b'Applicability of the Federal Advisory Committee Act to Law\nEnforcement Coordinating Committees\nIf the functions of Law Enforcement Coordinating Committees (LECCs) are limited to\nthe exchange of information, or to making operational decisions involving law enforce\xc2\xad\nment matters, they will not be covered by the Federal Advisory Committee Act\n(FACA). However, to the extent that a LECC performs \xe2\x80\x9cadvisory functions\xe2\x80\x9d by\ngiving advice and recommendations to federal officials, it would be subject to the\nFA C A \xe2\x80\x99s requirements when performing those functions.\n\nSeptember 10, 1981\nMEMORANDUM OPINION FOR THE ACTING DIRECTOR,\nEXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS\nThis responds to your request that we provide advice about the\nFederal Advisory Committee Act (FACA) 1 for the United States At\xc2\xad\ntorneys who are charged with establishing Law Enforcement Coordi\xc2\xad\nnating Committees (LECCs).2 The central issue that will be of concern\nto the United States Attorneys is whether the LECCs are \xe2\x80\x9cadvisory\ncommittees\xe2\x80\x9d and thus subject to the FACA\xe2\x80\x99s procedural requirements.3\nSo long as the actual operations of LECCs conform to the limitations\nstated in the Associated Attorney General\xe2\x80\x99s memorandum providing\ninstructions about their establishment and functions, we conclude that\nthe FACA will not apply to them.\nThe FACA defines the term \xe2\x80\x9cadvisory committee\xe2\x80\x9d broadly as any\n\xe2\x80\x9ccommittee, board, commission, council, conference, panel, task force,\nor other similar group,\xe2\x80\x9d as well as any subgroup or subcommittee\nthereof, that is either \xe2\x80\x9cestablished\xe2\x80\x9d or \xe2\x80\x9cutilized\xe2\x80\x9d by a federal agency or\nthe President in the interest of obtaining advice or recommendations.4\n1Pub. L No. 92-463, 86 Stat. 770, 5 U.S.C. App (1976)\n2 LECCs are to be established pursuant to Attorney General O rder No 951-81 (July 21, 1981).\nThey are to be comprised o f federal, state, and local law enforcement officials in each district.\n3T he FA CA requires, inter alia, that a charter must be prepared before an advisory committee may\nbe constituted, that public notice of all committee meetings must be provided, and that all meetings\nmust be opened to the public unless one of the specific exemptions in 5 U.S.C \xc2\xa7 552b(c)\xe2\x80\x94made\napplicable to advisory committees in \xc2\xa7 10(d) of the F A C A \xe2\x80\x94is found to apply. See \xc2\xa7\xc2\xa7 9 & 10 of the\nFACA.\n* See Consumers Union o f United States, Inc. v Department o f HEW, 409 F. Supp. 473, 475 (D.D.C.\n1976), a ffd mem.. 551 F.2d 466 (D.C Cir. 1977) (\xe2\x80\x98\xe2\x80\x98T he Act defines advisory committee in a general,\nopen-ended fashion\xe2\x80\x9d). It is not necessary for a \xe2\x80\x9ccommittee\xe2\x80\x9d to be \xe2\x80\x9cestablished\xe2\x80\x9d as an \xe2\x80\x9cadvisory\ncommittee\xe2\x80\x9d in order for it to be covered by the FACA. It may be so covered as long as it is \xe2\x80\x9cutilized\xe2\x80\x9d\nas such a committee, even though never formally established as such.\n\n283\n\n\x0cThe LECCs are clearly to be \xe2\x80\x9cestablished\xe2\x80\x9d as \xe2\x80\x9ccommittees,\xe2\x80\x9d for they\nare to have a definite membership, regular meetings, agendas, a sub\xc2\xad\ncommittee structure, and other attributes of formal committee organiza\xc2\xad\ntions. Cf. N ader v. Baroody, 396 F. Supp. 1231, 1233 (D.D.C. 1975),\nvacated as moot, No. 75-1969 (D.C. Cir 1977); National Nutritional\nFoods Ass\'n v. Califano, 603 F.2d 327, 334-36 (2d Cir. 1979). Also, the\nFACA \xe2\x80\x99s specific exemptions from coverage do not apply to the\nLECCs.5 Accordingly, the only basis for concluding that the LECCs\nare not \xe2\x80\x9cadvisory committees\xe2\x80\x9d is that they may not be \xe2\x80\x9cestablished\xe2\x80\x9d or\n\xe2\x80\x9cutilized\xe2\x80\x9d by federal officials in the interest of obtaining advise, in\nparticular from the state and local officials who are to be members.6 In\nspecific terms, the functions of the LECCs may not be advisory at all\nbut rather may be oriented toward (1) the exchange of information\nand/or (2) the performance of \xe2\x80\x9coperational\xe2\x80\x9d responsibilities. We will\ndiscuss each possibility in turn.\n(1) The FACA defines an \xe2\x80\x9cadvisory committee\xe2\x80\x9d as a committee\nestablished or utilized \xe2\x80\x9cin the interest of obtaining advice or recommen\xc2\xad\ndations\xe2\x80\x9d for federal agencies or officers. See \xc2\xa7 3(2). Thus, to the extent\nthat a committee\xe2\x80\x99s function is to provide a forum for the exchange of\ninformation and data\xe2\x80\x94not advice and recommendations\xe2\x80\x94the commit\xc2\xad\ntee by definition will not be an \xe2\x80\x9cadvisory committee.\xe2\x80\x9d 7\nWith respect to the LECCs, the Associate Attorney General\xe2\x80\x99s memo\xc2\xad\nrandum states at several points that certain of a committee\xe2\x80\x99s or subcom\xc2\xad\nmittee\xe2\x80\x99s functions8 are to be limited to the exchange of information. So\nlong as that is the case, the FACA will not apply with respect to those\nfunctions. If in practice the committee\xe2\x80\x99s functions differ from those\nstipulated in the Associate Attorney General\xe2\x80\x99s memorandum, the\nFACA \xe2\x80\x99s applicability should be reexamined.\n(2) A committee established by a federal agency also may not be an\n\xe2\x80\x9cadvisory committee\xe2\x80\x9d so long as its functions are specifically oper\xc2\xad\national, not advisory. This distinction is expressed in joint Department\nof Justice-Office of Management and Budget draft guidelines interpret\xc2\xad\n5 T he F A C A specifically exempts committees comprised wholly of full-time federal employees. See\n\xc2\xa7 3(2). It also exempts committees established or used by the Central Intelligence Agency or the\nFederal Reserve System, see \xc2\xa7 4(b); \xe2\x80\x9cany local civic group whose primary function is that of rendering\na public service with respect to a Federal program, or any State or local committee, council, board,\ncommission, or similar group established to advise or make recommendations to State or local officials\nor agencies,\xe2\x80\x9d see \xc2\xa7 4(c); and certain particular committees in existence when the FA CA was enacted,\nsee \xc2\xa7 3(2). The L EC C s are not to be comprised solely of federal employees. They also could not be\ncharacterized as \xe2\x80\x9clocal civic groups\xe2\x80\x9d or as \xe2\x80\x9c State or local committees\xe2\x80\x9d established to advise state or\nlocal officials or agencies. T hey also come within none o f the other specific exemptions from\ncoverage.\n6A committee comprised solely of federal, state, and local employees may be an \xe2\x80\x9cadvisory\ncom m ittee\xe2\x80\x9d if it provides a forum for the state and local officials to advise federal officials. See Center\nfo r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978).\n7 It is possible for a committee to have mixed functions, some \xe2\x80\x9cadvisory\xe2\x80\x9d and others not. T o the\nextent that a committee has advisory functions at all, it would normally be considered an advisory\ncom m ittee when performing those functions, barring distinguishing factors.\n8T he definition o f \xe2\x80\x9c advisory committee\xe2\x80\x9d makes plain that a \xe2\x80\x9csubcommittee\xe2\x80\x9d or \xe2\x80\x9csubgroup\xe2\x80\x9d of an\nadvisory committee is itself covered by the FA CA . See \xc2\xa7 3(2).\n\n284\n\n\x0cing the FACA, 38 Fed. Reg. 2306 (Jan. 23, 1973). The distinction,\nwhich has been applied by this Department since the Act\xe2\x80\x99s passage, is\nconfirmed by the legislative history.9 The key question in applying it is\nwhether a committee\xe2\x80\x99s functions are \xe2\x80\x9coperational\xe2\x80\x9d instead of advisory.\nAlthough that term may not be susceptible to precise definition, it has\nbeen employed by this Office to refer generally to the making or\nimplementation of concrete decisions by the members of a committee or\nsubcommittee, as opposed to offering advice to officials who will make\nthe decisions themselves. See generally Amending the Federal Advisory\nCommittee Act: Hearings on S. 2947 Before the Subcommittee on Reports,\nAccounting, and Management, Senate Committee on Government Oper\xc2\xad\nations, 94th Cong., 2d Sess. (1976) (testimony of Deputy Assistant\n\nAttorney General Lawton). This usage is consistent with the diction\xc2\xad\nary\xe2\x80\x99s definitions of \xe2\x80\x9coperational\xe2\x80\x9d as \xe2\x80\x9cof or relating to operation or an\noperation\xe2\x80\x9d and of \xe2\x80\x9coperation\xe2\x80\x9d as, inter alia, \xe2\x80\x9cdoing or performing of a\npractical work\xe2\x80\x9d and \xe2\x80\x9can exercise of power or influence.