b'Constitutionality of Pending Bills Restricting the\nWithdrawal of Public Land for National Defense\nPursuant to his constitutional powers as Commander in Chief, the President, particularly in time of war\nor national emergency, may have authority without the authorization of Congress to reserve and use\npublic lands for the training and deployment of the armed forces of the United States for national\ndefense purposes.\nIf the above is true, any attempted restriction of this authority by Congress would be an unconstitutional invasion of the President\xe2\x80\x99s authority as Commander in Chief.\n\nJuly 12, 1956\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nThis is in reply to your memorandum dated April 18, 1956, requesting my\ncomments on H.R. 10,362, H.R. 10,366, H.R. 10,367, H.R. 10,371, H.R. 10,372,\nH.R. 10,377, H.R. 10,380, H.R. 10,384, H.R. 10,394, and H.R. 10,396 (all pending\nin the 84th Congress). The stated purpose of the bills is \xe2\x80\x9c[t]o provide that withdrawals or reservations of more than five thousand acres of public lands of the\nUnited States for certain [defense purposes] shall not become effective until\napproved by Act of Congress.\xe2\x80\x9d\nSections 1 and 2 of H.R. 10,366, 10,367, 10,372, 10,377, 10,394 and 10,396\nprovide that on and after the enactment of the bill, notwithstanding any other\nprovisions of law, no public land, water, or land and water area of the United\nStates, including public lands in the Territory of Alaska, shall be (1) withdrawn\nfrom settlement, location, sale, or entry, in order that it may be used for defense\npurposes, or (2) reserved for such purposes, except by Act of Congress. Sections 1\nand 2 of H.R. 10,362, 10,371, 10,380 and 10,384 differ from the aforementioned\nbills in that these latter bills provide that the provisions of the Act will not apply in\ntime of war or in a national emergency declared by the President or by act of\nCongress.\nArticle IV, Section 3, Clause 2 of the United States Constitution provides that\n\xe2\x80\x9c[t]he Congress shall have Power to dispose of and make all needful Rules and\nRegulations respecting the Territory or other Property belonging to the United\nStates.\xe2\x80\x9d However, from an early period in the history of the federal government,\nthe President, without special authorization from Congress, has withdrawn public\nlands from private settlement and acquisition even though Congress had opened\nthem to such occupancy. In the case of Grisar v. McDowell, 73 U.S. (6 Wall.) 363,\n381 (1867), which involved the reservation of public lands for military purposes,\nthe Supreme Court of the United States noted that the authority of the President to\nreserve public lands from sale and set them apart for public uses had been\nrecognized in numerous acts of Congress.\nThe effect of H.R. 10,362 and the other captioned bills would be to restrict the\nPresident\xe2\x80\x99s authority to withdraw, for defense purposes, public lands or waters, in\n\n163\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nexcess of five thousand acres, from private settlement, location, sale or entry.\nA question is presented whether such a restriction can be placed on the President\nby act of Congress.\nIn the case of United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Supreme Court passed on the question whether the President could constitutionally\nexercise regulatory power over the public domain. In the Midwest Oil case the\nCongress had opened the public lands containing petroleum to occupation,\nexploration and purchase by citizens of the United States. Id. at 465. In 1909 it\nwas discovered that large areas of that public lands in California contained oil, and\nextensive exploitation was undertaken by private parties. This exploitation was so\nrapid that the Secretary of the Interior advised the President that unless public\nlands containing petroleum were withdrawn from entry, settlement, and exploitation, the United States Navy would be forced to buy its oil from private parties\nexploiting former federal public lands. In the light of these facts, the President,\nwithout the express authorization of Congress, withdrew \xe2\x80\x9cin aid of proposed\nlegislation\xe2\x80\x9d large areas of the public domain in California and Wyoming. Id. at\n467. This authority was properly challenged in the courts.\nIn passing on the matter, the Supreme Court noted that, though the Constitution\ngave Congress the power to dispose of and make all needful rules and regulations\nrespecting the public lands, nevertheless, former presidents, without special authorization from Congress, had in a large number of cases, for a public use or purpose, withdrawn public lands from occupation and settlement by private parties.\nThe Court further noted that this long-continued practice had never been repudiated by Congress; rather Congress had apparently recognized that the Executive was\nin an advantageous position to protect the public domain for public purposes and\nuses. The Court held that, while the Executive cannot by a course of action create\na power, Congress by its long and continuous acquiescence in the exercise by the\nPresident of management over the public domain had given the President the\nimplied power as Chief Executive to exercise administrative power over the public\ndomain. Therefore, the Court held that, for a public use or purpose, the President\nhad the power to withdraw the public lands in question from private settlement or\noccupation even though Congress may have previously opened the lands for such\nuse. Cf. Sioux Tribe v. United States, 316 U.S. 317 (1942).\nThe Supreme Court has also indicated in both the Midwest Oil case and Sioux\nTribe case that, since Congress had the constitutional power to regulate the use of\npublic lands, it could by express action limit or revoke this implied delegation of\npower to the President. And in fact, in the situation involved in the Midwest Oil\ncase, Congress subsequently did curtail somewhat the President\xe2\x80\x99s administrative\npowers over the public lands in question. See Pub. L. No. 61-303, 36 Stat. 847\n(1910); Withdrawal of Public Lands, 40 Op. Att\xe2\x80\x99y Gen. 73 (1941).\nIn arguing the Midwest Oil case, one of the contentions of the government was\nthat the President, as Commander in Chief, had the power to issue the order in\nquestion for the purpose of retaining and preserving a source of supply of fuel for\n\n164\n\n\x0cConstitutionality of Pending Bills Restricting the Withdrawal of Public Land\n\nthe Navy. The Supreme Court, however, decided the case in favor of the federal\ngovernment on different grounds.\nAs pointed out above, H.R. 10,362 and the other captioned bills would restrict\nthe President\xe2\x80\x99s authority to use public lands for defense purposes. It is my opinion\nthat the bills, especially those that do not contain a national emergency or war\nexception, present a serious constitutional question which the courts have never\npassed on in regard to the President\xe2\x80\x99s powers as Commander in Chief.\nIt is clear that the President\xe2\x80\x99s powers as Commander in Chief cannot be intruded upon by Congress, just as the war powers of Congress cannot be intruded upon\nby the President. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). However, the\nnature and extent of the President\xe2\x80\x99s constitutional war powers are not clearly\ndefined or specified in the Constitution. Article II, Section 2, Clause 1 of the\nConstitution simply provides:\nThe President shall be Commander in Chief of the Army and Navy\nof the United States, and of the Militia of the several States, when\ncalled into the actual service of the United States . . . .\nClearly, the President is Commander in Chief both in time of peace and war.\nIn reply to a request from the Senate for an opinion as to the powers of the\nPresident during a national emergency or state of war, Attorney General Murphy\nstated:\nYou are aware, of course, that the Executive has powers not enumerated in the statutes\xe2\x80\x94powers derived not from statutory grants\nbut from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional\npowers necessary for their proper performance. These constitutional\npowers have never been specifically defined, and in fact cannot be,\nsince their extent and limitations are largely dependent upon conditions and circumstances. In a measure this is true with respect to\nmost of the powers of the Executive, both constitutional and statutory. The right to take specific action might not exist under one state\nof facts, while under another it might be the absolute duty of the\nExecutive to take such action.