b"Constitutionality of Statute Requiring Executive Agency to\nReport Directly to Congress\nStatute requiring the Adm inistrator o f the Federal Aviation A dm inistration (FAA) to transm it con\xc2\xad\ncurrently to C ongress any budget inform ation and legislative recom m endations that are transm it\xc2\xad\nted to the S ecretary o f Transportation, the Office of M anagem ent and Budget (OM B), and the\nP resident, w ould, if interpreted strictly, on its face violate the constitutional principle of separation\no f pow ers.\nS eparation o f pow ers requires that the P resident have ultim ate control over subordinate officials who\nperform purely executive functions, w hich includes the right to supervise and review the work of\nsuch officials; this principle, coupled with the constitutional protection afforded the deliberative\nprocess w ithin the Executive B ran ch , creates an area o f executive prerogative that may not be\ninvaded b y a coordinate branch o f governm ent absent a very com pelling and specific need\nD isclo su re to C ongress o f unreviewed recom m endations by subordinates within the Executive\nB ranch w ould d isru p t the normal interchange betw een agency heads and the President in connec\xc2\xad\ntion w ith the decisionm aking process, and interfere w ith the P resident\xe2\x80\x99s ability to supervise the\nactions o f his subordinate officials w hile this process is going on, thus adversely affecting the\nP resid en t\xe2\x80\x99s ability to carry out his responsibilities.\nB ecause there appears to be no specific o r com pelling congressional need for the inform ation at issue\nin this case, the concurrent reporting requirem ent can and should be construed so as to avoid\nco n stitutional infirm ity, by allowing the FAA A dm inistrator to provide Congress with budget data\nand legislative co m m ents only after they have been approved by the A dm inistrator\xe2\x80\x99s superiors in\nthe E xecutive B ranch, including, w h ere appropriate, the President and OM B.\n\nNovember 5, 1982\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nDEPARTMENT OF TRANSPORTATION\nThis responds to your request for the advice of this Office regarding your\nimplementation of \xc2\xa7 506(f) of the Tax Equity and Fiscal Responsibility Act of\n1982, Pub. L. No. 97-248, 96 Stat. 324, 677 (1982), which requires the\nAdministrator of the Federal Aviation Administration (Administrator) to transmit\ncertain budget information and legislative recommendations directly to Congress\nat the same time that they are transmitted to the Secretary of Transportation\n(Secretary), the President, or the Office of Management and Budget (OMB).\nSpecifically, you have expressed concern that this provision may conflict with the\nprinciple of separation of powers under the Constitution. In response to your\nrequest, we have reviewed the relevant statutory provisions, case law concerning\nseparation of powers, the Constitution itself and the history of its development,\n632\n\n\x0cand prior opinions of this Office on this general subject. On the basis of this\nreview, we have concluded that, if interpreted strictly, the statutory provision\nwould, on its face, violate the separation of powers which is central to the\nstructure of the United States Constitution.\nAs discussed in Section II of this opinion, several clearly established principles\nof the separation of powers doctrine apply to the question raised by the concurrent\nreporting provision. The separation of powers requires that the President have\nultimate control over subordinate officials who perform purely executive func\xc2\xad\ntions and assist him in the performance of his constitutional responsibilities. This\npower includes the right to supervise and review the work of such subordinate\nofficials, including reports issued either to the public or to Congress. This\nsupervisory control is reinforced by the constitutional protection afforded to the\ndeliberative process within the Executive Branch. These principles combine to\ncreate an area of executive prerogative that may not be invaded by a coordinate\nbranch of government absent a very compelling and specific need.\nAs detailed in Section III, a requirement that subordinate officials within the\nExecutive Branch submit reports directly to Congress, without any prior review\nby their superiors, would greatly impair the right of the President to exercise his\nconstitutionally based right to control the Executive Branch. This interference\ncontrasts with the relatively nonspecific request for information embodied in\n\xc2\xa7 506(f). In balancing Congress\xe2\x80\x99 limited apparent need for direct reports against\nthe President\xe2\x80\x99s right to control subordinates within the Executive Branch, it\nseems clear that \xc2\xa7 506(f) would be unconstitutional if it were construed to require\nthe Administrator to report to Congress without prior review by his superiors.\nIn Section IV, we consider how \xc2\xa7 506(0 might be interpreted so as to avoid this\nconstitutional problem. In brief, we conclude that in order to harmonize the\nstatute with the requirements of the Constitution, the Administrator should\nprovide to Congress only budget information and legislative comments that have\nbeen approved by the Administrator\xe2\x80\x99s superiors, including, where appropriate,\nthe President, OMB, and the Secretary.\nI. Background\nThe Airport and Airway Improvement Act of 1982 (AAIA) was enacted as\nTitle V of the Tax Equity and Fiscal Responsibility Act of 1982. Pub. L. No.\n97-248, 96 Stat. 324, 677 (1982). The AAIA generally authorizes an extension\nof, and enacts certain changes to, the Federal Airport Aid Program. In addition,\n\xc2\xa7 506(0 provides:\n(0 TRANSMITTAL OF BUDGET ESTIMATES.\xe2\x80\x94 Whenever\nthe Administrator of the Federal Aviation Administration submits\nor transmits any budget estimate, budget request, supplemental\nbudget estimate, or other budget information, legislative recom\xc2\xad\nmendation, or comment on legislation to the Secretary, the Presi\xc2\xad\ndent of the United States, or to the Office of Management and\n633\n\n\x0cBudget pertaining to funds authorized in subsection (a) or (b) of\nthis section, it shall concurrently transmit a copy thereof to the\nSpeaker of the House of Representatives, the Committees on\nPublic Works and Transportation and Appropriations of the House\nof Representatives, the President of the Senate, and the Commit\xc2\xad\ntees on Commerce, Science, and Transportation and Appropria\xc2\xad\ntions of the Senate.\nIn essence, this provision purports to direct the Administrator to report\nconcurrently to Congress any budget data or legislative comments that are\ntransmitted to the President, the Secretary, or OMB. By the terms of \xc2\xa7 506(f),\nthis requirement applies to budget information or legislative comments \xe2\x80\x9c pertain\xc2\xad\ning to funds authorized in subsection (a) or (b) of this section . . . \xe2\x80\x9d Subsections\n(a) and (b) authorize funding for acquiring or establishing and improving air\nnavigation facilities and for establishing demonstration projects in connection\nwith certain research and development activities. In addition, \xc2\xa7 504(b) requires\nthe Administrator to prepare and submit to Congress \xe2\x80\x9c a national airways system\nplan\xe2\x80\x9d and directs that the preparation be \xe2\x80\x9c subject to the requirements of section\n506(f). . . .\xe2\x80\x9d\nGiven this statutory language, it is arguable that the Administrator is required\nto submit the specified reports, information, and comments directly to Congress\nprior to any review or approval by the President, the Secretary, or OMB. If the\nstatute were read to impose such a requirement, the Administrator would be\nsevered from his superiors in the Executive Branch with respect to these matters\nand would, in effect, become an independent agency reporting to both Congress\nand the President. In addition, the internal deliberative process within the\nExecutive Branch would be tapped by an information pipeline running directly to\na coordinate branch of government. These possibilities raise serious separation of\npowers issues, which are discussed below.\nII. Applicable Separation off Powers Principles\nArticle II, \xc2\xa7 1 of the United States Constitution begins with the statement that\n\xe2\x80\x9c [t]he executive Power shall be vested in a President of the United States of\nAmerica.\xe2\x80\x9d Article II, \xc2\xa7 3 requires the President to \xe2\x80\x9c take Care that the Laws be\nfaithfully executed . . . , \xe2\x80\x9d and also requires the President to \xe2\x80\x9c recommend to\n[Congress\xe2\x80\x99] Consideration such Measures as he shall judge necessary and expe\xc2\xad\ndient. . . .\xe2\x80\x9d These constitutional provisions, taken together, impose certain\nfundamental duties upon the President and grant the power to direct the Executive\nBranch to carry out those duties.\nIn order to execute the laws adopted by Congress, the President must have the\nassistance of subordinate officials who will carry out his policies and implement\nhis instructions with respect to the execution of law. The Supreme Court has,\nfrom its earliest decisions, consistently recognized this basic principle. For\nexample, in M arbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803), Chief\nJustice Marshall stated:\n634\n\n\x0cBy the Constitution of the United States, the president is\ninvested with certain important political powers, in the exercise of\nwhich he is to use his own discretion, and is accountable only to\nhis country in his political character, and to his own conscience.\nTo aid him in the performance of these duties, he is authorized to\nappoint certain officers, who act by his authority, and in con\xc2\xad\nformity with his orders. In such cases, their acts are his acts; and\nwhatever opinion may be entertained of the manner in which\nexecutive discretion may be used, still there exists, and can exist,\nno power to control that discretion.\nAlthough it is clear that the Constitution does not contemplate \xe2\x80\x9c a complete\ndivision of authority between the three branches,\xe2\x80\x9d Nixon v. Administrator of\nGeneral Services, 433 U.S. 425, 443 (1977), each branch retains certain core\nprerogatives upon which the other branches may not transgress. See Buckley v.\nValeo, 424 U.S. 1 (1976). In Buckley, the Court recognized that \xe2\x80\x9c a hermetic\nsealing off of the three branches of Government from one another would preclude\nthe establishment of a Nation capable of governing itself effectively,\xe2\x80\x9d but it\nemphasized that there was a \xe2\x80\x9c common ground in the recognition of the intent of\nthe Framers that the powers of the three great branches of the National Govern\xc2\xad\nment be largely separate from one another.\xe2\x80\x9d 424 U.S. at 120-21. The Court\ndeclared that it \xe2\x80\x9c has not hesitated to enforce the principle of separation of powers\nembodied in the Constitution when its application has proved necessary for the\ndecision of cases or controversies properly before it.\xe2\x80\x9d 424 U.S. at 123.\nThe extent of the President\xe2\x80\x99s right to control subordinate officers was specifi\xc2\xad\ncally considered by the Supreme Court in a trilogy of cases involving the\nPresident\xe2\x80\x99s power to remove federal officials. \\v\\M yers\\. UnitedStates, 272U.S.\n52 (1926), the Court ruled unconstitutional a statute that limited the President\xe2\x80\x99s\npower to remove certain postmasters, and it declared, in dictum, that the repealed\nTenure of Office Act had been unconstitutional as well.1 In reaching this con\xc2\xad\nclusion, the Court considered a number of factors, including the constitutional\ndebates, previous congressional practice, and the relationship between the power\nto appoint and the power to remove. In addition, the Court expressly based its\ndecision on the conclusion that \xe2\x80\x9cArticle II grants to the President the executive\npower of the Government, i.e., the general administrative control of those\nexecuting the laws, including the power of appointment and removal of executive\nofficers\xe2\x80\x94 a conclusion confirmed by his obligation to take care that the laws be\nfaithfully executed. . . .