, with the duties\ndefined in section 4, for the EPA). These common duties, as explained above in\nPart I, include conducting audits, making certain kinds of recommendations and\nreports, and conducting investigations \xe2\x80\x9cso as to root out waste and fraud.\xe2\x80\x9d IG\nAuthority, 13 Op. O.L.C. at 55. In creating the position of Board IG, Congress\nsimply cross-referenced these same duties, stating that he \xe2\x80\x9cshall have the duties,\nresponsibilities, and authorities specified in the Inspector General Act of 1978, as\namended.\xe2\x80\x9d 115 Stat. at 679.\nIt does not follow that Congress could assign to any existing IG the position of\nIG at any other department, agency, or entity. We previously have said, for\nexample, that it is a close question (one we declined to decide) whether Congress\nmay provide that a federal judge, upon completing a temporary administrative\nassignment, would have the option to return to his home district or circuit or,\ninstead, serve in the District of Columbia Circuit. Transfer of Federal Judges, 4B\nOp. O.L.C. at 538. Even though \xe2\x80\x9cservice as a judge on one federal court is surely\n\xe2\x80\x98germane\xe2\x80\x99 to judicial service on another,\xe2\x80\x9d we recognized that a judge\xe2\x80\x99s \xe2\x80\x9cappointment and confirmation are predicated on the expectation that he will in fact be\nserving in that district or circuit.\xe2\x80\x9d Id. at 540. Similarly, here the IG Act defines the\nduties of an IG \xe2\x80\x9cwith respect to the establishment within which his Office is\n\n99\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nestablished.\xe2\x80\x9d 5 U.S.C. app., IG Act \xc2\xa7 4(a); see also id. \xc2\xa7 3(a) (\xe2\x80\x9cEach [IG] shall\nreport to and be under the general supervision of the head of the establishment\ninvolved\xe2\x80\x9d); id. \xc2\xa7 8G(b) & (d) (IG office to be created \xe2\x80\x9cin each designated Federal\nentity,\xe2\x80\x9d with the IG being supervised by the head of that entity). And we have\nadvised informally, in commenting on pending legislation, that it would violate the\nAppointments Clause to add to the Office of Special Inspector General for Iraq\nReconstruction, without reappointment, duties relating to relief and reconstruction\nin Louisiana and elsewhere arising out of Hurricane Katrina.\nIt is enough to recognize that, not only do the Board IG and the EPA IG have\nthe same general statutory duties, but in addition these two positions involve\nentities that have closely related functions and a history of interacting, and the\naddition of Board IG duties to the EPA IG does not work a significant increase in\nthe duties of the EPA IG.\nFirst, it is not as if an IG from one agency were being given additional duties as\nIG for another unrelated agency. In carrying out his IG duties for the EPA and the\nBoard, the EPA IG addresses similar operational matters. The provisions of the\nClean Air Act summarized above in Part I indicate that the Board\xe2\x80\x99s functions serve\nthe regulatory missions of the EPA and the Labor Department. Indeed, the Board\xe2\x80\x99s\ninvestigations, rulemaking proposals, and reporting roles are, under the statute,\naimed at assisting the EPA and Labor in reducing the risk of future hazardous\nchemical releases. The Board\xe2\x80\x99s regulatory authority involves promulgating rules\nthat require reporting of such releases. Those rules in turn enable the Board to\nperform the investigations that lead to its recommendations to the two agencies\nthat do have primary regulatory responsibility over these matters\xe2\x80\x94the EPA and\nthe Labor Department. And it appears from the statute that the Board\xe2\x80\x99s mission\nhas a greater connection with the work of the EPA than the Labor Department. 3\nSecond, as explained above in Part I, the Board is merely an undesignated\n\xe2\x80\x9cFederal entity\xe2\x80\x9d under the IG Act, rather than a department, enumerated agency, or\neven a designated federal entity. And the IG Act contemplates that at least audits\nof undesignated federal entities should be conducted in some fashion. See 5 U.S.C.