\nRequest of the Senate for an Opinion as to the Powers of the President \xe2\x80\x9cIn\nEmergency or State of War,\xe2\x80\x9d 39 Op. Att\xe2\x80\x99y Gen. 343, 347\xe2\x80\x9348 (1939).\nThe courts have several times dealt with the President\xe2\x80\x99s constitutional powers\nas Commander in Chief, but it is clear that in doing so they have not made a clear\ndemarcation of the boundaries of said power. See Fleming v. Page, 50 U.S.\n(9 How.) 603, 614\xe2\x80\x9315 (1850); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1867);\n\n165\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nPrize Cases, 67 U.S. (2 Black) 635, 668, 670 (1863); Youngstown Sheet & Tube\nCo. v. Sawyer, 343 U.S. 579 (1952).\nIn the case of the bills in question, the issue is whether the Congress can restrict\nthe President, as Commander in Chief, in the use of public lands of the United\nStates for national defense purposes. As pointed out above, the courts have never\npassed on this precise question. In this regard it should be noted that no private\nrights are involved, since a person has no private rights in the public lands until he\nhas made a legal entry upon the lands, and they cease to become part of the public\ndomain. Reservation of Land for Public Uses, 17 Op. Att\xe2\x80\x99y Gen. 160 (1881).\nThe classic statement of the powers of the Commander in Chief is set forth in\nthe case of Fleming v. Page, where it was said by Mr. Chief Justice Taney:\nAs commander-in-chief, he [the President] is authorized to direct the\nmovements of the naval and military forces placed by law at his\ncommand, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.\n50 U.S. at 615.\nAs Commander in Chief it has been held that the President, during time of war,\nhas powers of his own concerning the use of private property for national defense\npurposes. In the case of United States v. McFarland, 15 F.2d 823, 826 (4th Cir.\n1926), it was stated that the President, as Commander in Chief, has the constitutional power in war time, in cases of immediate and pressing exigency, to\nappropriate private property to public uses in order to insure the success of a\nmilitary operation, the government being bound to make just compensation\nthereafter. See also Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851); United\nStates v. Russell, 80 U.S. (13 Wall.) 623 (1871); Roxford Knitting Co. v. Moore &\nTierney, Inc., 265 F. 177, 179 (2d Cir. 1920). However, the Supreme Court has\nalso held that the President, as Commander in Chief, cannot seize the property of\nprivate citizens in time of emergency, contrary to an act of Congress, to prevent\ninterruption of the production of supplies for the armed forces. Youngstown Sheet\n& Tube Co. v. Sawyer, 343 U.S. 579 (1952).\nThe Attorney General has indicated that the President, as Commander in Chief,\nhas broad constitutional powers to obtain military bases for the national defense.\nIn Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39\nOp. Att\xe2\x80\x99y Gen. 484 (1940), Attorney General Jackson dealt with the question\nwhether the President, pursuant to his powers to administer foreign relations and\nas Commander in Chief, could acquire by executive agreement, and without action\nby Congress, the right to obtain foreign naval and military bases for the armed\nforces of the United States. It was stated:\nOne of these is the power of the Commander in Chief of the Army and Navy of the United States, which is conferred upon the Pres-\n\n166\n\n\x0cConstitutionality of Pending Bills Restricting the Withdrawal of Public Land\n\nident by the Constitution but is not defined or limited. Happily, there\nhas been little occasion in our history for the interpretation of the\npowers of the President as Commander in Chief of the Army and\nNavy. I do not find it necessary to rest upon that power alone to sustain the present proposal. But it will hardly be open to controversy\nthat the vesting of such a function in the President also places upon\nhim a responsibility to use all constitutional authority which he may\npossess to provide adequate bases and stations for the utilization of\nthe naval and air weapons of the United States at their highest efficiency in our defense. It seems equally beyond doubt that present\nworld conditions forbid him to risk any delay that is constitutionally\navoidable.\nId. at 486.\nIn regard to the command, training, and deployment of the armed forces, the\nAttorney General has stated:\nThus the President\xe2\x80\x99s responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their\nimmediate movements and operations designed to protect the security and effectuate the defense of the United States. As pointed out by\nthe texts just cited, this authority undoubtedly includes the power to\ndispose of troops and equipment in such manner and on such duties\nas best to promote the safety of the country. Likewise of course the\nPresident may order the carrying out of maneuvers or training, or the\npreparation of fortifications, or the instruction of others in matters of\ndefense, to accomplish the same objective of safety of the country.\nIndeed the President\xe2\x80\x99s authority has long been recognized as extending to the dispatch of armed forces outside of the United States,\neither on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.\nTraining of British Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 61\xe2\x80\x93\n62 (1941).\nIn Fort Missoula Military Reservation, 19 Op. Att\xe2\x80\x99y Gen. 370 (1889), the\nAttorney General was called on to construe an act of Congress which applied to\nthe Territory of Oregon and provided that all reservations and withdrawals of\npublic land for the purpose of establishing forts should be limited to 640 acres.\nThe Attorney General did not pass on any constitutional problems that might have\nbeen involved since he found that the fort in question was located in Montana\nwhich, although once a part of the Oregon Territory, was not in his opinion\ncovered by the Act.\n\n167\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIn the light of the analysis set forth above, it appears that, pursuant to the constitutional powers as Commander in Chief, the President, particularly in time of\nwar or national emergency, may have authority without the authorization of\nCongress to reserve and use the public domain for the training and deployment of\nthe armed forces of the United States for national defense purposes. If the above is\ntrue, any attempted restriction of this authority by Congress would be an unconstitutional invasion of the President\xe2\x80\x99s authority as Commander in Chief. I, therefore,\nrecommend that the Department report that it is opposed to sections 1 and 2 of he\ncaptioned bills since the sections would impose an unwarranted restriction upon\nthe President\xe2\x80\x99s powers to use the public domain for national defense purposes, and\nfor the additional reason that the bills, particularly H.R. 10,366 and similar bills,\npresent a serious question regarding an unconstitutional restriction of the President\xe2\x80\x99s powers as Commander in Chief.*\nSection 3, which in identical language is a part of all the captioned bills, prescribes the information which is to be contained in an application by an agency of\nthe Department of Defense for a withdrawal or reservation of any public land,\nwater, or land and water exceeding in the aggregate five thousand acres. Section 4\nof the bills would provide that the head of each military department or agency\nowning or controlling any military installation or facility, whether created in\nwhole or in part through withdrawal or reservation of the public lands, must\nrequire that all hunting, trapping, and fishing on said military installation or\nfacility be in accordance with the laws of the state or territory where the installations or facility is located and be licensed by the state or territory. The section\nfurther provides for cooperation between the federal and state officials to carry out\nthe above measures. Section 5 of the bills provides for certain amendments to the\nFederal Property and Administrative Service Act of 1949, Pub. L. No. 81-152, 63\nStat. 