b"Legal Effect of Joint Resolution Disapproving the\nPresident\xe2\x80\x99s Pay Recommendations\nA joint resolution o f Congress disapproving the President\xe2\x80\x99s pay recommendations under the\nFederal Salary A ct o f 1967 has n o legal force when the joint resolution was passed by one\nhouse after the expiration of the statutorily prescribed 30-day period for Congress to disap\xc2\xad\nprove the recommendations. The recom mended pay raises are therefore effective. Congress\nrem ains free, however, to repeal those pay raises through legislation for that purpose.\n\nFebruary 9, 1987\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nC oun sel\n\nto the\n\nP r e s id e n t\n\nThis responds to your request for our opinion whether \xc2\xa7 3 of H.R.J. Res. 102\neffectively \xe2\x80\x9cdisapproved\xe2\x80\x9d the recent pay recommendations made by the Presi\xc2\xad\ndent pursuant to the Federal Salary Act of 1967, 2 U.S.C. \xc2\xa7\xc2\xa7 351 et seq. We\nbelieve \xc2\xa7 3 has no legal force, because H.R.J. Res. 102 was passed by the\nHouse after expiration of the statutorily prescribed 30-day period for a joint\nresolution of disapproval. Therefore, the salary increases become effective in\naccordance with 2 U.S.C. \xc2\xa7 359.\nThe Federal Salary Act was intended to provide a systematic method of\nadjustment in the rates of pay for the Vice President, members of Congress,\nmembers of the federal judiciary, and most positions in the Executive Branch\ncovered by the Executive Schedule. The Act creates a Commission on Execu\xc2\xad\ntive, Legislative, and Judicial Salaries, to be established every four years, with\na mandate to review and recommend to the President appropriate salary levels\nfor the specified officials. Id. \xc2\xa7\xc2\xa7 351, 356. Not later than December 15 of the\nfiscal year in which the review is conducted, the Commission is required to\nsubmit to the President a report of the results of its review and its recommenda\xc2\xad\ntions as to appropriate salary levels. Id. \xc2\xa7 357. The President, in turn, must\n\xe2\x80\x9cinclude, in the budget next transmitted . . . by him to the Congress . . . his\nrecommendations with respect to the exact rates of pay which he deems\nadvisable, for those offices and positions.\xe2\x80\x9d Id. \xc2\xa7 358. These recommendations\nbecome effective in accordance with \xc2\xa7 359(2)' \xe2\x80\x9cunless any such recommenda\xc2\xad\ntion is disapproved by a joint resolution agreed to by the Congress not later than\nthe last day of the 30-day period which begins on the date . .. such recommen\xc2\xad\ndations are transmitted to the Congress.\xe2\x80\x9d Id. \xc2\xa7 359(1).\n1 Section 359(2) provides that the \xe2\x80\x9ceffectiv e date\xe2\x80\x9d o f the recom m ended rates o f pay \xe2\x80\x9c shall be the first day o f\nthe first pay period w hich begins for such office or position after the end o f the 30-day period [for\ncongressional review ].\xe2\x80\x9d\n\n18\n\n\x0cPursuant to this statutory scheme, in January the President submitted, with\nthe budget, recommended pay increases for the covered positions. The 30-day\nperiod provided by \xc2\xa7 359(1) for passage of a joint resolution of disapproval\nexpired at midnight, February 3, 1987. On January 29, 1987, well before\nexpiration of the period, the Senate passed H.R.J. Res. 102. As passed by the\nSenate, \xc2\xa7 3 of H.R.J. Res. 102 provides that:\nThe recommendations of the President relating to rates of pay\nfor offices and positions within the purview of section 225(f) of\nthe Federal Salary Act of 1967 [2 U.S.C. \xc2\xa7 356], as included\n(pursuant to section 225(h) of such Act [2 U.S.C. \xc2\xa7 358]) in the\nbudget transmitted to the Congress for fiscal year 1988, are\ndisapproved.\nThe House, however, did not take final action on H.R.J. Res. 102 until Febru\xc2\xad\nary 4, 1987, the day after expiration of the 30-day period prescribed by\n\xc2\xa7 359(1). Although the resolution passed by both Houses of Congress is identi\xc2\xad\ncal and therefore will become law if signed by the President, we believe that the\ndelay in House action beyond the statutory 30-day period rendered ineffective\nCongress\xe2\x80\x99 action disapproving the raise.\nTo our knowledge the issue raised is one of first impression. We start from\nthe well-founded premise that Congress could pass legislation at any time to set\nspecific rates of pay for the covered positions, consistent with constitutional\nlimitations.2 Clearly, Congress cannot bind itself legislatively from enacting\nfuture legislation. Congress could, for example, pass a bill directing that the\nrates of pay for the covered positions be no more than the rates payable as of a\ngiven date, or actually setting specific salary levels. Such legislation, if signed\nby the President, would supersede the effectiveness of the raises recommended\nby the President under the Salary Act.3 Although it can be argued that the\ndifference between such legislation and the resolution of disapproval contained\nin H.R.J. Res. 102 is only formalistic and that Congress\xe2\x80\x99 inclusion of \xc2\xa7 3 in the\nresolution must therefore be given effect, we believe the sounder view is that\nCongress did not intend in this instance for the disapproval to have any legal\nforce and effect.\n2 The C om pensation C lause o f the C onstitution, art. HI, \xc2\xa7 1, provides that federal judges shall receive \xe2\x80\x9ca\nC om pensation, which shall not be dim inished during their C ontinuance in O ffice.\xe2\x80\x9d Under United States v.\nWill, 449 U.S. 200 (1980), a ju d g e 's salary increase \xe2\x80\x9c \xe2\x80\x98vests\xe2\x80\x99 for purposes o f the Com pensation Clause only\nwhen it takes effect as part o f the com pensation due and payable to A rticle 111 judges.\xe2\x80\x9d Id. at 229 (em phasis\nadded). Because \xc2\xa7 359(2) o f the Salary Act provides that the recom m ended pay increases becom e effective on\nthe first day o f the first pay period after expiration o f the 30 days provided for congressional review , w e read\nUnited States v. Will to mean that legislation to deny the recom m ended raises to members o f the judiciary\nw ould have to be passed by Congress and signed by the President before the beginning of the next applicable\npay period, which we understand is March 1, 1987.\n3 Congress has, in fact, frequently used the appropriations process to set specific salary levels for federal\nem ployees that are different from those set pursuant to existing statutory schemes (such as the Salary Act and\n5 U.S.C. \xc2\xa7 5305). The most recent example is \xc2\xa7 144 o f last year\xe2\x80\x99s Continuing Resolution, Pub. L. Nos. 9 9 500 and 99 -5 9 1 , in which C ongress mandated an across-the-board three-percent pay increase for federal\nemployees.\n\n19\n\n\x0cIt is clear, both from the language of \xc2\xa7 3 which specifically references the\nprocedures of the Salary Act as well as the debates on H.R.J. Res. 102, that both\nHouses of Congress understood they were acting pursuant to the statutory\nscheme set up by the Federal Salary Act, including the 30-day time limit\nprovided in \xc2\xa7 359(1). See, e.g., 133 Cong. Rec. 2273 (1987) (remarks of Sen.\nGlenn); 133 Cong. Rec. 2687-88 (1987) (remarks of Rep. Ford). There was\nalso considerable doubt voiced in both Houses that failure to act within the\nstatutory deadline would render any vote on the proposed resolution of disap\xc2\xad\nproval moot. For example, Representative Ford, Chairman of the House Post\nOffice and Civil Service Committee, which had jurisdiction over the recom\xc2\xad\nmended pay raises, stated that:\nUnder the explicit terms of section 225 of the Federal Salary Act\nof 1967, it is clear that the deadline for congressional disap\xc2\xad\nproval of the President\xe2\x80\x99s pay recommendations expired at mid\xc2\xad\nnight last night, February 3. Since the House did not act by that\ndeadline, what we do today is meaningless.\n133 Cong. Rec. 2687 (1987). Similar views were voiced by other members of\nthe House and Senate. See, e.g., 133 Cong. Rec. 2282 (1987) (remarks of Sen.\nHumphrey); id. at 2288 (remarks of Sen. Wilson); id. at 2278 (remarks of Sen.\nGrassley); 133 Cong. Rec. 2688 (1987) (remarks of Rep. Smith). We have\nfound no contrary statements in the debates to suggest Congress wished to\nignore the 30-day limitation imposed by \xc2\xa7 359(1). Therefore, while the Senate\ncertainly intended to disapprove the proposed increases, its intent was to do so\nwithin the 30-day period, consistent with the statutory scheme; passage of\nH.R.J. Res. 102 by the Senate does not necessarily imply any intent or authori\xc2\xad\nzation once that 30-day period expires. Because of the failure of the House to\nact within the 30-day period, its intent obviously was not to disapprove the\nrecommended increase within the required 30-day period. Indeed, in light of\nthe floor statements indicating that the House believed action on the bill after\nthe 30th day to be meaningless, we cannot say that the House intended to\ndisapprove the President\xe2\x80\x99s recommendations at all.4 Looking at the intent of\nboth Houses, we conclude that there was no clear mutual intent to disapprove\nthe recommended pay raises.\nIn any event, we believe that Congress is correct in its interpretation of the\neffect of the 30-day deadline in \xc2\xa7 359(1). Although Congress obviously could\nachieve the same result, i.e., continuance of executive, legislative, and judicial\nsalaries at their current levels through other types of legislation, it chose to use\nthe mechanism provided in \xc2\xa7 359(1). Because Congress chose to limit its\nexpression of disapproval within the terms of the Federal Salary Act, including\nthe requirement of a joint resolution of disapproval passed within 30 days\nfollowing the President\xe2\x80\x99s transmittal of his recommendations, its actions must\n4 In a sense, as o f 12:01 a.m . on February 4, 1987, there w ere no \xe2\x80\x9crecom m endations\xe2\x80\x9d o f the President to be\napproved; by operation o f statute, those recom m endations becam e actual pay increases, autom atically\neffectiv e as o f the first day o f the next p ay period.\n\n20\n\n\x0cbe interpreted accordingly. Had Congress either successfully stated its disap\xc2\xad\nproval within the requisite 30 days, or, before or after that period, expressly\nindicated a willingness to disregard the existing statutory scheme, for example,\nby amending \xc2\xa7 359 or by expressly setting specific salary levels by legislation.\nCongress could have easily and effectively disapproved the pay raises. Con\xc2\xad\ngress, however, expressly acted within the confines of the Federal Salary Act,\nand we believe the time limit imposed by that Act is therefore controlling.\nIn sum, although the question is novel, we believe that \xc2\xa7 3 of H.R.J. Res. 102\ndoes not legally roll back the salary increases recommended by the President.\nThose increases must therefore be put into effect, subject to any subsequent\ncongressional repeal of the pay raise as suggested above.\nC harles\n\nJ.\n\nC ooper\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n21\n\n\x0c"


