b'Applicability of Ineligibility Clause to Appointment of\nCongressman Tony P. Hall\nThe Ineligibility Clause of the Constitution would not bar the President from appointing Congressman\nTony P. Hall as United States Representative to the United Nations Agencies for Food and Agriculture, with the rank of Ambassador.\n\nMay 30, 2002\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether the Ineligibility Clause, U.S. Const.\nart. I, \xc2\xa7 6, cl. 2, would bar the President from appointing Congressman Tony P.\nHall as United States Representative to the United Nations Agencies for Food and\nAgriculture, with the rank of Ambassador. As we previously advised you orally,\nwe believe that the Ineligibility Clause would not bar the appointment.\nUnder the Ineligibility Clause, \xe2\x80\x9c[n]o Senator or Representative shall, during the\nTime for which he was elected, be appointed to any civil Office under the\nAuthority of the United States, which shall have been created, or the Emoluments\nwhereof shall have been encreased during such time.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 6, cl. 2.\nCongressman Hall\xe2\x80\x99s current term began January 3, 2001, see U.S. Const. amend.\nXX, \xc2\xa7 1; 146 Cong. Rec. D1228 (Dec. 15, 2000), and he thus cannot be appointed\nto an office \xe2\x80\x9cthe Emoluments whereof\xe2\x80\x9d were raised after that date. 1\nThe office of United States Representative to the United Nations Agencies for\nFood and Agriculture was created under 22 U.S.C. \xc2\xa7 287(d) (2000), a section of\nthe United Nations Participation Act providing that the President may appoint\n\xe2\x80\x9csuch . . . persons as he may deem necessary to represent the United States in\norgans and agencies of the United Nations.\xe2\x80\x9d Under 22 U.S.C. \xc2\xa7 287(g), \xe2\x80\x9c[a]ll\npersons appointed in pursuance of authority contained in this section shall receive\ncompensation at rates determined by the President upon the basis of duties to be\nperformed but not in excess of rates authorized . . . for chiefs of mission, members\nof the Senior Foreign Service, and Foreign Service officers occupying positions of\nequivalent importance.\xe2\x80\x9d The President has delegated to the Secretary of State his\nauthority to fix this compensation, see Memorandum for the Secretary of State,\nfrom President William J. Clinton, Re: Delegation of Authority on Rates of\nCompensation for U.S. Representatives to the United Nations, 62 Fed. Reg. 18,261\n(Apr. 15, 1997), and the Secretary of State in turn has delegated such \xe2\x80\x9cmanage-\n\n1\nWe do not address here whether a rollback of a salary increase can satisfy the Ineligibility Clause.\nCompare Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. 286, 289-90 (1979)\n(accepting the validity of such rollbacks), with Memorandum for the Counselor to the Attorney\nGeneral, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility\nof Sitting Congressman to Assume a Vacancy on the Supreme Court (Aug. 24, 1987) (\xe2\x80\x9c1987 Opinion\xe2\x80\x9d)\n(rejecting the validity of such rollbacks).\n\n40\n\n227-329 VOL_26_PROOF.pdf 50\n\n10/22/12 11:13 AM\n\n\x0cApplicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall\n\nment-related functions\xe2\x80\x9d to the Under Secretary of State for Management, see\nDelegation of Authority No. 198 (Sept. 16, 1992).\nThe last occupant of the office was former Senator George S. McGovern, who\nleft the position on September 27, 2001. 2 At the beginning of Senator McGovern\xe2\x80\x99s\nservice, the responsible official at the State Department assessed the \xe2\x80\x9cduties to be\nperformed\xe2\x80\x9d by Senator McGovern and determined that he should receive the pay\nof a \xe2\x80\x9cMinister-Counselor\xe2\x80\x9d in the Senior Foreign Service compensated at a rate\nequivalent to Level 5 of the Executive Schedule (\xe2\x80\x9cFE-MC 5,\xe2\x80\x9d which is equivalent\nto \xe2\x80\x9cES 5\xe2\x80\x9d). See Exec. Order No. 12293, \xc2\xa7 4, 3 C.F.R. \xc2\xa7 137 (1982), reprinted in 22\nU.S.C. \xc2\xa7 3901 note (2000). On two recent occasions, Presidents have exercised\ntheir authority under 5 U.S.C. \xc2\xa7 5382 to raise the salary specified for Level 5 of\nthe Executive Schedule, to which the FE-MC 5 pay is tied. The first increase was\nordered December 23, 2000, and took effect January 14, 2001, Exec. Order\nNo. 13182, 3 C.F.R. \xc2\xa7 330 (2001); the second was ordered December 28, 2001,\nand took effect January 13, 2002, Exec. Order No. 13249, 3 C.F.R. \xc2\xa7 832 (2002).\nWe will assume that one or both of these increases should be deemed to have\noccurred during the time for which Congressman Hall was elected. 3 If the\n\xe2\x80\x9cEmoluments\xe2\x80\x9d of the office of United States Representative to the United Nations\nAgencies for Food and Agriculture include an FE-MC 5 salary, then that office is\none \xe2\x80\x9cthe Emoluments whereof . . . have been encreased\xe2\x80\x9d during the time for which\nCongressman Hall was elected.\nWe do not believe, however, that the FE-MC 5 pay or any other salary can\nproperly be seen as the emoluments of this office. On the contrary, the office itself\nhas no fixed emoluments. The President or his delegate is free to set any level of\npay he deems suitable for the duties he expects the particular appointee to perform,\nas long as the pay does not exceed the statutory ceilings. Therefore, if appointed,\nCongressman Hall will not necessarily succeed to the same compensation that\nSenator McGovern was receiving. Indeed, the instrument that directed how much\nSenator McGovern was to be paid was a \xe2\x80\x9cNotification of Personnel Action,\xe2\x80\x9d\nwhich was personal to him, rather than an order referring generally to the pay of\nthe office. Section 287(g) calls for the President or his delegate to set the pay of\n2\nAs we understand the facts, only one other person\xe2\x80\x94Millicent Fenwick, during the 1980s\xe2\x80\x94has\nheld the position of United States Representative to the United Nations Agencies for Food and\nAgriculture, with the Senate-confirmed rank of Ambassador. We understand that the paperwork\nshowing how her pay was fixed no longer exists. For the facts set out in this memorandum, we rely on\nthe Department of State.\n3\nArguably, the relevant date for the first increase was the date on which the President issued his\norder, which preceded Congressman Hall\xe2\x80\x99s current term. But cf. Member of Congress\xe2\x80\x94Appointment to\nCivil Office Prior to Pay Increase, 42 Op. Att\xe2\x80\x99y Gen. 381 (1969) (under a statute providing for an\neffective date after a report to Congress and a waiting period to allow congressional action, the relevant\ndate was the date on which the increase took effect). Moreover, because the office was vacant at the\ntime of the second increase and because (as explained below) the pay of the office must be set each\ntime a new appointee assumes the office, arguably the pay of the office was not tied to the FE-MC 5\nrate, or any other rate, at the time of the second increase.\n\n41\n\n227-329 VOL_26_PROOF.pdf 51\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\n\xe2\x80\x9c[a]ll persons appointed in pursuance of authority contained in\xe2\x80\x9d section 287, and\nthis compensation pertains to the \xe2\x80\x9cperson[],\xe2\x80\x9d not to the office.\nThis is not a case in which the President raised the pay for a class of offices, in\nwhich the office in question was included. Cf. Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. at 286-87 (judicial salaries); 1987 Opinion,\nsupra note 1, at 1 n.1 (same); Member of Congress\xe2\x80\x94Appointment to Civil Office\nPrior to Pay Increase, 42 Op. Att\xe2\x80\x99y Gen. 381 (1969) (salaries of cabinet officers).\nNor even is it a case in which the statute calls on the President to set the salary for\na specified office. Cf. Memorandum for the Files, from William H. Rehnquist,\nAssistant Attorney General, Office of Legal Counsel, Appointment of Congressman to the Office of Director of the Office of Economic Opportunity at 1 (Apr. 14,\n1969) (\xe2\x80\x9c1969 Memorandum\xe2\x80\x9d) (third attachment to Letter for Edward L. Morgan,\nDeputy Counsel to the President, from William H. Rehnquist, Assistant Attorney\nGeneral, Office of Legal Counsel (Apr. 14, 1969)) (the statute required the\nPresident to fix the salary of the Director). Instead, the President is to fix the salary\nof a \xe2\x80\x9cperson[]\xe2\x80\x9d appointed to an office that the President largely defines. Under the\nstatute here, the President or his delegate is to set a salary each time a person is\nappointed.\nTo be sure, it would not be an unnatural reading of the Ineligibility Clause if\nthe salary paid to Senator McGovern were considered the emoluments of the\noffice of United States Representative, within the meaning of the Clause. That\nsalary was, after all, actually paid for Senator McGovern\xe2\x80\x99s work in the office.\nNevertheless, we believe that, on the better view of the Ineligibility Clause, this\nsalary does not constitute the emoluments of the office because the office does not\ncontinue to carry that salary after Senator McGovern\xe2\x80\x99s resignation. The President\nor his delegate will have to act affirmatively to set a salary when Senator McGovern\xe2\x80\x99s successor is appointed and will have the discretion to set the salary for the\nnext occupant of the office at any rate that does not exceed the salary cap. 4 The\nIneligibility Clause was designed to limit the danger that offices might be created\nor their emoluments increased \xe2\x80\x9cin order to gratify some members\xe2\x80\x9d of Congress,\n1 The Records of the Federal Convention of 1787, at 380 (Max Farrand ed., rev.\ned. 1966) (statement of James Madison), but this danger, insofar as it arises from\naction taken with respect to an office before a member\xe2\x80\x99s appointment, exists only\nif the prior action would carry over to the office when the member assumes it.\nHere, although prior action raising Senator McGovern\xe2\x80\x99s salary arguably might\n4\nIn our 1969 Memorandum, the President was to fix the compensation of the Director of the Office\nof Economic Opportunity (\xe2\x80\x9cOEO\xe2\x80\x9d) at a level not exceeding that for the Director of the Bureau of the\nBudget. The Budget Director\xe2\x80\x99s salary had been raised during the time for which a prospective Director\nof OEO had been elected to Congress, and the 1969 Memorandum found that if the Director of the\nOEO received a salary at the new ceiling, the Ineligibility Clause would be violated. Id. at 1-2. We take\nit, however, that once the President had set a salary for the office of OEO Director, that salary would\nhave continued to apply to successors in the office, unless the President acted to change his earlier\ndecision.\n\n42\n\n227-329 VOL_26_PROOF.pdf 52\n\n10/22/12 11:13 AM\n\n\x0cApplicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall\n\nlead to some expectations about the salary to be paid to Congressman Hall, see\n119 Cong. Rec. 38,331 (1973) (letter of then-Professor Stephen G. Breyer, arguing\nthat past salary increases, even if not given to an appointee, make future increases\nlikely), this expectation is, in the end, a matter of speculation. Until the President\nacts or his delegate acts, there are no emoluments attached to the office in\nquestion.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n43\n\n227-329 VOL_26_PROOF.pdf 53\n\n10/22/12 11:13 AM\n\n\x0c'