377.\nSection 6 of H.R. 10,362 and some of the other captioned bills provide as\nfollows:\nAll withdrawals and reservations of public land for the use of any\nagency of the Department of Defense, heretofore or hereafter made\nby the United States, shall be deemed made without prejudice to val-\n\n*\nEditor\xe2\x80\x99s Note: Two years later, in the 85th Congress, a bill similar to these became enrolled. In a\nsubsequent opinion for the Deputy Attorney General on the constitutionality of the enrolled bill, also\ncollected in this volume (Constitutionality of Enrolled Bill Restricting the Withdrawal of Public Land\nfor National Defense, 1 Op. O.L.C. Supp. 192 (Feb. 24, 1958)), the Office took a narrower view of the\nPresident\xe2\x80\x99s preclusive authority as Commander in Chief. The Office observed that this 1956 opinion\nhad failed to \xe2\x80\x9crefer to the majority per curiam opinion, in which Justice Reed concurred, that under\nArticle IV, Section 3, Clause 2 of the Constitution the power of Congress over the public lands is\n\xe2\x80\x98without limitation,\xe2\x80\x99 Alabama v. Texas, 347 U.S. 272, 274 (1954) (per curiam), and the earlier decisions cited therein, including United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915).\xe2\x80\x9d 1 Op.\nO.L.C. Supp. at 194.\n\n168\n\n\x0cConstitutionality of Pending Bills Restricting the Withdrawal of Public Land\n\nid rights to the beneficial use of water originating in or flowing\nacross such lands, theretofore or thereafter initiated under the laws of\nthe States in which such lands are situated.\nThis section has been omitted from H.R. 10,367 and H.R. 10,380.\nIn language, the section is substantially identical to section 9 of S. 863, 84th\nCong., 2d Sess., as amended, except that, in keeping with the more limited\npurpose of those bills, the words \xe2\x80\x9cfor the use of any agency of the Department of\nDefense\xe2\x80\x9d have been added. It is believed that, if enacted, the section could\ncompletely destroy the value of any reservation for military purposes. The\nlanguage employed is extremely broad and is capable of no other interpretation\nthan that the water supply of any military installation, whenever established, can\nbe appropriated completely by others at any future time. As it is not readily\nconceivable that any military installation can endure without some assured water\nsupply, enactment of the section could preclude any further withdrawals or\nreservations of public lands for military purposes. It could also force the United\nStates to purchase by way of eminent domain, in cases where reservations are\npresently being used for military purposes, rights which were not in existence\nwhen the lands were withdrawn or reserved for such purposes. Such grave\nobjections can be eliminated, in the view of this Office, only by striking the words\n\xe2\x80\x9cheretofore or\xe2\x80\x9d and \xe2\x80\x9cor thereafter\xe2\x80\x9d from H.R. 10,362, and by striking the same\nwords from the other bills of which section 6 is a part.\nFor the foregoing reasons, it is recommended by this Office that the Department report that it is opposed to the enactment of sections 1, 2, and 6 of the\ncaptioned bills. This Office wishes to defer to any comments the Lands Division\nmay make regarding sections 3, 4, and 5 of the bills.\nJ. LEE RANKIN\nAssistant Attorney General\nOffice of Legal Counsel\n\n169\n\n\x0c'


b'September 6, 1978\n\n78-50\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nFreedom o f Information Act (5 U .S.C . \xc2\xa7 552)\xe2\x80\x94\nNational Security Council\xe2\x80\x94 Agency Status Under\nFOIA\n\nYou have asked whether the National Security Council (NSC) is an Agency\nfor Freedom of Information Act, (FOIA) purposes. We conclude, in general,\nthat it is. This opinion does not, however, address the questions (1) whether the\nNational Security Council, although an Agency under FOIA for most purposes,\nmight be considered not an Agency for other purposes,1 or (2) which records\nheld by the Council are Agency records within the meaning of the Act.2\nI. The Freedom of Information Act\nThe Freedom of Information Act, 5 U.S.C. \xc2\xa7 552 (1976), places certain\nduties, responsibilities, and obligations relating to public access to Government\ninformation on \xe2\x80\x9c each agency\xe2\x80\x9d of the Government of the United States. For the\npurpose of the Act\n. . . the term \xe2\x80\x9c agency\xe2\x80\x9d as defined in section 551(1) [of 5\nU.S.C.] . . . includesanyexecutivedepartment, military department,\nGovernment corporation, Government-controlled corporation, or\nother establishment in the executive branch of the Government\n\n\'Cf., Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U .S . 168, 188 n. 25\n(1975). In that case the Suprem e Court suggested that a Regional Renegotiation Board might be an\n\xe2\x80\x9c agency\xe2\x80\x9d in some o f its work and not an \xe2\x80\x98\xe2\x80\x98agen cy " in the rest o f its work.\n2It follows from the conclusion that NSC is an A gency for FOIA purposes that records belonging\nto NSC are Agency records under FOIA, but NSC may hold records that belong to persons or\nentities that are not A gencies for FOIA purposes. In this connection, it is pertinent to note that the\nNSC staff views itself as not only perform ing the functions prescribed in the National Security Act\no f 1947, 61 Stat. 495, but also serving as \xe2\x80\x98\xe2\x80\x98the supporting staff to the President in the conduct of\nforeign affairs,\xe2\x80\x9d 40 F .R . 47746 (1975); 32 CFR \xc2\xa7 2 1 0 2 .1(b)( 1976), and thus, as \xe2\x80\x98\xe2\x80\x98an extension of\nthe W hite House O ffice .\xe2\x80\x9d\n\n197\n\n\x0c(including the Executive Office of the President), or any independent\nregulatory agency. 5 U.S.C. \xc2\xa7 552(e).1\nAccording to the definition of \xc2\xa7 552(e), the term \xe2\x80\x9c agency,\xe2\x80\x9d for FOIA\npurposes, includes establishments in the Executive Office of the President. The\nNational Security Council (NSC) is an establishment,4 and it is within the\nExecutive Office of the President.5 Thus, NSC is within the plain language of\nthe above definition and were it not for the legislative history of the 1974\namendments it would have to be considered an Agency for FOIA purposes.\nThe Senate version of the 1974 amendments expanded the APA definition of\n\xe2\x80\x9c agency\xe2\x80\x9d only by adding to it the U.S. Postal Service, the Postal Rate\nCommission, and \xe2\x80\x9c any other authority of the Government of the United States\nwhich is a corporation and which receives any appropriated funds.\xe2\x80\x9d The Senate\nreport explained this expanded definition of \xe2\x80\x9c agency\xe2\x80\x9d as follows:\nSection 3 expands on the definition of agency as provided in section\n551(1) of title 5. That section defines \xe2\x80\x9c agency\xe2\x80\x9d as \xe2\x80\x9c each authority\n(whether or not within or subject to review by another agency) of the\nGovernment of the United States other than Congress, the courts, or\nthe governments of the possessions, territories, or the District of\nColumbia.\xe2\x80\x9d This definition has been broadly interpreted by the\ncourts as including \xe2\x80\x9c any administrative unit with substantial inde\xc2\xad\npendent authority in the exercise of specific functions,\xe2\x80\x9d which in one\ncase was held to include the Office of Science and Technology.\nSoucie v. D avid, 448 F. (2d) 1067, 1073 (1971).\nNonetheless, the U.S. Postal Service has taken the position that\nwithout specific inclusionary language, amendments to the FOIA\n\xe2\x80\x9c would not apply to the Postal Service.\xe2\x80\x9d (H earings , vol. II at 323.)\nTo assure FOIA application to the Postal Service and also to include\npublicly funded corporations established under the authority of the\nUnited States, like the National Railroad Passenger Corporation (45\nU.S.C. \xc2\xa7 541), section 3 incorporates an expanded definition of\n\xe2\x80\x99T his definition was added by the Freedom o f Inform ation Act A m endm ents of 1974, Pub. L.\nNo. 93-502 \xc2\xa7 3, 88 Stat. 1564. Prior to this am endm ent the FOIA definition o f \xe2\x80\x98\'agency\xe2\x80\x9d was\nexclusively that o f the A dm inistrative Procedure Act (A PA ), 5 U .S .C . 