b'Authority of Education Department Administrative\nLaw Judges in Conducting Hearings\nA dm inistrative law ju d g e s w ithin the D epartm ent o f E ducation, being em ployees o f the D ep art\xc2\xad\nm ent, do n o t have authority to conduct adm inistrative hearings in a m anner contrary to the\nD ep artm en t\'s rules, to invalidate such rules, o r to interpret such rules in a m anner contrary to\nthe S ecretary \xe2\x80\x99s interpretation.\n\nJanuary 12, 1990\nM\n\nem orandum\n\nD\n\nO\n\np in io n\n\nFo r T\n\nepa rtm en t\n\nO\n\nf\n\nhe\n\nG\n\neneral\n\nC o u n sel\n\nE d u c a t io n\n\nYou have requested our opinion whether administrative law judges (\xe2\x80\x9cALJs\xe2\x80\x9d)\nwithin the Department of Education (\xe2\x80\x9cDepartment\xe2\x80\x9d) who preside over agency\nhearings required by 20 U.S.C. \xc2\xa7 1234 to be conducted in accordance with\nthe Administrative Procedure Act, 5 U.S.C. \xc2\xa7\xc2\xa7 551-596 (\xe2\x80\x9cAPA\xe2\x80\x9d), have inde\xc2\xad\npendent authority to conduct those proceedings in a manner contrary to the\nDepartment\xe2\x80\x99s rules, to invalidate such rules, or to interpret such rules in a\nmanner contrary to the Secretary\xe2\x80\x99s interpretation.1 We conclude that ALJs,\nbeing employees of the Department, have no such authority. While ALJs\nhave authority to regulate the conduct of administrative proceedings before\nthem, such authority remains \xe2\x80\x9c[sjubject to published rules of the agency,\xe2\x80\x9d id.\n\xc2\xa7 556(c), and therefore may be exercised only in accordance with \xe2\x80\x9csuch\nrules as the Secretary shall prescribe by regulation.\xe2\x80\x9d 20 U.S.C. \xc2\xa7 1234(f).\n\nI. Background\nThe questions posed here concerning the scope of a Department A LJ\xe2\x80\x99s\npower have arisen as a result of decisions by such ALJs asserting indepen\xc2\xad\ndent authority over procedural matters in administrative hearings. You have\nprovided us with a copy of one such decision, the recent opinion of ALJ\nDaniel R. Shell in In the Matter o f Franklin-Northwest Supervisory Union,\nNo. 89-4-R (\xe2\x80\x9cOrder Denying Stay for Settlement Negotiations [and] Order\nGranting Stay for Mediation\xe2\x80\x9d) (Dec. 11, 1989) (\xe2\x80\x9cOpinion\xe2\x80\x9d). In that matter,\napplicant Franklin-Northwest and the Department jointly requested a stay of\nadministrative proceedings pending settlement negotiations. The applicable\nDepartment regulation provides that \xe2\x80\x9c[i]f the parties to a case file a joint\nmotion requesting a stay of the proceedings for settlement negotiations or\nthe approval of a settlement agreement, the ALJ grants the stay.\xe2\x80\x9d 34 C.F.R.\n\xc2\xa7 81.14(a) (1989).\n\n\' See M emorandum for the Under Secretary, Department of Education, from Edward C. Stringer, G en\xc2\xad\neral Counsel, Departm ent of Education (Dec. 15, 1989) (expressing General Counsel\xe2\x80\x99s concerns with\nrecent ALJ rulings).\n\n1\n\n\x0cALJ Shell denied the motion. He concluded that administrative law judges\nhave the duty under the APA and under their delegated judicial authority in\nthe Department of Education to exercise the judicial function in an indepen\xc2\xad\ndent m anner and to regulate the course of proceedings before them. ALJ\nShell concluded that 34 C.F.R. \xc2\xa7 81.14(a) interfered with his exercise of this\njudicial responsibility, and he ruled that \xe2\x80\x9cthe Secretary cannot promulgate\nregulations that would deny the [administrative law] judge the opportunity\nto exercise the responsibilities of the judicial function of 5 U.S.C. 554, 556,\n557 nor deny the [administrative law] judge judicial independence.\xe2\x80\x9d Opin\xc2\xad\nion at 9. Mr. Shell therefore rejected the authority of the Secretary\xe2\x80\x99s regulation\nand denied the joint stay application of the Department and Franklin-North\xc2\xad\nwest. In the alternative, Mr. Shell construed 34 C.F.R. \xc2\xa7 81.14(a) as not\nrequiring an ALJ to grant a joint stay motion for settlement.\n\nEL Analysis\nAdministrative law judges have no constitutionally based judicial power,\nsee Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 132-33\n(1953), but are employees of the executive branch department or agency\nem ploying them. See 20 U.S.C. \xc2\xa7 1234(c) (statute establishing the Office of\nAdministrative Law Judges within the Department of Education provides\nthat ALJs \xe2\x80\x9cshall be officers or employees of the Department\xe2\x80\x9d). As such,\nALJs are bound by all policy directives and rules promulgated by their agency,\nincluding the agency\xe2\x80\x99s interpretations o f those policies and rules. See Nash\nv. Bowen, 869 F.2d 675, 680 (2d Cir.), cert, denied, 493 U.S. 813 (1989);\nM ullen v. Bowen, 800 F.2d 535, 540-41 n.5 (6th Cir. 1986); Brennan v.\nD epartment o f Health and Human Services, 787 F.2d 1559 (Fed. Cir.), cert,\ndenied, 479 U.S. 985 (1986); Goodman v. Svahn, 614 F. Supp. 726, 728\n(D.D.C. 1985); Association o f Administrative Law Judges, Inc. v. Heckler,\n594 F. Supp. 1132, 1141 (D.D.C. 1984); c f D\'Amico v. Schweiker, 698 F.2d\n903, 906 (7th Cir. 1983). Accord 34 C.F.R. \xc2\xa7 81.5(b) (embodying in Depart\xc2\xad\nment regulations the requirement that ALJs adhere to policies and rules of\nthe agency). ALJs thus do not exercise the broadly independent authority of\nan Article III judge, but rather operate as subordinate executive branch offi\xc2\xad\ncials who perform quasi-judicial functions within their agencies. In that\ncapacity, they owe the same allegiance to the Secretary\xe2\x80\x99s policies and regu\xc2\xad\nlations as any other Department employee.\nThe obligation of ALJs to adhere to their employer\xe2\x80\x99s policies and rules\nextends to matters of administrative procedure in the conduct of agency\nhearings. The APA explicitly provides that the power of employees presid\xc2\xad\ning at agency hearings is subject to the rules prescribed by the employing\nagency:\n\n2\n\n\x0cSubject to published rules o f the agency and within its pow \xc2\xad\ners, employees presiding at hearings may \xe2\x80\x94 . . . (5) regulate\nthe course of the hearing; . . . (9) dispose of procedural re\xc2\xad\nquests or similar matters; . . . .\n5 U.S.C. \xc2\xa7 556(c) (emphasis added). The statute establishing the Office of\nAdministrative Law Judges within the Department echoes the restrictions of\n\xc2\xa7 556(c) by stating that\n[t]he proceedings of the Office shall be conducted according\nto such rules as the Secretary shall prescribe by regulation in\nconformance with the rules relating to hearings in Title 5,\nsections 554, 556, and 557.\n20 U.S.C. \xc2\xa7 1234(f)(1).\nThat ALJs remain subject to the authority of the agency in all matters of\npolicy, procedure, and interpretation of law is wholly consistent with the\ntype of judicial independence mandated by the APA. The APA requires both\na separation of functions within the agency, 5 U.S.C. \xc2\xa7 554(d), and that\nALJs have certain tenure protections. Id. \xc2\xa7 7521. Thus, to maintain the\nintegrity of agency adjudicative proceedings, an ALJ is prohibited from cer\xc2\xad\ntain ex parte contacts with parties involved in the adjudication, may not be\nresponsible to another employee engaged in investigative or prosecutorial\nfunctions, and may not participate in the decision of a case in which he has\nperformed an investigative or prosecutorial function. These restrictions do\nnot, however, establish that ALJs are free to ignore agency rules for the\nconduct of agency hearings. To draw the conclusion that ALJs are not bound\nby such agency rules would be to read \xc2\xa7 554(d) as implicitly nullifying \xc2\xa7\n556(c). Such a construction would be contrary to well established principles\nof statutory interpretation disfavoring implied repeals. See Ruckelshaus v.\nMonsanto Co., 467 U.S. 986, 1017-18 (1984) (repeals by implication are\ndisfavored). Rather, an ALJ is \xe2\x80\x9cindependent\xe2\x80\x9d within the meaning of \xc2\xa7 554(d)\nonly in that\' he may not also perform another agency function with respect to\na proceeding over which he presides as a hearing officer.\nSimilarly, 5 U.S.C. \xc2\xa7 7521 provides ALJs with only a limited \xe2\x80\x9cindepen\xc2\xad\ndence\xe2\x80\x9d from agency officials by providing tenure protection from unjustified\nagency reprisal. Section 7521 provides that ALJs may be removed from\ntheir positions, or otherwise disciplined, only for cause and after notice and\na hearing before the Merit Systems Protection Board. 5 U.S.C. \xc2\xa7\xc2\xa7 5372,\n7521. See generally 5 C.F.R. \xc2\xa7\xc2\xa7 930.201-930.216 (1981). This measure of\nindependence does not, however, mean that ALJs may disregard agency rules\nthat are binding on them. Mullen, 800 F.2d at 540 n.5. To the contrary,\nfailure to adhere to agency policies and procedures may constitute \xe2\x80\x9cgood\n\n3\n\n\x0ccause\xe2\x80\x9d sufficient to warrant the discharge or discipline of an employee serv\xc2\xad\ning as an administrative law judge. 5 U.S.C. \xc2\xa7 7521; see, e.g., Brennan v.\nD epartment o f Health and Human Services, 787 F.2d 1559 (Fed. Cir.), cert,\ndenied, 479 U.S. 985 (1986) (affirming suspension of ALJ for failure to\ncomply with office administrative procedures).\nA 1977 published Attorney General opinion supports our conclusion. In\ndescribing the legislative history of the APA, that opinion notes that Con\xc2\xad\ngress rejected a minority recom m endation for complete segregation of\nadministrative law judges into independent agencies in favor of more limited\nindependence for ALJs in terms of tenure and compensation. 43 Op. Att\xe2\x80\x99y\nGen. 64-67 (1977). The opinion does observe that, within the scope of\npowers granted ALJs under 5 U.S.C. \xc2\xa7 556(c), those powers are to be exer\xc2\xad\ncised without agency interference. But this conclusion in no way implies\nthat ALJs are not \xe2\x80\x9c[s]ubject to published rules of the agency,\xe2\x80\x9d 5 U.S.C. \xc2\xa7\n556(c), in the conduct of agency proceedings and the exercise of their other\nstatutory powers. Such an implication would be contrary to the plain lan\xc2\xad\nguage o f \xc2\xa7 556(c).\nALJ Shell relied on Butz v. Economou, 438 U.S. 478, 513 (1978), as\nsupport for his theory that ALJs are not bound by agency rules. We believe,\nhowever, that the Butz case is fully consistent with our conclusion. In that\ncase, the Supreme Court described the role of an ALJ as being \xe2\x80\x9cfunctionally v\ncom parable\xe2\x80\x9d to that of a judge. Read in context, however, that statement\nprovides no support for the assertion that ALJs may conduct agency hear\xc2\xad\nings or adjudications independently of agency regulations. The issue in Butz\nwas whether ALJs and other investigative, prosecuting, and trial officials of\nthe Department of Agriculture were entitled to the same immunity from tort\nliability for their official actions as Article III judges and government pros\xc2\xad\necutors. The Court held that, like Article III judges, agency officials must\nbe able to make decisions free from the intimidation or harassment of retal\xc2\xad\niatory litigation. Id. at 514-17. In that context, the Court held that an\nadministrative law judge is \xe2\x80\x9cfunctionally comparable\xe2\x80\x9d to an Article III judge,\nwho enjoys absolute immunity. Significantly, however, the Court held that\nthis functional comparability also applied to prosecutors and grand jurors,\nid. at 511-12; see Im bler v. Pachtman, 424 U.S. 409 (1976), and therefore to\nagency officials who initiate administrative proceedings against individuals,\nand to those who conduct trials and present evidence. Butz, 438 U.S. at 51517. \xe2\x80\x9cFunctional comparability\xe2\x80\x9d in this context thus bears no relation to the\nscope of an ALJ\xe2\x80\x99s authority with respect to agency rules. Butz does not\noverrule the holding in Ramspeck that ALJs are \xe2\x80\x9csemi-independent subordi\xc2\xad\nnate hearing officers,\xe2\x80\x9d id., 345 U.S. at 132 (original quotation marks omitted,\nem phasis added), or supersede 5 U.S.C. \xc2\xa7 556(c), which plainly requires\n\n\x0cALJ subordination to agency procedures for conduct o f administrative hear\xc2\xad\nings or adjudications.2\nAs an alternative ground for denying the joint stay application in the\nFranklin-Northwest matter, Mr. Shell interpreted 34 C.F.R. \xc2\xa7 81.14(a) as not\nrequiring an ALJ to grant a joint stay motion for settlement. The regulation\nprovides that, upon joint motion of the parties requesting a stay of proceed\xc2\xad\nings for settlement negotiations, \xe2\x80\x9cthe ALJ grants the stay." Id. Mr. Shell\ndeclared that because the language states that \xe2\x80\x9cthe ALJ grants\xe2\x80\x9d rather than\n\xe2\x80\x9cthe ALJ shall grant,\xe2\x80\x9d the granting of the motion was not mandatory. Opin\xc2\xad\nion at 10-12. Based on the analysis provided above, we believe that it is\nclear that an ALJ, being a subordinate employee of the Secretary, is without\nauthority to adopt a construction of a Department rule at variance from the\nconstruction of the Secretary or his designee (here, the General Counsel).