\xe2\x80\x9d Webster\xe2\x80\x99s\nThird New International Dictionary 1581 (1976).\nIn several places the Associate Attorney General\xe2\x80\x99s memorandum\nprovides that the functions of certain subcommittees involve the per\xc2\xad\nformance of operational responsibilities.10 These could include, for in\xc2\xad\nstance, making decisions about how to proceed in particular cases, of\nformulating operational procedures for handling a set of related cases\nor law enforcement problems. To the extent that the responsibilities of\na subcommittee or a full committee are limited to such operational\nmatters, the FACA would not apply.\nIn sum, if the functions of the LECCs and their subcommittees are\nlimited in the manner set forth in the Associate Attorney General\xe2\x80\x99s\nmemorandum either to the exchange of information, or to making\noperational decisions involving law enforcement matters, they will not\nbe covered by the FACA.\nT h e o d o r e B. O l s o n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n9See H R . Rep No. 1017, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S. Code Cong. & Ad.\nNews 3494 (\xe2\x80\x9cThe term advisory committee as used in this bill does not include committees or\ncommissions which have operational responsibilities.\xe2\x80\x9d)\n10 In order for a subcommittee or a full committee to be able to perform "operational\xe2\x80\x9d functions, it\nis necessary that members have the authority to so act. T hat is the reason for the stipulation in the\nAssociate Attorney General\xe2\x80\x99s memorandum that LEC C members are to have the authority to make\noperational decisions.\n\n285\n\n\x0c'


b'Disclosure of Information Collected Under\nthe Export Administration Act\nInformation collected under the Export Administration A ct which is authorized to be\nmade available to other federal agencies under the Paperwork Reduction A ct of 1980\nmay be released by the Department o f Commerce to federal law enforcement and\nintelligence agencies without a prior determination that it would serve the national\ninterest to do so.\nSection 12(c) of the Export Administration A ct was not intended to prohibit disclosure to\nother federal agencies, but merely prohibits disclosure of certain confidential trade\ninformation to the public.\nConfidential information obtained pursuant to the Export Administration A ct which is\nnot covered by the Paperwork Reduction Act, and is exempt from disclosure under the\nFreedom of Information A ct, may be released to federal law enforcement and intelli\xc2\xad\ngence agencies notwithstanding the prohibition in 18 U.S.C. \xc2\xa7 1905, if the Secretary of\nCommerce determines under \xc2\xa7 12(c) o f the Export Administration Act that failure to\nmake such disclosure would be contrary to the national interest.\nIn the exercise of his discretion under \xc2\xa7 12(c), the Secretary o f Commerce is subject to\nthe review and direction o f the President, and the President thus has the power, which\nhe has previously exercised, to direct the Secretary to make a determination and\nauthorize release of information.\n\nAugust 24, 1981\nMEMORANDUM OPINION FOR THE COUNSEL FOR\nINTELLIGENCE POLICY, DEPARTMENT OF JUSTICE\nThis responds to your request for our opinion whether the Export\nAdministration Act precludes the Secretary of Commerce from making\na general determination that the national interest would be served by\nthe routine disclosure of information collected under the Act to law\nenforcement and intelligence agencies. You also asked whether the\nExport Administration Act would authorize an amendment to the regu\xc2\xad\nlations promulgated under the Act to define \xe2\x80\x9cexport\xe2\x80\x9d to include the\nrelease of goods or technical data where the transferer \xe2\x80\x9cknows or has\nreason to know\xe2\x80\x9d that they will be shipped or transmitted from the\nUnited States to a foreign country. We addressed and resolved this\nquestion by our memorandum to the Department of Commerce of July\n28, 1981, and a more extensive memorandum to the Department of\nState of July 1, 1981, copies of which we have enclosed for you. With\nrespect to the first question, we have concluded that all information\ncollected by the Department of Commerce under the Export Adminis255\n\n\x0ctration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503, 50 U.S.C. App.\n\xc2\xa7\xc2\xa7 2401-2420 (Supp. Ill 1979), which falls under the definition of \xe2\x80\x9ccol\xc2\xad\nlection of information\xe2\x80\x9d set forth in the Paperwork Reduction Act of\n1980, Pub. L. No. 96-511, \xc2\xa7 2(a) 94 Stat. 2812, 44 U.S.C. \xc2\xa7\xc2\xa7 3501-3520\n(Supp. IV 1980), may be released to other federal agencies, including\nlaw enforcement and intelligence agencies. With respect to other confi\xc2\xad\ndential information obtained pursuant to the Export Administration Act\nwhich is not covered by the Paperwork Reduction Act, we perceive no\nlegal reason why the Secretary of Commerce cannot make a general\xc2\xad\nized determination that disclosure to federal law enforcement and intel\xc2\xad\nligence agencies is in the national interest and waive the confidential\ntreatment of the information to the extent of such a transfer.\nI. Paperwork Medtactiom Act\n\nOur analysis focuses initially on the Paperwork Reduction Act rather\nthan on the question specifically raised by your request\xe2\x80\x94whether infor\xc2\xad\nmation obtained under the Export Administration Act could be dis\xc2\xad\nclosed to federal law enforcement agencies upon a general determina\xc2\xad\ntion by the Secretary of Commerce that such disclosure is in the\nnational interest\xe2\x80\x94because we believe that, with the enactment of the\nPaperwork Reduction A ct after the submission of your opinion request,\nmost of the information is authorized to be disclosed to other federal\nagencies without a national interest determination by the Secretary.\nWith respect to information that may be shared under the Paperwork\nReduction Act, the question of the need for a national interest determi\xc2\xad\nnation arises only when a federal agency seeks to disclose confidential\ninformation obtained under the Export Administration Act to the\npublic.\nThe Paperwork Reduction Act of 1980, which replaced the Federal\nReports Act, Pub. L. No. 90-620, 82 Stat. 1302, provides:\nThe Director [of Office of Management and Budget] may\ndirect an agency to make available to another agency, or\nan agency may make available to another agency, infor\xc2\xad\nmation obtained pursuant to an information collection re\xc2\xad\nquest if the disclosure is not inconsistent with any applica\xc2\xad\nble law.\n94 Stat. at 2822, 44 U.S.C. \xc2\xa73510 (Supp. IV 1980). Thus, the Department\nof Commerce is authorized by the Paperwork Reduction Act to share\ninformation with other federal agencies, including law enforcement and\nintelligence agencies, when the following conditions are present:\n1) The information is obtained pursuant to an information\ncollection request; and\n256\n\n\x0c2) The disclosure of information is not inconsistent with\nany applicable law.\nA. \xe2\x80\x9cInformation Collection Request\xe2\x80\x9d\n\nUnder the Paperwork Reduction Act, an \xe2\x80\x9cinformation collection\nrequest\xe2\x80\x9d is defined as a \xe2\x80\x9cwritten report form, application form, sched\xc2\xad\nule, questionnaire, reporting or recordkeeping requirement or other\nsimilar method calling for the collection of information.\xe2\x80\x9d 94 Stat. at\n2814, 44 U.S.C. \xc2\xa7 3502(ii). \xe2\x80\x9cCollection of information\xe2\x80\x9d is defined to\ninclude \xe2\x80\x9cthe obtaining or soliciting of facts or opinions by any agency\nthrough the use of \xe2\x80\x9cany of the above-mentioned methods which calls\nfor \xe2\x80\x9canswers to identical questions posed to, or identical reporting or\nrecord-keeping requirements imposed on, ten or more persons, other\nthan agencies, instrumentalities, or employees of the United\nStates. . . .\xe2\x80\x9d 94 Stat. at 2813, 44 U.S.C. \xc2\xa7 3502(4).