8 551(1). In relevant part\n\xc2\xa7 551(1) defines "a g e n c y \xe2\x80\x9d as\n. . . each authority o f the G overnm ent o f the U nited States, w hether or not it is within or\nsubject to review by another agency.\nThe am ended definition has been incorporated into the Privacy Act o f 1974. 5 U .S .C . \xc2\xa7 552a(a)( I )\nand the G overnm ent in the Sunshine A ct, 5 U .S .C . 8 5 5 2b(a)(l).\n4T he term "estab lish m en t\xe2\x80\x9d is not defined in \xc2\xa7 552(e) or elsew here in the FOIA or APA.\nH ow ever, the NSC must be considered an establishm ent because o f its 99-m em ber staff. (O f these,\n69 are perm anent em ployees o f the NSC; 30 are detailed from other agencies.) The NSC and its\nstaff are easily identifiable as a body separate from other entities w ithin the Executive Office o f the\nPresident. M oney is appropriated for it and it \xe2\x80\x9c o w n s " its furniture, fixtures, and supplies. It pays its\nem ployees, keeps their adm inistrative records, and handles its personnel m atters. In short, it has a\nclear, independent adm inistrative status.\n\xe2\x80\x99T he NSC was created by the N ational Security Act o f 1947, 61 Stat. 495. It was transferred to\nthe E xecutive Office o f the President by Reorganization Plan No. 4 o f 1949, 5 U .S .C . A pp., 14 F.\nR. 5227, 63 Stat. 1067.\n\n198\n\n\x0cagency to apply under the FOIA. (S. Rept. No. 93-854, 93d Cong.,\n2d sess. 33 (1974).]\nThe House version of the amendments also contained an expanded definition\nof the term \xe2\x80\x9c agency.\xe2\x80\x9d This definition was broader and more explicit than the\nSenate\xe2\x80\x99s version and it prevailed in conference to become, with slight\nmodification, 5 U.S.C. \xc2\xa7 552(e). Its language relating to establishments within\nthe Executive Office of the President was identical to that agreed upon in\nconference. The House report explains the meaning of that language by citing\nexamples of \xe2\x80\x9c functional entities\xe2\x80\x9d included within it:\nThe term \xe2\x80\x9c establishment in the Executive Office of the President,\xe2\x80\x9d\nas used in this amendment, means such functional entities as the\nOffice of Telecommunications Policy, the Office of Management and\nBudget, the Council of Economic Advisers, the National Security\nCouncil, the Federal Property Council, and other similar establish\xc2\xad\nments which have been or may in the future be created by Congress\nthrough statute or by Executive order. [H. Rept. No. 93-876, 93d\nCong., 2d sess. 8 (1974)] [Emphasis added.]\nSpeaking in more general terms the House report notes that the definition of\n\xe2\x80\x9c agency\xe2\x80\x9d was expanded\n. . . to include those entities which might not be considered agencies\nunder Section 551(1) of title 5, U.S. Code, but which perform\ngovernmental functions and control information of interest to the\npublic. [Id.]\nThe conference report, after explaining the differences between the Senate\nand House versions of the expanded definition of \xe2\x80\x9c agency,\xe2\x80\x9d notes that \xe2\x80\x9c The\nconference substitute follow s the House b ill.\xe2\x80\x9d H. Rept. No. 93-1200, 93d\nCong., 2d sess. 14 (1974). [Emphasis added.] That report states that by the\ndefinition the conferees \xe2\x80\x9c . . . intend[ed] to include within the definition of\n\xe2\x80\x98agency\xe2\x80\x99 those entities encompassed by 5 U.S.C. \xc2\xa7 551 and other entities\nincluding. . . . \xe2\x80\x9d 6 Id. The report reveals that \xe2\x80\x9c expansion of the definition of\n\xe2\x80\x98agency\xe2\x80\x99 in this subsection is intended to broaden applicability of the Freedom\nof Information Act. . . . \xe2\x80\x9d Id., at 15. In addition, the conference report deals\nspecifically with the meaning of \xe2\x80\x9c Executive Office of the President.\xe2\x80\x9d It states:\nWith respect to the meaning of the term \xe2\x80\x9c Executive Office of the\nPresident\xe2\x80\x9d the conferees intend the result reached in Soucie v. David,\n448 F. (2d) 1067 (C.A.D.C. 1971). The term is not to be interpreted\nas including the President\xe2\x80\x99s immediate personal staff or units in the\nExecutive Office whose sole function is to advise and assist the\nPresident. [Id.]\nA summary of the 1974 amendments and their history relating to the question\nwhether Congress intended the NSC to be included in the FOIA definition of\n\'T h e list follow ing \xe2\x80\x9c inclu d ing" does not include the NSC, or any other unit in Executive Office\no f the President. T w o entities are included by name. These are the United States Postal Service and\nthe Postal Rate C om m ission, both o f which were included by express language in the Senate\nversion.\n\n199\n\n\x0c\xe2\x80\x9c agency\xe2\x80\x9d is as follows: (1) The language of the law is broad enough to be\nviewed as an expression of congressional intent that all establishments within\nthe Executive Office of the President, including the NSC, be treated as\nAgencies for FOIA purposes 7 (2) The Senate report (and the Senate version of\nthe legislation) continued to cover all Government entities included in the APA\ndefinition as interpreted by the courts. The black letter rule, as expressed in the\nSenate report, is that \xe2\x80\x9c any administrative unit with the substantial independent\nauthority in the exercise of specific functions\xe2\x80\x9d should be viewed as an Agency\nunder the FOIA. This language was explicitly linked to Soucie v. D avid , 448 F.\n(2d) 1067 (D.C. Cir. 1971), involving a unit within the Executive Office of the\nPresident. (3) The House report shows an unequivocal intention to include NSC\nin the FOIA definition of Agency. (4) The conference report, while stating\ngenerally that the intent of Congress in redefining \xe2\x80\x9c agency\xe2\x80\x9d was to expand the\ndefinition in order to broaden the applicability of the FOIA, declares that the\nconference bill follows the House version and expresses the specific intent that,\nwith respect to the Executive Office of the President, entities within the \xe2\x80\x9c result\nreached\xe2\x80\x9d in Soucie v. D avid be included, but that those constituting the\nPresident\xe2\x80\x99s personal staff or \xe2\x80\x9c whose sole function is to advise and assist the\nPresident\xe2\x80\x9d be excluded.\nThus, both the language of the Act and its explanation contained in the\nHouse report include, by literal application, the NSC as an Agency subject to\nthe FOIA. The conference report, which states that the conferees followed the\nHouse version of the legislation, expresses the intent (as did the Senate report\nwith respect to the term \xe2\x80\x9c agency\xe2\x80\x9d as used in the APA) that\xe2\x80\x94 at least for\nentities in the Executive Office of the President\xe2\x80\x94 a functional approach be\nadopted. That is, an establishment within the Executive Office should not\nautomatically be classified an Agency (nor automatically excluded), but should\nbe treated as such only if it has the authority to function at least in part as an\nAgency.\nThere is a very substantial risk that the NSC would be held to be an Agency\non the basis of the unambiguous language of the Act and the House Report.\nUnder conventional standards of statutory interpretation a court would be\njustified in so holding on these grounds alone. We believe, nevertheless, that to\ndetermine whether the NSC is included within the FOIA definition we must\napply the conference report\xe2\x80\x99s test and examine whether the NSC is invested\nwith \xe2\x80\x9c substantial independent authority in the exercise of specific functions.\xe2\x80\x9d 8\nIf it is either the President\xe2\x80\x99s staff or a unit whose sole function is to advise and\n7Although it is honored prim arily in the breach, " th e plain m eaning ru le " o f statutory\nconstruction in which legislative history is ignored still has some vitality. See. Ernst & Ernst v.\nHochfelder, 425 U .S. 185, 201 (1976). Its application becom es m ore likely when the legislative\nhistory is m ore am biguous than the statutory language being construed.\n"W e view the reference to the \xe2\x80\x9c result reach ed " in Soucie v. David as a reference to the\ninterpretation o f that case in the Senate report. That is, entities within the Executive Office o f the\nPresident may be treated as A gencies for FOIA purposes if they have \xe2\x80\x9c substantial independent\nauthority in the exercise o f specific fu n ctio n s." An entity would not have substantial independent\nauthority if it were either the P resident\xe2\x80\x99s staff or a unit whose sole function is to advise and assist\nthe President.