\nSee Nash, 869 F.2d at 680; Brennan, 787 F.2d at 1559-61; Bauzo v. Bowen,\n803 F.2d 917, 921 (7th Cir. 1986); Association o f Administrative Law Judges,\n594 F. Supp. at 1141.\nIn any event, we believe that the Department\xe2\x80\x99s interpretation of \xc2\xa7 81.14(a)\nis plainly correct. The fact that the regulations are written in a present\ntense, active voice style does not negate their mandatory character. We\nthink Mr. Shell\xe2\x80\x99s construction is strained and effectively nullifies the regula\xc2\xad\ntion. The plain import of this provision is that the ALJ is required to grant\nthe stay upon the joint motion of the parties. The explanatory notes accom \xc2\xad\npanying the proposed regulations clearly indicate that the ALJ is required to\nstay the proceedings if requested by both parties. See 53 Fed. Reg. 48,866\n(1988). We are informed that no comments were received on this section of\nthe proposed regulations. The wording of the final regulation therefore was\nnot changed, nor was the intended meaning of the provision as set forth in\nthe explanatory comment contradicted. Accordingly, the correct inference is\nthat the meaning and effect o f the regulation were unchanged from that\nreflected in the explanatory comment accompanying the proposed rule.\n\n2 No due process issue is presented by the requirement that ALJs adhere to the agency\xe2\x80\x99s policies and\nrules. The requirem ent specifically at issue here \xe2\x80\x94 that ALJs stay administrative proceedings for\nsettlem ent discussions upon the joint motion of the parties, 34 C.F.R. \xc2\xa7 81.14(a) \xe2\x80\x94 cannot be said to\nconflict with any provision of the APA or to deprive any person of due process of law. M oreover, it is\nplain that ALJs lack standing to assert such a due process challenge, which can arise only w here a\nprivate party is aggrieved by the adjudicative procedures employed by an agency. Goodman, 614 F.\nSupp. at 728; see Kalaris v. Donovan, 697 F.2d 376, 399 n.91 (D.C. Cir.), cert, denied, 462 U.S. 1119\n(1983); D \xe2\x80\x99Am ico, 698 F.2d at 905-06. An administrative law judge lacks any legally cognizable \xe2\x80\x9cright\xe2\x80\x9d\nto raise a constitutional challenge to an agency rule or procedure that does not injure him in his personal\ncapacity, but has only such rights of stature by virtue of his position as are conferred by statute. Ramspeck,\n345 U.S. at 133; Goodman, 614 F. Supp. at 728. See also Nash, 869 F.2d at 680; Association o f A dm in\xc2\xad\nistrative Law Judges, 594 F. Supp. at 1141.\n\n5\n\n\x0cIII. Conclusion\nFor these reasons, we conclude that administrative law judges within the\nDepartm ent o f Education must abide by the written rules and regulations\nadopted by the Secretary for the conduct of administrative proceedings and\nby the Secretary\xe2\x80\x99s interpretation of such regulations.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counse\n\n6\n\n\x0c'


b'Restrictions on Canadian Ownership of Federal Mineral\nLeases Under the Mineral Leasing Act of 1920\nT he provisions o f 30 U.S.C. \xc2\xa7 181, which bar ownership o f leases under the Mineral\nLeasing A ct of 1920 by citizens o f a foreign country w henever the laws o f that country\ndeny \xe2\x80\x9csimilar o r like privileges\xe2\x80\x9d to U.S. citizens, reflect a reciprocity principle under\nw hich the United States w ould be able to respond in kind when another country\nrestricts American investment in its minerals. Accordingly, the United States may take\nresponsive steps \xe2\x80\x98\xe2\x80\x98mirroring\xe2\x80\x9d Canadian restrictions on foreign investment in its mineral\nresources, so as to restore \xe2\x80\x9csimilar or like privileges\xe2\x80\x9d between U.S. and Canadian\ncitizens for purposes of \xc2\xa7 181.\n\nAugust 11, 1981\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION\nYou have informed us that the Administration is contemplating possi\xc2\xad\nble action responding to Canadian restrictions on foreign investment in\nits mineral resources. A principal legal question arising in this context is\nwhether, consistent with 30 U.S.C. \xc2\xa7 181, the United States may take\nresponsive steps \xe2\x80\x9cmirroring\xe2\x80\x9d the Canadian restrictions on American\ninvestment in Canada by similarly restricting Canadian investment in\nAmerican mineral resources, primarily by limiting Canadian ownership\nof federal mineral leases under the Mineral Leasing Act of 1920, 41\nStat. 437 (Act). Section 181 provides in pertinent part:\nCitizens of another country, the laws, customs, or regula\xc2\xad\ntions of which deny similar or like privileges to citizens or\ncorporations of this country, shall not by stock owner\xc2\xad\nship, stock holding, or stock control, own any interest in\nany lease acquired under the provisions of this chapter.\nIt might be argued that whenever another country like Canada places\nrestrictions on foreign ownership of interests in its mineral resources,\n\xc2\xa7181 permanently bars the citizens of the other country from owning\nany interest in any lease under the Act. Support for this inflexible\ninterpretation might be sought in \xc2\xa7 181\xe2\x80\x99s prohibition on ownership of\n\xe2\x80\x9cany interest in any lease\xe2\x80\x9d by the citizens of another country whose\nlaws deny Americans \xe2\x80\x9csimilar or like privileges.\xe2\x80\x9d\nWe do not believe this to be the proper construction of \xc2\xa7 181. Under\nthat provision, the bar on \xe2\x80\x9cany\xe2\x80\x9d ownership of \xe2\x80\x9cany\xe2\x80\x9d lease under the\nAct does not apply unless \xe2\x80\x9cthe laws, customs, or regulations\xe2\x80\x9d of an\xc2\xad\n250\n\n\x0cother country \xe2\x80\x9cdeny similar or like privileges to citizens or corpora\xc2\xad\ntions of this country.\xe2\x80\x9d The fact that another country takes steps to\neliminate \xe2\x80\x9csimilar or like privileges\xe2\x80\x9d does not, by itself, mean that this\ncountry would be barred from taking responsive action to restore\n\xe2\x80\x9csimilar or like privileges\xe2\x80\x9d for purposes of \xc2\xa7 181.1 To read \xc2\xa7 181 as\npreventing such responsive action would require the United States to\nadopt the rather draconian measure of cutting off all ownership inter\xc2\xad\nests of another country\xe2\x80\x99s citizens in federal mineral leases regardless\nhow minimal the other country\xe2\x80\x99s restriction on foreign ownership of\nmineral resources may be, so long as the foreign restriction eliminated\n\xe2\x80\x9csimilar or like\xe2\x80\x9d privileges. This interpretation disregards the apparent\nunderlying purpose of \xc2\xa7 181 to permit reciprocal relations between the\nUnited States and another country concerning ownership of each\nother\xe2\x80\x99s mineral resources.\nFurthermore, the inflexible interpretation of \xc2\xa7 181 disregards the prin\xc2\xad\nciple that, under the Mineral Leasing Act, the Secretary of Interior has\na \xe2\x80\x9cbroad power\xe2\x80\x9d to manage federal mineral leases. See Udall v.\nTollman, 380 U.S. 1, 4 (1965). Indeed, the Secretary is specifically\ndelegated authority, inter alia, \xe2\x80\x9cto do any and all things necessary to\ncarry out and accomplish the purposes of this chapter.\xe2\x80\x9d 30 U.S.C.\n\xc2\xa7 189. It seems plain that if another country were to eliminate \xe2\x80\x9csimilar\nor like,\xe2\x80\x9d responsive action to re-establish such a balance of privileges in\na particular case may well effectuate the statute\xe2\x80\x99s purposes.\nAn interpretation of \xc2\xa7 181 allowing \xe2\x80\x9cmirroring\xe2\x80\x9d action is consistent\nwith the legislative history 2 and with what we understand to have been\nthe Act\xe2\x80\x99s construction by the Department of the Interior, the agency\ncharged with implementing it.3 The sentence in \xc2\xa7 181 dealing with\n\xe2\x80\x9csimilar or like privileges\xe2\x80\x9d originated in the bill which became the\nMineral Leasing Act of 1920 reported out by the House Committee on\nthe Public Lands. The House Committee noted that its bill substituted\n1 All \xc2\xa7 181 provides is that if another country does deny \xe2\x80\x9csimilar or like privileges\xe2\x80\x9d to United States\ncitizens, a bar on ownership of federal mineral leases takes effect. This leaves open the question\nwhether, once another country takes such action, the United States may take responsive action\nrestoring \xe2\x80\x9csimilar or like privileges.\xe2\x80\x9d\n2See United States v. American Trucking Ass\'n, 310 U.S. 534, 542-44 (1940) (for the principle that\nreliance on the purposes and history o f a statute is appropriate in determining a statute\'s meaning).\n3See, e.g.. R ed Lion Broadcasting Co. v. FCC, 395 U.S. 367 381 (1969) (\xe2\x80\x9c[T]he construction of a\nstatute by those charged with its execution should be followed unless there are compelling indications\nthat it is wrong. . .\xe2\x80\x9d); Udall v. Tollman, 380 U.S. 1, 16 (1968) (\xe2\x80\x98\xe2\x80\x98[wjhen faced with a problem of\nstatutory construction, this Court shows great deference to the interpretation given the statute by the\nofficers or agency charged with its administration\xe2\x80\x9d). An interpretation allowing \xe2\x80\x9c mirroring\xe2\x80\x9d respon\xc2\xad\nsive action is also consistent with the approach of 38 O p A tt\'y Gen. 476 (1936), which concluded that\nEngland should be regarded as a country in a \xe2\x80\x9creciprocal\xe2\x80\x9d relationship with the United States for\npurposes of the Mineral Leasing Act. The Attorney General, while noting that certain requirements\ngoverning foreign investment under British law had no exact parallels in American federal law,\nreasoned that these special British restrictions \xe2\x80\x9care not unduly restrictive or harsh, \xe2\x80\x9d and some o f them\nmight even be matched in some state corporation statutes. Thus, the Attorney General, in adopting a\npractical approach to the statute\'s interpretation, refused to embrace the extreme view that any\nrestriction in foreign law not matched in American law necessarily prompts application of an absolute\nbar on foreign ownership o f mineral leases.