\xe2\x80\x9d 272 U.S. at 163-64. The Court based this conclusion\non the following analysis of the President\xe2\x80\x99s control over subordinate officials:\n1 The Tenure of Office Act, 14 Stat. 430 ( 1867), had provided that all officers appointed by and with the consent of\nthe Senate should hold their offices until their successors had been appointed and approved, and that certain heads of\ndepartments, including the Secretary of War, should hold their offices during the term of the President who\nappointed them, subject to removal by consent of the Senate. This Act was the pnncipal basis for the articles of\nimpeachment filed against President Andrew Johnson after he dismissed his Secretary of War without the consent of\nthe Senate\n\n635\n\n\x0cThe ordinary duties of officers prescribed by statute come under\nthe general administrative control of the President by virtue of the\ngeneral grant to him of the executive power, and he may properly\nsupervise and guide thei/construction of the statutes under which\nthey act in order to secure that unitary and uniform execution of\nthe laws which Article II of the Constitution evidently con\xc2\xad\ntemplated in vesting general executive power in the President\nalone. Laws are often passed with specific provision for the\nadoption of regulations by a department or bureau head to make\nthe law workable and effective. The ability and judgment man\xc2\xad\nifested by the official thus empowered, as well as his energy and\nstimulation of his subordinates, are subjects which the President\nmust consider and supervise in his administrative control. Find\xc2\xad\ning such officers to be negligent and inefficient, the President\nshould have the power to remove them.\n272 U .S. at 135.\nThe Court confirmed this view of the President\xe2\x80\x99s power over his subordinates\nwithin the Executive Branch in Humphrey's Executor v. United States, 295 U.S.\n602 (1935). In that case, the Court ruled that Congress could, consistent with the\nConstitution, immunize a Commissioner of the Federal Trade Commission\n(FTC) from removal by the President at his pleasure. The Court reasoned that the\nFTC could not \xe2\x80\x9c be characterized as an arm or eye of the executive. Its duties are\nperformed without executive leave and, in the contemplation of the statute, must\nbe free from executive control.\xe2\x80\x9d 295 U.S. at 628. M yers was distinguished on the\nground that \xe2\x80\x9c [t]he actual decision in the M yers case finds support in the theory\nthat such an officer is merely one of the units in the executive department and,\nhence, inherently subject to the exclusive and illimitable power of removal by the\nChief Executive, whose subordinate and aid he is.\xe2\x80\x9d 295 U.S. at 627. The Court\nemphasized that within the Executive Branch, the President retained the right to\ndirect the actions of his subordinates free from interference by another branch:\nThe fundamental necessity of maintaining each of the three\ngeneral departments of government entirely free from the control\nor coercive influence, direct or indirect, of either of the others, has\noften been stressed and is hardly open to serious question. So\nmuch is implied in the very fact of the separation of the powers of\nthese departments by the Constitution; and in the rule which\nrecognizes their essential co-equality. The sound application of a\nprinciple that makes one master in his own house precludes him\nfrom imposing his control in the house of another who is master\nthere.\n295 U.S. at 629-30. Thus, by narrowing M yers to cover only subordinates of the\nPresident within the Executive Branch, the Court linked the removal power even\nmore clearly to the right of the President to control purely executive officials.\n636\n\n\x0cThis principle was reaffirmed in W iener\\. UnitedStates, 357 U.S. 349 (1958).\nIn that case, the Court held that the President did not have a constitutional right to\nremove a member of the War Claims Commission. The Court ruled that the\nCommission was essentially judicial in nature and that it was intended by\nCongress to operate entirely free of the President\xe2\x80\x99s control. 357 U.S. at 355-56.\nThe Court expressly linked the right of removal with the right of the President to\ncontrol a particular official:\nIf, as one must take for granted, the War Claims Act precluded the\nPresident from influencing the Commission in passing on a par\xc2\xad\nticular claim, a fortiori must it be inferred that Congress did not\nwish to have hang over the Commission the Damocles\xe2\x80\x99 sword of\nremoval by the President for no reason other than that he preferred\nto have on that Commission men of his own choosing.\n357 U.S. at 356. The Court thus emphasized that Humphrey\xe2\x80\x99s Executor \xe2\x80\x9c drew a\nsharp line of cleavage between officials who were part of the Executive establish\xc2\xad\nment and were thus removable by virtue of the President\xe2\x80\x99s constitutional\npowers,\xe2\x80\x9d and those who were members of an independent body required to\nexercise its judgment without hindrance from the Executive. 357 U.S. at 353.\nThese three cases clearly establish the President\xe2\x80\x99s right to control the actions\nand duties of his subordinates within the Executive Branch. Myers explicitly set\nforth the President\xe2\x80\x99s right to control as one of the bases for establishing the\npresidential right to discharge subordinate officials. Humphrey\xe2\x80\x99s Executor and\nWiener, while limiting the President\xe2\x80\x99s removal power, reinforced the link be\xc2\xad\ntween the President\xe2\x80\x99s right to control and his right to remove Executive Branch\nofficials.\nThe President\xe2\x80\x99s right to control the execution of the laws free from undue\ninterference from coordinate branches of government is supported by an addi\xc2\xad\ntional line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the\nSupreme Court confirmed that the Constitution protects the integrity of the\nExecutive Branch decisionmaking process from interference by another branch\nthrough demands for information about the Executive\xe2\x80\x99s deliberations. The Court\nrecognized\nthe valid need for protection of communications between high\nGovernment officials and those who advise and assist them in the\nperformance of their manifold duties; the importance of this\nconfidentiality is too plain to require further discussion. Human\nexperience teaches that those who expect public dissemination of\ntheir remarks may well temper candor with a concern for ap\xc2\xad\npearances and for their own interests to the detriment of the\ndecisionmaking process.\n418 U.S. at 705 (footnote omitted). The Court specifically acknowledged that\nthis right of confidentiality \xe2\x80\x9c can be said to derive from the supremacy of each\nbranch within its own assigned area of constitutional duties. Certain powers and\n637\n\n\x0cprivileges flow from the nature of enumerated powers; the protection of the\nconfidentiality of Presidential communications has similar constitutional under\xc2\xad\npinnings.\xe2\x80\x9d 418 U.S. at 705-06 (footnote omitted). The Court further noted that\nthis protection \xe2\x80\x9c is fundamental to the operation of Government and inextricably\nrooted in the separation of powers under the Constitution.\xe2\x80\x9d 418 U.S. at 708\n(footnote omitted).\nThis decision gives further content to the principle that the constitutional\nseparation of powers requires the President to have effective control over the\ndecisionmaking process within the Executive Branch. The constitutional pre\xc2\xad\nrogative recognized by the Court connects the President\xe2\x80\x99s constitutional respon\xc2\xad\nsibility to take care that the laws be faithfully executed with the practical need for\nconfidentiality in Executive Branch deliberations. The Court has unmistakably\ndeclared that the powers necessary to the implementation of the President\xe2\x80\x99s\nauthority over the Executive Branch cannot be abridged absent a compelling and\nspecific need asserted by another branch.2\nThe D.C. Circuit has explicitly recognized the right of the President to protect\nhimself from unwarranted intrusions by Congress into the domain of protected\ndecisionmaking activity. In Senate Select Committee on Presidential Campaign\nActivities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), the court ruled that\nthe President was not required to produce to Congress certain transcripts of White\nHouse conversations. The court decided that the general presumption in favor of\nthe confidentiality of executive deliberations could be overcome \xe2\x80\x9c only by a\nstrong showing of need by another institution of government\xe2\x80\x94 a showing that the\nresponsibilities of that institution cannot responsibly be fulfilled without access\nto records of the President\xe2\x80\x99s deliberations. . . .\xe2\x80\x9d 498 F. 2d at 730. The court found\nthat the general oversight need o f Congress in this instance was not sufficient to\nmeet the court\xe2\x80\x99s requirement that the information be \xe2\x80\x9c demonstrably critical to the\nresponsible fulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d 498 F.2d at 731.\nThe decisions and the long practical history concerning the right of the\nPresident to protect his control over the Executive Branch are based on the\nfundamental principle that the President\xe2\x80\x99s relationship with his subordinates must\nbe free from certain types of interference from the coordinate branches of\ngovernment in order to permit the President effectively to carry out his constitu\xc2\xad\ntionally assigned responsibilities. The executive power resides in the President,\n2 Although the N ix o n case dealt with communications between the President and White House advisors, it seems\nclear that the principles enunciated therein extend at least to other important decisionmakers within the Executive\nBranch. S e e U n ite d S ta te s v. A m erican T elephone & T elegraph C o ., 567 F 2d 121 (D.C. Cir 1977). The N ixon\nCourt specifically referred not simply to the President but to \xe2\x80\x9c high government officials and those who advise and\nassistthem . . .\n418 U .S. at 705 Rirthermore, as the Supreme Court recognized m B a r r v . M atteo, 360U . S. 564\n(1959), where it extended the privilege against libel suits involving official utterances to executive officials below\nCabinet rank:\nWe do not think that the principle announced in Vilas can properly be restricted to executive\nofficers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The\nprivilege is not a badge or emolument o f exalted office, but an expression of a policy designed to aid\nin the effective functioning of government. The complexities and magnitude of governmental\nactivity have become so great that there must o f necessity be a delegation and redelegation of\nauthority as to many functions, and we cannot say that these functions become less important simply\nbecause they are exercised by officers of lower rank in the executive hierarchy\n360 U .S. at 572-73 (footnotes omitted)\n\n638\n\n\x0cand he is obligated to \xe2\x80\x9c take care that the laws are faithfully executed.\xe2\x80\x9d In order to\nfulfill these responsibilities, the President must be able to rely upon the faithful\nservice of subordinate officials. To the extent that Congress or the courts interfere\nwith the President\xe2\x80\x99s right to control or receive effective service from his subordi\xc2\xad\nnates within the Executive Branch, those other branches limit the ability of the\nPresident to perform his constitutional function. Therefore, only the most\ncompelling and specifically supported needs will justify any interference with the\nPresident\xe2\x80\x99s power within the Executive Branch.\nIII. Application of Separation of Powers Principles to \xc2\xa7 506(f)\nIn this instance, the potential impact of \xc2\xa7 506(f) on the Executive Branch is\nsignificant and adverse. On the other hand, the provision does not reflect any\nparticularized congressional need for specific factual information. Under these\ncircumstances, as described more fully below, the constitutionally based need to\nprotect the executive process from a non-compelling intrusion by Congress\nsuggests that the statutory provision should be very narrowly construed so as not\nto offend separation of powers principles.