b'Construction o f \xc2\xa7 406 of the Federal Employees Pay\nComparability Act of 1990\n\nSection 4 06 o f the Federal E m ployees Pay C om parability Act o f 1990 does not extend the authority to\nm ake bon u s paym ents to em ployees at the N ew York Field D ivision o f the Federal Bureau o f In\xc2\xad\nvestigation pursuant to section 601 of the Intelligence A uthorization Act for fiscal years 1989 and\n1990 b ey o n d the ex p iration date of the dem onstration project established by section 601.\n\nAugust 23, 1993\n\nM\n\nO p in io n\n\nem orandum\n\nfo r th e\n\nA s s is t a n t D i r e c t o r , L e g a l C o u n s e l\nF ederal B u r ea u\n\nof\n\nI n v e s t ig a t io n\n\nThis m em orandum responds to your request for our opinion whether \xc2\xa7 406 of\nthe Federal Em ployees Pay Comparability Act of 1990 (\xe2\x80\x9cFEPCA\xe2\x80\x9d), 104 Stat.\n1427, 1467,1 preserves extraordinary benefits payable under \xc2\xa7 601 o f the Intelli\xc2\xad\ngence A uthorization Act, Fiscal Y ear 1989, Pub. L. No. 100-453, 102 Stat. 1904,\n1911 (1988), as am ended by the Intelligence Authorization Act, Fiscal Year 1990,\nPub. L. No. 101-193, \xc2\xa7 601, 103 Stat. 1701, 1710 (1989), even after expiration of\n\xc2\xa7 601 \xe2\x80\x99s paym ent authority. We conclude that \xc2\xa7 406 does not preserve the \xc2\xa7 601\nbenefits beyond the expiration of the latter provision.\nSection 601 establishes a demonstration project that attempts to improve re\xc2\xad\ncruitm ent and retention at the New Y ork Field Division (\xe2\x80\x9cNYFD\xe2\x80\x9d) of the Federal\nBureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) by increasing pay. See H.R. Rep. No. 100-591(1),\nat 11-12 (1988), reprinted in 1988 U .S.C.C.A.N. 2469, 2479-80. Pursuant to\n\xc2\xa7 601, any FBI em ployee transferred to the NYFD receives a lump sum payment of\nup to $20,000, conditioned upon the em ployee\xe2\x80\x99s agreement to serve at least three\nyears in that office. \xc2\xa7 601(a)(1). In addition, all employees in the NYFD receive\nperiodic bonus paym ents o f between 20 and 25% o f their basic pay for the period\ncovered by the bonus. \xc2\xa7 601(a)(2). Section 601(b) provides that these benefits\nwill term inate after five years. We understand from you that the program will end\non Septem ber 30, 1993.\nFEPCA institutes a system of pay adjustments for general schedule employees\nthroughout the Federal government, including locality pay to accommodate the\nhigher cost o f living in certain areas. Under FEPCA, special agents in the NYFD\ncurrently receive a 16% increase over base pay to account for New Y ork\xe2\x80\x99s higher\ncost o f living. Sim ilarly, support staff who receive pay under the general schedule\n1\nFEPCA was enacted as \xc2\xa7 529 of the Treasury, Postal Service and General Government Appropriations\nAct, 1991, Pub L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions o f FEPCA in this\nmemorandum will cite the internal section num bers and corresponding pages in the statutes at large.\n\n34\n\n\x0cConstruction o f \xc2\xa7 406 o f the F E P C A ct o f 1990\n\nreceive an 8% increase. Support staff who receive pay under the federal wage\nsystem do not receive any increase. See FEPCA \xc2\xa7\xc2\xa7 101, 404, 104 Stat. at 1429-30,\n1466; Exec. Order No. 12786, Schedule 9, reprinted in 5 U.S.C. \xc2\xa7 5332 note\n(Supp. Ill 1991).\nThus, \xc2\xa7 601 and FEPCA each provide extra pay for NYFD employees (except\nfor wage employees who receive benefits under \xc2\xa7 601 but not FEPCA). F E P C A \xe2\x80\x99s\n\xc2\xa7 406, however, instructs the Office of Personnel Management (\xe2\x80\x9cO PM \xe2\x80\x9d) to coordi\xc2\xad\nnate the two programs to ensure that their payments are not cumulated:\nNotwithstanding [\xc2\xa7601], as amended, the Office of Personnel\nM anagement shall reduce the rate of periodic payments under such\nsection as the provisions o f this Act [FEPCA] are implemented:\nProvided, That no such reduction results in a reduction of the total\npay for any employee o f the New York Field Division of the Fed\xc2\xad\neral Bureau of Investigation. Notwithstanding [\xc2\xa7 601], the Office of\nPersonnel M anagement may make such periodic payments inappli\xc2\xad\ncable to employees newly appointed to, or transferred to, the New\nYork Field Division on or after January 1, 1992.\nThe main clause in the first sentence of \xc2\xa7 406 clearly does not authorize a con\xc2\xad\ntinuation of \xc2\xa7 601 pay beyond the life of the demonstration project. On the con\xc2\xad\ntrary, it expressly directs OPM to reduce \xc2\xa7 601 payments to NYFD employees as\nFEPCA is implemented. The second sentence of \xc2\xa7 406 also contemplates the cur\xc2\xad\ntailing of \xc2\xa7 601; it instructs that employees hired after January 1, 1992, need not\nreceive any \xc2\xa7 601 benefits.\nNotwithstanding this general thrust o f \xc2\xa7 406, it has been suggested that the pro\xc2\xad\nviso in the first sentence might be intended as independent authority to\n\xe2\x80\x9cgrandfather\xe2\x80\x9d current NYFD employees with continued extra pay at the \xc2\xa7 601\nlevel. The suggestion is that the proviso forbids any reduction in the total pay o f\nNYFD employees as a result of a reduction in \xc2\xa7 601 benefits. Since the term ina\xc2\xad\ntion of \xc2\xa7 601 benefits will cause a decrease in the pay of NYFD em ployees\n(because FEPC A \xe2\x80\x99s benefits are lower and also do not extend to wage employees),\nit is urged that the proviso would prevent any reduction in pay by authorizing con\xc2\xad\ntinued pay at the \xc2\xa7 601 level.\nThis suggestion misconstrues the purpose o f the proviso. As indicated above,\nthe main clause o f \xc2\xa7 406 directs OPM to reduce \xc2\xa7 601 payments in response to\nFEPCA. That clause, however, does not specify by how much the payments are to\nbe reduced. It is the proviso that limits O PM \xe2\x80\x99s discretion in this regard. T he pro\xc2\xad\nviso precludes any reduction of \xc2\xa7 601 benefits that \xe2\x80\x9cresults in a reduction o f the\ntotal pay for any employee of the [NYFD].\xe2\x80\x9d In effect, this means that OPM may\nnot reduce \xc2\xa7 601 benefits by more than one dollar for every dollar introduced un\xc2\xad\nder FEPCA; if it did, an em ployee\xe2\x80\x99s total pay would be reduced, in violation o f the\n35\n\n\x0cOpinions o f th e Office o f L eg a l Counsel\n\nproviso. Thus, for each reduction in \xc2\xa7 601 paym ents implemented pursuant to the\nmain clause o f \xc2\xa7 406, the proviso caps the reduction at the amount of FEPCA dol\xc2\xad\nlars that the em ployee receives, which prevents any net loss of pay.\nIt m ust be understood that the proviso\xe2\x80\x99s protection applies only with respect to\nO PM \xe2\x80\x99s reduction o f \xc2\xa7 601 benefits pursuant to \xc2\xa7 406. This much is established by\nthe phrase, \xe2\x80\x9cno such reduction,\xe2\x80\x9d w hich unmistakably links the proviso\xe2\x80\x99s operation\nwith the preceding clause. See also 2A Norman J. Singer, Sutherland Statutory\nConstruction \xc2\xa7\xc2\xa7 47.08-.09 (5th ed. 1992) (in general, a proviso should be strictly\nconstrued to relate to the enactment o f which it is part). In this case, the reduction\no f pay will occur as a result of the winding down o f \xc2\xa7 601 \xe2\x80\x99s internal clock, and not\npursuant to \xc2\xa7 406. Thus, the proviso will not be triggered. Accordingly, \xc2\xa7 406\ncannot be said to authorize continued extra pay at the \xc2\xa7 601 rate.2\n\nW ALTER DELLINGER\nA cting A ssistant Attorney General\nOffice o f Legal Counsel\n\n2\nWe can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest\nthat \xc2\xa7 406 was intended to continue \xc2\xa7 601 benefits beyond their natural span.\n\n36\n\n\x0c'


b"September 8 , 1978\n\n78-51\n\nM EM ORANDUM OPINION FOR THE SPECIAL\nASSISTANT TO THE ATTORNEY GENERAL\nGovernment Officers and Employees\xe2\x80\x94 Department of\nJustice (5 U .S.C . \xc2\xa7 3372)\n\nThis memorandum is in response to your request for our opinion concerning\nthe legality of the furnishing of technical assistance by this Department to the\nState of Iowa, in litigation between the State of Iowa and a private party. It is\nour opinion that this constitutes a legitimate use of the Attorney General\xe2\x80\x99s\nauthority pursuant to 5 U.S.C. \xc2\xa7 3372.\nThe facts are as follows: The State of Iowa, with the encouragement and\nfinancial help of the Law Enforcement Assistant Administration (LEAA), hired\nthe Planning Research Corporation (PRC) to design and implement a computer\nsystem for storing the State\xe2\x80\x99s criminal justice and traffic records. The computer\nsystem was to give Iowa law enforcement authorities a greater diversity of and\na faster access to State law enforcement data than was possible with the State\xe2\x80\x99s\nexisting records system. Also, since the system was to be compatible with the\nNational Crime Information Center (NCIC) computers maintained by the FBI,\nthe NCIC would benefit by obtaining better law enforcement data from Iowa.\nBecause an investigation by the Iowa attorney general showed that the system\nbuilt by PRC did not work properly, the State sued PRC to recover the damages\nincurred by it. However, Iowa did not have an expert qualified to evaluate the\ndefects in the computer. Accordingly, the Iowa attorney general asked the U.S.\nAttorney General to give him the services of a computer expert. The Justice\nDepartment temporarily assigned a Department computer expert to give\ntechnical advice to the State regarding the faulty computer system. PRC\nquestions the Justice Department\xe2\x80\x99s authority to provide such technical assistance.\nThe U.S. Attorney General has the following authority under 5 U.S.C.\n\xc2\xa7 3372 (1976):\nOn request from or with the concurrence of a State or local\ngovernment, and with the consent of the employee concerned, the\nhead of an executive agency may arrange for the assignment of\xe2\x80\x94\n(1) an employee of his agency to a State or local government. . .\n206\n\n\x0cfor work of mutual concern to his agency and the State or local\ngovernment that he determines will be beneficial to both.\nThere is no apparent limit to the type of assignments a Federal employee may\nbe given under \xc2\xa7 3372. The assignment possibilities are flexible; the magnitude\nof the employee\xe2\x80\x99s duties are limited only by the agreement between the Federal\nAgency and the State. The agreement with the State and this Department is that\nthe expert will give the State technical advice regarding the State\xe2\x80\x99s criminal\njustice computer system to enable the proper prosecution of its civil claim. This\nassignment is within the broad language of \xc2\xa7 3372.\nWhether the technical services involved constitute work mutually beneficial\nto the State and the Department of Justice is a question which \xc2\xa7 3372 leaves to\nthe discretion of the Agency head. The reason why the work is mutually\nbeneficial in this case is because a working computer in the State, when used in\nconjunction with the NCIC, will improve the Department\xe2\x80\x99s ability to collect\nand exchange law enforcement data,1 an obvious benefit to this Department.\nL eon U lm\n\nan\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n'2 8 U .S .C . \xc2\xa7 534 (1976).\n\n207\n\n\x0c"