\n\n251\n\n\x0clanguage essentially identical to the present \xc2\xa7 181 for a different Senate\nversion 4 because, in its view, the Senate bill was too harsh and would\nbe too likely to prompt retaliatory action by other countries:\nThe House amendment to this clause seeks to avoid retalia\xc2\xad\ntory action against American investors in foreign countries\nand provides that no citizen o f any foreign country shall, by\nstock ownership, stock holdings, or stock control, own any\ninterest in any lease acquired under the provisions o f this act\nwhere such foreign country, by its laws, customs, or regula\xc2\xad\ntions, denies similar or like privileges to citizens or corpora\xc2\xad\ntions o f this country. The main argument for the Senate\n\ndraft was that foreign control of domestic corporations\noperating a lease under the act would result in large\nexportations of oil, coal, and other minerals covered by\nthe act, and thereby deplete the domestic supply. Under\nthe House reciprocal clause above mentioned it is obvious\nthat the citizens o f the United States could largely offset\nsuch a result by their own operations in foreign countries,\nor, if an acute situation ever developed, a general embar\xc2\xad\ngo against exportation would be a sufficient remedy.\nH.R. Rep. No. 398, 66th Cong., 1st Sess. 11 (1919) (emphasis added).\nDuring floor debate on the House bill, its sponsor, Congressman\nSinnott, engaged in the following colloquy with Congressman Snell:\nMr. Snell: As I understand it, the British Government\ndoes not allow any alien to own any oil lands under the\ncontrol of that Government. According to this act,\nwhat would be the result if a British subject owned\nstock in any one of our oil companies? What would be\nthe situation in which he would find himself?\nMr. Sinnott: I f the British Government discriminates against\nus, we meet that discrimination by denying to its citizens\nthe rights that are withheld from us.\n\nMr. Snell: If I were a British subject and held some stock\nin one of these oil companies, would I be forced to sell\nit?\nMr. Sinnott: The stock could be declared forfeited, under\nthe forfeiture clause in the bill.\nMr. Snell: There is no protection then fo r any foreigner who\nhappens to own stock in one o f our oil companies, is there?\n\xe2\x80\x98 T he language in the Senate bill that was rejected by the House Committee had provided that \xe2\x80\x9c no\nalien shall . . . ow n any interests in a lease\xe2\x80\x9d under the Act \xe2\x80\x9cexcept with a specific provision in such\nlease authorizing the President, in his discretion, to take over and operate such lease, paying just\ncom pensation\xe2\x80\x9d to its owner, and provided further that \xe2\x80\x9cthe Secretary of the Interior may require the\nsale for consumption in the United States of all or any portion of the products of any leased property\nin which it appears that any alien has an interest by stock ownership or otherwise.\xe2\x80\x9d 58 Cong. Rec.\n4160(1919).\n\n252\n\n\x0cMr. Sinnott: N ot i f his Government denies us the same\nrights.\n\n58 Cong. Rec. 7528 (1919) (emphasis added). Although the specific\nquestion posed above by Congressman Snell dealt with England, a\ncountry described as not allowing \xe2\x80\x9cany alien\xe2\x80\x9d to own \xe2\x80\x9cany oil lands,\xe2\x80\x9d\nand thus presented an example of the type of case in which a flat ban\nwould logically apply, Congressman Sinnott did not say that English\ncitizens would be denied \xe2\x80\x9cany\xe2\x80\x9d rights to own federal mineral resources\nunder the legislation. Rather, he explained that \xe2\x80\x9cwe meet that discrimi\xc2\xad\nnation [by a foreign nation] by denying to its citizens the rights that are\nwithheld from us.\xe2\x80\x9d This statement reflects a reciprocity principle under\nwhich the United States would be able to respond to another country\xe2\x80\x99s\nrestrictive practices by \xe2\x80\x9cmeeting\xe2\x80\x9d the other country\xe2\x80\x99s discrimination, in\nshort, by responding in kind.\nWe also understand from conversations with legal staff of the De\xc2\xad\npartment of Interior that \xc2\xa7 181 has not been read in the past as barring,\nand the Mineral Leasing Act as a whole has been read as authorizing,\nresponsive \xe2\x80\x9cmirroring\xe2\x80\x9d action by the Secretary when another country\nrestricts foreign investment in its mineral resources. For instance, we\nhave been told that after Sweden and the Philippines placed restrictions\non the percentages of permissible foreign ownership of their mineral\nresources, the Secretary imposed corresponding restrictions on the per\xc2\xad\nmissible percentages of Swedish and Philippine ownership of any cor\xc2\xad\nporation having a federal mineral lease. The courts have acknowledged\nthat the interpretation of a statute by the agency charged with imple\xc2\xad\nmenting it is entitled to some independent weight, barring contrary\nlegislative language, purpose, or history. See, e.g., Red Lion Broadcast\xc2\xad\ning Co. v. FCC, 395 U.S. 367, 381 (1969); see also General Electric Co. v.\nGilbert, 429 U.S. 125, 141 (1976). In this case, there is no such contrary\nindication regarding \xc2\xa7 181 of which we are aware.\nConclusion\n\nWe conclude that the Mineral Leasing Act, including \xc2\xa7 181, permits\nthe Secretary to respond in kind when another country restricts Ameri\xc2\xad\ncan investment in its minerals.5 In concrete terms, this principle would\n*We do not believe an equal protection argument could be successfully raised against this interpre\xc2\xad\ntation Distinctions may be made on the basis of nationality by Congress or the Executive Branch so\nlong as they rest on a sufficient rational foundation. See, e.g., Narenji v. Civiletti, 617 F.2d 745 (D.C.\nCir. 1979), cert, denied. 446 U.S. 957 (1980), and cases cited therein. Moreover, we do not believe that\ntreaties in force would present a serious problem. It is our understanding that the Secretary would act\nonly in cases in which a foreign power already had imposed restrictions of a similar kind. If there\nwere an outstanding treaty o f friendship, commerce, and navigation with the country of concern, the\ninitial imposition of a restriction by our treaty partner would presumably be based on one of two\npossible assumptions. (1) that such action does not violate the treaty, in which case this country could\nact similarly without violating the treaty, or (2) that such action violates the treaty, in which case the\nbreach by our treaty partner would leave us free to act reciprocally. See Vienna Convention on the\nLaw of Treaties, S. Ex. L , 92d Cong., 1st Sess. (1971), A rt 60.\n\n253\n\n\x0cnot appear difficult to apply in most cases, for instance in cases involv\xc2\xad\ning another country\xe2\x80\x99s restriction on the percentage of foreign owner\xc2\xad\nship o f corporations having interests in its mineral resources, or a\nrestriction on any investment at all in a certain type of mineral covered\nby the Act. There may be other kinds of restrictions\xe2\x80\x94for instance,\nchanges in a foreign country\xe2\x80\x99s tax laws that would discourage invest\xc2\xad\nment in mineral resources by corporations having a certain percentage\nof foreign stockholders\xe2\x80\x94that would be more difficult for the Secretary\nto \xe2\x80\x9cmirror,\xe2\x80\x9d if only because the Secretary may lack authority to take\nthe necessary \xe2\x80\x9cmirroring\xe2\x80\x9d action {e.g., changing the tax laws of the\nUnited States in parallel fashion). In such cases, a question would arise\nwhether other actions could be taken by the Secretary that would, in\nsubstance if not precisely in form, correspond sufficiently with the\nforeign nation\xe2\x80\x99s restrictions to permit the conclusion that \xe2\x80\x9csimilar or\nlike privileges\xe2\x80\x9d would be restored by such actions. Each situation must\nbe approached on a case-by-case basis. However, we believe that the\nSecretary would be recognized by a reviewing court as having a\nreasonable degree of discretion in applying \xc2\xa7 181 in a practical, flexible\nmanner. See 38 Op. Att\xe2\x80\x99y Gen. 476 (1936).6\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98 T his discussion has focussed on the application of \xc2\xa7 181 to new mineral leases or changes in\nexisting mineral leases. Additional issues would be raised if the Secretary sought to seek judicial\ncancellation o f existing leases because of action by a foreign country denying "similar or like\nprivileges\xe2\x80\x9d to American investors. We would be glad to provide advice in such situations should the\noccasion arise. See generally 30 U.S.C. \xc2\xa7\xc2\xa7 184(hXl) & 188(a); Dames & Moore v. Regan, 453 U.S. 654\n(1981).\n\n254\n\n\x0c'


b'(Slip Opinion)\n\nConstitutionality of the Commissioner of Social\nSecurity\xe2\x80\x99s Tenure Protection\nThe President may remove the Commissioner of Social Security at will notwithstanding\nthe statutory limitation on removal in 42 U.S.C. \xc2\xa7 902(a)(3).\nThe conclusion that the removal restriction is constitutionally unenforceable does not\naffect the validity of the remainder of the statute.\nJuly 8, 2021\n\nMEMORANDUM OPINION FOR THE\nDEPUTY COUNSEL TO THE PRESIDENT\nYou have asked about the scope of the President\xe2\x80\x99s constitutional authority to remove the Commissioner of the Social Security Administration\n(\xe2\x80\x9cSSA\xe2\x80\x9d), who by statute may be removed only for neglect of duty or\nmalfeasance in office. See 42 U.S.C. \xc2\xa7 902(a)(3). At the time Congress\nenacted the Commissioner\xe2\x80\x99s statutory protection from removal, this Office observed that the removal restriction presented a serious constitutional question, although we did not resolve whether the removal restriction\nwas in fact unconstitutional. See Letter for Lloyd N. Cutler, Counsel to\nthe President, from Walter Dellinger, Assistant Attorney General, Office\nof Legal Counsel (July 29, 1994) (\xe2\x80\x9c1994 Dellinger Letter\xe2\x80\x9d).\nIn Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court recently concluded that a provision requiring \xe2\x80\x9ccause\xe2\x80\x9d for the removal of the\nDirector of the Federal Housing Finance Agency (\xe2\x80\x9cFHFA\xe2\x80\x9d) is unconstitutional. That case followed Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), in which the Court held unconstitutional a similar statutory tenure protection conferred on the Director of the\nConsumer Financial Protection Bureau (\xe2\x80\x9cCFPB\xe2\x80\x9d). We think the best\nreading of Collins and Seila Law leads to the conclusion that, notwithstanding the statutory limitation on removal, the President can remove the\nSSA Commissioner at will.\nI.\nThe Social Security Administration administers the Old-Age and Survivors Insurance, Social Security Disability Insurance, Supplemental\nSecurity Income, and Special Benefits for Certain World War II Veterans\n1\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nbenefits programs. See, e.g., 42 U.S.C. \xc2\xa7\xc2\xa7 901(b), 902(a)(4); see generally\nScott D. Szymendera, Cong. Research Serv., R41716, Social Security\nAdministration (SSA): Budget Issues at 1 (Sept. 8, 2014) (\xe2\x80\x9cSSA Budget\nIssues\xe2\x80\x9d). The agency pays benefits of over a trillion dollars each year, and\nits activities \xe2\x80\x9ctouch the lives of nearly every American family and are key\ncomponents of the nation\xe2\x80\x99s economic safety net for the aged and disabled.\xe2\x80\x9d SSA Budget Issues at 1; SSA, Fact Sheet: Social Security, https://\nwww.ssa.gov/news/press/factsheets/basicfact-alt.pdf (last visited July 7,\n2021).\nFor the first four years of its existence, the social security system was\nadministered by a three-member, freestanding Social Security Board,\nwhose members were appointed by the President by and with the advice\nand consent of the Senate and had no express tenure protection. See Social\nSecurity Act, \xc2\xa7 701, Pub. L. No. 74-271, 49 Stat. 620, 635\xe2\x80\x9336 (1935).