\nA. Interference with the Executive Process\n\nThere is no doubt that the Administrator is a purely executive official who\nserves at the pleasure of the President and is subject to the President\xe2\x80\x99s control.\nThe FAA, as a division of the Department of Transportation, is indisputably an\nexecutive agency. The Administrator is appointed by the President with the\nadvice and consent of the Senate, and he serves at the pleasure of the President.\n49 U.S.C. \xc2\xa7 1652(e)(1). The Administrator reports directly to the Secretary of\nTransportation, who reports in turn to the President. 49 U.S.C. \xc2\xa7 1652(e)(3).\nSince the Administrator is a purely executive official subject to the direct control\nof the President, under the principles set forth above, the Administrator must be\nresponsible to the Secretary, and ultimately to the President, and the Admin\xc2\xad\nistrator\xe2\x80\x99s superiors have the right to supervise and approve the Administrator\xe2\x80\x99s\nwork.\nThe concurrent reporting provision could be construed to interfere greatly with\nthe President\xe2\x80\x99s right to supervise the Administrator\xe2\x80\x99s action. The provision could\nbe read to require the Administrator to submit any budget information or\nlegislative comments directly to Congress prior to any approval or even review by\nthe Administrator\xe2\x80\x99s superiors, including the Secretary and the President. If the\nprovision were interpreted in that manner, the Administrator would be effectively\nsevered from his superiors in the Executive Branch with respect to these areas of\nhis responsibility. On these vital budget and legislative matters, the Admin\xc2\xad\nistrator would become, in effect, an independent agency reporting both to\nCongress and to the President. This concurrent responsibility is entirely incon\xc2\xad\nsistent with the separation of powers principles set forth above and with the\n639\n\n\x0ccorollary right of the President to control his subordinates within the Executive\nBranch.\nThe practical effect of a broad interpretation of \xc2\xa7 506(f) would severely impair\nthe President\xe2\x80\x99s ability to carry out his constitutionally assigned responsibilities.\nThe President\xe2\x80\x99s responsibility to take care that the laws are faithfully executed\nincludes the responsibility imposed by the Budget and Accounting Act to present\na unified national budget to Congress. See 31 U.S.C. \xc2\xa7 11. In order to implement\nthis statutory responsibility, the President has established a budget development\nand review process through OM B, which is a part of the Executive Office of the\nPresident. The President through OMB requires that\nthe confidential nature of agency submissions, requests, recom\xc2\xad\nmendations, supporting materials and similar communications\nshould be maintained, since these documents are an integral part\nof the decisionmaking process by which the President resolves\nbudget issues and develops recommendations to the Con\xc2\xad\ngress. . . . Budgetary material should not be disclosed in any\nform prior to transmittal by the President of the material to which\nit pertains. The head of each agency is responsible for preventing\npremature disclosures of this budgetary information.\nOMB Circular No. A-10(Nov. 12, 1976) at 2. Thus, the Executive has explicitly\ndetermined that disclosure of unreviewed recommendations by subordinates\nwithin the Executive Branch would adversely affect the President\xe2\x80\x99s ability to\ncarry out his responsibilities.3\nMoreover, the President has an explicit constitutional obligation to \xe2\x80\x9c recom\xc2\xad\nmend to [Congress\xe2\x80\x99] Consideration such Measures as he shall judge necessary\nandexpedient. . . .\xe2\x80\x9d Article II, \xc2\xa7 3. The Administrator is responsible for making\nrecommendations to the President concerning such legislative action so that the\nPresident may review them and determine which measures \xe2\x80\x9c he shall judge\nnecessary and expedient.\xe2\x80\x9d Id. Congress seeks to interdict this process by requir\xc2\xad\ning immediate reporting of such legislative recommendations prior to the Presi\xc2\xad\ndent\xe2\x80\x99s review or approval. Thus, although the Constitution gives to the President\nthe right to present legislative recommendations on behalf of the Executive\nBranch, Congress, by this concurrent reporting provision, purports to require a\nsubordinate executive official to present legislative recommendations of his own.\nSuch a provision clearly transgresses upon the President\xe2\x80\x99s constitutionally desig\xc2\xad\nnated role.\nThus, the concurrent reporting provision presents a constitutional problem\nthat transcends the issue of executive privilege.4 The issue here concerns not just\n3 Although Congress has enacted concurrent reporting provisions with respect to certain independent agencies,\nwe are unaware that it has ever imposed a concurrent reporting requirement upon a purely executive agency that is\nunder the President\xe2\x80\x99s direct supervision and control See 7 U S C \xc2\xa7 4a(h)(l) (Commodity Ritures Trading\nCommission); 15 U .S.C . \xc2\xa7 2076(k)(l) (Consum er Product Safety Commission); 31 U .S .C \xc2\xa7 ll( j) (Interstate\nCommerce Commission).\n4 The provision would present a more classic executive privilege problem if it required production of recommen\xc2\xad\ndations and deliberative documents after the final budget decisions had already been made and transmitted to\nCongress by the President. That type of statute would present constitutional problems, but they would be of a\ndifferent character th airth e ones presented by \xc2\xa7 506(0-\n\n640\n\n\x0cprotection of the deliberative process once a final decision has already been\nmade, but rather protection of the President\xe2\x80\x99s ability to supervise the actions of his\nsubordinate officials while the decisionmaking process is still going on. Because\n\xc2\xa7 506(0 might be read to require a presidential subordinate to report both to\nCongress and his superiors within the Executive Branch, it intrudes deeply into\nthe President\xe2\x80\x99s constitutional prerogative. Indeed, as thus construed, it would\ninterdict and therefore irreparably damage, if not destroy, the normal exchange of\nviews between agency heads and the President (through OMB) before budget\nsubmissions are finally approved. A potential result is that the Administrator\nmight be cut out of the process and made into a figurehead with the budget work\nassigned to someone not subject to the constraints of \xc2\xa7 506(f).\nThis Office has previously considered, and found constitutionally defective,\nlegislative proposals that impose concurrent reporting requirements upon ex\xc2\xad\necutive officials. For example, this Office has published an opinion concerning a\nproposal that an inspector general be required to report information directly to\nCongress, without review or approval by the head of the particular agency\ninvolved. Inspector General Legislation, 1 Op. O.L.C. 16 (1977).5 In that\nopinion, this Office determined that the \xe2\x80\x9c President\xe2\x80\x99s power of control extends to\nthe entire executive branch, and includes the right to coordinate and supervise all\nreplies and comments from the executive branch to Congress.\xe2\x80\x9d Id. at 17. The\nopinion stated that the requirement to provide information directly to Congress\nwithout Executive Branch clearance was \xe2\x80\x9c inconsistent with [the Inspector Gen\xc2\xad\neral\xe2\x80\x99s] status as an officer in the executive branch, reporting to and under the\ngeneral supervision of the head of the agency.\xe2\x80\x9d Id. In conclusion, the opinion set\nforth the following principle:\nReports of problems encountered and suggestions for remedial\nlegislation may be required of the agencies in question, but those\nreports must come to Congress from the statutory head of the\nagency, who must reserve the power of supervision over the\ncontents of these reports.\nId. at 18.\nB. Congressional N eed fo r \xc2\xa7 506(f)\n\nIn the face of this significant interference with the President\xe2\x80\x99s right to control\nhis subordinates, there does not appear from the legislation or its history a strong\ncomparable Legislative Branch interest. Congress has not expressed a specific\nneed for \xc2\xa7 506, either in the statute itself or in the legislative history. One can\nonly infer that Congress adopted the provision in order to obtain more informa\xc2\xad\ntion to assist it in carrying out its review of the budget. There is no indication that\nCongress could not obtain similar information to aid its deliberations from other\nsources or by other means that would be less intrusive upon the Executive\nBranch. Certainly there is no indication that the material \xe2\x80\x9c is demonstrably\n5 S ee also Proposals Regarding an Independent A ttorney G eneral, 1 O L C. 75 (1977)\n\n641\n\n\x0ccritical to the responsible fulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d See Senate\nS elect Com m ittee on Presidential Campaign A ctivities v. Nixon, 498 F.2d at 731.\nMoreover, the concurrent reporting provision is a blanket requirement that\napplies to all budget information and legislative comments. The provision is\nsweeping and indiscriminate in its demand for information from the Executive\nBranch. This type of requirement is inconsistent with the Constitution\xe2\x80\x99s \xe2\x80\x9c spirit of\ndynamic compromise\xe2\x80\x9d with respect to disputes between coordinate branches of\ngovernment. See United States v. American Telephone & Telegraph C o., 567\nF.2d 121, 127 (D.C. Cir. 1977). That case involved a Justice Department suit to\nblock a congressional subpoena of third-party materials on the ground that\nproduction would pose a threat to national security. In resolving the clash\nbetween the Executive and Legislative Branches, the Court insisted on further\nefforts by the two branches to reach a compromise arrangement and emphasized\nthat\nthe resolution of conflict between the coordinate branches in these\nsituations must be regarded as an opportunity for a constructive\nmodus vivendi, which positively promotes the functioning of our\nsystem. The Constitution contemplates such accommodation.\nNegotiation between the two branches should thus be viewed as a\ndynam ic process affirm atively furthering the constitutitonal\nscheme.\n567 F.2d at 130. By enacting a blanket statutory mechanism that would require\nautomatic submission to Congress of preliminary and not fully developed Ex\xc2\xad\necutive Branch positions, Congress has ignored this common sense construction\nof constitutional principles. Congress\xe2\x80\x99 need is much less significant than would\nbe the case if Congress had made a specific, well-defined request for materials\nthat were necessary for it to fulfill a vital legislative function. Congress may still\nmake such a specific request, and it needs no statute to do so. Congress and its\ncommittees frequently obtain information in this manner from the Executive\nBranch when, in the view of the Executive Branch, the provision of such\ninformation will not have an unacceptable impact on the deliberative process.\nOn balance, if the concurrent reporting provision were construed to require\nimmediate transmission to Congress of the Administrator\xe2\x80\x99s budget and legislative\nrecommendations, it would violate the constitutionally prescribed separation of\npowers. The potential interference with the President\xe2\x80\x99s constitutional duty to\nsupervise the actions of his subordinates would be substantial, while there does\nnot appear to be any congressional need of comparable magnitude for the\ninformation. Therefore, the provision must be construed in a manner consistent\nwith the separation of powers required under the Constitution.\n\nIIV. ImpEemeiniltaltnoini off \xc2\xa7 506(5)\nIn implementing \xc2\xa7 506(f), the Administrator must act in accordance with the\nconstitutional principles set forth above. Therefore, \xc2\xa7 506(0 must be carried out\n642\n\n\x0cin a manner that will permit the Secretary and, as necessary, the President or\nOMB to review the Administrator\xe2\x80\x99s reports prior to their submission to Congress.