b'Application of 28 U.S.C. \xc2\xa7 458 to Presidential Appointments of\nFederal Judges\nSection 458 o f title 28 does not apply to presidential appointments o f judges to the federal judiciary.\n\nDecember 18, 1995\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nOn April 25, 1995, President Clinton nominated Mr. William A. Fletcher to\nbe a judge on the United States Court of Appeals for the Ninth Circuit. See 141\nCong. Rec. 11,243 (1995). While Mr. Fletcher\xe2\x80\x99s nomination has been pending\nbefore the United States Senate, questions have arisen as to whether his appoint\xc2\xad\nment would violate 28 U.S.C. \xc2\xa7 458 because Mr. Fletcher\xe2\x80\x99s mother, the Honorable\nBetty B. Fletcher, has served as a judge on the same court since her appointment\nin 1979. Section 458 of title 28 provides as follows: \xe2\x80\x9c No person shall be\nappointed to or employed in any office or duty in any court who is related by\naffinity or consanguinity within the degree of first cousin to any justice or judge\no f such court.\xe2\x80\x9d\nWe have previously opined that 28 U.S.C. \xc2\xa7458 does not apply to presidential\nappointments of judges to the federal judiciary. See Memorandum for Eleanor\nD. Acheson, Assistant Attorney General, Office of Policy Development, from\nRichard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Applicability o f 28 U.S.C. \xc2\xa7 458 to Presidential Appointments o f Federal\nJudges (Mar. 13, 1995). In light o f subsequent questions, you have asked whether\nwe adhere to that position. For the reasons that follow, we do.\nA\nTwo bedrock principles of statutory construction guide our analysis. First, \xe2\x80\x9c we\nstart, as we must, with the language of the statute.\xe2\x80\x9d Bailey v. United States, 516\nU.S. 137, 144 (1995). Second, \xe2\x80\x9c the meaning of statutory language, plain or not,\ndepends on context.\xe2\x80\x9d 1 Id. at 145. In this case, the particularly relevant constitu\xc2\xad\nents o f context upon which statutory meaning depends are the constitutional\nframework within which all statutes are drafted and enacted, see, e.g., Gregory\nv. Ashcroft, 501 U.S. 452, 460 (1991) (stating principle that statutes be read to\nprotect \xe2\x80\x9c the usual constitutional balance\xe2\x80\x9d of power), the statutory language taken\nas a whole, see, e.g., King v. St. Vincent\xe2\x80\x99s Hosp., 502 U.S. 215, 221 (1991) (stating\n1 As Learned Hand explained, \xe2\x80\x9c words are n o t pebbles in alien juxtaposition; they have only a communal existence;\nand not only does the meaning o f each interpenetrate the other, but all in their aggregate take their [meaning] from\nthe setting in which they are used.\xe2\x80\x9d NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941); see also King\nv. St. Vincent\xe2\x80\x99s Hosp., 502 U.S. 215, 221 (1991) (quoting Federbush); Shell Oil Co. v. Iowa Dept, o f Revenue,\n488 U.S. 19, 25 n.6 (1988) (same).\n\n350\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\nthe \xe2\x80\x9c cardinal rule\xe2\x80\x9d that a \xe2\x80\x9c statute is to be read as a whole\xe2\x80\x9d ), and the amendment\nhistory of the statute, see, e.g., Bailey, 516 U.S. at 144 (taking account of amend\xc2\xad\nment history of 18 U.S.C. \xc2\xa7 924(c)(1) to determine the meaning of the word\n\xe2\x80\x9c use\xe2\x80\x9d ). Based on our review, we conclude that the plain meaning o f the statute\nprecludes its application to presidential appointments to the federal judiciary.\nWe begin, as indicated, with the language of the statute. The current language\nof \xc2\xa7458 was adopted in 1911,2 amending a statute originally enacted in 1887.3\nQuoting the language again, \xc2\xa7458 in its current form provides that: \xe2\x80\x9c No person\nshall be appointed to or employed in any office or duty in any court who is related\nby affinity or consanguinity within the degree of first cousin to any justice or\njudge of such court.\xe2\x80\x9d The statute does not by its express terms apply to the Presi\xc2\xad\ndent, nor does it expressly ijame judgeships as one of the offices to which a related\nperson may not be appointed. We believe that the inapplicability of this provision\nto presidential appointments of federal judges is conclusively established by the\ntext of this provision, the history of its amendment, and the text of the Act of\n1911 taken as a whole. We elaborate on these reasons in Parts II and III of this\nmemorandum, which to a considerable degree recapitulate the analysis contained\nin our earlier memorandum. Before revisiting these points, however, in this part\nwe analyze a feature of the constitutional framework within which statutes must\nbe read that, in our view, also dictates the conclusion that \xc2\xa7458 does not apply\nto presidential appointments of federal judges, even if the text and its textual his\xc2\xad\ntory did not conclusively establish the point.\nAny argument that \xc2\xa7458 does apply to presidential appointments of federal\njudges depends entirely upon the fact that, while the statute refers to positions\nto which related persons may not be appointed, it makes no mention at all of\nthe appointing authority, worded as it is in the passive voice. In this context,\nhowever, this silence must lead to just the opposite conclusion, because of the\nwell-settled principle that statutes that do not expressly apply to the President\nmust be construed as not applying to the President if such application would\ninvolve a possible conflict with the President\xe2\x80\x99s constitutional prerogatives. See,\ne.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). We can refer to this\nprinciple as a clear statement rule, one that is very well-established and that dic\xc2\xad\ntates the plain meaning of \xc2\xa7 458.\nThen-Assistant Attorney General William H. Rehnquist articulated this principle\nwithout limiting it to cases in which application of the statute would raise a con\xc2\xad\nstitutional question, opining that statutes \xe2\x80\x9c are construed not to include the Presi\xc2\xad\ndent unless there is a specific indication that Congress intended to cover the Chief\nExecutive.\xe2\x80\x9d Memorandum for Egil Krogh, Staff Assistant to the Counsel to the\nPresident, from William H. Rehnquist, Assistant Attorney General, Office of Legal\nCounsel, Re: Closing o f Government Offices in Memory o f Former President\n2 Act o f Mar. 3, 1911, ch. 231, \xc2\xa7297, 36 Stat. 1087, 1168 ("A c t o f 1911\xe2\x80\x9d ).\n3 Act o f Mar. 3, 1887, ch. 373, \xc2\xa77 , 24 Stat. 552, 555.\n\n351\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nEisenhower at 3 (Apr. 1, 1969) ( \xe2\x80\x9c Rehnquist Memorandum\xe2\x80\x9d ). Even if this unquali\xc2\xad\nfied statement o f the principle is overly broad, the narrower formulation given\nabove clearly covers \xc2\xa7458, because its application to presidential appointments\nto the federal judiciary would raise serious constitutional questions regarding the\nPresident\xe2\x80\x99s authority under the Appointments Clause, U.S. Const, art. II, \xc2\xa7 2 , cl.\n2, as we explain below. Therefore, under the precedents of the Supreme Court\nas well as of the Department o f Justice, \xc2\xa7458 may not be read as applying to\npresidential appointments.\nThe principle that general statutes must be read as not applying to the President\nif they do not expressly apply where application would arguably limit the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional role has two sources. First, it is a long-recognized \xe2\x80\x9c cardinal\nprinciple\xe2\x80\x9d o f statutory interpretation that statutes be construed to avoid raising\nserious constitutional questions. See, e.g., Crowell v; Benson, 285 U.S. 22 (1932).\nThis canon of statutory construction is a cornerstone of judicial restraint in that\nit \xe2\x80\x98 \xe2\x80\x98not only reflects the prudential concern that constitutional issues not be need\xc2\xad\nlessly confronted, but also recognizes that Congress, like this Court, is bound by\nand swears an oath to uphold the Constitution.\xe2\x80\x9d Edward J. DeBartolo Corp. v.\nFlorida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).\nThe canon is equally applicable to executive branch interpretations. Appropriations\nLimitation fo r Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980).\nThe second source is the constitutional principle o f separation of powers. The\nfundamental device by which the framers sought to prevent tyranny was the divi\xc2\xad\nsion of power to prevent an excessive accumulation in any single repository. Thus,\nthe Constitution divides power between the federal and the state governments as\nwell as among the federal government\xe2\x80\x99s three coordinate and independent\nbranches. See Gregory, 501 U.S. at 458. The clear statement rule exists in order\nto protect \xe2\x80\x9c th[is] \xe2\x80\x98usual constitutional balance\xe2\x80\x99 \xe2\x80\x9d of power. See id. at 460 (quoting\nWill v. Michigan Dept, of State Police, 491 U.S. 58, 65 (1989) (quoting\nAtascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))), Franklin, 505\nU.S. at 801 (\xe2\x80\x9c requiring] an express statement by Congress before assuming it\nintended\xe2\x80\x9d to subject presidential action to judicial review); id. (\xe2\x80\x9c As the APA\ndoes not expressly allow review of the President\xe2\x80\x99s actions, we must presume that\nhis actions are not subject to its requirements.\xe2\x80\x9d ). Given the central position that\nthe doctrines of federalism and separation of powers occupy in the Constitution\xe2\x80\x99s\ndesign, this rule also serves to \xe2\x80\x9c assure[] that the legislature has in fact faced,\nand intended to bring into issue, the critical matters\xe2\x80\x9d of the balance of power\namong the three branches of the federal government, in the context of separation\nof powers, and between the federal and state governments, in the context of fed\xc2\xad\neralism. See Gregory, 501 U.S. at 461; United States v. Bass, 404 U.S. 336, 349\n(1971).\nThis clear statement rule has been applied frequently by the Supreme Court\nas well as the executive branch with respect to statutes that might otherwise be\n\n352\n\n.\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\nsusceptible of an application that would affect the President\xe2\x80\x99s constitutional\nprerogatives, were one to ignore the constitutional context. For instance, in\nFranklin the Court was called upon to determine whether the Administrative\nProcedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ), 5 U.S.C \xc2\xa7\xc2\xa7701-706, authorized \xe2\x80\x9c abuse of discretion\xe2\x80\x9d\nreview of final actions by the President. The APA authorizes review of final\nactions by \xe2\x80\x9c agencies,\xe2\x80\x9d which it defines as \xe2\x80\x9c each authority of the Government\nof the United States.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 701(b)(1). From this definition, the APA\nexpressly exempts Congress, the courts, the territories, and the District of\nColumbia government\xe2\x80\x94 but not the President.\nEven though the statute defined agency in a way that could include the President\nand did not list the President among the express exceptions to the APA, Justice\nO\xe2\x80\x99Connor wrote for the Court:\n[t]he President is not [expressly] excluded from the APA\xe2\x80\x99s purview,\nbut he is not explicitly included, either. Out of respect for the sepa\xc2\xad\nration of powers and the unique constitutional position of the Presi\xc2\xad\ndent, we find that textual silence is not enough to subject the Presi\xc2\xad\ndent to the provisions of the APA. We would require an express\nstatement by Congress before assuming it intended the President\xe2\x80\x99s\nperformance of his statutory duties to be reviewed for abuse of\ndiscretion.\n505 U.S. at 800-01. To amplify, she continued, \xe2\x80\x9c [a]s the APA does not expressly\nallow review of the President\xe2\x80\x99s actions, we must presume that his actions are\nnot subject to its requirements.\xe2\x80\x9d Id. at 801. If anything, the case for reading the\nAPA provision as applying to the President was stronger than is the case with\nrespect to \xc2\xa7458, because the APA contains a list of express exceptions to its\nbroad coverage and that list does not include the President. One might have con\xc2\xad\ntended that the omission of the President from a list o f persons excluded is suffi\xc2\xad\nciently clear evidence of a congressional decision to include him within the reach\nof the APA to alter the otherwise applicable rule of constitutional context. To\nthe contrary, however, the Court affirmed the principle that the inclusion of the\nPresident must be express.