\nFrom 1939 until 1994, the entity that administered the social security\nsystem was housed within another agency, subject to the agency head\xe2\x80\x99s\ndirection and control, and the agency head did not have tenure protection.\nIn 1939, Congress placed the Social Security Board within the Federal\nSecurity Agency, a now-defunct agency that supervised several government benefits programs. See Reorganization Act of 1939, Pub. L. No.\n76-19, 53 Stat. 561; Reorganization Plan No. 1 of 1939, \xc2\xa7 202, 3 C.F.R.\n1288, 1290 (1943 Cum. Supp.). In 1946, acting pursuant to statutory\nauthority, President Truman abolished the Board and transferred its functions to the Federal Security Administrator. See Reorganization Plan\nNo. 2 of 1946, \xc2\xa7 4, 3 C.F.R. 192, 192 (1946 Supp.). In 1953, President\nEisenhower established within the Department of Health, Education, and\nWelfare (later renamed the Department of Health and Human Services\n(\xe2\x80\x9cHHS\xe2\x80\x9d)), \xe2\x80\x9ca Commissioner of Social Security who shall be appointed by\nthe President by and with the advice and consent of the Senate,\xe2\x80\x9d who\n\xe2\x80\x9cshall perform such functions concerning social security and public welfare as the Secretary may prescribe.\xe2\x80\x9d Reorganization Plan No. 1 of 1953,\n\xc2\xa7 4, 3 C.F.R. 131, 132 (1953).\nIn the Social Security Independence and Program Improvements Act of\n1994, Pub. L. No. 103-296, 108 Stat. 1464 (\xe2\x80\x9cthe Act\xe2\x80\x9d), Congress changed\nthe status of the entity by then known as the Social Security Administration from a component within HHS to an \xe2\x80\x9cindependent agency in the\nexecutive branch of the Government.\xe2\x80\x9d Id. sec. 101, \xc2\xa7 701(a) (codified at\n42 U.S.C. \xc2\xa7 901(a)). Under the Act, the SSA Commissioner is \xe2\x80\x9cappointed\n2\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nfor a term of 6 years,\xe2\x80\x9d \xe2\x80\x9cmay continue in office until the entry upon office\nof . . . a successor,\xe2\x80\x9d and \xe2\x80\x9cmay be removed from office only pursuant to a\nfinding by the President of neglect of duty or malfeasance in office.\xe2\x80\x9d Id.\nsec. 102, \xc2\xa7 702(a)(3) (codified at 42 U.S.C. \xc2\xa7 902(a)(3)). The Commissioner now leads the SSA as a single-member head, similar to the Directors of the CFPB and the FHFA whose removal restrictions the Court\nfound unconstitutional in Seila Law and Collins, respectively.\nCongress enacted the current structure of the SSA, including the protection from removal conferred on the Commissioner, in response to concerns about a high turnover among political appointees that affected the\nagency\xe2\x80\x99s performance as well as \xe2\x80\x9cpolicy errors resulting from inappropriate influence from outside the agency.\xe2\x80\x9d H.R. Rep. No. 103-670, at 89\xe2\x80\x9390\n(1994) (Conf. Rep.). 1 As reflected in the conference report to the Act, the\n1994 changes\xe2\x80\x94the shift from sub-agency to agency status, coupled with\nthe Commissioner\xe2\x80\x99s new term and tenure protections\xe2\x80\x94were intended to\npromote \xe2\x80\x9cmanagement efficiency\xe2\x80\x9d and to ensure fidelity to the agency\xe2\x80\x99s\nstatutory mission. Id.\nWhen signing the Social Security Independence and Program Improvements Act of 1994 into law, President Clinton commended the\norganizational changes as \xe2\x80\x9celevating the stature of the agency\xe2\x80\x9d and important to \xe2\x80\x9cmaintain[ing] the confidence of all Americans in the Social\nSecurity program.\xe2\x80\x9d Statement on Signing the Social Security Independence and Program Improvements Act of 1994 (Aug. 15, 1994), 2 Pub.\nPapers of Pres. William J. Clinton 1471, 1471 (1994). He nonetheless\nnoted that, in the opinion of the Department of Justice, the relative rarity\nof a single-member, tenure-protected agency head \xe2\x80\x9craises a significant\nconstitutional question,\xe2\x80\x9d and that he was \xe2\x80\x9cprepared to work with the\nCongress on a corrective amendment that would resolve the constitutional\nquestion so as to eliminate the risk of litigation.\xe2\x80\x9d Id. at 1472.\nPresident Clinton\xe2\x80\x99s signing statement was consistent with advice that\nthis Office had provided about the Act. We explained that the Commis-\n\n1 Cf. H.R. Rep. No. 103-221, at 4\xe2\x80\x935 (1994) (committee report for similar bill) (\xe2\x80\x9cOver\nthe past twenty years, SSA has been plagued by a lack of stability and continuity in its\nexecutive leadership. . . . By establishing a fixed term of office for the Commissioner, . . .\nthe Committee bill enhances the likelihood that SSA will attract and retain first-rate\nleadership\xe2\x80\x9d that will \xe2\x80\x9clead to the development of far sighted policies and administrative\npractices.\xe2\x80\x9d).\n\n3\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nsioner\xe2\x80\x99s \xe2\x80\x9cremoval restriction presents a more serious constitutional question than restrictions on the President\xe2\x80\x99s ability to remove the members of\nmulti-person boards that govern the more traditional independent regulatory agencies, and it would severely erode the President\xe2\x80\x99s authority in a\nvitally important area of national concern.\xe2\x80\x9d 1994 Dellinger Letter at 1. We\nfurther observed that the SSA\xe2\x80\x99s new structure as an agency led by a single\nperson with tenure protection was \xe2\x80\x9cextraordinary.\xe2\x80\x9d Id. We distinguished\nan analysis we had offered on an earlier version of the legislation, which\nwould have provided for a three-person independent SSA board. That\nstructure, we thought, would have been permissible because \xe2\x80\x9cthe President generally will have some input on the make-up of the governing\nbody\xe2\x80\x9d in the case of \xe2\x80\x9can agency headed by a multi-member body whose\nmembers may only be removed for cause,\xe2\x80\x9d whereas the single Commissioner\xe2\x80\x99s six-year term created \xe2\x80\x9ca strong possibility that a President will\nnever have a say in the conduct of an agency that affects the lives of every\nAmerican every day.\xe2\x80\x9d Memorandum for Walter Dellinger, Assistant\nAttorney General, Office of Legal Counsel, from Michael Small, Office of\nLegal Counsel, Re: Social Security Administration Independence Act at 4\n(July 29, 1994) (attached to 1994 Dellinger Letter); see also Memorandum for Harriet Rabb, General Counsel, Department of Health and Human Services, from Walter Dellinger, Assistant Attorney General, Office\nof Legal Counsel, Re: Restructuring of Social Security Administration at 4\n(June 2, 1994).\nWe did not definitively conclude that the Commissioner\xe2\x80\x99s removal restriction that Congress eventually enacted was unconstitutional, but recommended that the provision be eliminated or revised to avoid \xe2\x80\x9cplac[ing]\nthe proper administration of our social security system at risk.\xe2\x80\x9d 1994\nDellinger Letter at 2.\nII.\nAs this Office has explained, \xe2\x80\x9c[t]he first great constitutional debate in\nthe First Congress concerned the power to remove officers of the United\nStates\xe2\x80\x9d\xe2\x80\x94and that debate has continued ever since. The Constitutional\nSeparation of Powers Between the President and Congress, 20 Op. O.L.C.\n124, 166 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d). The Constitution makes no\nreference to the removal of executive officers, aside from impeachment.\nU.S. Const. art. II, \xc2\xa7 4. Moreover, the Constitution expressly grants Con4\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\ngress authority \xe2\x80\x9c[t]o make all Laws which shall be necessary and proper\nfor carrying into Execution the foregoing Powers, and all other Powers\nvested by this Constitution in the Government of the United States, or any\nDepartment or Officer thereof.\xe2\x80\x9d Id. art. I, \xc2\xa7 8, cl. 18. The Necessary and\nProper Clause grants Congress broad authority to create the positions that\nexecutive officers occupy and to structure those offices as Congress\nbelieves best to achieve its goals. And Congress has wielded this authority\nthroughout the Nation\xe2\x80\x99s history by enacting legislation\xe2\x80\x94signed by the\nPresident\xe2\x80\x94that provides removal protection to an array of executive\nofficers. See Seila Law, 140 S. Ct. at 2224\xe2\x80\x9325, 2229\xe2\x80\x9333 (Kagan, J., dissenting); see also Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r v. United States, 295 U.S. 602 (1935)\n(upholding removal restrictions for the Federal Trade Commission\n(\xe2\x80\x9cFTC\xe2\x80\x9d)).\nOn the other hand, the Constitution vests the executive power and other\nspecific authorities in a President on whom it imposes a duty to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3. Although the \xe2\x80\x9cexecutive Power\xe2\x80\x9d is vested in the President, \xe2\x80\x9cthe Constitution\nassumes that lesser executive officers will assist the [President] in discharging the duties of his trust,\xe2\x80\x9d and that when they do so, those lesser\nexecutive officers will \xe2\x80\x9cremain accountable to the President.\xe2\x80\x9d Seila Law,\n140 S. Ct. at 2197 (internal quotation marks omitted). To meet his \xe2\x80\x9ctake\nCare\xe2\x80\x9d duty, the President must have some ability to remove executive\nofficers who the President believes are failing to satisfy the constitutional\ncommand of faithful execution of the laws. See also 1 Annals of Cong.\n463 (1789) (statement of James Madison on the floor of the First Congress that \xe2\x80\x9cif any power whatsoever is in its nature Executive, it is the\npower of appointing, overseeing, and controlling those who execute the\nlaws\xe2\x80\x9d). This removal authority also helps ensure that executive officials\nremain responsive to the President\xe2\x80\x99s supervision.\nThe constitutional challenge thus posed is how to do justice to both\ncongressional and presidential authority in the removal context. This\nOffice has acknowledged that tension, requiring that the President enjoy\n\xe2\x80\x9cat will\xe2\x80\x9d removal power over those officers whose functions consist of\nhelping the President perform his or her constitutional responsibilities,\nsuch as the Secretary of Defense, but accepting removal restrictions in\nsome other contexts. Separation of Powers, 20 Op. O.L.C. at 169. We\nhave insisted on a careful contextual assessment of particular removal\nprovisions, focusing on the specific powers an officer wields and the\n5\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nimpact that a removal restriction has on the President\xe2\x80\x99s ability to perform\nhis or her constitutional functions. Id. at 170. In so doing, we have relied\nheavily on Supreme Court precedent, in particular the Court\xe2\x80\x99s rationale in\nMorrison v. Olson that identified the central constitutional inquiry as\nbeing whether a removal restriction would \xe2\x80\x9cimpede the President\xe2\x80\x99s ability\nto perform his constitutional duty.\xe2\x80\x9d 487 U.S. 654, 691 (1988). More\nrecent Supreme Court decisions have extended the Court\xe2\x80\x99s precedents in\nways that shift the balance in favor of presidential authority. For the\nreasons given below, we think the best reading of those recent decisions\nleads to the conclusion that the President has the constitutional authority\nto remove the SSA Commissioner at will.\nA.\nSince the Office initially flagged constitutional concerns about the\nCommissioner\xe2\x80\x99s tenure protection in 1994, the Supreme Court has taken\na series of steps limiting statutory restrictions on the President\xe2\x80\x99s ability\nto remove executive officers. Beginning with Free Enterprise Fund v.