\nThus, information on identical license application forms or other\nreporting forms collected pursuant to the Export Administration Act,\nas well as information obtained by the Commerce Department in re\xc2\xad\nviewing records maintained by exporters pursuant to identical record\xc2\xad\nkeeping requirements issued under the Act, fall within the definition of\ninformation obtained pursuant to an information collection request\nwhich may be shared with other federal agencies if such disclosure is\nnot inconsistent with any applicable law.\nB. \xe2\x80\x9cN ot Inconsistent with any Applicable Law"\n\nThe legislative history of the Paperwork Reduction Act makes clear\nthat in order for the disclosure of information to be \xe2\x80\x9cinconsistent with\nany applicable law,\xe2\x80\x9d\nthe applicable law must prohibit the sharing of data be\xc2\xad\ntween agencies or must totally prohibit the disclosure to\nanyone outside the agency. A mere prohibition on disclo\xc2\xad\nsure to the public would not be inconsistent with sharing\nthe data with another agency unless the sharing would\ninexorably lead to a violation of that prohibition.\nH.R. Rep. No. 835, 96th Cong., 2d Sess. 30 (1980). See also S. Rep. No.\n930, 96th Cong., 2d Sess. 50 (1980).1 Because the Export Administration\nAct contains a non-disclosure provision, it is necessary to determine\nwhether that non-disclosure provision prohibits disclosure to other fed\xc2\xad\neral agencies or whether it is a \xe2\x80\x9cmere prohibition on disclosure to the\npublic.\xe2\x80\x9d\n\xe2\x80\x98 The Senate bill as reported by the Senate Committee on Governmental Affairs also excepted from\nthe authorization for interagency sharing of information disclosures which are inconsistent with\napplicable agency policy. T hat exception was deleted by an amendment on the Senate floor. 126 Cong.\nRec. S 14690 (daily ed. Nov. 19, 1980).\n\n257\n\n\x0cII. Section 12(c) of the Export Administration Act\n\nThe non-disclosure provision, \xc2\xa7 12(c) of the Export Administration\nAct, 93 Stat. at 531, as codified at 50 U.S.C. App. \xc2\xa7 2411(c),2 separates\nthe information obtained under the Act into two categories\xe2\x80\x94informa\xc2\xad\ntion collected before and information collected after June 30, 1980.\nSection 12(c) provides that all information obtained under the Export\nAdministration Act after June 30, 1980, except licensing information,\nmay be withheld from public release only to the extent permitted by\nother law. Licensing information is to be withheld from public disclo\xc2\xad\nsure unless the Secretary of Commerce determines that the release of\nsuch information would be in the national interest. We think it is clear\nfrom the face of \xc2\xa7 12(c) that all the information obtained under the\nExport Administration A ct after June 30, 1980, including licensing\ninformation, may be shared with other federal agencies, assuming no\nother statutory bar, if it is information obtained under\xe2\x80\x99 an \xe2\x80\x9cinformation\ncollection request\xe2\x80\x9d as defined by the Paperwork Reduction Act. We\ndraw this conclusion because the prohibition in \xc2\xa7 12(c) against disclo\xc2\xad\nsure of such information, to the extent if prohibits disclosure, is directed\nsolely at public disclosure.\nWith respect to information obtained prior to June 30, 1980, we also\nbelieve that the Paperwork Reduction Act authorizes disclosure of\ninformation obtained under an \xe2\x80\x9cinformation request\xe2\x80\x9d to other federal\n2(c) Confidentiality\n(1) E xcept as otherwise provided by the third sentence of section 8(b)(2) [section\n2407(b)(2) o f this Appendix] and by section 11(c)(2)(C) of this Act [section\n2410(c)(2)(C) o f this Appendix], information obtained under this A ct [sections 2401 to\n2420 o f this Appendix] on o r before June 30, 1980, which is deemed confidential,\nincluding Shippers\xe2\x80\x99 Export Declarations, o r with reference to w hich a request for\nconfidential treatment is m ade by the person furnishing such information, shall be\nexem pt from disclosure under section 552 o f title 5, United States Code, and such\ninformation shall not be published or disclosed unless the Secretary determines that the\nwithholding thereof is contrary to the national interest. Information obtained under this\nA ct [sections 2401 to 2420 o f this Appendix] after June 30, 1980, may be withheld only\nto the extent permitted by statute, except that information obtained for the purpose of\nconsideration of, or concerning, license applications under this Act [sections 2401 to\n2420 o f this Appendix] shall be withheld from public disclosure unless the release of\nsuch information is determined by the Secretary to be in the national interest. Enact\xc2\xad\nment of this subsection shall not affect any judicial proceeding commenced under\nsection 552 o f title 5, United States Code, to obtain access to boycott reports submitted\nprior to O ctober 31, 1976, w hich was pending on May 15, 1979; but_such proceeding\nshall be continued as if this A ct [sections 2401 to 2420 o f this Appendix] had not been\nenacted.\n(2) Nothing in this Act [sections 2401 to 2420 of this Appendix] shall be construed as\nauthorizing the withholding o f information from the Congress, and all information\nobtained at any time under this Act [sections 24pl to 2420 of this Appendix] or\nprevious Acts regarding th e control of exports, including any report or license applica\xc2\xad\ntion required under this A ct [sections 2401 to 2420 o f this Appendix], shall be made\navailable upon request to an y committee or subcommittee of Congress of appropriate\njurisdiction. No such com m ittee or subcommittee shall disclose any information ob\xc2\xad\ntained under this Act [sections 2401 to 2420 of this Appendix] or previous Acts\nregarding the control of exports which is submitted on a confidential basis unless the\nfull com m ittee determines that the withholding thereof is contrary to the national\ninterest.\n50 U.S.C. App. \xc2\xa7 2 4 1 1(c).\n\n258\n\n\x0cagencies because the prohibition in \xc2\xa7 12(c) was intended to be a \xe2\x80\x9cmere\nprohibition against public disclosure.\xe2\x80\x9d There is some ambiguity in\n\xc2\xa7 12(c)\xe2\x80\x99s treatment of information acquired before June 30, 1980, be\xc2\xad\ncause, in addition to expressly exempting such information from disclo\xc2\xad\nsure under the Freedom of Information Act (FOIA), it goes on to\nprovide that \xe2\x80\x9csuch information shall not be published or disclosed\nunless the Secretary determines that the withholding thereof is contrary\nto the national interest.\xe2\x80\x9d Although this restriction could be read as a\nblanket prohibition against disclosure of information obtained prior to\nJune 30, 1980, to anyone outside of the Department of Commerce, our\nanalysis of its legislative history reveals that this restriction was in\xc2\xad\ntended only to prevent any disclosure of such information to the public\nwhether under the Freedom of Information Act or by a discretionary\nrelease.\nFrom the legislative history of \xc2\xa7 12(c), it is apparent that the impetus\nfor amending the non-disclosure provision came from a court of appeals\ndecision that information obtained under the Export Administration Act\nwas not specifically exempted from disclosure for the purpose of the\nExemption 3 of the Freedom of Information Act, 5 U.S.C. \xc2\xa7 552(b)(3),\nand that such information must be publicly disclosed unless it qualified\nunder another FOIA exemption. See American Jewish Congress v. Kreps,\n574 F.2d 624. (D.C. Cir. 1978). The Senate Banking, Housing, and\nUrban Affairs Committee responded to this decision by exempting all\ninformation obtained under the Act from disclosure, stating\n[t]he Committee does not believe it is in the public inter\xc2\xad\nest to require the disclosure to foreign and domestic com\xc2\xad\npetitors of U.S. firms such information as the precise\nvalue, nature, parties to the transaction and shipping date\nof exports by such firms, where the sole reason such\ninformation is provided to the United States government\nis that the information is required by statute in order to\nreceive an export license.\nS. Rep. No. 169, 96th Cong., 1st Sess. 17 (1979).\nThe House bill, reported by the House Commitee on Foreign Affairs,\ndiffered from the Senate bill in that it accorded only certain types of\ninformation obtained under the Act protection from disclosure under\nthe Freedom of Information Act. Like the Senate report, the House\nreport expressed concern solely with public disclosure of the informa\xc2\xad\ntion obtained under the Act. H.R. Rep. No. 200, 96th Cong., 1st Sess.