\nBroadly worded statutes that could be interpreted in such a way as to create a\nconflict with the separation of powers have, in the past, been interpreted very\nnarrowly so as not to impinge upon the constitutional prerogatives of the\nExecutive Branch. For example, Congress has enacted a provision that on its face\nrequires any executive agency to submit to the Government Operations Commit\xc2\xad\ntees of the House or Senate \xe2\x80\x9c any information requested of it relating to any matter\nwithin the jurisdiction of the committee.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 2954. This provision,\nhowever, has been narrowly interpreted by the Executive Branch to grant to the\npertinent committees access to only the type of information that has traditionally\nbeen made available to Congress and that is not subject to valid claims of\nexecutive privilege. Statement of Attorney General Elliot Richardson, June\n1973. Attorney General Rogers adopted a similar approach in response to a\nprovision of the Mutual Security Act of 1954 in order to avoid a construction of\nthe statute that would require production of documents presumptively protected\nby executive privilege. See 41 Op. Att\xe2\x80\x99y Gen. 507, 525 (1960). This practice is,\nof course, consistent with the familiar rule that courts will adopt an interpretation\nof a statute that will avoid constitutional questions. See, e.g ., United States v.\nRumely, 345 U.S. 41, 45 (1953).\nIn this instance, we have concluded that \xc2\xa7 506(f) can and should be construed\nto be consistent with the Constitution by interpreting the budget information and\nlegislative comments that the Administrator is required to produce to Congress to\ninclude only \xe2\x80\x9c final\xe2\x80\x9d information and comments. In other words, until budget\ninformation, legislative comments, or any other material required to be transmit\xc2\xad\nted to Congress is reviewed and approved by the appropriate senior officials, the\nmaterial should be regarded as tentative, rather than final, conclusions of the\nAdministrator. The information or comments would not become final until the\nappropriate review process was complete, at which time the Administrator,\npursuant to \xc2\xa7 506(f), would transmit the final information or comments to both\nthe Secretary and Congress.\nV. Conclusion\nIn conclusion, we believe that \xc2\xa7 506(f) is constitutional only if interpreted to\npermit the Secretary and the President to review the Administrator\xe2\x80\x99s reports prior\nto the time that they are submitted to Congress. We recommend that the Admin\xc2\xad\nistrator carry out his responsibilities under \xc2\xa7 506 in accordance with this consti\xc2\xad\ntutional requirement.\nT h eo d o r e B. O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n643\n\n\x0c"


b"Authority of the Attorney General to Grant Discretionary\nRelief from Deportation Under Section 212(c) of the\nImmigration and Nationality Act as Amended by the\nAntiterrorism and Effective Death Penalty Act of 1996\nT he am endm ent o f section 212(c) o f the Im m igration and N ationality Act by section 4 40(d) o f the\nA ntiterro n sm and E ffective D eath Penalty Act o f 1996 deprived the A ttorney G eneral o f the\nauthority to grant discretionary relief from deportation for aliens who com m itted certain crim es.\nSection 4 4 0 (d ) applies to section 212(c) applications for discretionary relief pending on the effec\xc2\xad\ntive date o f A E D PA *\n\nFebruary 21, 1997\n\nIN DEPORTATION PROCEEDINGS\nAt the request of the Commissioner of Immigration and Naturalization, the\nBoard of Immigration Appeals (\xe2\x80\x9c BIA\xe2\x80\x9d ) referred its decision in this matter pursu\xc2\xad\nant to 8 C.F.R. \xc2\xa73.1(h)(iii) (1996). Respondent Soriano, a native and citizen of\nthe Dominican Republic, was admitted to the United States in 1985 as a lawful\npermanent resident alien. In 1992, he was convicted under New York law of the\noffense of an attempted sale of a controlled substance. Based on that conviction,\nthe Immigration and Naturalization Service (\xe2\x80\x9c INS\xe2\x80\x9d ) instituted deportation pro\xc2\xad\nceedings against him in 1994.\nIn 1995, Respondent sought the relief of waiver of inadmissibility under section\n212(c) of the Immigration and Nationality Act ( \xe2\x80\x9c INA\xe2\x80\x9d ), 8 U.S.C. \xc2\xa7 1182(c)\n(1994). Section 212(c) grants the Attorney General discretionary authority to admit\notherwise excludable permanent resident aliens. Although the statute expressly\nauthorizes only a waiver of exclusion, courts have interpreted it to authorize relief\nin deportation proceedings as well. See Francis v. INS, 532 F.2d 268, 273 (2d\nCir. 1976); De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993). The Immigra\xc2\xad\ntion Judge found that the respondent was eligible for that relief, but, in the exercise\no f discretion, denied his application. See Matter o f Soriano, File No. A39 186\n067 (Executive Office for Immigration Review (\xe2\x80\x9c EOIR\xe2\x80\x9d ), Office of the Immigra\xc2\xad\n* Editor's Note: tn this opinion (he Attorney General applied the two-step test for analyzing the temporal scope\nof a statute set forth in the Supreme Court\xe2\x80\x99s decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994).\nThe Attorney General concluded that under the first step o f L a n d g r a fwhich asks whether Congress has expressly\nprescribed the temporal reach o f a statute. Congress did not specify whether section 440(d) should be applied to\nsection 212(c) applications pending on the effective date o f AEDPA. A fter the Attorney General handed down this\nopinion, the majority of the federal courts of appeals disagreed with the Attorney General\xe2\x80\x99s conclusion. Acknowl\xc2\xad\nedging this disagreement, the Attorney General acquiesced on a nationwide basis in the decisions o f the courts\nof appeals that disagreed with her decision See Section 212(c) Relief for Certain Aliens in Deportation Proceedings\nBefore April 24, 1996, 66 Fed. Reg 6436 (Jan 22, 2001). Because nearly all of the courts of appeals decided\nthis issue under the first step o f Landgraf\\ these courts did not reach the Attorney General\xe2\x80\x99s determination under\nthe second step o f Landgraf\\ discussed in this opinion, that statutes affecting jurisdiction and prospective relief gen\xc2\xad\nerally do not raise retroactivity concerns because such statutes do not impair a nght, increase a liability, or impose\nnew duties on criminal aliens. For this reason, this opinion is still relevant to such questions\n\ni\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\ntion Judge, Oct. 12, 1995). Respondent appealed from that decision on October\n23, 1995.\nOn April 24, 1996, while Respondent\xe2\x80\x99s appeal was pending, the President\nsigned into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.\nL. No. 104-132, 110 Stat. 1214 (\xe2\x80\x9c AEDPA\xe2\x80\x9d ). Section 440(d) of AEDPA amended\nINA \xc2\xa7 212(c). The amendment provides in relevant part that section 212(c) relief\nshall not be available to aliens who are deportable by reason of having committed\ncertain specified criminal offenses. Respondent\xe2\x80\x99s offense is among those speci\xc2\xad\nfied.1 Thus, a threshold issue on appeal was whether the amendment to section\n212(c) applied to foreclose Respondent\xe2\x80\x99s application for relief from deportation.2\nThe BIA was unanimous in concluding that AEDPA \xc2\xa7 440(d) was effective\nimmediately upon enactment on April 24, 1996. The BIA was divided, however,\nas to whether AEDPA \xc2\xa7 440(d) applied to applications for section 212(c) relief\nthat were pending on the effective date of AEDPA. Six members of the BIA\nconcluded that Congress did not intend that aliens who had applications pending\non April 24, 1996, should be barred from seeking that relief. Accordingly, they\nfound that Respondent continued to be eligible for waiver of inadmissibility.3 Five\nmembers of the BIA dissented. They would have held that section 440(d) did apply\nto pending applications for section 212(c) relief. One member of the BIA con\xc2\xad\ncurred in part and dissented in part. That member agreed with the majority that\nAEDPA \xc2\xa7 440(d) should not be applied to pending section 212(c) applications,\nbut would also have declined to apply it to other cases, such as those of permanent\nresident aliens subject to an Order to Show Cause.\nFor the reasons stated below, I conclude that the amendment to INA \xc2\xa7 212(c)\nmade by AEDPA \xc2\xa7 440(d) applies to proceedings such as Respondent\xe2\x80\x99s, in which\nan application for relief under section 212(c) was pending when AEDPA was\nsigned into law.4\nl The amendm ent provides in relevant part that section 212(c) relief shall not be available to an alien who \xe2\x80\x9c is\ndeportable by reason o f having committed any crim inal offense covered in [INA] section 241(a)(2)(A)(m), (B),\n(C), or (D), o r any offense covered by section 241(a)(2)(A)(n) for which both predicate offenses are, without regard\nto the date o f their commission, otherwise covered by section 24l(a)(2)(A )(i) \xe2\x80\x9d 110 Stat at 1277, as amended by\nsection 306(d) o f the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Department o f Defense\nA ppropriations Act. 1997, Pub. L. No. 104-208, \xc2\xa7 306(d), 110 Stat 3009-546. 3009-612. Respondent\xe2\x80\x99s offense\nis covered by section 241(a)(2)(A)(m) and (B) of the INA. See 8 U S C \xc2\xa7 1251 (1994)\n2 It is important to note as a threshold matter that deportation proceedings are civil actions, and, thus, the constitu\xc2\xad\ntional bars to retroactive application o f penal legislation do not apply INS v Lopez-Mendoza, 468 U S 1032, 1038\n(1984); Harisiades v. Shaughnessy, 342 U S 580, 5 94-95 (1952) Moreover, it is well settled that Congress may\nlegislate to alter the immigration consequences o f past criminal convictions or acts Lehman v Carson, 353 U.S\n685, 690 (1957); Mulcahey v. Cotalanotte, 353 U.S. 692, 694 (1957).\n\xe2\x80\x98'T h e majority agreed with the Immigration Ju d g e\xe2\x80\x99s conclusions that Respondent\xe2\x80\x99s attempted criminal sale of\ncocaine, together with his three other drug-related felonies, required a demonstration of outstanding equities before\nhe could receive a waiver o f inadmissibility, and that Respondent had not made such a demonstration\n4 By O rder dated September 12, 1996, 1 granted the request for review and vacated the opinion of the BIA in\nMatter o f Bartolom e Jhonny Sonano (A39 186 067)\n\n2\n\n\x0cAuthority o f the Attorney General to Grant Discretionary R elief from Deportation\n\n\xe2\x96\xa0 Analysis\nIn Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court\nsought to \xe2\x80\x9c reconcile two seemingly contradictory statements found in [the\nCourt\xe2\x80\x99s] decisions concerning the effect of intervening changes in the law\xe2\x80\x9d : that\n\xe2\x80\x9c \xe2\x80\x98a court is to apply the law in effect at the time it renders its decision,\xe2\x80\x99 \xe2\x80\x9d and\nthat \xe2\x80\x9c \xe2\x80\x98[r]etroactivity is not favored in the law.\xe2\x80\x99 \xe2\x80\x9d Id. at 264 (citations omitted).\nThe Court set forth the method for analyzing the temporal reach of a statute:\nWhen a case implicates a federal statute enacted after the events\nin suit, the court\xe2\x80\x99s first task is to determine whether Congress has\nexpressly prescribed the statute\xe2\x80\x99s proper reach. If Congress has\ndone so, of course, there is no need to resort to judicial default\nrules. When, however, the statute contains no such express com\xc2\xad\nmand, the court must determine whether the new statute would have\nretroactive effect, i.e., whether it would impair rights a party pos\xc2\xad\nsessed when he acted, increase a party\xe2\x80\x99s liability for past conduct,\nor impose new duties with respect to transactions already com\xc2\xad\npleted. If the statute would operate retroactively, our traditional\npresumption teaches that it does not govern absent clear congres\xc2\xad\nsional intent favoring such a result.\nId. at 280.