\nIn a case that is closely analogous and that involves the President\xe2\x80\x99s appointment\npower, the Supreme Court held that the Federal Advisory Committee Act\n(\xe2\x80\x9c FACA\xe2\x80\x9d ), 5 U.S.C. app. \xc2\xa72, does not apply to the judicial recommendation\npanels o f the American Bar Association because interpreting the statute as\napplying to them would raise serious constitutional questions relating to the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional authority to appoint federal judges. See Public Citizen v.\nUnited States D ep\xe2\x80\x99t o f Justice, 491 U.S. 440 (1989). The FACA imposes open\nmeeting and reporting requirements on advisory committees, which it defines to\nbe any committee or similar group that is \xe2\x80\x9c utilized by one or more agencies,\n\n353\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nin the interest o f obtaining advice or recommendations for the President.\xe2\x80\x9d 5\nU.S.C. app. \xc2\xa7 3(2)(c). Two public interest groups, Public Citizen and the Wash\xc2\xad\nington Legal Foundation, sought to have FACA applied to the ABA judicial\nscreening committees. The Court unanimously rejected the public interest groups\xe2\x80\x99\nargument. The majority ruled that while a \xe2\x80\x9c straightforward reading,\xe2\x80\x9d Public Cit\xc2\xad\nizen, 491 U.S. at 453, o f FACA would seem to require its application to the ABA\ncommittee, the \xe2\x80\x9c cardinal principle\xe2\x80\x9d o f statutory interpretation that a statute be\ninterpreted to avoid serious constitutional question drove the majority to interpret\nFACA as not applying to the ABA committee. Id. at 465-67. Notably, the majority\nstated, \xe2\x80\x9c [o]ur reluctance to decide constitutional issues is especially great where,\nas here, they concern the relative powers of coordinate branches of government,\xe2\x80\x9d\nand \xe2\x80\x9c [t]hat construing FACA to apply to the Justice Department\xe2\x80\x99s consultations\nwith the ABA Committee would present formidable constitutional difficulties is\nundeniable.\xe2\x80\x9d 4 Id. at 466.\nA recent Supreme Court case that applied the clear statement rule in protecting\nthe constitutional separation of powers is Sale v. Haitian Centers Council, 509\nU.S. 155 (1993). This case dealt with the extraterritorial application of the Refugee\nAct.5 Prior to 1980, the act provided that the Attorney General was \xe2\x80\x9c authorized\nto withhold deportation of any alien within the United States\xe2\x80\x9d who was a refugee.6\nIn 1980, the statute was amended to delete the \xe2\x80\x9c within the United States\xe2\x80\x9d lan\xc2\xad\nguage and to make it mandatory that the Attorney General not deport the refugee.7\nThe petitioners, an organization advocating on behalf of Haitian refugees, plau\xc2\xad\nsibly argued that, by deleting \xe2\x80\x9c within the United States,\xe2\x80\x9d Congress plainly meant\nto give the act extraterritorial application. See id. at 170. The Court rejected this\nargument, holding that \xe2\x80\x9c Acts o f Congress normally do not have extraterritorial\napplication unless such an intent is clearly manifested. That presumption has spe\xc2\xad\ncial force when we are construing treaty and statutory provisions that may involve\nforeign and military affairs for which the President has unique responsibility.\xe2\x80\x9d\nId. at 188.8\nSale is but another example o f the clear statement principle: Statutes will be\nread to exclude what they do not explicitly include when the inclusionary reading\nwould involve a possible conflict with the President\xe2\x80\x99s unique responsibilities, so\nas potentially to upset the constitutional balance of powers. The President\xe2\x80\x99s con\xc2\xad\nstitutional appointment power, expressly assigned to him and him alone in Article\nII, is similarly a unique responsibility of the President, one that has been recently\n4 The three concurring justices reached the merits and found that application o f the FACA would violate the\nAppointments Clause (as opposed to raising a serious question). 491 U.S. at 482-89 (Kennedy, J., concurring).\n\xe2\x80\x99 Refugee Act o f 1980, Pub. L. No. 9 6 -2 1 2 ,9 4 Stat. 102, 107.\n6 Im m igration and N ationality Act of 1952, Pub. L. No. 82-414, \xc2\xa7243(h), 66 Stat. 163, 214 (1952) (emphasis\nadded).\n7 Pub. L. No. 96 -2 1 2 , \xc2\xa7203(e), 94 Stat. at 107.\n8 To the sam e effect, see American Foreign Serv. Ass\xe2\x80\x99n v. Garfinkel, 490 U.S. 153, 161 (1989).\n\n354\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\ntermed a \xe2\x80\x9c central feature\xe2\x80\x9d of the President\xe2\x80\x99s constitutional role under Article II.\nFreytag v. Commissioner, 501 U.S. 868, 902 (1991) (Scalia, J., concurring).\nIn addition to the numerous Supreme Court precedents,9 this Department has\nfrequently applied the clear statement rule in the context of the separation of\npowers between the executive and legislative branches. For example, we applied\nthis rule to a closely analogous question. We were asked whether the Age\nDiscrimination in Employment Act, 29 U.S.C. \xc2\xa7\xc2\xa7621-634 (\xe2\x80\x9c ADEA\xe2\x80\x9d ), prohibits\nthe President from considering the age of judicial candidates when determining\nwhom to nominate for federal judgeships. See Judges\xe2\x80\x94 Appointment\xe2\x80\x94 Age\nFactor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be\nread to apply to the presidential appointment of federal judges:\nThe power to appoint Federal judges, who hold office on good\nbehavior, is by tradition and design one of the most significant\npowers given by the Constitution to the President. It provides one\nof the few administrative mechanisms through which the President\ncan exert a long-term influence over the development and adminis\xc2\xad\ntration of law in the courts. The President\xe2\x80\x99s present power to exert\nthat influence to the fullest by preferring candidates for appointment\nwho are likely to have long, rather than short, careers on the bench\nis therefore a matter of constitutional significance. Whether Con\xc2\xad\ngress could deny the President that power by requiring him to dis\xc2\xad\nregard utterly the age of candidates for appointment has never been\nconsidered by the courts, but because of the gravity of the constitu\xc2\xad\ntional questions it raises, we would be most reluctant to construe\nany statute as an attempt to regulate the President\xe2\x80\x99s choice in that\nway, absent a very clear indication in the [ADEA].\nId. at 389.\nIn another important instance, Congress sought to apply the criminal contempt\nof Congress statute against the administrator of the Environmental Protection\nAgency when she asserted a claim of executive privilege on behalf of the Presi\xc2\xad\ndent. That statute has a broad formulation that is similar to the formulation of\n\xc2\xa7458. Specifically, it applies to \xe2\x80\x9c [e]very person who ha[s] been summoned as\na witness by the authority of either House of Congress to give testimony or to\nproduce papers.\xe2\x80\x9d 2 U.S.C. \xc2\xa7 192.\n9 The foregoing discussion analyzes only a sample o f these precedents. Nixon v. Fitzgerald , 457 U.S. 731 (1982),\nis yet another such example. A former executive branch employee brought a variety o f claims against former President\nNixon arising from the em ployee\'s termination. The Court held that the President was immune from suit because\nCongress had failed to create a cause o f action expressly against the President o f the United States, stating 44[w]e\nconsider this immunity a functionally mandated incident of the President\'s unique office, rooted in the constitutional\ntradition o f the separation o f powers and supported by our history.\xe2\x80\x9d Id. at 749; see also id. at 748 & n.27. Other\nexamples include United States ex rel. French v Weeks, 259 U.S. 326, 332 (1922), and Tenney v. Brandhove, 341\nU.S. 367, 376(1951).\n\n355\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nWe concluded that, despite the broad language, the criminal contempt of Con\xc2\xad\ngress statute does not apply to the President or presidential subordinates who assert\nexecutive privilege. See Prosecution fo r Contempt o f Congress o f an Executive\nBranch Official Who Has Asserted a Claim o f Executive Privilege, 8 Op. O.L.C.\n101 (1984). First, we examined the legislative history o f the contempt statute and\ndetermined that nothing in that history expressed an intent to apply the statute\nin the context of assertions of executive privilege. Id. at 129-32. We then cited\nthe general rule that statutes are to be construed to avoid serious constitutional\nquestions and further elaborated that, \xe2\x80\x9c [w]hen a possible conflict with the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional prerogatives is involved, the courts are even more careful\nto construe statutes to avoid a constitutional confrontation.\xe2\x80\x9d Id. at 132. We then\ndiscussed how application of the contempt statute against an assertion of executive\nprivilege would seriously disrupt the balance between the President and Congress.\nBecause Congress had no \xe2\x80\x9c compelling need\xe2\x80\x9d to create this disruption, \xe2\x80\x9c the con\xc2\xad\nstitutionally mandated separation of powers requires the statute to be interpreted\nso as not to apply to Presidential assertions o f executive privilege.\xe2\x80\x9d Id. at 140.\nThen-Assistant Attorney General William Barr opined that the Anti-Lobbying\nAct, 18 U.S.C. \xc2\xa71913, does not apply fully against the President. See Constraints\nImposed by 18 U.S.C. \xc2\xa71913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-06\n(1989). The Anti-Lobbying Act prohibits any appropriated funds from being \xe2\x80\x9c used\ndirectly or indirectly to pay for any personal service, advertisement, telegram, tele\xc2\xad\nphone, letter, printed or written matter, or other device, intended or designed to\ninfluence in any manner a Member of Congress.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1913. The statute\nprovided an exception for communications by executive branch officers and\nemployees if the communication was made pursuant to a request by a member\nof Congress or was a request to Congress for legislation or appropriations. Assist\xc2\xad\nant Attorney General Barr concluded that applying the Act as broadly as its terms\nmight otherwise allow would raise serious constitutional questions as an infringe\xc2\xad\nment of the President\xe2\x80\x99s Recommendations Clause power.\nIt is also the long-standing position of the Department of Justice that 18 U.S.C\n\xc2\xa7208 does not apply to the President. That statute prohibits any \xe2\x80\x9c officer or\nemployee of the executive branch\xe2\x80\x9d from \xe2\x80\x9c participat[ing] personally and substan\xc2\xad\ntially\xe2\x80\x9d in any particular matter in which he or she has a personal financial interest.\nId. In the leading opinion on the matter, then-Deputy Attorney General Laurence\nSilberman first determined that the legislative history disclosed no intention to\ncover the President and doing so would raise \xe2\x80\x9c [s]ome doubt . . . as to the con\xc2\xad\nstitutionality\xe2\x80\x99 \xe2\x80\x99 of the statute, because the effect o f applying the statute to the Presi\xc2\xad\ndent would be to impose a qualification on his serving as President. See Memo\xc2\xad\nrandum for Richard T. Burress, Office of the President, from Laurence H. Silber\xc2\xad\nman, Deputy Attorney General, Re: Conflict o f Interest Problems Arising out o f\nthe President\xe2\x80\x99s Nomination of Nelson A. Rockefeller to be Vice President under\nthe Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974).