\n11,28 (1979).\nAfter extensive debate on the House floor, that body adopted an\namendment to \xc2\xa7 12(c) which gave different treatment to the information\nobtained before June 30, 1980, from that obtained after June 30, 1980.\nThroughout the debate, it is clear that the purpose of giving confiden\xc2\xad\ntial treatment to certain information obtained under the Act, whether\n259\n\n\x0cby the approach adopted by the House committee bill or by the amend\xc2\xad\nment with the June 30, 1980, cutoff date, was to protect American\nbusinesses from disclosure of sensitive financial and marketing informa\xc2\xad\ntion to their competitors:\nMr. Fascell: Mr. Chairman, one of the problems and the\nreason for the date (June 30, 1980) is that the information\nasks names of customers and prices of goods which is and\nshould be trade secrets. That is the problem and that is\nthe reason for the cutoff.\n125 Cong. Rec. 25,636 (1979).\nMr. Alexander: Mr. Chairman, it is important that export\xc2\xad\ners be allowed confidentiality on their SED\xe2\x80\x99s (Shipper\nExport Declarations). The data disclosed on SED\xe2\x80\x99s in\xc2\xad\ncludes confidential business information in which disclo\xc2\xad\nsure to competitors would be harmful. Foreign competi\xc2\xad\ntors would be especially benefited because they would not\nhave similar vulnerabilities.\nId. at 25,637.\n\nMr. Lagomarsino: The information, if published would\nenable foreign and domestic competitors to gain signifi\xc2\xad\ncant advantages in th^ same markets. It has always been\npublic policy to insure confidentiality of competitive busi\xc2\xad\nness information. . . .\nIf the government requires business to supply confidential\ninformation, then government should provide protection\nfor that information.\nId. at 25,639.\n\nThe Senate adopted an amendment with the June 30, 1980, cutoff\nwith little debate, but the statement of Senator Hatch, who introduced\nthe amendment, reveals that the purpose of the cutoff date was to\nprotect information already submitted to the Commerce Department\nfrom public disclosure and to give American businesses a period to\nadjust to the public disclosure of the information (except licensing\ninformation) submitted after the cutoff date:\nMr. Hatch: Mr. President, I am introducing an amend\xc2\xad\nment to delete the indefinite blanket exemption to the\nFreedom of Information Act requests and replace it with\nan exemption until June 30, 1980. This will give exporters\nalmost a year\xe2\x80\x99s time to prepare for a change in the law at\nthat time, which would result in all export control infor\xc2\xad\nmation being subject to the Freedom of Information Act\nexcept for license applications. These license applications\nare the items that exporters are most concerned about\n260\n\n\x0cbecoming available to their competitors, plus they contain\nsensitive national security information.\nId. at 20,012-13.\n\nOn the basis of the language of \xc2\xa7 12(c) as explained by its legislative\nhistory, it is our view that \xc2\xa7 12(c) was not intended to prohibit disclo\xc2\xad\nsure to other federal agencies and that, to the extent it prohibits disclo\xc2\xad\nsure at all, it is merely a prohibition against public disclosure. We\nconclude, therefore, that disclosure to federal law enforcement and\nintelligence agencies of information obtained pursuant to an information\n\xe2\x80\x9ccollection request\xe2\x80\x9d is authorized by the Paperwork Reduction Act of\n1980, if not otherwise prohibited by another statute.3\nThat authorization does not, however, necessarily permit federal law\nenforcement and intelligence agencies to disclose such information to\nthe public because the Paperwork Reduction Act 4 subjects those agen\xc2\xad\ncies to the same restrictions on public release which bind the Depart\xc2\xad\nment of Commerce. Thus, before releasing to the public information\nobtained under the Export Administration Act prior to June 30, 1980,\nand licensing information obtained after June 30, 1980, it may be neces\xc2\xad\nsary, in the absence of an overriding authorization for such release, to\nobtain a determination by the Secretary of Commerce that such a\nrelease would be in the national interest. If there are certain classes of\ninformation the release of which to the public would be in the national\ninterest, we perceive no statutory bar to the Secretary\xe2\x80\x99s making such a\ngeneral determination and thus removing any \xc2\xa7 12(c) restrictions on\npublic release.\nIII. Information Not Covered by the Paperwork Reduction Act\n\nWith respect to any information obtained under the Export Adminis\xc2\xad\ntration Act which is not regulated by the Paperwork Reduction Act,\nwe believe that any information that is available to the public because it\n3 F or example, if the information concerns individuals and is contained in a system o f records,\ndisclosure to law enforcement agencies may be prohibited by the Privacy Act, 5 U.S.C. \xc2\xa7 552a, unless\nsuch disclosure qualifies for and has been published as routine use or unless the head of the law\nenforcement agency submits a written request to the Department of Commerce specifying the particu\xc2\xad\nlar portion of a record desired and the law enforcement activity for which the record is sought.\nWe do not agree with the Department of Commerce that 18 U.S.C. \xc2\xa7 1905, which prohibits the\ndisclosure o f confidential trade information unless authorized by law, would bar interagency disclosure\nbecause, assuming no other statutory prohibition against disclosure, \xc2\xa73510 of the Paperwork Reduc\xc2\xad\ntion Act would authorize the disclosure. 44 U.S.C. \xc2\xa7 3510.\n4 The Paperwork Reduction Act provides\nIf information obtained by an agency is released by that agency to another agency, all\nthe provisions of law (including penalties which relate to the unlawful disclosure of\ninformation) apply to the officers and employees of the agency to which information is\nreleased to the same extent and in the same manner as the provisions apply to the\nofficers and employees o f the agency which originally obtained the information. The\nofficers and employees of the agency to which the information is released, in addition,\nshall be subject to the same provisions of law, including penalties, relating to the\nunlawful disclosure of information as if the information had been collected directly by\nthat agency.\n94 Stat at 2822, 44 U.S.C \xc2\xa7 3510 (Supp. IV 1980).\n\n261\n\n\x0cis not exempt from disclosure under the Freedom of Information Act\nshould also be available to other federal agencies. For information that\nis not available to the public, either because it is licensing information\nobtained prior to June 30, 1980, or information acquired after June 30,\n1980, which qualifies for another FOIA exemption, a more difficult\nquestion arises whether the information may be disclosed to federal law\nenforcement and intelligence agencies. The fact that \xc2\xa7 12(c) does not\nprohibit disclosures to other federal agencies may not necessarily mean\nthat interagency disclosure of non-public information not covered by\nthe Paperwork Reduction Act is authorized.\nThe existence of an affirmative authorization in the Paperwork Re\xc2\xad\nduction Act for certain information arguably implies that some authori\xc2\xad\nzation is required, whether by statute, either expressly or by necessary\nimplication, or by substantive regulation. Moreover, it may be neces\xc2\xad\nsary to determine whether there is an authorization for disclosure to\nfederal law enforcement and intelligence agencies to avoid the stric\xc2\xad\ntures of 18 U.S.C. \xc2\xa7 1905. Section 1905 5 requires that any disclosure by\nfederal employees of trade secrets or confidential business be \xe2\x80\x9cauthor\xc2\xad\nized by law.\xe2\x80\x9d 6 The phrase \xe2\x80\x9cauthorized by law\xe2\x80\x9d does not mean that the\nauthorization must be \xe2\x80\x9cspecifically authorized by law\xe2\x80\x9d; it is sufficient\nthat the disclosure is \xe2\x80\x9cauthorized in a general way by law.\xe2\x80\x9d 41 Op. A tt\xe2\x80\x99\nGen. 166, 169 (1953). The following have been recognized as lawful\nsources of disclosure authority under \xc2\xa7 1905 or its predecessors: subpoe\xc2\xad\nnas (Blair v. Oesterlein Machine Co., 275 U.S. 220, 227 (1927), United\nStates v. Liebert, 519 F.2d 542, 546 (3d Cir.), cert, denied, 423 U.S. 985\n(1975)); requests of congressional committees acting within the limits of\ntheir jurisdiction and authority (41 Op. A tt\xe2\x80\x99y Gen. 221 (1955)); substan\xc2\xad\ntive regulations, provided that the authority on which the regulation is\nbased includes, either expressly or by necessary implication, the power\nto waive the confidentiality of the information (Cf. Chrysler Corp. v.