\nIn the present case, nothing in the language of the newly enacted statute,\nAEDPA \xc2\xa7 440(d), specifies either that it is to be applied in pending deportation\nproceedings, or that it is not to be. Thus, the next task is to determine whether\nthe statute would be given retroactive effect if applied in pending deportation pro\xc2\xad\nceedings. In this regard, the Court observed that \xe2\x80\x9c [w]hile statutory retroactivity\nhas long been disfavored, deciding when a statute operates \xe2\x80\x98retroactively\xe2\x80\x99 is not\nalways a simple or mechanical task.\xe2\x80\x9d Id. at 268. A statute does not operate retro\xc2\xad\nactively \xe2\x80\x9c merely because it is applied in a case arising from conduct antedating\nthe statute\xe2\x80\x99s enactment, or upsets expectations based in prior law. Rather, the court\nmust ask whether the new provision attaches new legal consequences to events\ncompleted before its enactment.\xe2\x80\x9d Id. at 269-70 (citation and footnote omitted).\nOf particular relevance here, the Court suggested that changes in the law\naffecting prospective relief, as well as those affecting jurisdiction and procedure,\nare generally not to be considered \xe2\x80\x9c retroactive.\xe2\x80\x9d Specifically, the Court said:\nEven absent specific legislative authorization, application of new\nstatutes passed after the events in suit is unquestionably proper in\nmany situations. When the intervening statute authorizes or affects\nthe propriety of prospective relief, application of the new provision\nis not retroactive. Thus, in American Steel Foundries v. Tri-City\n3\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nCentral Trades Council, 257 U.S. 184 (1921), we held that \xc2\xa720\nof the Clayton Act, enacted while the case was pending on appeal,\ngoverned the propriety of injunctive relief against labor picketing.\nIn remanding the suit for application of the intervening statute, we\nobserved that \xe2\x80\x9c relief by injunction operates in futuro,\xe2\x80\x9d and that\nthe plaintiff had no \xe2\x80\x9c vested right\xe2\x80\x9d in the decree entered by the\ntrial court.\nId. at 273-74.\nSimilarly, the three separately concurring Justices (Scalia, J., joined by Kennedy\nand Thomas, JJ., concurring), emphasized that intervening law was typically\napplied to pending applications for prospective relief:\nCourts traditionally withhold requested injunctions that are not\nauthorized by then-current law, even if they were authorized at the\ntime suit commenced and at the time the primary conduct sought\nto be enjoined was first engaged in. The reason, which has nothing\nto do with whether it is possible to have a vested right to prospec\xc2\xad\ntive relief, is that \xe2\x80\x9c [o]bviously, this form of relief operated only\nin fu tu ro .\xe2\x80\x9d Since the purpose of prospective relief is to affect the\nfuture rather than to remedy the past, the relevant time for judging\nits retroactivity is the very moment at which it is ordered.\nId. at 293 (citations omitted).\nBoth the majority and concurring Justices identified another set of intervening\nstatutes \xe2\x80\x94 those that confer or eliminate jurisdiction \xe2\x80\x94 that do not operate retro\xc2\xad\nactively merely because they are applied to conduct arising before the statute\xe2\x80\x99s\nenactment. Justice Scalia explained the Court\xe2\x80\x99s \xe2\x80\x9c consistent practice of giving\nimmediate effect to statutes that alter a court\xe2\x80\x99s jurisdiction . . . by the fact that\nthe purpose of provisions conferring or eliminating jurisdiction is to permit or\nforbid the exercise of judicial power \xe2\x80\x94 so that the relevant event for retroactivity\npurposes is the moment at which that power is sought to be exercised.\xe2\x80\x9d Landgraf,\n511 U.S. at 292-93 (Scalia, J., concurring).5\nIn summary, under Landgraf, a new statute does not have retroactive effect\nif it does not impair rights a party possessed when he or she acted, increase a\nparty\xe2\x80\x99s liability for past conduct, or impose new duties with respect to transactions\n5 The single dissenting Justice in Landgraf was o f the opinion that the presumption against retroactive legislation,\n\xe2\x80\x9c which serves to protect settled expectations,\xe2\x80\x9d and which \xe2\x80\x9c is grounded in a respect for vested rights,\xe2\x80\x9d \xe2\x80\x9c need\nnot be applied to remedial legislation\nthat does not proscribe any conduct that was previously legal \xe2\x80\x9d Id. at\n296-97 (Blackmun, J., dissenting) (citing Sampeyreac v United States, 32 U.S. (7 P e t) 222, 238 (1833) ( \xe2\x80\x9c Almost\nevery law, by providing a new remedy, affects and operates upon causes o f action existing at the time the law\nis passed\xe2\x80\x9d ) and Hastings v Earth Satellite Corp., 628 F.2d 85, 93 (D C Cir.) (\xe2\x80\x9c Modification of remedy merely\nadjusts the extent, or method o f enforcement, of liability in instances in which the possibility of liability previously\nwas know n.\xe2\x80\x9d ), cert, denied, 449 U S. 905 (1980)).\n\n4\n\n\x0cAuthority o f the Attorney General to Grant Discretionary R elief from Deportation\n\nalready completed. More specifically, an intervening statute that either alters juris\xc2\xad\ndiction or affects prospective injunctive relief generally does not raise retroactivity\nconcerns, and, thus, presumptively is to be applied in pending cases. As discussed\nbelow, the application of AEDPA \xc2\xa7 440(d) to pending applications for section\n212(c) relief does not impair a right, increase a liability, or impose new duties\non criminal aliens. The consequences of Respondent\xe2\x80\x99s conduct remain the same\nbefore and after the passage of AEDPA: criminal sanctions and deportation.\nAEDPA \xc2\xa7 440(d) is best understood as Congress\xe2\x80\x99s withdrawal o f the Attorney\nGeneral\xe2\x80\x99s authority to grant prospective relief. Thus, the statute alters both juris\xc2\xad\ndiction and the availability of future relief, and should be applied to pending\napplications for relief.6\nThe relief sought in a section 212(c) application, waiver of inadmissibility, is\nprospective in nature. A successful applicant for relief under section 212(c) will\nnot, as a matter of the sovereign\xe2\x80\x99s discretion, be deported from the country, even\nthough his or her past criminal convictions would otherwise lead to deportation.\nSee INS v. Lopez-Mendoza, 468 U.S. at 1038 (\xe2\x80\x9c The deportation hearing looks\nprospectively to the respondent\xe2\x80\x99s right to remain in this country in the future.\nPast conduct is relevant only insofar as it may shed light on the respondent\xe2\x80\x99s\nright to remain.\xe2\x80\x9d ); De Osorio v. INS, 10 F.3d at 1042 (holding that an amendment\nbarring applications for waivers of deportations filed after the effective date of\nthe amendment to section 212(c) is not made retroactive merely because it applies\nto convictions for aggravated felonies before that time: \xe2\x80\x9c The past aggravated\nfelony conviction is only the prerequisite for the prospective denial of discre\xc2\xad\ntionary relief. . . . Congress did not attach additional consequences, but merely\nwithdrew a previously available form of discretionary relief.\xe2\x80\x9d ).\nMoreover, Congress\xe2\x80\x99s modification of section 212(c) operates to eliminate the\ndiscretionary authority of the Attorney General to grant relief in certain cases,\nand, thus, its effect is to remove jurisdiction. As the Solicitor General argued\nin the brief of the United States to the Supreme Court in Elramly v. INS, 73\nF.3d 220 (9th Cir. 1995), cert, granted, 516 U.S. 1170, and vacated, 518 U.S.\n1051 (1996), a case raising the issue whether AEDPA divested the Attorney Gen\xc2\xad\neral of authority to grant section 212(c) relief in pending cases, \xe2\x80\x9c [j]ust as new\n\xe2\x80\x98jurisdictional statutes speak to the power of the court rather than to the rights\nor obligations of the parties,\xe2\x80\x99 Landgraf, 511 U.S. at 274, [s]ection 212(c) speaks\nto the power of the Attorney General to waive deportation, not to any right of\n6 One formulation articulated in Landgraf for determining w hether a statute operates retroactively \xe2\x80\x94 \xe2\x80\x9c w hether [it]\nattaches new legal consequences to events completed before its enactment\xe2\x80\x9d \xe2\x80\x94 could be interpreted as compelling\nthe conclusion that AEDPA \xc2\xa7 440(d) should not be applied to pending applications for section 212(c) relief 511\nU S. at 270. Because the statute eliminates eligibility for a previously available form of relief from the immigration\nconsequences o f a prior criminal conviction, it could be argued that it attaches new legal consequence to a prior\nevent Elimination o f a form of relief in this context, however, is not the same as the attachment of new legal\nconsequences in the sense that the Court meant in Landgraf If it were, most cases in the three categories that\nthe Court identified as not constituting retroactive application when applied to past events\xe2\x80\x94 statutes that alter jurisdic\xc2\xad\ntion, procedural rules, and statutes affecting the availability o f prospective injunctive relief\xe2\x80\x94 would also have to\nbe understood as attaching new legal consequences to prior events and, hence, constituting retroactive application\n\n5\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nan alien to such relief.\xe2\x80\x9d Supplemental Brief for the Petitioner at 18, INS v.\nElramly, 516 U.S. 1170 (1996) (No. 95-939). The majority opinion in Landgraf\nexplains the practice of applying new jurisdictional statutes to pending cases by\nthe fact that \xe2\x80\x9c a new jurisdictional rule usually \xe2\x80\x98takes away no substantive right\nbut simply changes the tribunal that is to hear the case.\xe2\x80\x99 \xe2\x80\x9d 511 U.S. at 274 (quoting\nHallowell v. Commons, 239 U.S. 506, 508 (1916)). Here, in contrast to the cases\ncited by the Court, there is no alternative tribunal to which the criminal alien\nmay petition. Even assuming that the lack of an alternative tribunal would be\nrelevant to retroactivity analysis where a substantive right is at stake, eligibility\nfor a congressionally created form o f purely discretionary relief from the immigra\xc2\xad\ntion consequences of a prior criminal conviction cannot properly be characterized\nas a substantive right.7\nThe Third Circuit\xe2\x80\x99s discussion o f the application of an earlier amendment to\nsection 212(c) to make an applicant ineligible for relief based on a prior criminal\nconviction applies equally here:\nIn this case, the consequences of petitioner\xe2\x80\x99s criminal conduct were\nclear at the time of that conduct and they remain unchanged today.\nHe was subject to possible criminal sanctions and deportation. The\nonly relevant change in the law relates to the permissible scope\nof the Attorney General\xe2\x80\x99s discretion to grant relief from one of\nthose consequences. Like statutes altering the standards for injunc\xc2\xad\ntive relief, this change has only a prospective impact. It is not\ndesigned to remedy the past but only to affect petitioner\xe2\x80\x99s future\nstatus with respect to the legality of his presence in the United\nStates. Like statutes constricting the jurisdiction of a judicial body,\nthese changes speak only to the power of a public agency. . . .\nGiven the facts that petitioner\xe2\x80\x99s pre-1987 conduct clearly subjected\nhim to deportation as well as criminal sanctions, and that section\n212(c), as it then existed, offered relief from the former only at\nthe unfettered discretion of the Attorney General, petitioner does\nnot, and could not, contend that his conduct was undertaken in reli\xc2\xad\nance on the then current version of section 212(c).\nScheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996).\nThe Seventh Circuit has expressed a contrary view in Reyes-Hernandez v. INS,\n89 F.3d 490 (7th Cir. 1996), at least with respect to a narrow category of cases.\nIn that case the petitioner had conceded deportability before the enactment of\n7 The concurring opinion further notes that while there may sometimes be an alternative forum, there is not always\none, and even where there is, it may deny relief for some collateral reason such as a statute of limitations bar\n\xe2\x80\x9c Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating\njurisdiction is to permit or forbid the exercise of judicial pow er\xe2\x80\x94 so that the relevant event for retroactivity purposes\nis the moment at which that pow er is sought to be exercised.