\napp., IG Act \xc2\xa7 8G(h)(2). The performance of IG functions for an undesignated\nfederal entity by an IG who exists pursuant to the IG Act, and whose pre-existing\nduties involve, as here, subjects similar to those involved in the additional IG\nfunctions, could (at least presumptively) be said to be within the contemplation of\nthose who were responsible for that IG\xe2\x80\x99s appointment. See Separation of Powers,\n20 Op. O.L.C. at 158. Such additional duties likely are not \xe2\x80\x9coutside the sphere of,\xe2\x80\x9d\nand are \xe2\x80\x9cof the same general description\xe2\x80\x9d as, his pre-existing duties, Shoemaker,\n147 U.S. at 301, 289, and the addition likely is reasonable in terms of efficiency,\nsee Separation of Powers, 20 Op. O.L.C. at 158.\n3\nWe have no occasion to answer the moot question of the germaneness of the duties of the Board\nIG to those of the former FEMA IG.\n\n100\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nFurthermore, the EPA IG has received little additional staff, resources, or salary\nto carry out the additional duties of Board IG, and this fact tends to confirm that\nthe increase in duties is not significant. A significant addition to an office\xe2\x80\x99s duties\nis more likely to be outside the sphere of its existing duties, see Status of DCI, 29\nOp. O.L.C. at 36 n.2, and thus to \xe2\x80\x9camount to assuming a new \xe2\x80\x98Offic[e]\xe2\x80\x99 within the\nmeaning of\xe2\x80\x9d the Appointments Clause, Weiss, 510 U.S. at 196 (Scalia, J., concurring). Here, however, in establishing the position of Board IG, Congress has\nrequired the IG who received that function to use personnel of his existing IG\nOffice rather than establish a new IG Office for the Board, and has barred him\nfrom appointing any individuals to positions within the Board. See, e.g., 115 Stat.\nat 679 (FY 2002); 118 Stat. at 399 (FY 2004). Similarly Congress has not\nappropriated separate funds for the Board IG; instead, it has left the EPA IG to\ncarry out his duties with regard to the Board from his appropriation for the EPA IG\nOffice. In its Fiscal Year 2001 appropriation, for example, Congress included no\nfunds for the Board IG in its appropriation for the Board, provided a $10,000,000\nappropriation for the FEMA IG, and added that the FEMA IG \xe2\x80\x9cshall also serve as\xe2\x80\x9d\nthe Board IG. 114 Stat. at 1441A-36 & A-46. Since transferring the Board IG\nfunction to the EPA IG, Congress has continued to include no money for the\nBoard IG in its appropriations for the Board. See, e.g., 118 Stat. at 399. Instead, in\nconference reports on appropriations bills for the EPA, the congressional conferees\nhave expressed views on how much of its appropriation the EPA IG Office should\nspend on the Board IG function and have requested that the EPA include in its\nbudget requests an amount sufficient to carry out this function. See, e.g., H.R. Rep.\nNo. 108-401, at 1127 (2003). Under these circumstances, combined with both the\ngeneral and specific similarities in duties, there is no reason to conclude that\nCongress has appointed the EPA IG to a new and distinct office rather than simply\nadding germane duties to his existing office.\nThe Board does, in addition to being an entity distinct from the EPA, operate\nwith a statutory protection against any responsibility to, or supervision or direction\nby, officers or employees of the EPA, see 42 U.S.C. \xc2\xa7 7412(r)(6)(R); see also id.\n\xc2\xa7 (6)(A) (referring to Board as \xe2\x80\x9cindependent\xe2\x80\x9d), but that independence does not\nmake the duties of the Board IG any less germane to the pre-existing duties of the\nEPA IG. As a statutory matter, Congress is free to revise this independence, such\nas by separately providing\xe2\x80\x94as it has in the appropriations provisions at issue\xe2\x80\x94\nthat an officer in the EPA shall have certain duties with regard to the Board. Nor\ncan there be any statutory objection to the EPA IG\xe2\x80\x99s \xe2\x80\x9csupervising\xe2\x80\x9d his own work\nas Board IG: The role of Board IG is not one of the functions or duties established\nfor the Board in section 7412 and therefore is not subject to the provision regarding lack of direction or supervision by EPA officers. See id. \xc2\xa7 7412(r)(6)(R).