\n6 Section 1905 reads:\nW hoever, being an officer or employee of the United States or of any department or\nagency thereof, publishes, divulges, discloses, or makes known in any manner or to any\nextent not authorized by law any information coming to him in the course o f his\nemployment or ofTicial duties o r by reason o f any examination or investigation made\nby, o r return, report or record made to or filed with, such department or agency or\nofficer o r employee thereof, w hich information concerns or relates to the trade secrets,\nprocesses, operations, style o f work, or apparatus, or to the identity, confidential\nstatistical data, amount or source o f any income, profits, losses, or expenditures of any\nperson, firm, partnership, corporation, or association; or permits any income return or\ncopy thereof or any book containing any abstract or particulars thereof to be seen or\nexamined by any person except as provided by law; shall be fined not more than\n$1,000, or imprisoned not m ore than one year, or both; and shall be removed from\noffice or employment.\n18 U.S.C. \xc2\xa7 1905.\n8 T he question w hether 18 U.S.C. \xc2\xa7 1905 applies to intragovemmental transfers o f information has\nnever been resolved. As is evident from the inclusiveness of the w ords of the statute, a literal reading\no f its provisions would seem to prohibit interagency disclosures. Opinions construing \xc2\xa7 1905 and its\npredecessor statutes have avoided resolution of the scope of \xc2\xa7 1905 by finding legal authorization for\nthe disclosure sought. 31 Op. Att\xe2\x80\x99y G en. 541 (1919); 41 Op. A tt\xe2\x80\x99y Gen. 221 (1955).\n\n262\n\n\x0cBrown, 441 U.S. 281, 294-316 (1979)); or necessary statutory implication\n\n(41 Op. Att\xe2\x80\x99y Gen. 106 (1953)).\nIt is unnecessary, however, to decide the question whether an inde\xc2\xad\npendent authorization for disclosure to federal law enforcement and\nintelligence agencies is required because the Secretary of Commerce\ncould under \xc2\xa7 12(c) authorize disclosure to federal law enforcement and\nintelligence agencies by determining that failure to make such disclo\xc2\xad\nsures would be contrary to the national interest. We believe that the\nauthority to permit such interagency disclosure is necessarily included\nin the greater power to disclose information publicly upon a national\ninterest determination. As discussed above, we perceive no statutory\nbar to making such a determination, for a general class of information\nor on some other generalized basis. In the exercise of his discretion to\nmake a national interest determination under \xc2\xa7 12(c) to release informa\xc2\xad\ntion, the Secretary of Commerce is, of course, subject to the review\nand direction of the President. Congress Construction Corp. v. United\nStates, 314 F.2d 527, 530-31 (Ct. Cl.) cert, denied, 375 U.S. 817 (1963); 7\nOp. Att\xe2\x80\x99y Gen. 453, 469-70 (1855). Thus, the President has the power,\nwhich President Carter exercised during his Administration, to direct\nthe Secretary to make such a determination and authorize release of\ninformation obtained under the Export Administration Act to law en\xc2\xad\nforcement and intelligence agencies on a routine basis if the President\ndetermines it would be contrary to the national interest to withhold\nsuch information from those agencies.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n263\n\n\x0c'


b'Extending the Term of the FBI Director\nIt would be constitutional for Congress to enact legislation extending the term of Robert\nS. Mueller, III, as Director of the Federal Bureau of Investigation.\nJune 20, 2011\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether it would be constitutional for Congress to enact legislation extending the term of Robert S. Mueller, III, as Director of\nthe Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d). We believe that it would.\nPresident George W. Bush, with the Senate\xe2\x80\x99s advice and consent, appointed Mr. Mueller Director of the FBI on August 3, 2001. The statute\nproviding for the Director\xe2\x80\x99s appointment sets a 10-year term and bars\nreappointment. See Omnibus Crime Control and Safe Streets Act, Pub.\nL. No. 90-351, \xc2\xa7 1101, 82 Stat. 197, 236 (1968), as amended by Crime\nControl Act, Pub. L. No. 94-503, \xc2\xa7 203, 90 Stat. 2407, 2427 (1976),\ncodified as amended at 28 U.S.C. \xc2\xa7 532 note (2006). A bill now pending\nin Congress would extend Mr. Mueller\xe2\x80\x99s term for two years.\nUnder the Constitution, see U.S. Const. art. I, \xc2\xa7 8, cl. 18, Congress has\nthe power to create offices of the United States Government and to define\ntheir features, including the terms during which office-holders will serve:\nTo Congress under its legislative power is given the establishment of\noffices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to\nbe appointed, and their compensation\xe2\x80\x94all except as otherwise provided by the Constitution.\nMyers v. United States, 272 U.S. 52, 129 (1926) (emphasis added). In\nthe exercise of this authority, Congress from time to time has extended\nthe terms of incumbents. Opinions of the courts, the Attorneys General,\nand this Office have repeatedly affirmed the constitutionality of such\nextensions. See In re Investment Bankers, Inc., 4 F.3d 1556, 1562\xe2\x80\x9363\n(10th Cir. 1993); In re Benny, 812 F.2d 1133, 1141\xe2\x80\x9342 (9th Cir. 1987);\nIn re Koerner, 800 F.2d 1358, 1366\xe2\x80\x9367 (5th Cir. 1986); Constitutionality of Legislation Extending the Terms of Office of United States Parole\n98\n\n\x0cExtending the Term of the FBI Director\n\nCommissioners, 18 Op. O.L.C. 166 (1994) (\xe2\x80\x9cParole Commissioners\xe2\x80\x9d);\nWhether Members of the Sentencing Commission Who Were Appointed\nPrior to the Enactment of a Holdover Statute May Exercise Holdover\nRights Pursuant to the Statute, 18 Op. O.L.C. 33 (1994); Displaced\nPersons Commission\xe2\x80\x94Terms of Members, 41 Op. Att\xe2\x80\x99y Gen. 88, 89\xe2\x80\x9390\n(1951) (\xe2\x80\x9cDisplaced Persons Commission\xe2\x80\x9d); Civil Service Retirement\nAct\xe2\x80\x94Postmasters\xe2\x80\x94Automatic Separation from the Service, 35 Op.\nAtt\xe2\x80\x99y Gen. 309, 314 (1927); see also The Constitutional Separation of\nPowers Between the President and Congress, 20 Op. O.L.C. 124, 153\xe2\x80\x93\n57 (1996) (\xe2\x80\x9cSeparation of Powers\xe2\x80\x9d) (discussing the opinions).\nAlthough Congress has the power to set office-holders\xe2\x80\x99 terms, this\npower is subject to any limits \xe2\x80\x9cotherwise provided by the Constitution.\xe2\x80\x9d\nMyers, 272 U.S. at 129. Under the Appointments Clause, art. II, \xc2\xa7 2,\ncl. 2, the President \xe2\x80\x9cshall nominate, and by and with the Advice and\nConsent of the Senate, shall appoint . . . Officers of the United States\xe2\x80\x9d; in\nthe case of inferior officers, Congress may vest the appointment in the\nPresident alone, the heads of Departments, or the courts of law. If the\nextension of an officer\xe2\x80\x99s term amounts to an appointment by Congress,\nthe extension goes beyond Congress\xe2\x80\x99s authority to fix the terms of service. See Parole Commissioners, 18 Op. O.L.C. at 167 (citing Buckley v.\nValeo, 424 U.S. 1, 124\xe2\x80\x9341 (1976) (per curiam)); Shoemaker v. United\nStates, 147 U.S. 282, 300 (1893).\nThe traditional position of the Executive Branch has been that Congress, by extending an incumbent officer\xe2\x80\x99s term, does not displace and\ntake over the President\xe2\x80\x99s appointment authority, as long as the President\nremains free to remove the officer at will and make another appointment.\nIn 1951, for example, the Acting Attorney General concluded that Congress by statute could extend the terms of two members of the Displaced\nPersons Commission: \xe2\x80\x9cI do not think . . . that there can be any question as\nto the power of the Congress to extend the terms of offices which it has\ncreated, subject, of course, to the President\xe2\x80\x99s constitutional power of\nappointment and removal.