\xe2\x80\x9d Landgraf, 511 U S . at 293 (Scalia, J. concurring)\n\n6\n\n\x0cAuthority o f the Attorney General to Grant Discretionary R elief from Deportation\n\nAEDPA, when he was still eligible for section 212(c) relief. The court speculated\nthat had the petitioner known that this relief would no longer be available to him,\nhe might have contested deportability.\nConsidering the fell consequences of deportation, especially in\ncases of exceptional hardship, which are precisely the cases in\nwhich an appeal to section 212(c) would have a chance of success,\nwe think it unlikely that Congress intended to mousetrap aliens into\nconceding deportability by holding out to them the hope of relief\nunder section 212(c) only to dash that hope after they had conceded\ndeportability. No such ignoble intention appears in the statute. Its\nabsence is determinative under Landgraf because to make the\nconcession of deportability a bar to relief under section 212(c)\nwould be to attach a new legal consequence to the concession, an\nevent that occurred before the new law came into existence.\nId. at 492-93. The court held that section 440(d) of AEDPA does not apply to\ncases in which deportability was conceded before AEDPA became law, \xe2\x80\x9c provided\nthat the applicant for discretionary relief would have had at least a colorable\ndefense to deportability; for if not, he lost nothing by conceding deportability.\xe2\x80\x9d\nId. at 493.8\nAmici curiae in the current case also emphasized the reliance aliens may have\nplaced on the availability of section 212(c) relief. Amici argue that aliens may\nrely on the possibility of obtaining section 212(c) relief not only when deciding\nwhether to contest deportability, but also when deciding whether to litigate their\ncriminal liability or enter into a plea agreement, it is true that the majority opinion\nin Landgraf notes that \xe2\x80\x9c familiar considerations of fair notice, reasonable reliance,\nand settled expectations\xe2\x80\x9d are factors offering \xe2\x80\x9c sound guidance\xe2\x80\x9d in \xe2\x80\x9c hard cases.\xe2\x80\x9d\nLandgraf, 511 U.S. at 270. However, the Court states expressly that a statute\ndoes not operate retroactively merely because it \xe2\x80\x9c upsets expectations based in\nprior law.\xe2\x80\x9d Id. at 269.\nIn any event, it is difficult to see how the possibility of obtaining section 212(c)\nrelief would affect an alien\xe2\x80\x99s decision whether to concede or contest deportability.\nFirst, the criteria for determining whether someone is deportable as a criminal\nalien are specific and fixed, and the grounds for challenging deportability are quite\nnarrow. See Rabiu v. INS, 41 F.3d 879, 881 (2d Cir. 1994) (record of conviction\nsufficient to overcome alien\xe2\x80\x99s challenge to deportability); Ortega de Robles v.\nINS, 58 F.3d 1355, 1358 (9th Cir. 1995) (criminal convictions may not be collat\xc2\xad\nerally challenged in deportation proceeding as ground for contesting deportability).\n8 The Seventh Circuit has confirmed that Reyes-H em andei applies only in cases where the petitioner conceded\ndeportability and had a colorable defense to deportability Arevab-Lopez v. INS, 104 F 3 d 100, 101 (7th C ir 1997)\n\n7\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nSecond, an alien need not choose between contesting deportability and seeking\nsection 212(c) relief; an alien may pursue both.\nIt seems more plausible that an alien may enter a plea bargain hoping to obtain\nrelief from deportation, but even so, the alien could not have reasonably relied\nupon the availability of that relief. For the past forty years, the law has been\nsettled that Congress may legislate to alter the immigration consequences of past\ncriminal convictions or acts. Moreover, as the Supreme Court recently unani\xc2\xad\nmously reaffirmed in the context of analyzing a similar provision conferring\ndiscretionary authority upon the Attorney General, \xe2\x80\x9c suspension of deportation [is]\n. . . \xe2\x80\x98an act of grace\xe2\x80\x99 which is accorded pursuant to her \xe2\x80\x98unfettered discretion\xe2\x80\x99. . .\nand [is similar to] \xe2\x80\x98a judge\xe2\x80\x99s power to suspend the execution of a sentence, or\nthe President\xe2\x80\x99s to pardon a convict.\xe2\x80\x99 \xe2\x80\x9d INS v. Yueh-Shaio Yang, 519 U.S. 26, 30\n(1996) (citations omitted). Therefore, a criminal alien could not reasonably rely\non the availability of section 212(c) relief in determining whether to plead guilty\nto a criminal offense or in determining whether to concede deportability.\nAccordingly, the application of AEDPA \xc2\xa7 440(d) to section 212(c) applications\npending before the EOIR would not be retroactive. However, to eliminate even\nthe remote possibility that an alien who had a colorable defense to deportability\nmay have conceded deportability in reliance on the availability of section 212(c)\nrelief, I direct the EOIR to reopen cases upon petition by an alien who conceded\ndeportability before the effective date of AEDPA for the limited purpose of\npermitting him or her to contest deportability.\nConclusion\nFor the foregoing reasons, AEDPA \xc2\xa7 440(d) should be applied to INA \xc2\xa7 212(c)\ncases pending before the EOIR on the effective date of AEDPA. EOIR shall\nreopen cases upon petition by an alien who conceded deportability before April\n24, 1996, the effective date of AEDPA, for the limited purpose of permitting\nthe alien to contest deportability.\nJANET RENO\nAttorney General\n\n8\n\n\x0cOPINIONS\nO F THE\n\nOFFICE OF LEGAL COUNSEL\n\n9\n\n\x0c\x0c"


b'Applicability o f Executive Order No. 12674 to Personnel of\nRegional Fishery Management Councils\n\nThe ap p ointed m em bers o f Regional Fishery M anagem ent C ouncils established under the M agnuson\nFishery C onservation and M anagem ent A ct and other personnel of those C ouncils are not executive\nbranch em ployees for purposes of E xecutive O rder No. 12674 and its im plem enting regulations,\nand thus are not subject to that Order.\n\nD ecem ber 9, 1993\n\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD epa rtm en t o f C o m m er c e\n\nThis memorandum responds to your request1 for our opinion whether Executive\nOrder No. 12674, 3 C.F.R. 215 (1990) (\xe2\x80\x9cOrder\xe2\x80\x9d), and the regulations implement\xc2\xad\ning it apply to officials of the Regional Fishery Management Councils (\xe2\x80\x9cCouncils\xe2\x80\x9d)\nestablished under the Magnuson Fishery Conservation and Management Act, 16\nU.S.C. \xc2\xa7\xc2\xa7 1801-1882 (\xe2\x80\x9cMagnuson Act\xe2\x80\x9d or \xe2\x80\x9cFCMA\xe2\x80\x9d).2 The officials in question\nare the Council members appointed by the Secretary of Commerce (\xe2\x80\x9cSecretary\xe2\x80\x9d)\nand the Councils\xe2\x80\x99 executive directors and administrative employees. We conclude\nthat, under the unusual statutory scheme of the Magnuson Act, appointed Council\nmembers and the other Council personnel under consideration are not executive\nbranch \xe2\x80\x9cemployees\xe2\x80\x9d subject to the Order.\nI.\nThe Magnuson Act created eight Councils from regional groupings of coastal\nStates and gave them certain authority concerning ocean fisheries to the seaward of\ntheir member States. See 16 U.S.C. \xc2\xa7 1852(a). The Secretary appoints a majority\nof the voting membership for three-year terms. Id. \xc2\xa7 1852(a)-(b). The remaining\nmembers, voting and nonvoting, are State and Federal officials who serve ex offi\xc2\xad\ncio. Id \xc2\xa7 1852(b)-(c).3 The appointed Council members may be removed by the\nSecretary only \xe2\x80\x9cfor cause . . . if the Council concerned first recommends removal\n1 S e e L etter fo r T im o th y E. Flanigan, A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, D epartm ent of\nJu stic e , from D epartm ent o f C om m erce (Ju ly 17, 1992) (\xe2\x80\x9cC om m erce L etter\xe2\x80\x99 ).\n2 T he O rd e r w as am en d ed by Exec O rd e r No. 12731, 3 C F.R 306 (1991), in respects not pertinent to\nthis discu ssio n . T h e O ffice o f G overnm ent E th ic s \xe2\x80\x99 regulations im plem enting the O rder took effect on F ebru\xc2\xad\nary 3, 1993. S ee 57 Fed. Reg. 35,006 (1 9 9 2 ) (to be co d ified at 5 C .F R. pt. 2635).\n1 T he Pacific C ouncil also h a s one n o n v o tin g m em ber appointed by, and serving at the pleasure of, the\nG o v ern o r o f A laska 16 U S.C. \xc2\xa7 1852(c)(2). W e understand from discussions w ith your staff that the term\n\xe2\x80\x9c m em b ers," as used in the C om m erce L etter, is lim ited to m em b ers of a C ouncil appointed by the Secretary.\nC o n seq u en tly , w e have focused our analysis on this category. W e use the term \xe2\x80\x9cappointed\xe2\x80\x9d C ouncil m em \xc2\xad\nbers to d istin g u ish such m em b ers from th o se w h o serve ex officio\'.\n\n150\n\n\x0cA pplica b ility o f Executive O rder N o 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils\n\nby not less than two-thirds of the members who are voting members.\xe2\x80\x9d\nId.\n\xc2\xa7 1852(b)(5).\nEach Council has the authority to appoint an executive director and such other\nadministrative employees as the Secretary deems necessary. Id. \xc2\xa7 1852(f)(1)- The\nSecretary pays appointed Council members \xe2\x80\x9cthe daily rate for GS-16 of the Gen\xc2\xad\neral Schedule, when [such member is] engaged in the actual performance of duties\nfor [a] Council.\xe2\x80\x9d Id. \xc2\xa7 1852(d).4 The Secretary also pays \xe2\x80\x9cappropriate compensa\xc2\xad\ntion\xe2\x80\x9d to the executive director and administrative employees. Id. \xc2\xa7 1852(0(7).\nThe Administrator of General Services furnishes the Councils with such offices\nand office supplies as any agency would receive. Id. \xc2\xa7 1852(f)(4).\nThe Councils advise the Secretary in formulating fishery management plans\nwithin their respective geographical areas. Id. \xc2\xa7 1852(h). The management plans\nmust conform to national standards, id. \xc2\xa7 1851, with respect to which the Secretary\nhas promulgated implementing guidelines. See 50 C.F.R. pt. 602 (1993). The\nCouncils generally are required to open their proceedings to the public and must\nhold hearings to consider comments from interested persons during the develop\xc2\xad\nment of management plans. 16 U.S.C. \xc2\xa7 1852(h)(3). After a management plan is\nprepared by a Council, it is submitted to the Secretary, who reviews it and either\napproves, disapproves, or partially disapproves it. Id. \xc2\xa7 1854(a), (b). If a Council\nfails to develop and submit a management plan, or fails to change a plan that the\nSecretary has partially or completely disapproved, the Secretary may prepare a\nmanagement plan for that region. Id. \xc2\xa7 1854(c). However, \xe2\x80\x9cthe Secretary may not\ninclude in any fishery management plan, or any amendment to any such plan, pre\xc2\xad\npared by him, a provision establishing a limited access system [with respect to a\nfishery] . . . unless such system is first approved by a majority of the voting mem\xc2\xad\nbers, present and voting, of each appropriate Council.\xe2\x80\x9d Id. \xc2\xa7 1854(c)(3). After a\nmanagement plan has been prepared or approved by the Secretary, the Secretary\npromulgates implementing regulations. Id. \xc2\xa7 1855(a). The Secretary is responsi\xc2\xad\nble for the enforcement of the FCMA and implementing regulations. See id.\n\xc2\xa7\xc2\xa7 1858,1861.\nIn the words of the FCMA\xe2\x80\x99s principal sponsor, Senator Warren G. Magnuson,\nthe Councils\nare unique among institutions that manage natural resources. They\nare neither state nor federal in character, although they possess\nqualities of each. Their powers are derived from the constitutional\nauthority of the federal government, yet the Councils are self\xc2\xad\ndeterminant in their own affairs. Enforcement and administration of\nthe Councils\xe2\x80\x99 plans and regulations are carried out by the responsi\xc2\xad\nble federal agencies.\n4\nThe G S-16 level in the G eneral Schedule no longer exists\n378 (1992).