\n\n356\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\nIn the Rehnquist Memorandum, we considered a statute the text of which is\nsimilar to \xc2\xa7458. 5 U.S.C. \xc2\xa76105 provides that, \xe2\x80\x9c [a]n Executive department may\nnot be closed as a mark to the memory of a deceased former official of the United\nStates.\xe2\x80\x9d Then-Assistant Attorney General William Rehnquist first reviewed the\nlegislative history and determined that there was nothing to indicate that Congress\nmeant to prohibit the President from closing a department as a mark to the\nmemory of a deceased former official and that instead the purpose of the act\nwas to prevent department heads from closing their departments. He then noted\nthe general rule that statutes \xe2\x80\x9c are construed not to include the President unless\nthere is a specific indication that Congress intended to cover the Chief Executive.\xe2\x80\x9d\nRehnquist Memorandum at 3.\nIn summary, there are numerous precedents of the Supreme Court as well as\nof the Department of Justice 10 holding that a statute that does not by its express\nterms apply to the President may not be applied to the President if doing so would\nraise a serious question under the separation of powers.11 We believe there to\nbe no dispute that such a serious question would be raised were \xc2\xa7458 read to\napply to presidential appointments to the federal judiciary. In the next section\nwe amplify on the reasons for that conclusion.\n\nB\nCongressional attempts to limit the class of persons from whom the President\nmay appoint the highest officers of the government, including judges, raise serious\nconstitutional concerns. The Appointments Clause provides that the President\n10 Again, the foregoing discussion covers a small sample o f the Department\xe2\x80\x99s applications o f this principle. Other\nsignificant examples include: The President\'s Compliance with the \'Timely Notification\xe2\x80\x99 Requirement o f Section\n501(b) o f the National Security Act, 10 Op. O.L.C. 159 (1986); Inter-Departmental Disclosure o f Information Sub\xc2\xad\nmitted under the Shipping Act o f 1984, 9 Op. O.L.C. 48 (1985); Removal o f Members o f the Advisory Council\non Historic Preservation, 6 Op. O.L.C. 180, 185 n.7 (1982).\n11 The clear statement principle we have identified does not apply with respect to a statute that raises no separation\nof powers questions were it to be applied to the President. So, for instance, the Department o f Justice has construed\nthe federal bribery statute as applying to the President even though it does not expressly name the President. Memo\xc2\xad\nrandum for Laurence H. Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General,\nOffice of Legal Counsel, Re: Whether Governor Rockefeller, I f Appointed as Vice President, Is Required to Execute\na Blind Trust in Order to Avoid Possible Violation o f 18 U.S.C. \xc2\xa7208 at 2 (Aug. 20, 1974). 18 U.S.C \xc2\xa7201 establishes\nthat \xe2\x80\x9c (w]hoever, being a public official\xe2\x80\x9d receives a bribe commits a criminal offense. Id. \xc2\xa7201(c)(l)(B ). \xe2\x80\x9c Public\nofficial\xe2\x80\x9d is defined as a \xe2\x80\x9c M ember o f Congress, Delegate, or Resident Commissioner, either before or after such\nofficial has qualified, o r an officer o r employee o r person acting for or on behalf of the United States . . . in\nany official function . . . . * \xe2\x80\x99 Id. \xc2\xa720 1 (a)(l). Application of \xc2\xa7201 raises no separation of powers question, let alone\na serious one. The Constitution confers no power in the President to receive bribes; in fact, it specifically forbids\nany increase in the President\xe2\x80\x99s compensation for his service while he is in office, which is what a bribe would\nfunction to do. See U.S. Const, art. II, \xc2\xa7 1, cl. 7. Moreover, the Constitution expressly authorizes Congress to impeach\nthe President for, inter alia, bribery. Id. \xc2\xa74. The Constitution further provides that any party impeached and convicted\nmay \xe2\x80\x9c nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to L aw .\xe2\x80\x9d Id.\nart. I, \xc2\xa73. We also opined that the Federal Advisory Committee Act applies to the Department of Justice Journal\nBoard, because this application raises no separation o f powers concerns. See Application o f Federal Advisory Com\xc2\xad\nmittee Act to Editorial Board o f Department o f Justice Journal, 14 Op. O.L.C. 53 (1990).\n\n357\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 19\n\nshall nominate, and by and with the Advice and Consent of the\nSenate, shall appoint Ambassadors, other Public Ministers and Con\xc2\xad\nsuls, Judges o f the supreme Court, and all other Officers of the\nUnited States . . . but the Congress may by Law vest the Appoint\xc2\xad\nment o f such inferior Officers, as they think proper, in the President\nalone, in the Courts of Law, or in the Heads of Departments.\nU.S. Const, art. II, \xc2\xa72, cl. 2. Because the Constitution gives the President alone\nthe power to nominate non-inferior officers o f the United States, any attempt by\nCongress to restrict his choice of nominees, otherwise than by the Senate\xe2\x80\x99s\nrefusing its consent to a nomination, is questionable under the Constitution. We\nhasten to add that we do not take a final position on the difficult question of\nwhether, and under what circumstances, Congress has authority to impose a quali\xc2\xad\nfication requirement on a constitutional office. It is sufficient for the purposes\nof this memorandum to demonstrate that applying a restriction such as that con\xc2\xad\ntained in \xc2\xa7 458 to presidential appointment of federal judges would at a minimum\nraise a serious constitutional question. This office has not had the occasion to\nopine on this issue, and we cite previous statements for the sole purpose of dem\xc2\xad\nonstrating the difficulty and seriousness of the questions that the issue raises.\nAs the United States Court o f Appeals for the District of Columbia Circuit\nrecently wrote, \xe2\x80\x9c Congressional limitations\xe2\x80\x94 even the placement of burdens \xe2\x80\x94 on\nthe President\xe2\x80\x99s appointment power may raise serious constitutional questions. . . .\nPresidents have often viewed restrictions on their appointment power not to be\nlegally binding.\xe2\x80\x9d Federal Election Comm\xe2\x80\x99n v. NRA Political Victory Fund, 6 F.3d\n821, 824 (D.C. Cir. 1993) (Silberman, J.), cert, dismissed, 513 U.S. 88 (1994).\nTo support this conclusion, the court cited, as examples, statements issued by\nPresident Bush upon signing various pieces of legislation. See Statement on\nSigning the Cranston-Gonzalez National Affordable Housing Act, 2 Pub. Papers\nof George Bush 1699, 1701 (Nov. 28, 1990) ( \xe2\x80\x9c National Affordable Housing Act\nStatement\xe2\x80\x9d ); Statement on Signing the National and Community Service Act of\n1990, 2 Pub. Papers of George Bush 1613, 1614 (Nov. 16, 1990); Statement on\nSigning the Intelligence Authorization Act, Fiscal Year 1990, 2 Pub. Papers of\nGeorge Bush 1609, 1610 (Nov. 30, 1989). President Bush asserted, for example,\nthat limitations set out in legislation \xe2\x80\x9c do[] not constrain the President\xe2\x80\x99s constitu\xc2\xad\ntional authority to appoint officers o f the United States, subject only to the advice\nand consent o f the Senate.\xe2\x80\x9d National Affordable Housing Act Statement at 1701,\nquoted in part in NRA Political Victory Fund, 6 F.3d at 824-25.12\n12The position taken by President Bush w as based on the principles set out in Justice Kennedy\xe2\x80\x99s concurring\nopinion in Public Citizen v. United States Dep\xe2\x80\x99t o f Justice, 491 U.S. 440 (1989), joined by C hief Justice Rehnquist\nand Justice O \xe2\x80\x99Connor. \xe2\x80\x9c By its term s,\xe2\x80\x9d Justice K ennedy wrote, \xe2\x80\x9c the [Appointments] Clause divides the appointment\npower into tw o separate spheres: the President\'s pow er to \'nom inate,\xe2\x80\x99 and the Senate\xe2\x80\x99s pow er to give or withhold\nits \xe2\x80\x98Advice and Consent.\xe2\x80\x99 No role whatsoever is given either to the Senate or to Congress as a whole in the process\nof choosing the person who will be nominated fo r appointment.\xe2\x80\x9d Id. at 483. Furthermore, \xe2\x80\x9c where the Constitution\nby explicit text commits the pow er at issue to th e exclusive control o f the President, we have refused to tolerate\n\n358\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\nThere has been a particular concern about applying qualifications for appoint\xc2\xad\nments o f Article III judges. In 1979, for example, our Office rejected the argument\nthat the ADEA applied to the President\xe2\x80\x99s choice of nominees for judgeships.\nJudges\xe2\x80\x94 Appointment\xe2\x80\x94 Age Factor, 3 Op. O.L.C. 388 (1979). We there accepted\nthat Congress might impose some qualifications on some constitutional offices,\nbut nevertheless noted that applying the ADEA to judicial nominations would\nconstrain the President\xe2\x80\x99s ability to exercise a long-term influence on the develop\xc2\xad\nment of the law. We concluded that, \xe2\x80\x9c because o f the gravity of the constitutional\nquestions [a requirement to ignore the age of potential nominees] raises, we would\nbe most reluctant to construe any statute as an attempt to regulate the President\xe2\x80\x99s\nchoice in that way.\xe2\x80\x9d Id. at 389. As we stressed, \xe2\x80\x9c [t]he power to appoint Federal\njudges, who hold office on good behavior, is by tradition and design one o f the\nmost significant powers given by the Constitution to the President.\xe2\x80\x9d Id.\nThe Constitution vests in the President the power to nominate judges and vests\nin the Senate the power to give, or refuse, its advice and consent to the nomina\xc2\xad\ntions. Without taking a position on whether, and under what circumstances, Con\xc2\xad\ngress has authority to impose qualification requirements on constitutional offices,\nit is clear that, if a Congress tried to bind future Presidents and future Senates\nby imposing statutory constraints on eligibility, such legislation would raise\nserious constitutional questions.\n\nn\nThe clear statement rule settles the meaning of \xc2\xa7458. Section 458 does not\napply to presidential appointments of federal judges. Even without applying this\nconstitutionally based principle, however, analysis of the text of \xc2\xa7 458, its prede\xc2\xad\ncessor, and the text of the Act of 1911 taken as a whole, establishes the same\nresult. That result is further supported by every available piece of contempora\xc2\xad\nneous, extra-statutory evidence of the understanding of members o f Congress, as\nwell as by a consistent practice of non-application of the statute to the appointment\nof federal judges. In this part, we discuss the meaning of \xc2\xa7458 as it might be\nascertained on the face of the statutes themselves, without reference to the clear\nstatement principle. In the subsequent part, we review the contemporaneous\ncongressional understandings of the statute\xe2\x80\x99s meaning. Finally, we review some\nof the instances in which related persons within the meaning of the statute have\nbeen appointed to the federal bench by the President.\nAs indicated earlier, the present statute appears to have originated as Act of\nMar. 3, 1887, ch. 373, \xc2\xa77, 24 Stat. 552, 555. In its original form, the provision\nstated that:\nany intrusion by the Legislative Branch.