\nThe question is whether it is relevant to the constitutional germaneness analysis\nthat Congress first granted this independence and then (arguably) removed some\nof it by assigning the function of Board IG to the EPA IG. Congress\xe2\x80\x99s initial grant\n\n101\n\n\x0cOpinions of the Office of Legal Counsel in Volume 30\n\nof statutory independence might be said to have placed the duties of any Board IG\noutside the sphere of the EPA IG\xe2\x80\x99s duties and not within the reasonable contemplation of the President and Senate in appointing the EPA IG. One might argue\nthat the President and Senate, in determining the suitability of an appointee for the\noffice of EPA IG, did not have a reasonable opportunity to determine whether he\npossessed appropriate qualifications for carrying out the duties of Board IG.\nWhatever the merits of such an argument in general, it does not apply here,\nbecause the statutory independence of the Board involves its operational, programmatic duties under section 7412(r)(6), which do not include the functions of\nits IG. Although an IG does have broad powers of auditing and investigation, see\n5 U.S.C. app., IG Act \xc2\xa7\xc2\xa7 4(a) & 6, these are distinct from program operating authority, which he expressly does not have. See id. \xc2\xa7 9(a)(2) (prohibiting the\ntransfer of any \xe2\x80\x9cprogram operating responsibilities\xe2\x80\x9d to an IG); id. \xc2\xa7 8G(b) (in\ncreating IG for designated federal entities, \xe2\x80\x9cthere shall not be transferred to such\noffice any program operating responsibilities\xe2\x80\x9d). Rather, \xe2\x80\x9cCongress intended the\n[IG] to be an objective official free from general regulatory responsibilities.\xe2\x80\x9d IG\nAuthority, 13 Op. O.L.C. at 55. An IG also cannot take personnel action against an\nagency officer or employee outside of his direct subordinates. 5 U.S.C. app., IG\nAct \xc2\xa7\xc2\xa7 6(a)(6), (b)(2). Apart from auditing and investigating, he merely reports\nand recommends action to his agency\xe2\x80\x99s head, id. \xc2\xa7\xc2\xa7 4(a), 5(a) & (d), or in certain\ncases to the Attorney General, id. \xc2\xa7 4(d). It is for the agency head, not the IG, to\ndirect and supervise an agency\xe2\x80\x99s officials. Even an IG\xe2\x80\x99s narrow authority over his\ndirect subordinates, see id. \xc2\xa7 6(a)(7), is irrelevant here, where the Board IG has, by\nstatute, no distinct office or staff. Moreover, lest these statutory limits be transgressed, the IG Act requires that the EPA IG in his role as Board IG report to and\nbe under the general supervision of the Board, not the EPA Administrator or his\ndeputy. See id. \xc2\xa7 3(a) (\xe2\x80\x9cEach [IG] shall report to and be under the general supervision of the head of the establishment involved\xe2\x80\x9d); id. \xc2\xa7 8G(d) (same with IGs in a\ndesignated federal entity). In this regard, the EPA IG will have two distinct\nmasters\xe2\x80\x94the Board and the EPA Administrator\xe2\x80\x94but only one for each role. And\nthe EPA IG is removable by, and thus ultimately accountable to, not the Administrator but the President, see id. \xc2\xa7 3(b), to whom the Board could appeal. Much as\nthe EPA cannot be said to be under the supervision or direction of, or responsible\nto, its IG\xe2\x80\x94else the Administrator would be a subordinate of the IG\xe2\x80\x94the Board is\nnot under the supervision or direction of, or responsible to, the Board IG, and thus\nnot under an EPA officer. Thus, in the area of IG duties, there is no background\nrule of Board independence from the EPA that might affect the Appointments\nClause analysis.\nFinally, a contrary view of the relevance of the Board\xe2\x80\x99s operational independence likely would prevent Congress from assigning to any IG office that is not\nvacant the duties of Board IG, given that the statute prohibits \xe2\x80\x9cany . . . agency\xe2\x80\x9d\nfrom supervising or directing the Board\xe2\x80\x99s operations. 42 U.S.C. \xc2\xa7 7412(r)(6)(R).\n\n102\n\n\x0cStatutory Provision Concerning the IG Position at the CSHIB\n\nCongress would have been required either to establish a separate IG (with staff)\nfor a micro-agency that has a budget of $9.2 million, see 119 Stat. at 543, and (we\nunderstand) approximately 40 employees, or to create the position of Board IG\npending the next vacancy in and appointment to some other IG office. Such a\nchoice, if not absurd, is at least counter-intuitive. We see no basis in the Appointments Clause for forcing Congress into it.\nFor all of these reasons, there is no violation of the Appointments Clause in\nCongress\xe2\x80\x99s provision for the position of Board IG.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n103\n\n\x0c'