\n\n151\n\nSee Exec. O rder N o 12786, 3 C F R 376,\n\n\x0cOpinions o f th e O ffice o f L egal Counsel\n\n*\n\n*\n\n*\n\nAlthough the Councils are to be relatively independent, each Coun\xc2\xad\ncil must operate within the uniform standards promulgated by the\nSecretary of Commerce that govern the administration of the Act.\nThe principal function of the Councils is to formulate fishery man\xc2\xad\nagement plans upon which management and conservation regula\xc2\xad\ntions are to be based.\nWarren G. Magnuson, The Fishery Conservation and Management Act o f 1976:\nFirst Step Toward Improved Management o f Marine Fisheries, 52 Wash. L. Rev.\n427,436-37 (1977).\nII.\nThe Order\xe2\x80\x99s preamble recites that it is intended to set forth \xe2\x80\x9cstandards of ethical\nconduct for all executive branch employees.\xe2\x80\x9d5 The term \xe2\x80\x9cemployee\xe2\x80\x9d is defined\nonly as follows: \xe2\x80\x9cany officer or employee of an agency, including a special Gov\xc2\xad\nernment employee.\xe2\x80\x9d Id. \xc2\xa7 503(b).6 An \xe2\x80\x9cagency\xe2\x80\x9d means any \xe2\x80\x9cexecutive department\n. . ., Government corporation . . ., or an independent establishment in the executive\nbranch,\xe2\x80\x9d as those terms are defined in 5 U.S.C. \xc2\xa7\xc2\xa7 101, 103, and 104. Id. \xc2\xa7 503(c).\nA \xe2\x80\x9cSpecial Government employee\xe2\x80\x9d is \xe2\x80\x9cas defined in 18 U.S.C. 202(a).\xe2\x80\x9d Id.\n\xc2\xa7 503(e).7\nThe Commerce Letter concludes that the Order and its implementing regulations\ndo not apply to appointed Council members and staff. It reasons that because the\nauthority for prescribing regulations governing standards of conduct is derived\nfrom 5 U.S.C. \xc2\xa7 7301,8 the definitions of \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d in title 5 should\ndetermine whether the Order applies to the Councils.9 The Commerce Letter fur\xc2\xad\n\n3 T h e O rd e r su p ersed es E xec. O rder No 11222 S ee 56 Fed. R eg 3 3 ,7 7 8 ,3 3 ,7 7 8 (1 9 9 1 )\n6 A s the C o m m erce L etter notes, the term s \' \xe2\x80\x98o fficer\xe2\x80\x9d and \xe2\x80\x9c\xe2\x80\x98e m p loyee\xe2\x80\x9d do not receive any further definition,\nthus m aking the O rd e r s d efin itio n o f \xe2\x80\x9ce m p lo y ee\xe2\x80\x9d partly circular\n7 S ection 202(a) o f title 18 defines a \' \xe2\x80\x9csp ecial G overnm ent em p loyee\xe2\x80\x9d in part as any.\no ffice r or em p lo y ee o f the executive . . . branch\nw ho is retained, designated, appointed, or\nem p lo y ed to p erform , w ith or without co m p en satio n , fo r not to exceed one hundred and thirty\ndays d u rin g any period o f three hundred and sixty-five co n secutive days, tem porary duties either\no n a full-tim e o r in term itten t basis.\n8 5 U S C. \xc2\xa7 7301 p rovides that \xe2\x80\x9c(t]he P resid en t m ay prescribe regulations for the conduct of e m ployees in\nthe e x ecu tiv e b ran ch .\xe2\x80\x9d\n9 A n \xe2\x80\x98\xe2\x80\x98o ffice r\xe2\x80\x9d under 5 U .S C \xc2\xa7 2104 is:\n[A ]n individual w ho is \xe2\x80\x94\n(1) required by law to be appointed m the civil service by one o f the following acting in an o ffi\xc2\xad\ncial cap a c ity \xe2\x80\x94\n(A ) the President;\n(B ) a court o f the U nited States;\n(C ) the head o f an Executive ag en cy , or\n(D ) the Secretary o f a military d ep artm en t,\n\n152\n\n\x0cA p plicability o f E xecutive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils\n\nther argues, in reliance on a 1976 opinion of the Acting General Counsel of the\nformer United States Civil Service Commission,10 that \xe2\x80\x9cCouncil staffs and mem\xc2\xad\nbers are not Federal employees for the purposes of 5 U.S.C. \xc2\xa7 2105 because al\xc2\xad\nthough the public members of the Councils are appointed by a Federal official\n(namely the Secretary of Commerce) and Council members perform a Federal\nfunction authorized by statute (e.g., preparing fishery management plans), there [is]\nno supervisory relationship between the Secretary of Commerce and the Councils\nwithin the meaning of section 2105(a)(3).\xe2\x80\x9d Commerce Letter at 5."\nIII.\nWe accept the premise of the Commerce Letter that the terms \xe2\x80\x9cofficer\xe2\x80\x9d and\n\xe2\x80\x9cemployee,\xe2\x80\x9d as used in \xc2\xa7 503(b) of the Order, are identical in scope and meaning\nwith the terms \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d as used in 5 U.S.C. \xc2\xa7\xc2\xa7 2104 and 2105.\nWe further believe that, as those terms are used in 5 U.S.C. \xc2\xa7\xc2\xa7 2104 and 2105, they\ndo not reach the appointed Council members.\nA.\nThree considerations point to the conclusion that the terms \xe2\x80\x9cofficer\xe2\x80\x9d and\n\xe2\x80\x9cemployee\xe2\x80\x9d in the Order have the same meaning as those terms in 5 U.S.C. \xc2\xa7\xc2\xa7\n2104 and 2105. First, in the absence of any definition of \xe2\x80\x9cemployee\xe2\x80\x9d in the crimi\xc2\xad\nnal conflict-of-interest statutes applicable to Federal employees in title 18, we have\ngenerally assumed that the term \xe2\x80\x9cwas no doubt intended to contemplate an employer-employee relationship as that term is understood in other areas of the law,\xe2\x80\x9d\n(2) engaged in the perform ance o f a Federal function under authority o f law or an Executive act,\nand\n(3) subject to the supervision o f an authority nam ed by paragraph ( i ) o f this section, or the J u d i\xc2\xad\ncial C onference o f the U nited States, w hile engaged in the perform ance o f the duties o f his office\nAn \xe2\x80\x9cem ployee" u n d er 5 U S.C \xc2\xa7 2105 is\n[A ]n officer an d an individual w ho is \xe2\x80\x94\n(1) appointed in the civil service by one o f the follow ing acting in an official capacity\xe2\x80\x94\n(A ) the President,\n(B) a M em ber or M em bers o f C ongress, or the C ongress,\n(C) a m em ber o f a uniform ed service,\n(D ) an individual w ho is an em ployee under this section;\n(E) the head o f a G overnm ent controlled corporation, or\n(F ) an adjutant general designated by the Secretary concerned under section 709(c) o f title\n32,\n(2) engaged in the perform ance o f a Federal function under authority o f law or an E xecutive act,\nand\n(3) subject to the supervision o f an individual nam ed by paragraph (1) o f this subsection w hile\nengaged in the perform ance o f the duties o f his position.\n10\nL etter for Joseph E K asputys, A ssistant Secretary for A dm inistration, D epartm ent o f C om m erce, from\nJoseph B Scott, A cting G eneral C ounsel, C ivil Service C om m ission (A ug 3, 1976) ( \'\xe2\x80\x98C SC O pinion\xe2\x80\x9d )\n1 The C om m erce Letter does not specifically address the possibility that appointed C ouncil m em bers\nmight be w ithin title 5 \xe2\x80\x99s definition o f an \xe2\x80\x9cofficer.\xe2\x80\x9d H ow ever, \xc2\xa7 2 105\xe2\x80\x99s definition o f an \xe2\x80\x9ce m ployee\xe2\x80\x9d explicitly\nextends to \xe2\x80\x9co fficers." In contending that appointed C ouncil m em bers are not \xe2\x80\x9cem ployees,\xe2\x80\x9d th erefore, the\nC om m erce Letter im pliedly excludes their being \xe2\x80\x9cofficers \xe2\x80\x9d\n\n153\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nand in particular have turned to 5 U.S.C. \xc2\xa7 2105 as providing \xe2\x80\x9cthe most obvious\nsource of a definition\xe2\x80\x9d for title 18 purposes. See Conflict o f Interest \xe2\x80\x94 Status o f an\nInformal Presidential A dvisor as a \xe2\x80\x9cSpecial Government E m ployee\xe2\x80\x9d 1 Op. O.L.C.\n20, 20 (1977).12 Because the objectives of the Order and its implementing regula\xc2\xad\ntions are closely related to those of the conflicts statutes, we think it reasonable to\nlook to title 5\xe2\x80\x99s definition of \xe2\x80\x9cemployee\xe2\x80\x9d when elucidating the Order. Cf. Northcross v. Board ofE duc., 412 U.S. 427, 428 (1973) (similarity of language and pur\xc2\xad\npose in different statutes suggests that they be construed similarly).13\nSecond, although the Order does not expressly adopt title 5 \xe2\x80\x99s definition of an\n\xe2\x80\x9cemployee,\xe2\x80\x9d it does adopt that title\xe2\x80\x99s definition of an \xe2\x80\x9cagency.\xe2\x80\x9d See Order \xc2\xa7 503(c)\n(\xe2\x80\x9c\xe2\x80\x98Agency\xe2\x80\x99 means any executive agency as defined in 5 U.S.C. 105 . . . .\xe2\x80\x9d). We\nthink it unlikely that the Order was intended to cover personnel who were em\xc2\xad\nployed by \xe2\x80\x9cagencies\xe2\x80\x9d within the meaning of title 5 but who were not themselves\n\xe2\x80\x9cemployees\xe2\x80\x9d within the same title.\nThird, although the Order\xe2\x80\x99s preamble locates the President\xe2\x80\x99s authority to issue\nthe Order in \xe2\x80\x9cthe Constitution and laws of the United States\xe2\x80\x9d without specifying\nany particular statutory provision, we agree with the Commerce Letter that the\nmost obvious statutory source of authority for the Order is 5 U.S.C. \xc2\xa7 7301. That\nsection states that the President \xe2\x80\x9cmay prescribe regulations for the conduct of em\xc2\xad\nployees in the executive branch,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7301, and is a general statutory source\nof authority for Presidential regulation of executive branch personnel. See N a t\xe2\x80\x99l\nA ss\xe2\x80\x99n o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 (1974); Crandon v.\nUnited States, 494 U.S. 152, 183 (1990) (Scalia, J., concurring in the judgment)\n(Executive Order No. 11222 was issued \xe2\x80\x9cunder the President\xe2\x80\x99s authority and pur\xc2\xad\nsuant to 5 U.S.C. \xc2\xa7 7301\xe2\x80\x9d). Because the section occurs in title 5, its interpretation\nis governed by the definition of an \xe2\x80\x9cemployee\xe2\x80\x9d in \xc2\xa7 2105 of the same title.14 To\nthe extent that the Order rests upon \xc2\xa7 7301, therefore, its coverage must be limited\nto the class of employees within \xc2\xa7 2105.\n\n12 S e e a lso M em o ran d u m for Irving P. M arg u lies, D eputy G eneral C ounsel, D epartm ent of C om m erce,\nfrom T h eo d o re B. O lson, A ssistant Attorney G eneral, O ffice o f Legal C ounsel, Re: P re sid e n t\'s P rivate S e c \xc2\xad\nto r S u r v e y on C o st C o n tro l at 10 (Dec 15, 1982) (\xe2\x80\x9cthe Title 5 definition o f em ployee is frequently used as a\nstarting p o in t for any analysis o f whether th e conflict o f in terest laws apply to a p articular individual . .\nalth o u g h the T itle [5] d efin itio n is not necessarily conclusive fo r conflicts purposes\xe2\x80\x9d ).\n13 T h e O rd e r ex p ressly covers both regular and special G o v ern m ent em ployees o f an agency See O rder \xc2\xa7\n5 0 3 (b ) A n in d iv id u a l\xe2\x80\x99s status as a special (a s distinct from re g u la r) G overnm ent em ployee turns on w hether\nthe app o in tm en t is fo r no m ore than 130 d a y s out o f any c o n secu tive 365 days. See R estrictions on a F ed\xc2\xad\ne ra l A p p o in te e \'s C o n tin u ed Em ploym ent b y a P rivate Law F irm , 7 O p O L.C. 123, 126 (1983). W e have\nap p lied the e lem en ts o f title 5 \xe2\x80\x99s definition o f \xe2\x80\x9c e m p lo y ee\xe2\x80\x9d lo b o th regular and special G overnm ent em ployees.\nS e e 1 O p. O L C at 21, F ed era l Advisory C o m m ittee A c t (5 U .S C. App. I) \xe2\x80\x94 U nited S ta tes-Japan C onsulta\xc2\xad\ntiv e G ro u p on E c o n o m ic R elations, 3 Op O .L C 321, 322-23 (1979).\n14 S ectio n 2105 sp ecifies that its definition applies g enerally in title 5, \xe2\x80\x9cexcept as otherw ise provided by\nthis sec tio n o r w hen sp ecifically modified.*\xe2\x80\x99 Section 7301 d o es not undertake to m odify \xc2\xa7 2 1 0 5 \xe2\x80\x99s definition\no f an \xe2\x80\x9ce m p lo y e e,\xe2\x80\x9d and thus does not fall w ith in this exception\n\n154\n\n\x0cA pplicability\xe2\x80\x99 o f Executive O rder No. 12674 to P ersonnel o f R egional F ishery M anagem ent C ouncils\n\nB.\nAssuming then that the Order applies only to \xe2\x80\x9cemployees\xe2\x80\x9d within the meaning\nof \xc2\xa7 2105, an appointed Council member would have to meet each of the three\ntests in \xc2\xa7 2105 to be deemed a covered \xe2\x80\x9cemployee.