\xe2\x80\x9d Displaced Persons Commission, 41 Op. Att\xe2\x80\x99y\nGen. at 90 (citation omitted). The Acting Attorney General \xe2\x80\x9cnoted that\nsuch joint action by the Executive and the Congress in this field is not\nwithout precedent,\xe2\x80\x9d id., and gave as examples the extensions of the terms\nof members of the Reconstruction Finance Corporation, see Reconstruction Finance Corporation Act, Pub. L. No. 80-548, \xc2\xa7 2, 62 Stat. 261, 262\n99\n\n\x0c35 Op. O.L.C. 98 (2011)\n\n(1948), and the Atomic Energy Commission, see Atomic Energy Act,\nPub. L. No. 80-899, \xc2\xa7 2, 62 Stat. 1259, 1259 (1948). In both instances,\n\xe2\x80\x9cno new nominations were submitted to the Senate and the incumbents\ncontinued to serve.\xe2\x80\x9d Displaced Persons Commission, 41 Op. Att\xe2\x80\x99y Gen. at\n91.\nIn 1987, without discussing this traditional view, this Office reversed\ncourse and concluded that a statute extending the terms of United States\nParole Commissioners was \xe2\x80\x9can unconstitutional interference with the\nPresident\xe2\x80\x99s appointment power,\xe2\x80\x9d because \xe2\x80\x9c[b]y extending the term of\noffice for incumbent Commissioners appointed by the President for a\nfixed term, the Congress will effectively reappoint those Commissioners\nto new terms.\xe2\x80\x9d Reappointment of United States Parole Commissioners,\n11 Op. O.L.C. 135, 136 (1987). Seven years later, however, we returned\nto the earlier view, finding that Congress could extend the terms of\nParole Commissioners. See Parole Commissioners, 18 Op. O.L.C. at\n167\xe2\x80\x9368. We noted that the extension of an incumbent\xe2\x80\x99s term creates a\n\xe2\x80\x9cpotential tension\xe2\x80\x9d between Congress\xe2\x80\x99s power \xe2\x80\x9cto set and amend the term\nof an office\xe2\x80\x9d and the prohibition against its appointing officers of the\nUnited States, id., but that whether any conflict actually exists \xe2\x80\x9cdepends\non how the extension functions,\xe2\x80\x9d id. at 168. In particular, \xe2\x80\x9c[i]f applying\nan extension to an incumbent officer would function as a congressional\nappointment of the incumbent to a new term, then it violates the Appointments Clause.\xe2\x80\x9d Id. \xe2\x80\x9cThe classic example\xe2\x80\x9d of a statute raising the\npotential tension would be one lengthening the tenure of an incumbent\nwhom the President may remove only for cause. Id. On the other hand, if\nCongress extends the term of an incumbent whom the President may\nremove at will, \xe2\x80\x9cthere is no violation of the Appointments Clause, for\nhere the President remains free to remove the officer and embark on the\nprocess of appointing a successor\xe2\x80\x94the only impediment being the constitutionally sanctioned one of Senate confirmation.\xe2\x80\x9d Id. In these circumstances, the \xe2\x80\x9clegislation leaves the appointing authority\xe2\x80\x94and incidental\nremoval power\xe2\x80\x94on precisely the same footing as it was prior to the\nenactment of the legislation.\xe2\x80\x9d Id. (citations omitted). Because Parole\nCommissioners were removable at will, we concluded that the extension\nof their terms was constitutional. See id. at 169\xe2\x80\x9372.\nThe courts have gone even further in sustaining congressional power to\nextend the terms of incumbents. They uniformly rejected the argument\n100\n\n\x0cExtending the Term of the FBI Director\n\nthat Congress could not extend, by two to four years, the tenure of bankruptcy judges, even though those judges were removable only for cause.\nIn the most prominent of these cases, In re Benny, the Ninth Circuit held\nthat \xe2\x80\x9cthe only point at which a prospective extension of term of office\nbecomes similar to an appointment is when it extends the office for a very\nlong time.\xe2\x80\x9d 812 F.2d at 1141. Because of our concerns about Congress\xe2\x80\x99s\nextending the terms of officers with tenure protection, we have questioned\nthe reasoning of that opinion, see Separation of Powers, 20 Op. O.L.C. at\n155 & nn.89, 90, but the opinion does support the power of Congress to\nenact legislation that would lengthen the term of the incumbent FBI\nDirector. 1\nIn any event, even under the longstanding Executive Branch approach,\nwhich makes it relevant whether a position is tenure-protected, Congress\nwould not violate the Appointments Clause by extending the FBI Director\xe2\x80\x99s term. As we have previously concluded, the FBI Director is removable at the will of the President. See Memorandum for Stuart M. Gerson,\nActing Attorney General, from Daniel L. Koffsky, Acting Assistant\nAttorney General, Office of Legal Counsel, Re: Removal of the Director\nof the Federal Bureau of Investigation (Jan. 26, 1993). No statute purports\nto restrict the President\xe2\x80\x99s power to remove the Director. Specification of a\nterm of office does not create such a restriction. See Parsons v. United\nStates, 167 U.S. 324, 342 (1897). Nor is there any ground for inferring a\nrestriction. Indeed, tenure protection for an officer with the FBI Director\xe2\x80\x99s\nbroad investigative, administrative, and policymaking responsibilities\nwould raise a serious constitutional question whether Congress had \xe2\x80\x9cimConcurring in the judgment in In re Benny, Judge Norris argued that there was no\n\xe2\x80\x9cprincipled distinction between congressional extensions of the terms of incumbents and\nmore traditional forms of congressional appointments,\xe2\x80\x9d because \xe2\x80\x9c[b]oth implicate the\nidentical constitutional evil\xe2\x80\x94congressional selection of the individuals filling nonlegislative offices.\xe2\x80\x9d 812 F.2d at 1143 (footnotes omitted). This argument would seem to deny\nthat any extension of an incumbent\xe2\x80\x99s term could be constitutional. Judge Norris\xe2\x80\x99s reasoning, however, may depend in part on the protected tenure of the bankruptcy judges in In\nre Benny whose terms were extended: \xe2\x80\x9cBy extending the terms of known incumbents,\nCongress can guarantee that its choices will continue to serve for as long as Congress\nwishes, unless the officers can be removed.\xe2\x80\x9d Id. (emphasis added). A footnote to this\nsentence discusses the circumstances in which Congress may confer tenure protection on\nofficers, id. at 1143 n.5, but does not acknowledge the President\xe2\x80\x99s power to remove an\nofficer who is serving at will.\n1\n\n101\n\n\x0c35 Op. O.L.C. 98 (2011)\n\npede[d] the President\xe2\x80\x99s ability to perform his constitutional duty\xe2\x80\x9d to take\ncare that the laws be faithfully executed. Morrison v. Olson, 487 U.S.\n654, 691 (1988). The legislative history of the statute specifying the\nDirector\xe2\x80\x99s term, moreover, refutes any idea that Congress intended to\nlimit the President\xe2\x80\x99s removal power. See 122 Cong. Rec. 23,809 (1976)\n(statement of Sen. Byrd) (\xe2\x80\x9cUnder the provisions of my amendment, there\nis no limitation on the constitutional power of the President to remove the\nFBI Director from office within the 10-year term.\xe2\x80\x9d); id. at 23,811 (statement of Sen. Byrd) (\xe2\x80\x9cThe FBI Director is a highly placed figure in the\nexecutive branch and he can be removed by the President at any time, and\nfor any reason that the President sees fit.\xe2\x80\x9d). 2\nHere, therefore, the issue is whether we continue to believe that the approach outlined in our earlier opinions and particularly in Parole Commissioners is correct. In connection with the pending bill, it has been argued\nthat any legal act causing a person to hold an office that otherwise would\nbe vacant is an \xe2\x80\x9cAppointment\xe2\x80\x9d under the Constitution, art. II, \xc2\xa7 2, cl. 2,\nand thus requires use of the procedure laid out in the Appointments\nClause. According to the argument, if legislation appoints an officer, the\nPresident\xe2\x80\x99s authority to remove him does not cure the defect. The Constitution forbids the appointment, whether or not the President may later act\nto undo it, and in practice the political costs of undoing the extension\nthrough removal of the incumbent may be prohibitive. Furthermore,\nwhereas the process under the Constitution of nomination, confirmation,\nand appointment places on the President alone, with the advice and consent of the Senate, the responsibility for selection of an individual, legislation enabling an office-holder to serve an extended term without being\nreappointed diffuses that responsibility among the President and the\nmembers of the House and Senate. 