\n\n200\n\n\x0cassist9 the President, it should not be viewed as having substantial independent\nauthority.\nII. The National Security Council\nThe National Security Council was created by the National Security Act of\n1947, and together with its functions, records, property, personnel, and\nunexpended appropriations, allocations and other funds available or to be made\navailable, was transferred to the Executive Office of the President by\nReorganization Plan No. 4 of 1949, 5 U.S.C. App., 14 F. R. 5227, 63 Stat.\n1067. As presently constituted, the statutory body consists of the President, the\nVice President, and the Secretaries of State and Defense. It has a staff of 99 (69\npermanent employees, 30 detailed from other departments) which, at present,\nis headed by a staff secretary.10\nAccording to its statutory mandate\n[t]he function of the Council shall be to advise the President with\nrespect to the integration of domestic, foreign, and military policies\nrelating to the national security so as to enable the military services\nand the other departments and agencies of the Government to\ncooperate more effectively in matters involving national security. [50\nU.S.C. \xc2\xa7 402(a)]\nThe National Security Act also assigned to the NSC, under the heading\n\xe2\x80\x9c additional functions, \xe2\x80\x9d the following duties:\nIn addition to performing such other functions as the President may\ndirect, for the purpose of more effectively coordinating the policies\nand functions of the departments and agencies of the Government\nrelating to the national security, it shall, subject to the direction of the\nPresident, be the duty of the Council\xe2\x80\x94\n(1) to assess and appraise the objectives, commitments, and risks\nof the United States in relation to our actual and potential military\npower, in the interest of national security, for the purpose of making\nrecommendations to the President in connection therewith; and\n(2) to consider policies on matters of common interest to the\ndepartments and agencies of the Government concerned with the\n9W ithin the context o f the legislative history, w hich clearly expresses a general intent to expand\nthe coverage of FO IA , \xe2\x80\x9c assist\xe2\x80\x99\' must be read narrowly. W e do not believe that units w ithin the\nExecutive Office can be view ed as "a s sis tin g \xe2\x80\x9d the President, in the same sense that the word\n" a s s is t" is used in the conference report, when they perform substantive governm ental functions,\neven if the purpose o f their authority to perform such functions is to enable them to fulfill a prim ary\nrole of assisting (or advising) the President. T o conclude otherwise would make a dead letter o f\ninclusion o f establishm ents within the Executive Office of the President within the definition o f an\nAgency for FOIA purposes, because the function o f all the units within the Executive O ffice, and\nthose o f the Office itself is, in a broad sense, to assist the President.\n,0Section 402(c) o f 50 U .S .C . directed that the NSC staff be headed by a Presidentially appointed\nExecutive Secretary. T his position, which in past adm inistrations has often been filled by the\nPresident\xe2\x80\x99s Assistant for National Security Affairs, is presently vacant. As a practical m atter,\nhowever, under current operating procedures the NSC staff works for the P resident\xe2\x80\x99s Assistant for\nNational Security A ffairs, in fact, if not in form.\n\n201\n\n\x0cnational security, and to make recommendations to the President in\nconnection therewith. [50 U.S.C. \xc2\xa7 402(b)]\nThe Council is further authorized to\n. . from time to time, make such\nrecommendations and such other reports to the President as it deems appropri\xc2\xad\nate or as the President may require.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 402(d).\nThe House report on the National Security Act comments that \xe2\x80\x9c [t]his\nCouncil [the NSC] . . . gives us for the first time in our history a means for\nbringing together the responsible heads of Government charged with recommending\nand carrying out our foreign policies after making a careful appraisal of our\ndomestic and military potentials.\xe2\x80\x9d H. Rept. No. 961, 80th Cong., 1st sess. 3\n(1947). The Senate report characterizes the Council as \xe2\x80\x9c [essentially . . . an\nadvisory body to the President with respect to the integration of domestic,\nforeign, and military policies, so as to enable the military services and other\ndepartments and agencies of the Government to cooperate more effectively in\nmatters involving the national security.\xe2\x80\x9d S. Rept. No. 239, 80th Cong., 1st\nsess. 10 (1947). The Senate committee that reported favorably on Reorganiza\xc2\xad\ntion Plan No. 4 of 1949 stated flatly that \xe2\x80\x9c [i]t [NSC] is an advisory body to the\nPresident and not one of the various agencies within the National Military\nEstablishment.\xe2\x80\x9d S. Rept. No. 838, 81st Cong., 1st sess. 2 (1949). It also noted\nthat \xe2\x80\x98\xe2\x80\x98[t]he President as chairman controls NSC business . . . " i d . , and that\nNSC and the National Security Resources Board (NSRB) \xe2\x80\x9c were made advisory\nagencies to the President by the National Security Act of 1947.\xe2\x80\x9d\nIt is clear from the statutorily prescribed functions of the NSC, from the\nlegislative history of the Act which created it, and from nearly contemporane\xc2\xad\nous congressional commentary that the Council\xe2\x80\x99s intended function is to be\nprimarily an advisory body to the President that would help him or her to plan\nthe effective and efficient unitary utilization of those various Departments and\nAgencies of the Government that have responsibilities for the Nation\xe2\x80\x99s security.\nThe question is, however, whether NSC is vested with substantial independent\nauthority in the exercise of specific functions or whether its sole function is to\nadvise and assist the President.\nIn addition to the establishment of the NSC, the National Security Act of\n1947 created the Central Intelligence Agency (CIA). That Agency was\n\xe2\x80\x9c established under the National Security Council,\xe2\x80\x9d 50 U.S.C. \xc2\xa7 403(a), and is\ngiven certain duties \xe2\x80\x9c under the direction of the National Security Council,\xe2\x80\x9d 50\nU.S.C. \xc2\xa7 403(d), including the duty \xe2\x80\x9c to perform such other functions and\nduties related to intelligence affecting the national security as the National\nSecurity Council may from time to time direct.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 403(d)(5).\nThe legislative history of the Act indicates that Congress intended the\nNational Security Council to be the supervisory authority over the Central\nIntelligence Agency, by establishing the CIA \xe2\x80\x9c under\xe2\x80\x9d the NSC and making it\nsubject to the Council\xe2\x80\x99s \xe2\x80\x9c direction.\xe2\x80\x9d\nAccording to the Senate report:\nThe Central Intelligence Agency provided for by Section 102 exists\nnow as the Central Intelligence Group. The bill establishes the\n202\n\n\x0cagency under the National Security Council and assigns to that\nCouncil the supervisory authority and responsibility now exercised\nby the National Intelligence Authority created by Executive Order of\n\nthe President and composed of the Secretaries of State, War, and\nNavy. [S. Rept. No. 239, supra, at 10] [Emphasis added.]\nThe Executive order referred to in the Senate report was actually a Presidential\ndirective. It provided, in pertinent part:\nTo the Secretary of State, the Secretary of War, and the Secretary\nof the Navy.\n1. It is my desire, and I hereby direct, that all Federal foreign\nintelligence activities be planned, developed and coordinated so as to\nassure the most effective accomplishment of the intelligence mission\nrelated to the national security. I hereby designate you, together with\nanother person to be named by me as my personal representative, as\nthe National Intelligence Authority to accomplish this purpose.