\nPublic Company Accounting Oversight Board, 561 U.S. 477 (2010),\nwhere the Court declared unconstitutional a removal restriction for the\nfirst time in nearly a century, the Court has focused on the potential of\nsuch restrictions to \xe2\x80\x9csubvert[] the President\xe2\x80\x99s ability to ensure that the\nlaws are faithfully executed\xe2\x80\x94as well as the public\xe2\x80\x99s ability to pass\njudgment on his efforts.\xe2\x80\x9d Id. at 498; see also Myers v. United States, 272\nU.S. 52 (1926) (next-most recent decision holding unconstitutional a\nremoval restriction in a statute requiring the Senate\xe2\x80\x99s advice and consent\nprior to the President\xe2\x80\x99s removal of postmasters). Even more recently, the\nCourt has issued two decisions addressing the circumstances under which\nCongress may impose limitations on removal of single-member heads of\nagencies.\nLast year, in Seila Law, the Court for the first time considered a statutory tenure protection for a single-member head of an independent agency.\nSee 140 S. Ct. 2183. In that decision, the Court found unconstitutional the\nstatutory tenure protection afforded the Director of the CFPB, which\nprovided that \xe2\x80\x9c[t]he President may remove the Director for inefficiency,\nneglect of duty, or malfeasance in office.\xe2\x80\x9d 12 U.S.C. \xc2\xa7 5491(c)(3). Seila\nLaw began by describing a general rule that \xe2\x80\x9cthe President possesses \xe2\x80\x98the\nauthority to remove those who assist him in carrying out his duties.\xe2\x80\x99\xe2\x80\x9d 140\n6\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nS. Ct. at 2198\xe2\x80\x93200 (citation omitted). The Court then stated that it recognized only two exceptions to such unrestricted removal power: one for\n\xe2\x80\x9cmultimember bod[ies] of experts, balanced along partisan lines\xe2\x80\x9d that \xe2\x80\x9cdo\nnot wield substantial executive power,\xe2\x80\x9d and another for \xe2\x80\x9cinferior officers\nwith limited duties and no policymaking or administrative authority.\xe2\x80\x9d Id.\nat 2199\xe2\x80\x93200 (discussing Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r, 295 U.S. 602, and Morrison,\n487 U.S. 654). The Court found that the CFPB Director fell into neither\ncategory, and was \xe2\x80\x9cvested with significant executive power\xe2\x80\x9d based on the\nDirector\xe2\x80\x99s authority to \xe2\x80\x9cpromulgate binding rules fleshing out 19 federal\nstatutes [concerning] . . . unfair and deceptive practices,\xe2\x80\x9d to \xe2\x80\x9cunilaterally\nissue final decisions awarding legal and equitable relief in administrative\nadjudications,\xe2\x80\x9d and to \xe2\x80\x9cseek daunting monetary penalties against private\nparties on behalf of the United States in federal court.\xe2\x80\x9d Id. at 2200\xe2\x80\x9301.\nSeila Law also declined to sanction removal protection for the CFPB\nDirector because of a lack of historical precedent for the CFPB\xe2\x80\x99s singleDirector structure. Id. at 2201. The parties had identified \xe2\x80\x9c\xe2\x80\x98only a handful\nof isolated\xe2\x80\x99 incidents in which Congress has provided good-cause tenure\nto principal officers who wield power alone rather than as members of a\nboard or commission,\xe2\x80\x9d including the heads of the Office of Special Counsel, the SSA, and the FHFA. Id. (citation omitted). The Court determined\nthat these \xe2\x80\x9cmodern and contested\xe2\x80\x9d examples, which did \xe2\x80\x9cnot involve\nregulatory or enforcement authority remotely comparable to that exercised\nby the CFPB,\xe2\x80\x9d did not provide adequate historical precedent to justify the\nCFPB Director\xe2\x80\x99s protection from removal as a single-member agency\nhead. Id. at 2202.\nFinally, Seila Law held that the CFPB\xe2\x80\x99s single-Director structure failed\nto subject the agency to sufficient \xe2\x80\x9congoing supervision and control [by]\nthe elected President.\xe2\x80\x9d Id. at 2203. According to the Court, \xe2\x80\x9c[t]he CFPB\xe2\x80\x99s\nsingle-Director structure . . . vest[ed] significant governmental power in\nthe hands of a single individual accountable to no one,\xe2\x80\x9d because the\nDirector was \xe2\x80\x9cneither elected by the people nor meaningfully controlled\n(through the threat of removal) by someone who is.\xe2\x80\x9d Id. That problem was\nexacerbated by the fact that several other features of the CFPB \xe2\x80\x9cforeclose[d] certain indirect methods of Presidential control.\xe2\x80\x9d Id. at 2204. In\nparticular, the CFPB Director\xe2\x80\x99s five-year term meant that \xe2\x80\x9csome Presidents may not have any opportunity to shape its leadership and thereby\ninfluence its activities.\xe2\x80\x9d Id. The Court also thought that the CFPB\xe2\x80\x99s re7\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nceipt of funds outside the appropriations process might allow the agency\nto slip further from the President\xe2\x80\x99s control. Id.\nAccordingly, the Court concluded that the statutory restriction on the\nPresident\xe2\x80\x99s authority to remove the Director was unconstitutional and that\nthe President could remove that officer at will. Id. at 2201, 2211. The\nCourt expressly left open the question whether removal restrictions for the\nheads of similarly structured agencies, including the SSA, were unconstitutional as well. Id. at 2202.\nThe Court\xe2\x80\x99s reasoning in Seila Law was open to debate. President\nObama did not object to the CFPB Director\xe2\x80\x99s tenure protection when\nsigning the Dodd-Frank Wall Street Reform and Consumer Protection Act\n(\xe2\x80\x9cDodd-Frank Act\xe2\x80\x9d) into law. See Press Release, Office of the Press\nSecretary, The White House, Remarks by the President at Signing of\nDodd-Frank Wall Street Reform and Consumer Protection Act (July 21,\n2010). And four justices in Seila Law dissented strongly, arguing that the\nmajority opinion was at odds with constitutional text, history, the Court\xe2\x80\x99s\nprecedents, and \xe2\x80\x9cthe need for sound and adaptable governance.\xe2\x80\x9d 140\nS. Ct. at 2226 (Kagan, J., dissenting); see also id. at 2236 (\xe2\x80\x9c[C]aselaw\njoins text and history in establishing the general permissibility of forcause provisions giving some independence to agencies.\xe2\x80\x9d). In the dissent\xe2\x80\x99s view, the majority\xe2\x80\x99s claimed general rule of presidential removal\npower \xe2\x80\x9cdoes not exist.\xe2\x80\x9d Id. at 2225. The dissenting justices rejected the\nclaim that the removal protection for the CFPB Director was novel, noting\nthat the \xe2\x80\x9cCFPB wields the same kind of power as the FTC\xe2\x80\x9d and its head\n\xe2\x80\x9creceive[s] the same kind of removal protection,\xe2\x80\x9d such that the Director\xe2\x80\x99s\ntenure protection should be constitutional under Humphrey\xe2\x80\x99s Executor. Id.\nat 2238. The dissent criticized the majority\xe2\x80\x99s single-head distinction,\ninsisting that examples of single-headed independent agencies were not as\nrare as the majority claimed and that, if anything, multi-member commissions are harder for the President to control. Id. at 2241\xe2\x80\x9342. Most fundamentally, the dissent criticized the Court for unjustifiably restricting\nCongress\xe2\x80\x99s constitutional power to shape administrative bodies to meet\npressing needs and for deviating from the Court\xe2\x80\x99s longstanding pattern of\nleaving \xe2\x80\x9cmost decisions about how to structure the Executive Branch to\nCongress and the President, acting through legislation.\xe2\x80\x9d Id. at 2224,\n2236\xe2\x80\x9338.\nAfter Seila Law, there remained a number of ways to potentially distinguish the CFPB Director from the SSA Commissioner that could have\n8\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nbeen relevant to the constitutional analysis. As observed in Seila Law\nitself, the SSA\xe2\x80\x99s \xe2\x80\x9crole is largely limited to adjudicating claims for Social\nSecurity benefits.\xe2\x80\x9d Id. at 2202 (majority opinion). Because adjudication is\na primary function of the SSA, the SSA Commissioner arguably is more\nlike the Commissioners of the Federal Trade Commission, for whom the\nCourt upheld tenure protection in Humphrey\xe2\x80\x99s Executor, 295 U.S. 602. 2\nThe Court also previously emphasized the distinctiveness of adjudicatory\nauthority in inferring a constitutionally permissible removal protection for\nthe members of the War Claims Commission in Wiener v. United States,\n357 U.S. 349, 356 (1958).\nLast month, however, the Court issued its decision in Collins, which\nconcluded that \xe2\x80\x9c[a] straightforward application\xe2\x80\x9d of Seila Law meant that\nthe FHFA Director\xe2\x80\x99s statutory protection from removal by the President\nexcept \xe2\x80\x9cfor cause\xe2\x80\x9d was unconstitutional. 141 S. Ct. at 1784. The Court\nfound no dispositive distinctions between the FHFA and the CFPB. Although the Court recognized the agencies\xe2\x80\x99 difference in scope, it found\nthat \xe2\x80\x9cthe nature and breadth of an agency\xe2\x80\x99s authority is not dispositive in\ndetermining whether Congress may limit the President\xe2\x80\x99s power to remove\nits head.\xe2\x80\x9d Id. Furthermore, both agencies exercised authority in ways that\ncould have a direct or indirect \xe2\x80\x9cimpact on millions of private individuals\nand the economy at large.\xe2\x80\x9d Id. at 1785\xe2\x80\x9386. Nor was the Court persuaded\nthat the FHFA took on the status of a private party, as opposed to an\nexecutive entity, when it acted as a conservator or receiver. Id. at 1785.\nCollins narrows the arguments available to meaningfully distinguish\nthe SSA Commissioner\xe2\x80\x99s statutory removal protection from the provision\nfound unconstitutional in Seila Law. To be sure, Collins \xe2\x80\x9cd[id] not comment on the constitutionality of any removal restriction that applies\xe2\x80\x9d to\nthe SSA Commissioner, see id. at 1787 n.21, and therefore cannot be said\nto definitively resolve the question. It did, however, minimize the import\nof the distinctions Seila Law had drawn between the CFPB and other\nSee Seila Law, 140 S. Ct. at 2199 (noting that Humphrey\xe2\x80\x99s Executor \xe2\x80\x9cacknowledged\nthat between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed \xe2\x80\x98a field of doubt\xe2\x80\x99 that the Court\nleft \xe2\x80\x98for future consideration\xe2\x80\x99\xe2\x80\x9d (citation omitted)). But see id. (explaining that the Court in\nMorrison had \xe2\x80\x9c[b]ack[ed] away from the reliance in Humphrey\xe2\x80\x99s Executor on the concepts of \xe2\x80\x98quasi-legislative\xe2\x80\x99 and \xe2\x80\x98quasi-judicial\xe2\x80\x99 power,\xe2\x80\x9d viewing \xe2\x80\x9cthe ultimate question as\nwhether a removal restriction is of \xe2\x80\x98such a nature that [it] impede[s] the President\xe2\x80\x99s ability\nto perform his constitutional duty\xe2\x80\x99\xe2\x80\x9d (citation omitted)).\n2\n\n9\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nsimilarly structured agencies. Id. at 1784; see also id. at 1802 (Kagan, J.,\nconcurring) (\xe2\x80\x9cThe SSA has a single head with for-cause removal protection; so a betting person might wager that the agency\xe2\x80\x99s removal provision\nis next on the chopping block.\xe2\x80\x9d). 3 Indeed, the principal criticism in Justice\nKagan\xe2\x80\x99s concurrence in Collins was that the majority opinion had abandoned Seila Law\xe2\x80\x99s inquiry into whether a single-director agency wielded\n\xe2\x80\x9csignificant executive power.