\xe2\x80\x9d Id. at 485. With regard to the highest officers of the government, therefore,\nthe President \xe2\x80\x9c has the sole responsibility\xe2\x80\x9d for making nominations, id. at 487, and Congress may not intrude.\n\n359\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 19\n\nno person related to any justice or judge of any court of the United\nStates by affinity or consanguinity, within the degree of first cousin,\nshall hereafter be appointed by such court or judge to or employed\nby such court or judge in any office or duty in any court of which\nsuch justice or judge may be a member.\nId. (emphasis added). In that version, the statute referred specifically to appoint\xc2\xad\nments by the courts or judges, and could not be understood to encompass presi\xc2\xad\ndential appointments as well. In our constitutional scheme, judicial appointments\nare not made by judges, but rather have always been vested in the President with\nthe advice and consent of the Senate.\nThe statute was next codified as Act of Aug. 13, 1888, ch. 866, \xc2\xa77, 25 Stat.\n433, 437. In that form too, it prohibited only the appointment of any person related\nto any federal justice or judge within the degree of first cousin \xe2\x80\x9c by such court\nor judge.\xe2\x80\x9d\nThis provision was repealed by the Act o f Mar. 3, 1911, ch. 231, \xc2\xa7297, 36\nStat. 1087, 1168.13 The language substituted for the repealed provision did not,\nin terms, refer only to appointment \xe2\x80\x9c by such court or judge.\xe2\x80\x9d Instead, it stated:\nNo person shall be appointed to or employed in any office or duty\nin any court who is related by affinity or consanguinity within the\ndegree o f first cousin to the judge of such court.\nId. \xc2\xa767, 36 Stat. at 1105.\nThe repeal and re-enactment in 1911 left the description of the offices or duties\nto which related persons may not be appointed unchanged. It did alter the descrip\xc2\xad\ntion of the persons who may not make such appointments. Whereas prior to 1911\nonly a \xe2\x80\x9c court or judge\xe2\x80\x9d was prohibited from appointing related persons to such\noffices or duties, after 1911, the prohibition was simply that no related person\ncould be appointed to such offices or duties. The evident purpose of the change\nwas to remove an obvious loophole. Prior to 1911, the clerk of court, or the chief\nbailiff, or the chief stenographer, or any other official who worked in a court\ncould appoint relatives o f sitting judges to positions on his or her staff, without\n13The A ct o f Mar. 3, 1911, was designed to restructure the federal judicial system. A s Senator, later Justice,\nSutherland explained, the legislation was:\nfram ed upon the theory that we shall hereafter have but one court o f original jurisdiction, instead o f two,\nas w e have at present . . . . [W]e have to-day two separate and distinct courts of jurisdiction\xe2\x80\x94 a circuit\ncourt o f the U nited States and a district co u rt o f the U nited States. Jurisdiction has been conferred upon\nthe district court in a class o f cases which m ight as well have been conferred upon the circuit court and\njurisdiction has been conferred upon the circu it court which might as well have been conferred upon the\ndistrict court . . . . There is absolutely n o reason why the circuit court should possess a certain class\no f jurisdiction rather than that it should b e possessed by the district court. The vital thing is to have a\ncourt o f original jurisdiction for the trial o f cases, and then a court o f appellate jurisdiction, which may\nreview the decisions o f the trial court\n46 C ong. Rec. 2137 (1911).\n\n360\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges\n\nviolating the statute. Because such individuals as these might possibly be suscep\xc2\xad\ntible to influence by sitting judges, the predecessor statute seemed to permit an\nevasion of the statute\xe2\x80\x99s anti-nepotistical purposes through the expedient of having\na non-judge who worked in the court appoint a judge\xe2\x80\x99s relative.\nBeyond closing this appointment loophole, the statute remained otherwise intact.\nBecause the language of the statute describing the offices or duties to which\nrelated persons may not be appointed remained the same, no change was made\nin the class of offices or duties covered by the statute \xe2\x80\x94 a class that at no time\nincluded judges.\nThis conclusion is reinforced by a rule of construction that was written into\nthe Act of 1911 itself, which reads as follows:\n[t]he provisions of this Act, so far as they are substantially the same\nas existing statutes, shall be construed as continuations thereof, and\nnot as new enactments, and there shall be no implication of a\nchange o f intent by reason o f a change of words in such statute,\nunless such change of intent shall be clearly manifest.\nId. \xc2\xa7294, 36 Stat. at 1167.\nWith respect to its description of the offices or duties to which related persons\nmay not be appointed, section 297 of the Act is \xe2\x80\x9c substantially the same\xe2\x80\x9d as prior\nlaw. Nor is any \xe2\x80\x9c change of intent . . . clearly manifest\xe2\x80\x9d by reason of the lin\xc2\xad\nguistic change from the earlier provision. Accordingly, following the rule of\nconstruction set forth in the statute itself, we find that it does not vary prior law \xe2\x80\x94\njudgeships were not in that class prior to 1911, and they are not in that class\nsubsequent to 1911.14\n\n14 We note that our reading does not violate the maxim o f statutory construction that words in a statute should\nnot be construed so as to render them meaningless. It is true that the vast majority o f the positions to which \xc2\xa7458\napplies are \xe2\x80\x9c em ploym ents\xe2\x80\x9d rather than \xe2\x80\x9c offices.\xe2\x80\x9d For a discussion o f the difference between an employment and\nan office, see Untied Slates v. Hartwell, 73 U.S. (6 Wall.) 385 (1867); United States v. Germaine, 99 U.S. 508\n(1878); United Slates v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C ircuit Justice). Never\xc2\xad\ntheless, the Supreme Court long ago concluded that the clerk o f a district court is an officer in the constitutional\nsense, Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839), and has recently reaffirmed that view, see Morrison v. Olson,\n487 U.S. 654 (1988). This office has traditionally been filled by an appointment \xe2\x80\x9c by [a] couit[] o f law,\xe2\x80\x9d specifically\nby the chief judge o f the relevant district o r circuit. We believe that the provision would continue to apply to appoint\xc2\xad\nments to the office o f clerk by a federal judge.\nWe also note that our view avoids a serious question regarding the legality o f the recent designation o f District\nJudge Gordon Thompson, Jr., to sit by designation on a panel o f the United States Court o f Appeals for the Ninth\nCircuit with his brother. Judge David Thompson. See Howard Mintz, Nepotism Law Threatens Nomination; Mother\nand Child Reunion on Bench?, Legal Times, Dec. 11, 1995, at 8. Because we do not believe that \xc2\xa7458 applies\nto the office o f judge, it is o u r conclusion that Chief Judge J. Clifford W allace could not have violated \xc2\xa7 4 5 8 by\nexercising his authority under 28 U.S.C \xc2\xa7 292(a) to designate District Judge Thompson to sit as a Judge on a Ninth\nCircuit panel with his brother.\n\n361\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nin\nWe have reviewed the legislative debate over the Act of 1911, and have found\nno evidence that the textual alteration of the earlier statutory language was\nintended to work any change in the class of offices or duties covered, and certainly\nnone that it was meant to reach presidential appointments to the federal bench.\nMoreover, contemporaneous and near contemporaneous evidence of Congress\xe2\x80\x99s\nown understanding clearly substantiates that Congress did not intend to extend\nthe scope of the earlier prohibition to include judicial appointments by the Presi\xc2\xad\ndent. Section 297 of the Act of Mar. 3, 1911, was to go into effect on January\n1, 1912, abolishing the circuit courts and causing the district courts to succeed\nthem, so that clerks would have to be appointed for the district courts. Shortly\nbefore the law went into effect, it was pointed out in Congress that these changes\n\xe2\x80\x9c would prevent any man who is related within certain degree by affinity or con\xc2\xad\nsanguinity to the district judge from being appointed clerk.\xe2\x80\x9d 48 Cong. Rec. 309\n(1911) (remarks of Rep. Clayton). Thus, even incumbents who had not been\nappointed to circuit court clerkships by judicial relatives would be ineligible to\nbe appointed to clerkships in the succeeding district courts if it happened that\ntheir close relatives sat on those district courts. Several members of Congress\nobjected to that unforeseen and unintended outcome. Legislation was introduced,\nand eventually adopted, to \xe2\x80\x9cgrandfather in\xe2\x80\x9d such incumbents.15\nIn the course of the House debate on this amendatory measure, several members\nadverted to the prohibition of the then-recent prior law. Congressman Mann\ndescribed section 297 as \xe2\x80\x9c providing that the judge o f the Federal court shall not\nbe permitted to appoint his first cousin an officer o f the court . . . . It should\nbe the policy of the country to uphold the dignity o f the Federal bench, to guard\nagainst the possibility o f favoritism on the part o f the judges because of close\nkinship.\xe2\x80\x9d 48 Cong. Rec. at 310 (remarks of Rep. Mann) (emphasis added). Simi\xc2\xad\nlarly, in colloquy, Mr. Hardy asked if the proposed amendment \xe2\x80\x9c opposes the\nappointment o f relatives by public officials?\xe2\x80\x9d , and Mr. Bartlett, referring to sec\xc2\xad\ntion 297, responded that \xe2\x80\x9c [t]he original section, I apprehend, had that purpose\nin view.\xe2\x80\x9d Id. Plainly, then, the members of the House interested in the amendment\nin the December 1911 debate understood that the March 1911 enactment had only\nrestricted the power o f judges to appoint their near kin to positions with their\ncourts. Although these remarks occurred after the enactment of section 297, they\nwere made only a few months after that section had become law, and thus provide\nuseful evidence of what the enacting Congress intended by it.\nLater codifications carried forward the language adopted in 1911, with changes\nnot relevant here. See Act of June 25, 1948, ch. 646, \xc2\xa7458, 62 Stat. 869, 908;\n15 See Act o f Dec. 21, 1911, ch. 4, 37 Stat. 46 ( \xe2\x80\x9c [N]o such person at present holding a position or employment\nin a circuit court shall be debarred from sim ilar appointment or em ployment in the district court succeeding to\nsuch circuit court jurisdiction.\xe2\x80\x9d ).\n\n362\n\n\x0cApplication o f 28 U.S.C. \xc2\xa7 458 to Presidential Appointments o f Federal Judges\n\nH.R. Rep. No. 80-308, at A55 (1947). In light of this legislative history, we see\nno reason to suppose that Congress ever intended to do more than to make fully\neffective the original prohibition against nepotistical appointments by judges, and\nthat the sole function of the change of 1911 was to close a loophole in the original\nstatutory scheme.