\n2. Within the limits of available appropriations, you shall each\n\nfrom time to time assign persons and facilities from your respective\nDepartments, which person shall collectively form a Central Intelli\xc2\xad\ngence Group and shall, under the direction o f a Director o f Central\nIntelligence, assist the National Intelligence Authority. The Director\n\nof Central Intelligence shall be designated by me, shall be responsible\nto the National Intelligence Authority, and shall sit as a nonvoting\nmember thereof.\n3. Subject to the existing law, and to the direction and control o f\nthe National Intelligence Authority, the D irector o f Central Intelli\xc2\xad\ngence shall: . . . .[Presidential directive of January 22, 1946, 3 CFR\n\n1080 (1943-1948 compilation)] [Emphasis added.]\nIn addition, the Senate report on Reorganization Plan No. 4 of 1949, while\nstating that NSC \xe2\x80\x9c is an advisory body to the President,\xe2\x80\x9d recognized that \xe2\x80\x9c [i]t\nalso directs the Central Intelligence Agency which coordinates intelligence\nactivities.\xe2\x80\x9d S. Rept. No. 838, supra, at 2, 4.\nThe National Security Council, which is an administrative unit" and is an\nestablishment within the Executive Office of the President, has explicit\nstatutory authority to supervise and direct the Central Intelligence Agency. We\nbelieve that NSC\xe2\x80\x99s legal authority over the CIA constitutes substantial\nindependent authority in the exercise of at least one (very important) specific\nfunction. Therefore, NSC is not a unit whose sole function is to advise or assist\nthe President.\nWe have considered the possibility that NSC should be viewed as advisory\nonly because the President, as a member, controls its actions and decisions.\nThe argument runs that in all cases Council\xe2\x80\x99s action must be viewed as\nPresidential action since the President will inevitably dominate in Council\naffairs. Thus, Council participation in national security matters is, at most,\nhortatory and not substantive. This argument fails for two reasons.\n1\'See footnote 4, supra.\n\n203\n\n\x0cThe National Security Council was created by Congress as an entity distinct\nfrom the Presidency. It was transferred, still as a distinct entity, along with all\nof its functions to the Executive Office of the President by Executive Order No.\n12036. As a legal matter, then, the independent authority which it possesses, it\npossesses as the National Security Council. To the extent that the Council\xe2\x80\x99s\nauthority is exercised by the President,12 it may reasonably be viewed as\nexercised by him in his capacity as Chairman of the NSC.13\nEven if it were sound to say that NSC is capable of assuming an advisory role\nonly (because of the President\xe2\x80\x99s statutory membership), the Council would not\nescape Agency status for FOIA purposes. From administration to administra\xc2\xad\ntion, Presidents, invoking the authority granted them by 50 U.S.C. \xc2\xa7 402(b) to\nassign to the NSC \xe2\x80\x9c such other functions as the President may direct,\xe2\x80\x9d have\nthemselves vested NSC committees on which they have retained membership,\nwith legal authority to perform specific, substantive functions. Current exam\xc2\xad\nples are the two NSC committees created by PD/NSC-2, the Policy Review\nCommittee (PRC) and the Special Coordination Committee (SCC), both of\nwhich are empowered by Executive order to perform important, substantive,\nand far-reaching governmental functions relating to intelligence matters and\nboth of which are legally permitted to act without Presidential participation. See\nExecutive Order No. 12036 \xc2\xa7\xc2\xa7 1-2 (PRC) and 1-3 (SCC), 43 F.R. 3674, 3675\n(1978). The existence of such delegated power14 in these committees (and other\nsimilar NSC committees which existed in prior administrations, such as the 303\nand 40 committees, the Committee on Foreign Intelligence (CFI), and the\nOperations Advisory Group (OAG), see Executive Order No. 11905 \xc2\xa7\xc2\xa7 3b\n(CFI) and 3(c) (OAG), 41 F. R. 7703, 7707-7709 (1976)), prevent the NSC\nfrom being viewed as solely advisory and without legal authority to exercise\nspecific governmental functions.\nImportant, too, is the common understanding that the NSC is a body having\nfunctions, power, and authority of its own and is not simply an alter ego of the\nPresident. This understanding was expressed by the President himself in his\nstatement accompanying the promulgation of Executive Order No. 12036. He\nsaid:\nThe National Security Council and its two standing Committees\xe2\x80\x94the\nSpecial Coordination Committee (SCC) and the Policy Review\nCommittee (PRC)\xe2\x80\x94 will, short o f the President, provide the highest\nlevel of review and guidance for the policies and practices of the\nIntelligence Community. [ 14 Weekly Comp, of Pres. Doc. 214 (Jan.\n30, 1978)] [Emphasis added.]\n\ni2N SC is subservient to the President as are all executive departm ents and agencies. T his,\nhow ever, does not mean that it, or they, are without independent authority.\nl3U nder current practice Presidential decisions on national security m atters are prom ulgated by\ndirectives in a series entitled \xe2\x80\x9c Presidential D irective (P D )/N S C .\xe2\x80\x9d See P D /N S C -I.\nl4T he fact that a O ovem m ent entity exercises only delegated pow ers does not prevent it from\nbeing treated as an A gency for FOIA purposes. Grumman Aircraft Engineering Corp. v.\nRenegotiation Board, 482 F. (2d) 710 (D .C . Cir. 1973), rev\xe2\x80\x99d. on other grounds, 421 U .S . 168\n(1975).\n\n204\n\n\x0cWe conclude that there is a substantial risk that NSC could be held to be an\nAgency by a simple, literal application of the language of 5 U.S.C. \xc2\xa7 552(c). In\nour opinion, the better approach is to examine whether NSC is within the\nexception from inclusion stated in the conference report. This requires\nexamining whether NSC has substantial independent authority in the exercise\nof specific functions or whether it is simply an establishment in the Executive\nOffice of the President whose sole function is to advise and assist the President.\nSince NSC is given statutory authority to supervise and direct the CIA and\nbecause of the NSC functions provided in Executive Order No. 12036, we\nconclude that it has independent legal authority to exercise specific functions\nand that, as a legal matter, it cannot be viewed as existing solely to advise and\nassist the President. It is not, therefore, within the exception of the conference\nreport, and, being an establishment in the Executive Office of the President not\nwithin that exception, is an Agency for FOIA purposes.15\nJo hn M . H a rm o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\nl5There is not a great deal o f equity in the position that NSC is not an Agency for FOIA purposes.\nN SC, although reserving the question o f the applicability to it o f FO IA , has staff mem bers assigned\nto process FOIA requests in accordance with its published FOIA guidelines. See 40 F. R. 7316\n(1975), 32 CFR \xc2\xa7 2101 (1976). Further, due to the nature o f the w ork o f the NSC and its staff it is\nclear that valid exem ptions are available for the vast bulk o f the m aterial which constitutes NSC\nrecords. Y et, there may be records in the possession o f the NSC staff which are not sensitive or\nadvisory in nature and which may be o f interest to the public, such as some fiscal records.\nW e have also considered w hether NSC could raise a valid constitutional claim to general\nimmunity from the FOIA, and we believe this possibility is very w eak. Certain records o f the NSC\ncould, if necessary, be protected by a claim o f executive privilege, but such a claim could not\nsuccessfully be invoked to preclude Congress from opening to public view som e NSC adm inistra\xc2\xad\ntive records and other nonsensitive records to which the claim could not reasonably attach. N or\ncould it be shown on evidence now available that the A ct\'s im pact on NSC is so onerous that its\nability to function in support o f the President will be im paired.\n\n205\n\n\x0c'