\xe2\x80\x9d Id. at 1800\xe2\x80\x9301; accord id. at 1805 (Sotomayor, J., dissenting) (focusing on the FHFA\xe2\x80\x99s lack of significant\nexecutive power).\nB.\nIn light of the Court\xe2\x80\x99s reasoning in Collins and Seila Law, we have\nreexamined the constitutional concerns that we previously raised about\nthe SSA Commissioner\xe2\x80\x99s protection from removal when Congress enacted\nthe provision in 1994. We believe that the best reading of those decisions\ncompels the conclusion that the statutory restriction on removing the\nCommissioner is unconstitutional. Therefore, the President may remove\nthe Commissioner at will. We emphasize that both of these recent decisions leave open the possibility that certain agencies, including (and\nperhaps especially) some that conduct adjudications, may constitutionally\nbe led by officials protected from at-will removal by the President. But we\nthink that under Collins and Seila Law, the combination of features of the\nSSA\xe2\x80\x94a single Commissioner whose term extends longer than the President\xe2\x80\x99s, the immense scope of the agency\xe2\x80\x99s programs, the Commissioner\xe2\x80\x99s\nbroad power to affect beneficiaries and the public fisc, and the SSA\xe2\x80\x99s\nlargely unparalleled structure\xe2\x80\x94means that the President need not heed the\nCommissioner\xe2\x80\x99s statutory tenure protection in 42 U.S.C. \xc2\xa7 902(a)(3).\nFirst, Seila Law reasoned that a single-headed structure and lengthy\ntenure raise particular constitutional concerns. Although the Court has\n\nIn addition, the government stated in its reply brief in Collins that, \xe2\x80\x9cunder the government\xe2\x80\x99s reading of Seila Law, the President must have the power to remove at will the\nsingle heads of the Social Security Administration and Office of Special Counsel, both of\nwhom likewise exercise \xe2\x80\x98significant executive power.\xe2\x80\x99\xe2\x80\x9d Reply and Response Brief for the\nFederal Parties at 26, Collins, Nos. 19-422, 19-563 (U.S. Oct. 2020). As discussed below,\nthis opinion does not address the validity of tenure protections conferred on the Special\nCounsel, whose removal restrictions implicate different considerations, or the head of any\nother agency that does not share the SSA\xe2\x80\x99s specific combination of features.\n3\n\n10\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nupheld removal restrictions for an agency exercising adjudicative functions when the agency was headed by a body composed of multiple members, see Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r, 295 U.S. at 628; accord Wiener, 357 U.S. at\n350, 4 the Court in Seila Law distinguished the CFPB Director in part\nbased on the Director\xe2\x80\x99s position as the agency\xe2\x80\x99s sole head. 140 S. Ct. at\n2201. So, too, the SSA Commissioner has the ultimate statutory responsibility for adjudication of claims under the SSA\xe2\x80\x99s benefits programs. Seila\nLaw further observed that the CFPB Director\xe2\x80\x99s term was five years and,\ndepending on the timing, \xe2\x80\x9can unlucky President might . . . find herself\nsaddled with a holdover Director from a competing political party.\xe2\x80\x9d Id. at\n2204. The Commissioner\xe2\x80\x99s six-year term raises the same issue. Here, in\nfact, the incumbent Commissioner was appointed in 2019 to a term that\nwill not expire until January 19, 2025, the day before the end of the President\xe2\x80\x99s current term. See PN94\xe2\x80\x94Andrew M. Saul\xe2\x80\x94Social Security Administration, 116th Cong. (2019), https://www.congress.gov/nomination/\n116th-congress/94. Insulating the SSA Commissioner from removal\nwould thus impair the President\xe2\x80\x99s ability to shape the policies of the SSA\nacross the entirety of the term for which he was elected.\nSecond, the vast size and importance of the SSA\xe2\x80\x99s programs distinguish\nit from many other agencies and adjudicatory contexts. Social Security \xe2\x80\x9cis\none of the federal government\xe2\x80\x99s largest programs.\xe2\x80\x9d Barry F. Huston,\nCong. Research Serv., IF10426, Social Security Overview at 1 (updated\nMay 7, 2020). \xe2\x80\x9cToday, about 178 million people work and pay Social\nSecurity taxes and about 64 million people receive monthly Social Security benefits.\xe2\x80\x9d SSA, Support, https://www.ssa.gov/agency/pillars/support.\nhtml (last visited July 7, 2021). Initially aimed at \xe2\x80\x9censur[ing] the financial\nsecurity of members of the workforce when they reach old age,\xe2\x80\x9d BNSF\nRy. Co. v. Loos, 139 S. Ct. 893, 898 (2019), over time Social Security has\nalso become a central mechanism for providing financial support to the\ndisabled and to families of deceased workers. See Barry F. Huston, Cong.\nResearch Serv., R42035, Social Security Primer at 1\xe2\x80\x932 (updated May 15,\n2020). Under the Commissioner\xe2\x80\x99s supervision, the SSA reviews over\n650,000 claims filed under the Social Security Act every year\xe2\x80\x94\nSee also Collins, 141 S. Ct. at 1783 n.18 (noting that the Court in Wiener had reasoned that \xe2\x80\x9cthe War Claims Commission was an adjudicatory body, and as such, it had a\nunique need for \xe2\x80\x98absolute freedom from Executive interference\xe2\x80\x99\xe2\x80\x9d (quoting Wiener, 357\nU.S. at 353)).\n4\n\n11\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nadjudication on a vast and unique scale. See SSA, Hearings and Appeals,\nhttps://www.ssa.gov/appeals/about_us.html (last visited July 7, 2021).\nThe financial impact of Social Security is equally massive. In 2019, the\nsocial security system collected $1,062 billion in taxes and paid $1,059\nbillion in benefits, while the social security trust funds held $2.9 trillion in\nassets in 2020. See Social Security Overview at 1. It is difficult to overstate the agency\xe2\x80\x99s significant footprint on daily American life. See Collins, 141 S. Ct. at 1785 (emphasizing that \xe2\x80\x9cFHFA actions . . . could have\nan immediate impact on millions of private individuals and the economy\nat large\xe2\x80\x9d).\nThird, the Commissioner not only oversees the adjudication of claims\nfor social security benefits, but also administers and sets policy for the\nagency\xe2\x80\x99s extensive benefits programs, and can impose monetary penalties\nin certain situations. 5 See Seila Law, 140 S. Ct. at 2201 (noting the importance of a single Director exercising \xe2\x80\x9csignificant executive power\xe2\x80\x9d);\nsee also Restructuring of Social Security Administration at 4 (\xe2\x80\x9c[A] significant amount of the [SSA\xe2\x80\x99s] work is devoted to adjudicating disputed\nsocial security claims,\xe2\x80\x9d but \xe2\x80\x9cthe SSA performs other functions, such as\nadministering the Social Security system, that can be categorized as\nexecutive functions.\xe2\x80\x9d). But see Collins, 141 S. Ct. at 1783\xe2\x80\x9384 (appearing\nto dispense with or diminish the importance of the \xe2\x80\x9csignificant executive\npower\xe2\x80\x9d inquiry). The Commissioner manages the SSA\xe2\x80\x99s massive benefits\nprograms and oversees an agency that employs almost sixty-thousand\ngovernment workers. 6 Moreover, the Commissioner makes certifications\nand determinations with respect to program-related trust funds and is one\nIndeed, this management role likely occupies more of the Commissioner\xe2\x80\x99s time than\nadjudication. Although the governing regulations authorize the Commissioner to review\ncertain adjudicative decisions, see, e.g., 20 C.F.R. \xc2\xa7 498.222(a), the agency\xe2\x80\x99s adjudicatory\nfunctions are largely performed by designees of the Commissioner, including Administrative Law Judges and members of the Appeals Council, see, e.g., id. \xc2\xa7\xc2\xa7 404.983, 416.1483.\n6 See 42 U.S.C. \xc2\xa7\xc2\xa7 901(b) (\xe2\x80\x9cIt shall be the duty of the Administration to administer the\nold-age, survivors, and disability insurance program.\xe2\x80\x9d), 902(a)(4) (\xe2\x80\x9cThe Commissioner\nshall be responsible for the exercise of all powers and the discharge of all duties of the\nAdministration, and shall have authority and control over all personnel and activities\nthereof.\xe2\x80\x9d); see also id. \xc2\xa7\xc2\xa7 902(a)(6) (providing the Commissioner organizational control\nover the SSA), 902(a)(7) (authorizing the Commissioner to assign duties), 904(a) (describing the Commissioner\xe2\x80\x99s hiring and budgetary authorities); SSA, Organizational\nStructure of the Social Security Administration, https://www.ssa.gov/org (last visited\nJuly 7, 2021).\n5\n\n12\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nof the members of those funds\xe2\x80\x99 board of trustees. 42 U.S.C. \xc2\xa7 401. To be\nsure, the Commissioner does not exercise enforcement authority comparable in scale to the CFPB Director. But the SSA does have statutory\nauthority to impose money sanctions on claimants who make false or\nmisleading statements when applying for disability benefits. See id.\n\xc2\xa7 1320a-8. Under that authority, the SSA has imposed significant civil\npenalties against individuals. See, e.g., Valent v. Comm\xe2\x80\x99r of Soc. Sec., 918\nF.3d 516, 517 (6th Cir. 2019) (civil penalty of $75,000).\nThe Commissioner also has substantial authority to issue regulations\ngoverning the distribution of benefits, including some discretion to issue\nregulations reflecting his or her own policy preferences. 7 The Supreme\nCourt has described this rulemaking authority as \xe2\x80\x9c\xe2\x80\x98exceptionally broad.\xe2\x80\x99\xe2\x80\x9d\nBowen v. Yuckert, 482 U.S. 137, 145 (1987) (citation omitted) (upholding\na regulation promulgated pursuant to 42 U.S.C. \xc2\xa7 405(a), which at the\ntime vested authority in the Secretary of Health and Human Services, that\n\xe2\x80\x9crequire[d] disability claimants to make a threshold showing that their\n\xe2\x80\x98medically determinable\xe2\x80\x99 impairments are severe enough to satisfy the\nregulatory standards\xe2\x80\x9d). And courts have frequently deferred to SSA decisions that reflect the Commissioner\xe2\x80\x99s judgment as to how best to understand the federal benefits statutes, as well as how best to administer benefits programs. See, e.g., Barnhart v. Thomas, 540 U.S. 20, 26 (2003)\n(deferring to the SSA\xe2\x80\x99s determination that the agency can find a claimant\nnot disabled when she remains physically and mentally able to do her\nprevious work, without investigating whether that work exists in significant numbers in the national economy); Barnhart v. Walton, 535 U.S.\n212, 217 (2002) (deferring to an SSA regulation stating that a claimant is\nnot disabled \xe2\x80\x9cregardless of [his] medical condition\xe2\x80\x9d if the claimant is\ndoing \xe2\x80\x9csubstantial gainful activity,\xe2\x80\x9d which the agency subsequently explained meant that \xe2\x80\x9cwithin 12 months after the onset of an impairment . . .\nthe impairment no longer prevents substantial gainful activity\xe2\x80\x9d (citations\n\n7 See 42 U.S.C. \xc2\xa7\xc2\xa7 405(a) (\xe2\x80\x9cThe Commissioner . . . shall have full power and authority\nto make rules and regulations and to establish procedures . . . necessary or appropriate to\ncarry out [benefits program] provisions, and shall adopt reasonable and proper rules and\nregulations to regulate and provide for the nature and extent of the proofs and evidence\nand the method of taking and furnishing the same.\xe2\x80\x9d), 902(a)(5) (\xe2\x80\x9cThe Commissioner may\nprescribe such rules and regulations as the Commissioner determines necessary or appropriate to carry out the functions of the Administration.