\n\nrv\nFinally, we note that the consistent practice since the present version of \xc2\xa7458\nwas enacted in 1911 has been to construe the statute as not applying to presidential\nappointments. On at least three occasions since 1911, the President has appointed\nand the Senate has confirmed relatives within the statutory degree of consanguinity\nto the same court. In 1914, President Woodrow Wilson, just three years after\nthe enactment of \xc2\xa7458 in its present form, appointed Augustus Hand to be a\nDistrict Judge for the Southern District of New York, even though his first cousin,\nLearned Hand, had been a District Judge of that court since 1909. In 1927, Presi\xc2\xad\ndent Coolidge elevated Judge Augustus Hand to be a Circuit Judge on the United\nStates Court of Appeals for the Second Circuit, even though Judge Learned Hand\nhad been appointed to that court three years earlier. More recently, in 1992, Presi\xc2\xad\ndent Bush appointed and the Senate confirmed Judge Morris Arnold to be a Circuit\nJudge on the United States Court of Appeals for the Eighth Circuit, although his\nbrother, Judge Richard Arnold, was already a member of that body.\nIn addition, if the practical construction of \xc2\xa7458 by the President and the Senate\nwere to hold that it applies to presidential appointments, there would be a signifi\xc2\xad\ncant question as to the validity of a number of appointments where one relative\nserved on an appeals court while another served on a district court. Specifically,\nit is not clear whether, for purposes of \xc2\xa7458, a district court is a component\nof the court of appeals for the circuit in which the district is located. Most recently,\nDiana Motz was confirmed and appointed to the United States Court of Appeals\nfor the Fourth Circuit in 1994, while her husband, Frederick Motz, was a judge\nfor the District of Maryland.\nWe are not aware of anyone ever proposing that \xc2\xa7458 applies to presidential\nappointments of federal judges. In this light, applying \xc2\xa7458 to presidential\nappointments of federal judges would represent a novel construction of the statute.\nWe do not reject this construction, however, because it is novel. We reject it\nbecause it is contrary to the statute\xe2\x80\x99s language, structure, and purpose, as well\nas the consistent practice under that statute from the date of its enactment.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n363\n\n\x0c'


b'Employment Status of \xe2\x80\x9cVolunteers\xe2\x80\x9d Connected with\nFederal Advisory Committees\nT he D epartm ent o f C om m erce may em ploy volunteers as consultants to the P resident\xe2\x80\x99s Task Force on\nPrivate S ector Initiatives pursuant to 5 U .S .C . \xc2\xa7 3109, as long as the services involved are\ntem porary o r interm ittent, and purely advisory in nature. It m ust also be clearly understood that\nsuch volunteers expect no governm ental com pensation.\nFederal agencies ordinarily may not accept voluntary services or other donations in the absence of\nexpress statutory authority, and volunteers should not in any case be used on a broad scale or to\naccom plish tasks ordinarily perform ed by paid governm ent em ployees.\n\nFebruary 25, 1982\nM EM O RA N D U M OPINION FO R THE COUNSEL TO TH E PRESIDENT\nM em bers of your staff have asked us for advice concerning the employment\nstatus of persons who volunteer to assist a federal advisory committee. We have\nbeen given m aterials describing the President\xe2\x80\x99s Task Force on Private Sector\nInitiatives (Task Force), an advisory com mittee created by Executive Order No.\n12329, 46 Fed. Reg. 50919 (1981), and we have been asked to comment\nspecifically on the propriety of accepting certain donations and voluntary serv\xc2\xad\nices in this context. We conclude that, subject to the specific limitations described\nbelow, voluntary services of consultants and other donations may be accepted by\nthe governm ent to assist this advisory com m ittee.\n\nBackground\nThe Task Force was established in accordance with the provisions of the\nFederal Advisory Committee A ct, as amended (5 U .S .C . App. I), to advise the\nPresident and the Secretary o f Commerce concerning methods of promoting\nprivate sector activities designed to meet public needs, and to serve as a focal\npoint for such private sector initiatives. See Exec. O rder No. 12329, \xc2\xa7\xc2\xa7 1 and 2.\nThe m em bership of the Task Force consists of both private citizens and public\nofficials from the federal, state, and local governments. Id. at \xc2\xa7 1. M embers of\nthe Task Force serve without com pensation, but the government may pay their\nexpenses pursuant to 5 U.S.C. \xc2\xa7\xc2\xa7 5701-5707. Id. at \xc2\xa7 3(b). The Departm ent of\nCom m erce is responsible for providing the Task Force with \xe2\x80\x9c such administrative\n160\n\n\x0cservices, funds, facilities, staff, and other support services as may be necessary\nfor the effective performance of its functions.\xe2\x80\x9d Id. at \xc2\xa7 3(c).1\nIn addition to staff provided by the Department of Com m erce,2 the Task Force\nwould be \xe2\x80\x9c loaned\xe2\x80\x9d personnel from various corporations or other private en\xc2\xad\ntities,3 and it would receive donations and loans of equipment from such private\nsources.4 One corporation also has proposed to contribute the salary of another\nTask Force employee by donating money to a charitable organization5 that would\ncompensate the \xe2\x80\x9c em ployee\xe2\x80\x9d directly for his services to the Task Force.\n\nDiscussion\nA. Personnel\n(1)\nVoluntary Service. The Federal Advisory Committee Act provides that the\nD irector of the O ffice o f M anagem ent and B udget (OM B) shall establish\nguidelines with respect to rates of pay for services of members, staffs, and\nconsultants o f advisory com m ittees. 5 U .S .C . App. I, \xc2\xa7 7(d). The O M B\nguidelines address the question of voluntary services as follows:\nThe provisions of this section [dealing with pay for members,\nstaff and consultants] shall not prevent an agency from accepting\nthe voluntary services of a member of an advisory comm ittee, or a\nm ember of the staff of an advisory com m ittee, provided that the\nagency has authority to accept such services without compensa\xc2\xad\ntion.\nOMB Circular No. A -6 3 , \xc2\xa7 11(d) at A -9 (1974).\nAs a general matter, federal agencies do not have the authority to accept\nvoluntary services. In fact, C ongress has expressly provided in the A ntiDeficiency Act that \xe2\x80\x9c [n]o officer or employee of the United States shall accept\nvoluntary service for the United States . . . except in cases of emergency\ninvolving the safety of human life or the protection of property.\xe2\x80\x9d 31 U .S.C .\n\xc2\xa7 665(b) (1976). In addition, employees may not waive a salary for which\nCongress has set a minimum. See, e.g., Glavey v. United States, 182 U .S. 595\n(1901).\n1 Travel and support services, o f co u rse, may be provided only to the extent otherw ise authorized by law, and\nsubject to the availability of funds. See \xc2\xa7\xc2\xa7 3(b) and 3(c) of E xec. O rder N o. 12329\n2 T h e C om m erce D epartm ent sta ff includes regular C om m erce D epartm ent em ployees w ho are assigned to assist\nthe Task Force, as well as em ployees hired specifically for the Task Force and paid with funds provided by the\nC o m m erce D epartm ent\n3 We understand that the " lo a n e d \xe2\x80\x9d personnel w ill serve the Task Force in eith er a full-tim e o r a part-tim e capacity,\nbut that they are all otherw ise em ployees of ihe donors. To date, the Task Force has been offered the services o f o ne\nperson from each o f the follow ing entities the A m erican Stock E xchange, RC A C orporation, A rm co S teel, A etna\nLife an d Casualty, and Call for A ction (a national volunteer netw ork).\n4 T h e donations in kind consist o f the follow ing: four typew riters (from IB M ), stationery (from M ead F^per\nC orporation), one A pple Com puter, w ord processing softw are, and one televideo CRT unit (from A rm co); an d a\no n e -y e a r loan o f a d u p licatin g m a ch in e, in c lu d in g free in s ta lla tio n , s e rv ic in g , and s u p p lie s (fro m X ero x\nC orporation)\n5 T h e organization w ould be exem pt from taxation under 26 U S C . \xc2\xa7 501(c)(3)\n\n161\n\n\x0cA lthough the interpretation o f \xc2\xa7 665(b) has not been entirely consistent over\nthe years, the weight of authority does support the view that the section was\nintended to elim inate subsequent claims against the United States for com pensa\xc2\xad\ntion o f the \xe2\x80\x9c volunteer,\xe2\x80\x9d rather than to deprive the government of the benefit of\ntruly gratuitous services.6 Section 665(b) accordingly has been read as a com \xc2\xad\nplete bar to subsequent compensation of a \xe2\x80\x9c volunteer,\xe2\x80\x9d and as an admonition to\nfederal agencies to reach an express understanding with such volunteers that they\nwill receive no government com pensation.7\nIn addition to the limitation o f liability rationale underlying \xc2\xa7 665(b), agencies\ncontem plating the acceptance o f volunteer services must also take account of the\nfact that an individual may not waive a salary for which Congress has fixed a\nm inim um . See, e.g., Glavey, supra. W hether this principle is expressed as a\nm atter of personnel management or unauthorized augmentation of appropria\xc2\xad\ntions, it has always been interpreted to limit the situations in which services may\nbe accepted.8\nT here are, however, discrete situations w here Congress has not set minimum\nsalaries for em ployees. For exam ple, there is no minimum salary set for persons\nem ployed as consultants pursuant to 5 U .S .C . \xc2\xa7 3109.9 Although consultants\nmay not be em ployed to perform \xe2\x80\x9c governmental functions,\xe2\x80\x9d and their services\nm ust be interm ittent o r temporary and limited to tasks of a purely advisory\nnature, it seem s likely to us that some of the Task Force staff positions would fit\nthis d escrip tio n .10 To the extent that individuals serving the Task Force work as\nconsultants, they may do so on a volunteer basis, so long as it is clear that they\nexpect no governm ental compensation. We understand that the Commerce D e\xc2\xad\npartm ent will require each \xe2\x80\x9c consultant volunteer\xe2\x80\x9d to execute a written waiver of\ncom pensation, which should be sufficient to protect the government from subse\xc2\xad\nquent salary claim s.\nWe should em phasize that o u r research on this subject has revealed a virtually\nunanim ous view that there is an avowed preference for paid government employ\xc2\xad\n6 T h e legislative history, as w ell as the ju d ic ia l and adm inistrative interpretations of \xc2\xa7 6 6 5 (b ) are d iscu ssed at\nsom e length in an o p in io n o f this Office dated M ay 25, 1976 You should refer to the 1976 o p in io n fo ra full analysis\no f the law o f voluntary serv ices. In this o p in io n , we will sim ply apply the prevailing interpretation of the law to the\nTask Force A dvisory C o m m ittee.\n7 O u r interpretation of \xc2\xa7 665(b) is bolstered by a subsequent congressional enactm ent perm itting federal\nem ployees w ho serve \xe2\x80\x9c w ithout com pensation\xe2\x80\x9d (W O Cs) to accep t a salary for their governm ent service from a\nso u rce outside th e governm ent See 18 U S C . \xc2\xa7 209. S ection 209 m akes n o reference in its text o r legislative\nh isto ry to a b ar on the acceptance of voluntary services by the governm ent, but it surely contem plates that th ere are\ncircu m stan c es w here the acceptance of uncom pensated service is prop er For a discussion o f voluntary services that\nhave been specifically authorized by C ongress, see Antitrust Subcommittee c f the House Comm, on the Judiciary,\n84th C o n g , 2d S ess , Interim Report o n W O C s and G overnm en t A dvisory G roups (C om m . P rint, 1956)\n(h erein afte r referred to as Interim Report). See also 5 U S C \xc2\xa7 3111 w hich specifically authorizes the acceptance of\nv o lu n teer services from students.