b'August 14, 1978\n\n78-45\n\nMEMORANDUM OPINION FOR THE\nASSOCIATE ATTORNEY GENERAL\nVeterans Preference Act (5 U .S.C . \xc2\xa7\xc2\xa7 2108, 33093320)\xe2\x80\x94 Application to Attorney Positions\n\nIn 1977 the Civil Service Commission undertook an evaluation of the\nemployment procedures of the Department of Justice. It concluded that those\nprocedures concerning Schedule A and B excepted-service position (see the\nCommission\xe2\x80\x99s regulations, 5 CFR \xc2\xa7 213.3101 et seq.) did not satisfy the\nrequirements of the Veterans Preference Act of 1944, as amended, 5 U.S.C.\n\xc2\xa7\xc2\xa7 2108, 3309-3320. The Commission\xe2\x80\x99s Evaluation Manager informed the\nDepartment\xe2\x80\x99s Director of Personnel that the Department is required to:\n. . . revise current internal procedures for processing Schedule A and\nB applications to include numerical ratings for best qualified [appli\xc2\xad\ncants] and crediting veterans preference in order to fully comply with\nthe requirements of [the Veterans Preference Act].\nAfter some ambivalence by Commission officials whether to insist on this\nnumerical rating system, we understand that they now do insist on its\nimplementation.\nA number of other agencies have resisted the rating system, asserting that its\nadoption would effectively negate affirmative action efforts to hire women and\nminorities. We express no opinion as to how such a system would affect\naffirmative action efforts. The issue we do address is whether the Commission\nmay require that attorneys be hired pursuant to such a system. For the reasons\nthat follow we believe that the Commission does not have such authority.\nSection 3309, title 5, U.S. Code, the key provision concerning veterans\xe2\x80\x99\npreference, provides that:\nA preference eligible who receives a passing grade in an examination\nfor entrance into the competitive service is entitled to additional\npoints above his earned rating, as follows\xe2\x80\x94\n(1) a preference eligible under section 2108(3)(C)-(G) of this title\xe2\x80\x94 10\npoints; and\n(2) a preference eligible under section 2108(3)(A) of this title\xe2\x80\x94 5\npoints.\n179\n\n\x0cSection 2108, title 5, defines a \xe2\x80\x9c preference eligible\xe2\x80\x9d as an honorably\ndischarged veteran who served in the Armed Forces under such conditions as\nare set forth in that section. The 10-point preference provided by \xc2\xa7 3309(1) is\ndirected to certain disabled veterans, and in some cases to their relatives or\nsurvivors. The 5-point preference is directed to certain nondisabled veterans.\nThe problem arises because under 5 U.S.C. \xc2\xa7 3320 preference eligibles must\nbe selected for appointment in the excepted service in the same manner as are\npreference eligibles in the competitive service. Literal compliance with this\nprovision is impossible because positions in the excepted service are not filled\npursuant to civil service examination. Thus, in the excepted service there are no\nexamination scores to which preference points may be added.\nIn most instances the decision to examine for positions rests with the\nCommission. Section 3302, title 5, authorizes the President to except positions\nfrom the competitive service and Executive Order No. 10577, 3 CFR 218\n(1954-1958 Compilation) delegated this authority to the Commission. See 5\nCFR \xc2\xa7 6.1. Therefore, the Commission may require examinations for most\nexcepted-service positions simply by removing them from the excepted service.\nAnd, if the Commission could require that these positions be filled on the basis\nof examinations it appears that it could require a rating system, because the\nproposed rating system is actually a form of examination. See 2 discussion pp.\n4-5, infra.\nAttorney positions are unique, however, in that the Commission is prohibited\nby statute from requiring that they be filled pursuant to examination. Thus,\nCommission authority to require a rating system for attorneys cannot be said to\nderive from its authority to require examinations. Congress in the Commis\xc2\xad\nsion\xe2\x80\x99s 1943 appropriation act, 57 Stat. 173, restricted the Commission\xe2\x80\x99s\nauthority over attorney hiring. That restriction provided that:\nNo part of any appropriation in this Act shall be available for the\nsalaries and expenses of the Board of Legal Examiners created in the\nCivil Service Commission by Executive Order Numbered 8743 of\nApril 23, 1941.\nAn identical restriction has, to this date, been included in each Commission\nappropriation:1 Thus, the Commission is barred from doing those things which\npreviously fell under the authority of the Legal Examining Board. Subsection\n\n\'See, for exam ple, Pub. L. 94-363, 90 Stat. 968-69, which reads in pertinent part as follows:\nNo part o f the appropriation herein made to the Civil Service Com m ission shall be\navailable for the salaries and expenses o f the Legal Exam ining Unit o f the Com m ission\nestablished pursuant to Executive O rder 9358 o f July 1, 1943, or any successor unit o f\nlike purpose.\nT he reference to the \xe2\x80\x98\xe2\x80\x98Legal E xam ining Unit o f the C om m ission\xe2\x80\x9d rather than the Board o f Legal\nExam iners w as occasioned by E xecutive O rder No. 9358, 3 CFR 256 (1943-1948 com pilation),\nwhich vested the pow er o f the Board in the C om m ission. Som e M em bers o f Congress had\nquestioned w hether the Board should be continued absent specific legislation. Thus, Executive\nO rder No. 9358 transferred the B oard\'s authority to the Com m ission \xe2\x80\x98\xe2\x80\x98[p]ending action by the\nCongress with respect to the continuance o f the B o ard .\xe2\x80\x9d The 1943 appropriation restriction and\nsubsequent restrictions, o f course, barred further action by the Board.\n\n180\n\n\x0c3(d) of Executive Order No. 8743, 3 CFR 927-(1938-1943 compilation), set\nforth the functions of the Board as follows:\nThe Board in consultation with the Civil Service Commission, shall\ndetermine the regulations and procedures under this section governing\nthe recruitment and examination of applicants for attorney positions,\nand the selection, appointment, promotion, and transfer of attorneys\nin the classified service.2\nAdministering examinations was but one of the functions of the Board. It\nwas also charged with establishing attorney selection procedures. The Commis\xc2\xad\nsion\xe2\x80\x99s proposed rating system constitutes an attorney selection procedure\nbecause attorneys would be selected on the basis of their ratings. Therefore, the\nappropriation restriction precludes the Commission from requiring the rating\nsystem it proposes for attorney applicants.3 Based on this, it may reasonably be\nargued that the Commission, in seeking to impose attorney selection proce\xc2\xad\ndures, is acting contrary to Congress\xe2\x80\x99 intent.4\nThe original debaters of the restriction did not fail to discern the implications\nof the appropriation restriction as it affects veterans\xe2\x80\x99 preference. Senator\nBurton stated:\n. . . if we cut off all civil service examination, it seems to me that we\nthen throw the whole matter open, do away with veterans\xe2\x80\x99 prefer\xc2\xad\nence, and create a position which is not sound. [90 Cong. Rec. 2660\n(1944)]\n\n2Section 1 o f that Executive order placed m ost attorney positions in the classified service.\n\xe2\x96\xa0\xe2\x80\x99T his view is not altogether free from doubt. Senator M cK ellar, the sponsor o f the restrictive\nprovision, indicated that \xe2\x80\x9c [i]t m erely provides that no part o f the m oney herein appropriated shall\nbe used for the purpose o f conducting such [civil service] exam inations.\xe2\x80\x9d 90 Cong. Rec. 2661.\nAccordingly, it can be fairly argued that only the exam ination of attorneys was proscribed by the\nrestriction. But com pare the broader language o f Senator M cKellar at 90 Cong. Rec. 2660, stating\nthat the Com m ission has no business in determ ining the \xe2\x80\x9c relative qualifications\xe2\x80\x9d o f attorneys. See\nalso Senator M cK ellar\xe2\x80\x99s assertion that the Com m ission has no business in saying \xe2\x80\x9c who shall be the\nlawyers o f this G o v ern m en t." Independent Offices Appropriation Bill fo r 1945: Hearing on H.R.\n4070 before the Senate Subcommittee o f the Committee on Appropriation, 78th C o n g ., 2d sess.,\n343-44 (1944).