3\nWe disagree with this argument. We begin with the fundamental observation that legislation extending a term \xe2\x80\x9cdoes not represent a formal\nPresident Clinton, in fact, did remove FBI Director William S. Sessions. See Memorandum for Senate Committee on the Judiciary, from Vivian Chu, Legislative Attorney,\nCongressional Research Service, Re: Director of the FBI: Position and Tenure at 5 &\nn.39 (June 1, 2011).\n3 See The President\xe2\x80\x99s Request to Extend the Service of Director Robert Mueller of the\nFBI Until 2013: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011)\n(statement of John Harrison, Professor of Law, University of Virginia School of Law).\n2\n\n102\n\n\x0cExtending the Term of the FBI Director\n\nappointment by Congress.\xe2\x80\x9d Separation of Powers, 20 Op. O.L.C. at 156.\nDirector Mueller holds an office, and if his term is extended by Congress,\nhe will continue to hold that office by virtue of appointment by President\nBush, with the advice and consent of the Senate, in strict conformity with\nthe requirements of the Appointments Clause. Rather than an exercise of\nthe power to select the officer, the pending legislation, as a formal matter,\nis an exercise of Congress\xe2\x80\x99s power to set the term of service for the office.\nThat the legislation here would enable Director Mueller to stay in an\noffice he would otherwise have to vacate does not in itself constitute a\nformal appointment, any more than Congress makes an appointment when\nit relieves an individual office-holder from mandatory retirement for age,\nthereby lifting an impending legal disability and enabling him to retain his\nposition. 4 In neither situation has Congress prescribed a method of appointment at variance with the Appointments Clause. Cf. Buckley, 424\nU.S. at 124\xe2\x80\x9341.\nNor is the term extension contemplated by the pending legislation functionally the equivalent of a congressional appointment. Whether the\nextension of a term functions as an appointment depends on its effect on\nthe President\xe2\x80\x99s appointment power. If the extension of a term were to\npreclude the President from making an appointment that he otherwise\n\n4 For example, section 704 of the National Defense Authorization Act, Fiscal Year\n1989, provided that \xe2\x80\x9c[n]otwithstanding the limitation\xe2\x80\x9d otherwise requiring retirement for\nage, \xe2\x80\x9cthe President may defer until October 1, 1989, the retirement of the officer serving\nas Chairman of the Joint Chiefs of Staff for the term which began on October 1, 1987.\xe2\x80\x9d\nPub. L. No. 100-456, 102 Stat. 1918, 1996\xe2\x80\x9397 (1988). Without that legislation, the\nChairman would have had to retire from active service, and the office of Chairman of the\nJoint Chiefs of Staff would have become vacant. Similarly, section 504 of the National\nDefense Authorization Act for Fiscal Year 1998, provided that a service Secretary could\n\xe2\x80\x9cdefer the retirement . . . of an officer who is the Chief of Chaplains or Deputy Chief of\nChaplains of that officer\xe2\x80\x99s armed force,\xe2\x80\x9d as long as the deferment did not go beyond the\nmonth that the officer turned 68 years old. Pub. L. No. 105-85, 111 Stat. 1629, 1725\n(1997). Congress, moreover, has twice enacted statutes contemplating that, by specific\nlater legislation, it would raise the retirement age of individual officers in the civil\nservice. See Pub. L. No. 89-554, \xc2\xa7 8335(d), 80 Stat. 378, 571 (1966) (\xe2\x80\x9cThe automatic\nseparation provisions of this section do not apply to\xe2\x80\x94(1) an individual named by a statute\nproviding for the continuance of the individual in the [civil] service.\xe2\x80\x9d); Federal Executive\nPay Act, Pub. L. No. 84-854, \xc2\xa7 5(d), 70 Stat. 736, 749 (1956) (\xe2\x80\x9cThe automatic separation\nprovisions of this section shall not apply to any person named in any Act of Congress\nproviding for the continuance of such person in the [civil] service.\xe2\x80\x9d).\n\n103\n\n\x0c35 Op. O.L.C. 98 (2011)\n\nwould have the power to make, Congress would in effect have displaced\nthe President and itself exercised the appointment power. We believe that\nsuch a displacement can take place when Congress extends the term of a\ntenure-protected officer. See Parole Commissioners, 18 Op. O.L.C. at\n168. If, however, \xe2\x80\x9cthe President remains free to remove the officer and\nembark on the process of appointing a successor\xe2\x80\x94the only impediment\nbeing the constitutionally sanctioned one of Senate confirmation,\xe2\x80\x9d id., the\nPresident has precisely the same appointment power as before the legislation. Congress has not taken over that power but has acted within its own\npower to fix the term during which the officer serves. Because the President is free at any time to dismiss the FBI Director and, with the Senate\xe2\x80\x99s\nadvice and consent, appoint a new Director, the pending legislation does\nnot functionally deprive the President of his role in appointing the Director under the Appointments Clause.\nThe proposed legislation, moreover, would leave with the President the\n\xe2\x80\x9csole and undivided responsibility\xe2\x80\x9d for appointments. The Federalist No.\n76, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). If the President signs the bill and allows the incumbent to remain in office, the \xe2\x80\x9csole\nand undivided responsibility\xe2\x80\x9d of a single official, as well as the Senate\xe2\x80\x99s\nadvice and consent, will still have been exercised in the incumbent\xe2\x80\x99s\nappointment\xe2\x80\x94here, when President Bush appointed Director Mueller.\nUnder the pending legislation, Director Mueller for the next two years\nwould continue to serve as a result of that exercise of responsibility, just\nas he has since January 20, 2009, when President Obama took office.\nThroughout that time, each President sequentially will have had an additional \xe2\x80\x9csole and undivided responsibility\xe2\x80\x9d for Director Mueller\xe2\x80\x99s service,\nbecause each President will have been able to remove him immediately,\nwith or without cause. 5\nWe also disagree that term-extension legislation violates the Appointments Clause because as a hypothetical matter it might impose some new\npolitical cost on the President. The relative political cost to the President\nof removing a term-extended incumbent as compared to the costs presented by other decisions involving appointment matters is speculative. In any\n5 See The President\xe2\x80\x99s Request to Extend the Service of Director Robert Mueller of the\nFBI Until 2013: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011)\n(statement of William Van Alstyne, Professor of Law, Marshall-Wythe Law School).\n\n104\n\n\x0cExtending the Term of the FBI Director\n\nevent, the Appointments Clause does not prohibit all measures that might\nimpose a political cost, but rather insures that Congress leave \xe2\x80\x9cscope for\nthe judgment and will of the person or body in whom the Constitution\nvests the power of appointment.\xe2\x80\x9d Civil-Service Commission, 13 Op. Att\xe2\x80\x99y\nGen. 516, 520 (1871). The pending legislation allows the exercise of the\nPresident\xe2\x80\x99s \xe2\x80\x9cjudgment and will\xe2\x80\x9d with respect to who shall serve as Director of the FBI and for that reason is consistent with the Appointments\nClause.\nNor do we believe that we should depart from our earlier view because\nthe present bill would apply only to Director Mueller, while the earlier\nextensions applied to multi-member groups. In this respect, the pending\nbill might be thought more like an individual appointment. But in Displaced Persons Commission, the terms of only two commissioners were\nextended, 41 Op. Att\xe2\x80\x99y Gen. at 88, and our opinion in Parole Commissioners stated that as few as three commissioners might benefit from the\nextension, 18 Op. O.L.C. at 167. The difference between those cases and\nthis one does not appear significant. To be sure, the grounds for the extensions at issue in those cases do not seem to have included, at least expressly, the merits of the individual office-holders. But although Director\nMueller\xe2\x80\x99s personal strengths are a key reason for the pending legislation,\nthe need for stability in the Nation\xe2\x80\x99s efforts against terrorism is also a\nsignificant part of the justification. As the President said in announcing\nthe proposal, \xe2\x80\x9c[g]iven the ongoing threats facing the United States, as well\nas the leadership transitions at other agencies like the Defense Department\nand Central Intelligence Agency, I believe continuity and stability at the\nFBI is critical at this time.\xe2\x80\x9d Office of the Press Secretary, The White\nHouse, Press Release, President Obama Proposes Extending Term for\nFBI Director Robert Mueller (May 12, 2011). We do not believe (and, to\nour knowledge, no one has argued) that high regard for an office-holder\ndisables Congress from extending his term.\nCAROLINE D. KRASS\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n105\n\n\x0c'