\xe2\x80\x9d).\n\n13\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nomitted)). 8 In short, the sheer scale of the Commissioner\xe2\x80\x99s ability to affect\nbeneficiaries and the public fisc counsels against statutory interference\nwith the President\xe2\x80\x99s authority to remove such a sole agency head.\nFourth, both Collins and Seila Law emphasized that the single-director\nstructures at issue in those cases were historical anomalies, see Collins,\n141 S. Ct. at 1783\xe2\x80\x9384; Seila Law, 140 S. Ct. at 2201, and the SSA\xe2\x80\x99s\nstructure similarly appears to be without parallel among benefitsadjudicating agencies. As explained in Part I, when the predecessor of the\nSSA, the Social Security Board, was a freestanding agency during the first\nfour years of the social security program from 1935 to 1939, it was led by\na three-member board whose members lacked express tenure protection.\nAnd in the 55 years before the 1994 amendments, the head of the agency\nhousing the social security system was always subject to at-will presidential removal.\nThe Railroad Retirement Board (\xe2\x80\x9cRRB\xe2\x80\x9d) is perhaps the current agency\nmost analogous to the SSA. The RRB administers benefits for railroad\nworkers, who are not part of the social security system. 45 U.S.C. \xc2\xa7 231f.\nLike the former Social Security Board, the RRB is a three-member board\nof officials appointed by the President and confirmed by the Senate with\nno express tenure protection. Id. \xc2\xa7 231f (a). This Office, moreover, has\ndeclined to infer such protection for RRB members. Removal of Holdover\nOfficials Serving on the Federal Housing Finance Board and the Railroad\nRetirement Board, 21 Op. O.L.C. 135, 141 (1997) (distinguishing Wiener). Most of the other federal benefits adjudication systems are within\nExecutive Departments such as the Department of Labor and the Depart8 See also, e.g., Schafer v. Astrue, 641 F.3d 49, 50\xe2\x80\x9351, 61 (4th Cir. 2011) (deferring to\nthe SSA\xe2\x80\x99s conclusion that \xe2\x80\x9cnatural children must be able to inherit from the decedent\nunder state intestacy law or satisfy certain exceptions to that requirement in order to count\nas \xe2\x80\x98children\xe2\x80\x99 under the [Social Security] Act\xe2\x80\x9d in part because of the SSA\xe2\x80\x99s \xe2\x80\x9cextensive\nexperience in administering the Act\xe2\x80\x99s survivorship benefits program, as well as the legal\nand practical ability to respond more quickly to changing regulatory circumstances\xe2\x80\x9d);\nEncarnacion ex rel. George v. Astrue, 568 F.3d 72, 80 (2d Cir. 2009) (deferring to an\nSSA policy prohibiting consideration of the combined effects of a child\xe2\x80\x99s limitations in\ndifferent domains of functioning in part because \xe2\x80\x9c[t]he SSA has substantial expertise and\nis charged with administering a complex statute\xe2\x80\x9d); Stroup v. Barnhart, 327 F.3d 1258,\n1260\xe2\x80\x9361 (11th Cir. 2003) (deferring to an SSA regulation defining \xe2\x80\x9celigibility\xe2\x80\x9d to mean\nthat the agency \xe2\x80\x9c\xe2\x80\x98consider[s] you to first become eligible for a monthly pension in the\nfirst month for which you met all requirements for the pension except that you were\nworking or had not yet applied\xe2\x80\x99\xe2\x80\x9d (quoting 20 C.F.R. \xc2\xa7 404.213(a)(3)).\n\n14\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nment of Veterans Affairs, whose heads are subject to at-will removal by\nthe President. There are other agencies that perform discrete adjudicatory\nduties, such as the Small Business Administration, which adjudicates\ngrievances arising from various loan and grant programs, see, e.g., 13\nC.F.R. \xc2\xa7 134.228, and the Office of Personnel Management, which adjudicates claims for federal retirement benefits, see, e.g., 5 C.F.R. \xc2\xa7 841.301\net seq. But none of those agencies has a single head with express tenure\nprotection. See, e.g., 15 U.S.C. \xc2\xa7 633(a) (establishing the office of Administrator of the Small Business Administration); 5 U.S.C. \xc2\xa7 1102(a) (establishing the office of Director of the Office of Personnel Management).\nIn light of this combination of factors and the Supreme Court\xe2\x80\x99s recent\ndecisions in Collins and Seila Law, we conclude that the President may\nremove the SSA Commissioner at will. We emphasize the limited scope\nof our conclusion regarding the Commissioner. It does not imply any\nsimilar determination with respect to the validity of tenure protections\nconferred on other executive officials\xe2\x80\x94for example the Special Counsel,\nanother single-member agency head whose removal restrictions implicate\ndifferent considerations, such as the Special Counsel\xe2\x80\x99s primarily investigatory function and \xe2\x80\x9climited jurisdiction,\xe2\x80\x9d Seila Law, 140 S. Ct. at 2202.\nNor does our conclusion speak to the constitutionality of existing or\nhypothetical tenure protections for any other agency heads, including\nmulti-member commissions, that do not share the specific combination of\nfeatures identified here. See id. at 2192, 2198\xe2\x80\x93200, 2206 (determining it\nunnecessary to revisit Humphrey\xe2\x80\x99s Executor and distinguishing Wiener as\ninvolving a multi-member adjudicatory body).\nC.\nAlthough under Collins and Seila Law the restriction on removal in 42\nU.S.C. \xc2\xa7 902(a)(3) is unconstitutional, and thus unenforceable, that conclusion does not affect the validity of the remainder of the statute, including the default term length and succession provisions for the Commissioner. \xe2\x80\x9c[O]ne provision of a [statute] may be invalid by reason of its not\nconforming to the Constitution, while all the other provisions may be\nsubject to no constitutional infirmity.\xe2\x80\x9d Loeb v. Trs. of Columbia Twp., 179\nU.S. 472, 490 (1900) (internal quotation marks omitted). What matters is\nwhether the statute\xe2\x80\x99s provisions \xe2\x80\x9care so connected, or dependent on each\nother in subject matter, meaning[,] or purpose, that the good cannot re15\n\n\x0c45 Op. O.L.C. __ (July 8, 2021)\n\nmain without the bad.\xe2\x80\x9d Id. (internal quotation marks omitted); see also\nBarr v. Am. Ass\xe2\x80\x99n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2353 (2020)\n(\xe2\x80\x9cThe Court has long applied severability principles in cases like this one,\nwhere Congress added an unconstitutional amendment to a prior law.\xe2\x80\x9d).\nWe think it clear that the SSA Commissioner\xe2\x80\x99s removal protection is\nseverable from the remainder of the SSA organic statute, just as the Court\nin Seila Law determined that the removal protection provision for the\nCFPB Director was severable from the remainder of the Dodd-Frank Act.\nThe Chief Justice\xe2\x80\x99s opinion in Seila Law pointed to several factors that\nmade severability of the removal restriction appropriate. 9 That opinion\nfirst emphasized that the provisions \xe2\x80\x9cbearing on the CFPB\xe2\x80\x99s structure and\nduties remain fully operative without the offending tenure restriction.\xe2\x80\x9d\n140 S. Ct. at 2209 (opinion of Roberts, C.J.). The same is true here. If the\nPresident disregarded the prescription that the Commissioner \xe2\x80\x9cmay be\nremoved from office only pursuant to a finding by the President of neglect\nof duty or malfeasance in office,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 902(a)(3), that would not\nimpair the structure or functioning of any other provision of the statute,\nsince none of those provisions depends upon the Commissioner\xe2\x80\x99s statutory protection from removal.\nNor is there anything \xe2\x80\x9cin the text or history of\xe2\x80\x9d the statute that demonstrates that \xe2\x80\x9cCongress would have preferred no [SSA] to [an SSA] supervised by the President.\xe2\x80\x9d Seila Law, 140 S. Ct. at 2209 (opinion of Roberts,\nC.J.). On the contrary, for most of the SSA\xe2\x80\x99s history, the entity was headed by an individual or individuals who did not enjoy tenure protection.\nSee, e.g., Reorganization Plan No. 1 of 1939, \xc2\xa7 202; Reorganization Plan\nNo. 2 of 1946, \xc2\xa7 4; Reorganization Plan No. 1 of 1953, \xc2\xa7 4. The limitation\non the Commissioner\xe2\x80\x99s removal only for neglect of duty or malfeasance in\noffice is a relatively recent innovation. See Social Security Independence\nand Program Improvements Act of 1994, Pub. L. No. 103-296, sec. 102,\n\xc2\xa7 702(a)(3), 108 Stat. at 1466. It is true that Congress enacted that limitation in part because of its frustration with the SSA\xe2\x80\x99s performance and\njudgment under its prior structure. See H.R. Rep. No. 103-670, at 89\xe2\x80\x9390.\n\nOnly two Justices joined the Chief Justice\xe2\x80\x99s severability analysis, but the four dissenting Justices concurred in the judgment with respect to severability, stating that \xe2\x80\x9call\nthose who join this [dissenting] opinion[] believe[] that if the agency\xe2\x80\x99s removal provision\nis unconstitutional, it should be severed.\xe2\x80\x9d Seila Law, 140 S. Ct. at 2245 (Kagan, J.,\ndissenting).\n9\n\n16\n\n\x0cConstitutionality of the Commissioner of Social Security\xe2\x80\x99s Tenure Protection\n\nBut we seriously doubt Congress believed the next-best solution was to\ndismantle the SSA and the benefits programs it administers altogether.\nSee Seila Law, 140 S. Ct. at 2210 (opinion of Roberts, C.J.) (concluding\nthat even though \xe2\x80\x9cCongress preferred an independent CFPB to a dependent one,\xe2\x80\x9d it \xe2\x80\x9cwould [not] have preferred a dependent CFPB to no agency\nat all\xe2\x80\x9d); Free Enter. Fund, 561 U.S. at 509 (reasoning that unconstitutional tenure provisions were severable because \xe2\x80\x9c[t]he remaining provisions\nare not \xe2\x80\x98incapable of functioning independently\xe2\x80\x99 and nothing in the statute\xe2\x80\x99s text or historical context makes it \xe2\x80\x98evident\xe2\x80\x99 that Congress . . . would\nhave preferred no Board at all to a Board whose members are removable\nat will\xe2\x80\x9d (citation omitted)). Those programs are of critical importance to\ntens of millions of United States citizens, who often depend on social\nsecurity benefits for subsistence.\nDeclaring inoperative other provisions of the 1994 amendments or underlying statute thus would deal \xe2\x80\x9cappreciable damage to Congress\xe2\x80\x99s\nwork\xe2\x80\x9d in the field of federal benefits and could wreak havoc on the individuals who depend on those benefits. Seila Law, 140 S. Ct. at 2210\n(opinion of Roberts, C.J.). Such an approach would be inconsistent with\nthe Supreme Court\xe2\x80\x99s direction that statutes with constitutional flaws be\ntreated modestly whenever possible, \xe2\x80\x9climit[ing] the solution to the problem [and] severing any problematic portions while leaving the remainder\nintact.\xe2\x80\x9d Free Enter. Fund, 561 U.S. at 508 (internal quotation marks\nomitted). Regarding the restriction on removal in 42 U.S.C. \xc2\xa7 902(a)(3) as\nconstitutionally unenforceable while leaving the remainder of the statute\nintact respects those principles, as well as Congress\xe2\x80\x99s judgments about\nhow the Executive Branch should administer federal benefits, to the\nmaximum extent possible.\nIII.\nWe therefore conclude that the President may remove the SSA Commissioner at will. We further conclude that disregarding the constitutionally unenforceable restriction on removal in 42 U.S.C. \xc2\xa7 902(a)(3) would\nnot affect the validity of the remainder of the statute.\nDAWN JOHNSEN\nActing Assistant Attorney General\nOffice of Legal Counsel\n17\n\n\x0c'