\nTherefore, the C om m ission\xe2\x80\x99s proposed rating system may be viewed as an exam ination and thus\nim proper for that reason. The rating system , like an exam ination, would purport to objectively\nm easure the abilities of attorneys and seek to gauge the \xe2\x80\x9c relative qualifications\xe2\x80\x9d o f attorneys. As\nsuch it would be an \xe2\x80\x9c exam in ation,\xe2\x80\x9d as Senator M cKellar used that term . Legal E xam ining Board\n"ex am in atio n s\xe2\x80\x9d were not limited to written tests; that term was construed to include oral interviews\nas well. To Create a Board o f Legal Examiners in the Civil Service Commission: Hearing on H.R.\n1025 before the House Committee on the Civil Service, 78th C ong., 1st sess., 4 (1943) (Statem ent\no f Solicitor General Fahy, an ex-officio m em ber of the Board).\n4The Com m ission m ight argue that it is not im posing selection procedures, but that it is only\nrequiring that agencies establish their own procedures. H ow ever, the C om m ission\xe2\x80\x99s purported\npower o f approval o r rejection o f such procedures is tantam ount to Com m ission im position of\nselection procedures for attorneys.\nCongress, in considering the 1944 restriction, rejected any Com m ission role in determ ining the\n\xe2\x80\x9c relative qualifications" o f law yers. 90 Cong. Rec. 2660 (rem arks o f Senator M cK ellar). The\nrating system , how ever, would result in the Com m ission doing just that.\n\n181\n\n\x0cAnd, again at 90 Cong. Rec. 2661, Senator Burton cautioned that the\nrestriction:\n. . . would result in the return of lawyers to a patronage basis, making\nimpossible the application to them of the veterans\xe2\x80\x99 preference\nprovisions already in the statutes.\nThe only response to Senator Burton\xe2\x80\x99s cautionary statement was the suggestion\nthat a legal examining board for all attorney applicants be established in the\nDepartment of Justice. Senator McKellar, 90 Cong. Rec. 2661 (1944). This,\nhowever, has never been done.\nThus, there is reason to doubt that the Commission may lawfully require an\nattorney rating system. As we mentioned above, 5 U.S.C. \xc2\xa7 3320 requires that\nveterans\xe2\x80\x99 preference apply in the excepted service in the same manner as in the\ncompetitive service. However, attorney positions are unlike most others in the\nexcepted service in that the Commission cannot remove them from the excepted\nservice. Additionally, the restrictive appropriation provision casts doubt on the\nCommission\xe2\x80\x99s authority to require attomey-selection procedures.5\nWhile the Commission\xe2\x80\x99s authority to enforce veterans\xe2\x80\x99 preference in attorney\nhiring may be dubious, the Department is bound to apply it in some fashion. In\nour opinion, it need not be applied through a numerical rating system; such a\nsystem for attorney hiring was considered and rejected as long ago as 1941.\nThus, it was not viewed as essential to implementation of veterans\xe2\x80\x99 preference.\nPresident Franklin D. Roosevelt, by Executive Order No. 8044, 3 CFR 456\n(1938-1943 compilation) appointed a committee to study and make recommen\xc2\xad\ndations on civil service procedures. In February 1941 that committee submit\xc2\xad\nted its report entitled Report o f the President\xe2\x80\x99s Committee on Civil Service\nImprovement. H. Doc. 118, 77th Cong., 1st sess. (1941). The report stated two\nmajor views on attorney selection procedures\xe2\x80\x94 Plan A and Plan B.\nPlan A recommended that attorneys be evaluated only to determine whether\nthey were qualified for Federal service. If so, they would not be given a rating,\nbut rather, all qualified applicants would be considered equally eligible for\nemployment.\nPlan B recommended, at least in the case of inexperienced attorneys, that\nthey be examined and rated competitively.\nThe authors of Plan A reasoned:\n[I]t seems to us highly unwise to force the unique problem of the\nattorney positions into any general pattern simply for the sake of\nuniformity. Wise administration of the civil service, as of other\noganizations, may often indicate the need for flexibility and ad hoc\nadjustments, even at the cost of uniformity and symmetry. . . .\n. . . We therefore have considered and presented our recommenda\xc2\xad\ntions on the assumption that the attorney positions present a unique\n5A s further evidence that the C om m ission\'s authority to enforce the V eterans Preference Act in\nattorney hiring is unclear, the C om m ission until recently was o f the view that it had no authority to\nenforce that A ct in the excepted service at all. W e lim it our disagreem ent with Com m ission\nenforcem ent authority to attorney selection.\n\n182\n\n\x0cproblem in the professional service, which must be solved individu\xc2\xad\nally rather than by application of a general formula. [H. Doc. 118,\nsupra, at p. 32-33]\nAs well as recommending against a rating system for attorneys, Plan A\nrecommended against applying the competitive service procedure of certifying\nthree applicants to the appointing officer. 5 U.S.C. \xc2\xa7 3318. It was stated by\nthose urging Plan A that:\nWe feel that any mechanical ranking and certification would operate\nin an undesirably arbitrary manner, that the superior officer who is\nresponsible for the appointee\xe2\x80\x99s work should have more voice in his\nselection, and that no principle o f civil service or wise administration\nrequires that there be an assumption o f absolute accuracy in rating\nthe candidates all o f whom by definition are qualified to do legal work\no f a high order. [Id., at 38] [Emphasis added.]\n\nPresident Roosevelt adopted Plan A in Executive Order No. 8743, 3 CFR\n927 (1938-1943 compilation). That order directed the Commission to establish\na register of eligibles from which attorney positions were to be filled. And,\n\xc2\xa7 3(F) of the order directed that:\n. . . registers shall not be ranked according to the ratings received by\nthe eligibles, except that persons entitled to veterans\xe2\x80\x99 preference . . .\nshall be appropriately designated thereon.\nThus, a rating system was not required. Preference eligibles, however, were\ndesignated on the register. Therefore, under Executive Order No. 8743,\nbecause no numerical ratings were used in the selection process, veterans\xe2\x80\x99\npreference was implemented only by considering it a positive factor in the\nemployment decision. At the present, veterans\xe2\x80\x99 preference is positively\nconsidered in Department employment decisions. If all other factors are equal,\nor even close, the preference eligible will normally be selected over the\nnonpreference eligible.\nThe Department will soon adopt new procedures whereby applicants\ninterviewed through the Department\xe2\x80\x99s Honor Graduate Program for attorneys\nwill be given scores based on nine employment factors. Five or ten veterans\xe2\x80\x99\npreference points, where applicable, will be added to these scores. Based on the\nscores, applicants will then be evaluated as best-qualified, qualified, or\nunqualified. All best qualified applicants will be eligible for Department\nemployment. However, the scores received in the Honor Program rating system\nwill not be considered in the final selection process.\nThe Department will soon formalize its present policy and issue a directive\nrequiring that the final attorney selection process consider veterans\xe2\x80\x99 preference\nas a positive factor. Thus, in the Honor Program the veteran will twice benefit\nfrom the application of preference.\nThis procedure has been proposed in the Honor Program on an experimental\nbasis. We understand that if it proves to be an accurate indicator of desirable\nattorney applicants, the procedure may be expanded to other attorney hiring\npractices in the Department. Veterans\xe2\x80\x99 preference will remain a positive factor\n183\n\n\x0cin hiring attorneys with or, without the proposed point system. We feel that this\npractice will give adequate effect to the Veterans Preference Act.\nWe conclude that our practice reasonably gives effect to the Veterans\nPreference Act. In responding to the Commission\xe2\x80\x99s request that we establish a\nnumerical rating system, we question its authority to require such a system for\nattorneys. It would be appropriate to explain to the Commission our procedure\nof positively considering veterans\xe2\x80\x99 preference and the new procedure to be used\nin the Honor Program. If the Commission is satisfied with this, the question of\nits enforcement authority may be mooted.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n184\n\n\x0c'