\n8 See d iscu ssio n in o p in io n o f May 25, 1 9 7 6 , referred to in footnote 6 A s you know, m ost federal po sitio n s are\nco v e re d by the G en eral S alary (G S ) schedule, fo r w hich C ongress has set fixed m im m um s. See 5 U .S .C . \xc2\xa7 5101 et\nseq. W hile this fixed salary schedule actually exem pts persons w ho serve \xe2\x80\x9c w ithout co m p en satio n ,\xe2\x80\x9d 5 U S .C\n\xc2\xa7 5 1 0 2 (c) 13, the policy underlying the sch ed u les has been read to counsel against the use o f volunteers to\nacco m p lish ta sk s that w ould ordinarily be p erform ed by em ployees covered by the schedule\n9 A s w e have rece n tly advised y o u , there is a lso no m inim um salary set for certain em ployees o f the W hite H ouse\nstaff.\n10 See O M B C irc u lar A - 120 (1980) fo ra fu ll description of the lim itations on the use o f consultants We w ill leave\nit to the ju d g m e n t o f the C om m erce D epartm ent to determ ine w hich o f the Task Force sta ff positions may\nap propriately b e filled by consultants\n\n162\n\n\x0cment. See, e.g.. Interim Report, supra at 2 3 -9 . The express prohibition in\n\xc2\xa7 665(b) on the acceptance of voluntary services admittedly has caused some\nuncertainty about the propriety of uncompensated government service when such\nservice is not expressly authorized by statute." Although there is no express\nstatutory authorization for volunteer consultants to the Task Force, we are\ncomfortable with the position that the absence of a minimum salary level, and the\nnature of consultant services, make the use of volunteer consultants acceptable in\nthis context. We must advise caution, however, against the use of volunteers on a\nbroad scale or to accomplish tasks ordinarily performed by paid government\nem ployees.12\n(2)\nConflict of Interest. Having determined that it is appropriate as a general\nmatter for the Com merce Department to accept volunteer consultants to serve the\nTask Force, we next must determine the extent to which the conflict of interest\nstatutes and agency conduct regulations will apply to these volunteers. The\nFederal Personnel Manual (FPM), Ch. 735, App. C (1969), sets forth the\nprinciples for determ ining whether persons serving the government on a tem po\xc2\xad\nrary or intermittent basis are subject to the conflict of interest laws. Briefly, the\nFPM distinguishes between (1) persons \xe2\x80\x9c whose advice is obtained by an agency\n. . . because of [their] individual qualifications and who serve . . . in an inde\xc2\xad\npendent capacity\xe2\x80\x9d and (2) persons who are asked \xe2\x80\x9c to present the views of a non\xc2\xad\ngovernmental organization^] or group[s] which [they] represent, or for which\n[they are] in a position to speak.\xe2\x80\x9d FPM , App. C at p. C\xe2\x80\x944. The former category of\nindependent experts is deemed to be subject to the conflict of interest laws\nbecause their service to the government is expected to be impartial, and free from\noutside influence or control. The latter category of private representatives, on the\nother hand, is not subject to the conflict of interest laws because it is expected that\nsuch persons would be influenced by the private groups that they have been\nchosen to represent.13\nM For a discussion o f statutes w hich expressly authorize governm ent em ploym ent w ithout co m p en satio n , see\nInterim Report, supra at 120. See also 5 U S C . \xc2\xa7 3111\n12 See in particular. Interim Report, supra at 23 and A pp B , citing Executive O rder N o 10182 (Nov. 21, 1950)\n15 Fed. Reg 8013 w hich governed the use o f \xe2\x80\x9c W O C s\xe2\x80\x9d as authorized by the D efense Production A ct o f 1950. The\nExecutive O rder provides that\nSo far as possible, operations under the Act shall be ea rn e d on by full-tim e, salaried em ployees of\nthe G overnm ent, and appointm ents under this authority shall be to advisory or consultative positions\nonly.\nA ppointm ents to positions other than advisory o r consultative may be m ade u n d er this ord er only\nw hen the requirem ents o f the position are such that the incum bent m ust personally possess\noutstanding experience and ability not obtainable on a full-tim e, salaried basis.\nInterim Report. supra at 121.\n13 We have found that these FPM criteria are ordinarily the m ost useful standard to apply in determ ining w hether\nparticular persons w ho serve an advisory com m ittee are federal em ployees fo r purposes o f the conflict o f interest\nlaws T here are, however, other factors that m ay be relevant to such a determ ination. For exam ple, if a person\nperform s a governm ent function, recetves a governm ent salary, o r ts supervised directly by governm ent em ployees,\nit is likely that he w ill be deem ed a federal em ployee for other personnel purposes. See 5 U S C . \xc2\xa7 2105(a), and\nLodge 1858, AFG E v NASA, 424 F. Supp. 186 (D .D .C 1976) Sim ilarly, the Standards o f C o n d u ct for the\nC om m erce D epartm ent apply to \xe2\x80\x9c fejvery o th e r person w ho is retained, designated, appointed, o r em ployed b y a\nFederal officer or em ployee, w ho is engaged in the perform ance of a function o f the D epartm ent u n d er authority of\nlaw o r an Executive act, and w ho is subject to the supervision o f a Federal officer o r em ployee w hile engaged in the\nperform ance o f duties o f his position not only as to w hat he does but also as to how he perform s his d u ties, regardless\no f w hether the relationship to the D epartm ent is created by assignm ent, d etail, contract, agreem ent o r oth erw ise \xe2\x80\x9d\n1 5 C F .R \xc2\xa7 0 7 3 5 -4 (1981).\n\n163\n\n\x0cAlthough the m em bers of the Task Force may not be subject to the conflict of\ninterest laws under this formulation, members of the Task Force staff (i.e., the\nregular Com m erce Department employees or the staff hired with Commerce\nD epartm ent funds) would be subject to those statutes. Given our understanding\nof the Task Force and the role o f the consultant volunteers, we would be inclined\nto place the volunteers in the category of the staff employees who are fully subject\nto the conflict of interest law s. We reach this conclusion based upon our\nunderstanding that the volunteers will be performing impartial professional\nservices for the Task Force.14\nO ne conflict of interest issue will be especially significant to the Task Force\nvolunteers. As Com m erce Departm ent em ployees, the volunteers will be subject\nto rules governing outside compensation and gifts. While government employees\nserving without compensation are not prohibited by 18 U .S .C . \xc2\xa7 209 from\naccepting a salary from an outside source, they should not accept anything of\nvalue (including a salary) under circum stances that will create, or appear to\ncreate, a conflict o f interest. T he Commerce Departm ent Standards of Conduct\nprohibit em ployees from soliciting or accepting any compensation or other thing\nof value from a person who:\n(1) H as, or is seeking to obtain, contractual or other business or\nfinancial relations with the D epartm ent of Commerce;\n(2) Conducts operations or activities that are regulated by the\nD epartm ent of Commerce; or\n(3) Has interests that may be substantially affected by the\nperform ance o r nonperformance of the em ployee\xe2\x80\x99s official duty or\nby actions o f the Department.\n15 C .F.R . \xc2\xa7 0 .7 3 5 -1 1(a).\nThere is an exception to this rule when the acceptance of the compensation\nis determ ined by the head of the operating unit concerned to be\nnecessary and appropriate in view of the work of the Department\nand the duties and responsibilities of the employee.\n15 C .F.R . \xc2\xa7 0 .7 3 5 - 1 1(b)(5).\nWe are not in a position to give you a definitive interpretation of this regulation\nfor purposes o f the Task Force. W hile we would note the likelihood that a donor\nsuch as Arm co Steel has business relations with the Commerce Department, we\nare not aware o f any particular interest o f this donor in the work of the Task Force.\nThe Com m erce D epartm ent, therefore, may feel that it is appropriate to apply the\nabove-quoted exem ption to the situation of the \xe2\x80\x9c volunteer\xe2\x80\x9d from Armco. In this\nm anner each paym ent should be reviewed carefully and individually, and we will\n14\nS ince it appears that the volunteers will b e serving for m ore than 130 days, they w ill be subject to the conflict of\ninterest law s as regular, rather than special go vernm ent em ployees. A ppendix C o f the FPM sum m arizes the conflict\nstatutes as they apply to both regular and sp ecial governm ent em ployees. S pecific questions about the application of\nthese statutes o r the C om m erce D epartm ent Standards o f C onduct should be directed to the D esignated A gency\nE thics O fficial for that D epartm ent or the O ffice o f G overnm ent E thics.\n\n164\n\n\x0cdefer to the judgm ent of the Commerce Department about the propriety of\npayments in specific cases.15\nB. Equipment\nThe Secretary of Commerce has been given authority by Congress to accept\ngifts of property for the purpose of aiding or facilitating the work of that\nDepartment. See 15 U .S .C . \xc2\xa7 1522. In order to implement this authority, the\nSecretary has issued an Administrative Order (D A O -203-9), dated July 30,\n1965, governing the acceptance of gifts and bequests by the D epartm ent.16 We\nunderstand that the anticipated donation of supplies and equipment to the Task\nForce will b e processed by the Commerce Department pursuant to this order. You\nshould be aware that the order provides that gifts shall not be accepted unless they\nmeet specific conditions, which include the following:\n[the gift] would not involve in substance, or have the appearance\nof involving, personal benefit to an employee for or in con\xc2\xad\ntemplation of services to the donor.\nIts acceptance would not tend to result in public misunderstanding\nconcerning the ability of any Department employee to carry out\nhis official duties in a fair, independent, impartial, or objective\nmanner.\nIts acceptance would not compromise or appear to compromise\nthe honesty and integrity of departmental programs or of its\nemployees and their official actions or decisions.\nAdministrative Order at p. 2. We would interpret these conditions to suggest that\nthe Com m erce D epartm ent direct the same kind of attention to the identity of\ndonors as we described previously with regard to the volunteers.17\n\nConclusion\nFor the reasons discussed above, we conclude that it would be appropriate for\nthe Com m erce Department to accept \xe2\x80\x9c volunteer\xe2\x80\x9d consultants to assist the Task\nForce. These volunteer consultants may receive a salary from an outside source,\nso long as the salary payment does not otherwise create a conflict of interest.\n15 We d o not fully understand the reasons for the one proposed corporate paym ent to a volunteer through a taxexem pt organization. W hile we are not prepared to state unequivocally that such paym ent is im proper, we m ust\nexpress special concern about the advisability o f this proposal A t the least, we w ould note that the conflict o f interest\nregulations m ay not be circum vented by such a m echanism , both the corporation and the tax-exem pt organization\nshould be scrutinized as to any disqualifying conflicts.\n16 T he order expressly provides that it shall not govern the donation of personal services.\n17 You have not asked us for advice concerning the propriety of soliciting, as o pposed to accep tin g , don atio n s o f\np roperty o r services. Since we do not know whether, or in w hat manner, the Task Force w ould be so licitin g\nd o nations, we have not attem pted to address that issue in this m em orandum .\n\n165\n\n\x0cUnder similar standards, donations of equipment may be accepted on behalf of\nthe Task Force.\nT h e o d o r e B . O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n166\n\n\x0c'