\xe2\x80\x9d He or she would have to be\n(1) \xe2\x80\x9cappointed\xe2\x80\x9d by an appropriate official, (2) engaged in the performance of a\nFederal function, and (3) subject to the supervision of an appropriate Federal offi\xc2\xad\ncer or employee. See Horner v. Acosta, 803 F.2d 687, 691-92 (Fed. Cir. 1986)\n(collecting cases); Costner v. United States , 665 F.2d 1016, 1019-20 (Ct. Cl.\n1981).\nIt is not disputed that appointed Council members satisfy the first two of these\ntests. The Commerce Letter contends, however, that the third test is not met. In its\nview, because these Council members are not subject to the supervision of the Sec\xc2\xad\nretary, they are not \xe2\x80\x9cemployees\xe2\x80\x9d within \xc2\xa7 2105 or the Order. We agree that the\nthird test is not met.\nWe begin by considering the text of the Magnuson Act. As we have observed,\n\xe2\x80\x9c[t]he FCMA \xe2\x80\x98adopts a somewhat convoluted scheme to achieve its purposes of\nconservation and management of fishery resources.\xe2\x80\x99\xe2\x80\x9d Litigating Authority o f the\nRegional Fishery Management Councils, 4B Op. O.L.C. 778, 778 (1980) (quoting\nWashington Trollers Ass\'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979),\nrev \xe2\x80\x99d on other grounds, 645 F.2d 684 (9th Cir. 1981)) (\xe2\x80\x9cLitigating Authority\xe2\x80\x9d).15\nTwo features of the Act in particular demonstrate that Congress did not intend ap\xc2\xad\npointed Council members to be \xe2\x80\x9csubject to the supervision o f \xe2\x80\x99 the Secretary within\nthe meaning of \xc2\xa7 2105. First, the Secretary\xe2\x80\x99s removal power as to an appointed\nCouncil member cannot be exercised except upon the prior recommendation of\ntwo-thirds of a Council. See 16 U.S.C. \xc2\xa7 1852(b)(5). This provision severely lim\xc2\xad\nits the Secretary\xe2\x80\x99s removal power and is designed to constrain narrowly the Secre\xc2\xad\ntary\xe2\x80\x99s ability to supervise and control the Council members he appoints. See\nMorrison v. Olson, 487 U.S. 654, 694, 696 (1988) (power to remove officials pro\xc2\xad\nvides ability to supervise and control them); M eyer v. Bush, 981 F.2d 1288, 1295\n(D.C. Cir. 1993) (same).16\n15 In enacting the M agnuson Act, C ongress \xe2\x80\x9ccreat[ed] really a unique anim al in these m anagem ent coun\xc2\xad\ncils, som ething that had not existed before\nW e tr[ied] to create som ething unique, and w e d id in the\nregional m anagem ent councils We did not m ake them regular Federal em ployees, because we did not want\nthem to be regular Federal em ployees.\xe2\x80\x9d See F ishery C onservation a nd M anagem ent A c f H earings Before\nthe Subcom m on Fisheries and WiUlhje C onservation a n d the E nvironm ent oj the H ouse C om m on M er\xc2\xad\nchant M arine a n d Fisheries, 96th C ong 4 4 8 -4 9 (1979) (\xe2\x80\x9c 1979 H earings\xe2\x80\x9d ) (rem arks o f Rep Studds)\n16 C onsistent w ith that intent, the H ouse R eport on the 1983 am endm ents to the M agnuson Act stated that\nthe C ouncils \'\xe2\x80\x98en jo y some degree o f independence from the Secretary \xe2\x80\x99 See H R Rep No 97-549, at 15\n(1982), rep rin ted in 1982 U S .C C A N 4320, 4328 (\xe2\x80\x9c 1982 H ouse R eport\xe2\x80\x9d ) (accom panying H R 5002 e n \xc2\xad\nacted as Pub L. N o 97-453, 96 Stat 2481 (1 9 8 3 )) R epresentative Studds w ent further in em p h asizin g the\nC ouncils\' autonom y:\nI w ould have been outraged looking at that statem ent \xe2\x80\x9cThe councils enjoy som e degree of in d e \xc2\xad\npendence from the Secretary \xe2\x80\x9d That w as backw ards, absolutely inside-out and backw ard\nIn\nsom e lim ited ways, the councils have som e responsibilities w hich involve the Secretary T hey are\n\n155\n\n\x0cOpinions o f th e O ffice o f Legal C ounsel\n\nSecond, any fishery management plan drafted by the Secretary may not limit ac\xc2\xad\ncess to a fishery unless a majority of the voting membership of each affected\nCouncil approves. See 16 U.S.C. \xc2\xa7 1854(c)(3). Thus, the statute empowers the\nCouncils to prevent certain regulatory actions by the Secretary and, in effect, puts\nthe Councils on a footing with the Secretary in regulating access to regional fish\xc2\xad\neries. In view of both the powerful constraints on the Secretary\xe2\x80\x99s removal author\xc2\xad\nity and the Councils\xe2\x80\x99 apparent \xe2\x80\x9cveto\xe2\x80\x9d power over some of the Secretary\xe2\x80\x99s\ninitiatives, it cannot be said that the Council members are subject to the Secretary\xe2\x80\x99s\nsupervision.\nLegislative history (albeit history relating to amendments to the original Magnu\xc2\xad\nson Act) supports this reading of the statute. The House Report on the 1983\namendments to the Magnuson Act stated that \xe2\x80\x9cCouncil members and administrative\nstaffs are not Federal employees in the sense of 5 USC 2105 because they are not\nappointed by, or subject to the supervision of Federal officials in their day-to-day\nactivities.\xe2\x80\x9d 1982 House Report at 15.17 Moreover, the Commerce Department\nitself denies (and has long denied) that the Secretary of Commerce exercises su\xc2\xad\npervisory authority over the Councils. The Commerce Department\xe2\x80\x99s position is\nbuttressed by the 1976 CSC Opinion. See Commerce Letter at 6.\nConsequently, we conclude that appointed Council members are not\n\xe2\x80\x9cemployees\xe2\x80\x9d subject to the Order. In addition, the executive directors and admin\xc2\xad\nistrative employees of the Councils also are not \xe2\x80\x9cemployees\xe2\x80\x9d because they are ap\xc2\xad\npointed and supervised by the Councils, see 16 U.S.C. \xc2\xa7 1852(0(1), a majority of\nwhose members are not federal employees, so that the requirements of 5 U.S.C. \xc2\xa7\n2105 again are not met. Accord 1982 House Report at 15.18\nIn reaching these conclusions, we do not suggest that the existence of statutory\nlimitations on removal is generally inconsistent with the retention of supervisory\npower in the person who can exercise the power to remove. On the contrary, the\ncase law clearly supports the view that \xe2\x80\x9cfor cause\xe2\x80\x9d limitations on removal power\ncan be compatible with the continuing power and duty to supervise.19 In the case\nof the Councils, however, the statute does not restrict the Secretary\xe2\x80\x99s removal\nfu n d am en tally independent from the S ecretary They do not enjoy som e degree o f independence\nfrom the S ecretary, they are basically, fundam entally and critically independent o f the Secretary.\n1979 H earin g s at 4 4 9 -5 0\n17 W e note that the H ouse R eport is in e rro r insofar as it slates broadly that C ouncil m em bers are not\nappoin ted by Federal officials. The Secretary appoints the C ouncil m em bers w hose status is in question\nhere\n18 H ow ev er, Federal em p lo y ees detailed to the C ouncils pu rsu ant to 16 U.S C \xc2\xa7 1852(0(2) w ould retain\ntheir statu s as \xe2\x80\x9cem p lo y e es\xe2\x80\x9d w ithin the m eaning o f 5 U S C \xc2\xa7 2105.\n19 See, e.g ., M o rriso n v. O lson, 487 U S at 692 (\xe2\x80\x9cgood cause*\xe2\x80\x99 lim itation on the A ttorney G eneral\xe2\x80\x99s pow er\nto rem ove in d ep en d en t co u n sel did not p rev en t A ttorney G eneral from exercising sufficient supervisory\nauthority to assu re that co u n sel perform ed co m p eten tly and in accordance w ith statutory m andate), B ow sher\nv Svna r, 4 7 8 U.S 714, 72 6 , 7 2 8 -2 9 (1986) (C o n g re ss\xe2\x80\x99s pow er to rem ove the C om ptroller G eneral for causes\nin cludin g \xe2\x80\x9cin efficien cy , * \xe2\x80\x9cn eglect of duty,\xe2\x80\x99* and \xe2\x80\x9c m alfeasance\xe2\x80\x99* enabled it to control execution o f law s by\nC o m p tro lle r G eneral). Indeed, the very a b ility to rem ove for \xe2\x80\x9ccause*\xe2\x80\x99 presupposes that the officer or body\nthat has the rem o v al p o w er m ust supervise the subordinate o ffic e r at least to the extent needed to determ ine\nw hether \xe2\x80\x9ccause** for rem o v al exists\n\n156\n\n\x0cA pplica b ility o f E xecutive O rder N o 12674 to P ersonnel o f R egional Fishery M anagem ent C ouncils\n\npower merely by requiring that \xe2\x80\x9ccause\xe2\x80\x9d for removal exist. It also demands that,\nbefore a Council member can be removed, two-thirds of the Council\xe2\x80\x99s voting\nmembership recommend such removal. In effect, the statutory scheme not only\ncircumscribes the removal power, but also vests that power jointly in the Secretary\nand the Councils themselves. This unusual feature of the Magnuson Act distin\xc2\xad\nguishes it from more traditional legislation in which some form of \xe2\x80\x9ccause\xe2\x80\x9d is all\nthat is required before removal can occur. As a result, the Councils possess greater\nautonomy than that enjoyed, for example, by typical \xe2\x80\x9cindependent\xe2\x80\x9d agencies.20\nWe also do not suggest that the Secretary utterly lacks any supervisory authority\nwith regard to the Councils. On the contrary, it is clear that under this unusual\nstatutory scheme, Congress intended the Secretary to exert substantial control over\nbasic aspects of the Councils\xe2\x80\x99 activities. Thus, as we have pointed out:\nHowever independent the Councils may be in their day-to-day op\xc2\xad\nerations, ultimate authority over a majority of their membership,\nbudgets, and their major area of concern \xe2\x80\x94 the fishery management\nplans \xe2\x80\x94 remains with the Secretary or other federal agencies. The\nCouncils perform the basic research, hold hearings, draft the plan\nfor their area, and propose regulations. It is the Secretary, however,\nto whom the drafts and proposals are submitted and it is the Secre\xc2\xad\ntary who either approves the management plan or amends it to his\nsatisfaction. It is also the Secretary who reviews the regulations to\ninsure their legality and who implements them.\nLitigating Authority, 4B Op. O.L.C. at 782 (footnotes and citations omitted).21\n\nIn our judgment, however, the Secretary\xe2\x80\x99s powers with respect to the Councils\ndo not suffice to render appointed Council members \xe2\x80\x9cemployees\xe2\x80\x9d subject to the\nSecretary\xe2\x80\x99s supervision. As Senator Magnuson put it, \xe2\x80\x9cthe Councils are self\xc2\xad\ndeterminant in their own affairs.\xe2\x80\x9d Magnuson, supra at 436. The unusually severe\nconstraints on the Secretary\xe2\x80\x99s removal power, coupled with the Councils\xe2\x80\x99 ability to\n\xe2\x80\x9cveto\xe2\x80\x9d the Secretary\xe2\x80\x99s draft fishery management plan if the plan limits access to a\nfishery, are incompatible with the ordinary meaning of supervision. Consequently,\n\n20 C om pare 16 U S C \xc2\xa7 1852(b)(5) (prior recom m endation o f tw o-thirds o f C ouncil needed before Secretary may rem ove m em ber for \xe2\x80\x9ccause\xe2\x80\x9d ) with, e g , 1 5 U S C . \xc2\xa7 41 (P resident may rem ove m em ber o f Fed\xc2\xad\neral Trade C om m ission for \xe2\x80\x9cinefficiency, neglect o f duty, o r m alfeasance in office\xe2\x80\x9d ) W e have found only\none other statute, 16 U S C \xc2\xa7 4009, establishing certain seafood m arketing councils, that limits the rem oval\npow er in a fashion com parable to 16 U S.C \xc2\xa7 1852(b)(5).\n21 See also C hristopher L. K och, C om m ent, J udicial R eview o j F ishery M anagem ent Regulations U nder\nthe F is h e n \xe2\x80\x99 C onservation a n d M anagem ent A c t o f 1976, 52 W ash L. Rev. 599, 616, 6 20 (1977) (S ecretary\nis final arbiter in prom ulgation o f fishery m anagem ent m easures and is responsible for ensuring that m an\xc2\xad\nagem ent schem es com port w ith legislative standards, fact that Secretary m ust review C o u n cils\' decisions\nperm its scrutiny o f m anagem ent plans for self-serving m easures that C ouncils dom inated by fishing industry\nm ight put forw ard).\n\n157\n\n\x0cOpinions o f th e O ffice o f Legal C ounsel\n\nwe conclude that appointed Council members are not employees covered by the\nOrder.\nConclusion\n\nAs a matter of statutory construction, and on the basis of the specific features of\nthe Magnuson Act, we conclude that Executive Order No. 12674, as amended by\nExecutive Order No. 12731, and the implementing regulations relating to that Or\xc2\xad\nder, do not apply to appointed members, executive directors, or administrative em\xc2\xad\nployees of the Regional Fishery Management Councils.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n158\n\n\x0c'