b'Eligibility of a Retired Army Officer to Be Appointed\nInspector General of the Department of Defense\nA retired officer of the Regular Army, not on active duty, is not a \xe2\x80\x9cmember of the Armed Forces, active\nor reserve,\xe2\x80\x9d under section 8 of the Inspector General Act of 1978 and therefore is not disqualified\nfrom being appointed as Inspector General of the Department of Defense.\n\nMay 18, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nSection 8 of the Inspector General Act of 1978 (\xe2\x80\x9cIG Act\xe2\x80\x9d) provides that \xe2\x80\x9c[n]o\nmember of the Armed Forces, active or reserve, shall be appointed Inspector\nGeneral of the Department of Defense.\xe2\x80\x9d 5 U.S.C. app., IG Act \xc2\xa7 8(a) (2006). You\nhave asked whether a retired officer of the Regular Army, not on active duty, is a\n\xe2\x80\x9cmember of the Armed Forces, active or reserve\xe2\x80\x9d under this provision and thus is\ndisqualified from being appointed as Inspector General (\xe2\x80\x9cIG\xe2\x80\x9d) of the Department\nof Defense. We conclude that this exclusion does not apply to such a person,\nbecause he is neither an \xe2\x80\x9cactive\xe2\x80\x9d nor a \xe2\x80\x9creserve\xe2\x80\x9d member of the Armed Forces\nwithin the meaning of section 8.\nNeither the IG Act nor title 10 of the United States Code clearly defines the\nphrase \xe2\x80\x9cmember of the Armed Forces\xe2\x80\x9d in the context of section 8 of the IG Act,\nbut it is clear that mere retirement does not remove an officer from membership in\nthe Armed Forces. Section 3075 of title 10 describes \xe2\x80\x9cthe retired officers . . . of the\nRegular Army\xe2\x80\x9d as part of the \xe2\x80\x9cRegular Army.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 3075(b)(3) (2006).\nAnd section 688 lists among the \xe2\x80\x9cmembers of the armed forces\xe2\x80\x9d who \xe2\x80\x9cmay be\nordered to active duty\xe2\x80\x9d a \xe2\x80\x9cretired member of the Regular Army, Regular Navy,\nRegular Air Force, or Regular Marine Corps.\xe2\x80\x9d Id. \xc2\xa7 688(a), (b)(1). That is, officers\nwho retire from active duty in the Army remain part of the Regular Army, and\nmembers of the Regular Army are \xe2\x80\x9cmembers of the armed forces.\xe2\x80\x9d Other statutes\nsimilarly refer to a \xe2\x80\x9cretired member of the Armed Forces.\xe2\x80\x9d See, e.g., 5 U.S.C.\n\xc2\xa7 2108(5) (2006); id. \xc2\xa7 3326; see generally Memorandum for George P. Williams,\nAssociate Counsel to the President, from Robert G. Dixon, Jr., Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Appointment of Retired Reserve Officers to\nthe National Selective Service Appeal Board at 2 (July 25, 1974) (concluding that\n\xe2\x80\x9ca retired member of a reserve component of the armed forces\xe2\x80\x9d is a member of the\nArmed Forces). Your office shares the view, based in part on common usage in the\nmilitary establishment, that an officer who merely retires from the Regular Army\nremains a \xe2\x80\x9cmember of the Armed Forces.\xe2\x80\x9d Thus, if section 8 of the IG Act simply\nbarred appointment of a \xe2\x80\x9cmember of the Armed Forces,\xe2\x80\x9d without the additional\nphrase \xe2\x80\x9cactive or reserve,\xe2\x80\x9d it likely would bar appointment of a retired Regular\nArmy officer. The use of the additional phrase \xe2\x80\x9cactive or reserve\xe2\x80\x9d therefore\n\n140\n\n\x0cEligibility of Retired Army Officer to Be Inspector General of Department of Defense\n\nsuggests some sort of limitation; otherwise it would not clearly add any meaning\nto the statute.\nThe reference in section 8\xe2\x80\x99s additional phrase to \xe2\x80\x9creserve\xe2\x80\x9d members is not\ndirectly relevant here. We understand that the prospective nominee is retired from\nthe Regular Army rather than the Army Reserve. The reserve consists of three\ncategories, and the prospective nominee is not in any of them. See 10 U.S.C.\n\xc2\xa7 10141(a) (2006) (providing that \xe2\x80\x9c[e]ach Reserve shall be placed in one of [the\nfollowing] categories\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9ca Ready Reserve, a Standby Reserve, and a Retired\nReserve\xe2\x80\x9d); id. \xc2\xa7 10154 (defining \xe2\x80\x9cRetired Reserve\xe2\x80\x9d to include \xe2\x80\x9cReserves who are\nor have been retired under\xe2\x80\x9d various sections of the U.S. Code and \xe2\x80\x9cReserves who\nhave been transferred to the Retired Reserve\xe2\x80\x9d). He thus is not a \xe2\x80\x9creserve\xe2\x80\x9d \xe2\x80\x9cmember\nof the Armed Forces.\xe2\x80\x9d The applicability of section 8\xe2\x80\x99s prohibition therefore turns\non whether he remains an \xe2\x80\x9cactive\xe2\x80\x9d \xe2\x80\x9cmember of the Armed Forces.\xe2\x80\x9d\nNeither section 8 nor title 10 defines the term \xe2\x80\x9cactive\xe2\x80\x9d in the military context. It\ndoes not appear to be a term of art; rather, it has two plausible meanings in this\ncontext, both of which make it equivalent to more precise terms. \xe2\x80\x9cActive\xe2\x80\x9d can be\nshorthand for \xe2\x80\x9cactive duty,\xe2\x80\x9d which title 10 defines as \xe2\x80\x9cfull-time duty in the active\nmilitary service of the United States.\xe2\x80\x9d Id. \xc2\xa7 101(d)(1). \xe2\x80\x9cActive\xe2\x80\x9d also may, you\nhave explained, be used to mean \xe2\x80\x9cregular,\xe2\x80\x9d in contrast to \xe2\x80\x9creserve,\xe2\x80\x9d see generally\nid. \xc2\xa7 101(b)(12) (\xe2\x80\x9cThe term \xe2\x80\x98regular,\xe2\x80\x99 with respect to an enlistment, appointment,\ngrade, or office, means enlistment, appointment, grade, or office in a regular\ncomponent of an armed force.\xe2\x80\x9d), although this latter usage is colloquial and\nconsidered imprecise in the Department of Defense. If the former meaning applied\nin section 8, then that section\xe2\x80\x99s prohibition would extend only to active-duty and\nreserve members. A retired regular officer of the Army not on active duty is\nneither. If, however, the term \xe2\x80\x9cactive\xe2\x80\x9d were understood to mean \xe2\x80\x9cregular\xe2\x80\x9d in\nsection 8, then a retired officer of the Army would be subject to the prohibition,\nbecause, as explained, he remains a member of a regular component of the Armed\nForces\xe2\x80\x94the Regular Army.\nAlthough the answer is not beyond dispute, the evidence is stronger in favor of\nthe former meaning of \xe2\x80\x9cactive.\xe2\x80\x9d This reading finds support in the 1982 act that\nadded section 8 to the IG Act, in much of the relevant usage in title 10; in the\ngeneral approach of Congress to appointments of retired and reserve offices to\nnon-military positions in the Department of Defense, and in the traditional and\nconstitutionally-based presumption that the President has broad discretion in\nselecting persons for appointment as federal officers.\nFirst, Public Law 97-252, which added section 8 to the IG Act as part of a\nbroader statute concerning the military, repeatedly uses the word \xe2\x80\x9cactive\xe2\x80\x9d as part\nof the phrase \xe2\x80\x9cactive duty.\xe2\x80\x9d Department of Defense Authorization Act, 1983, Pub.\nL. No. 97-252, \xc2\xa7\xc2\xa7 401, 402(b), 501(b), 502, 1116, 96 Stat. 718, 725\xe2\x80\x9326, 750\n(1982). Only twice does the statute use the term \xe2\x80\x9cactive\xe2\x80\x9d by itself\xe2\x80\x94the first in\nadding the provision at issue, id. \xc2\xa7 1117(b), 96 Stat. at 751, and the second in\n\n141\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n\xe2\x80\x9cfind[ing] that . . . the National Guard and Reserve Forces of the United States are\nan integral part of the total force policy of the United States for national defense\nand need to be ready to respond, on short notice, to augment the active military\nforces in time of national emergency,\xe2\x80\x9d id. \xc2\xa7 1130(a)(1), 96 Stat. at 759 (emphasis\nadded). The latter usage might suggest that the term means \xe2\x80\x9cregular\xe2\x80\x9d forces, as\ncontrasted to \xe2\x80\x9cthe National Guard and Reserve Forces,\xe2\x80\x9d but seems better read as\nreferring more narrowly to those forces that are on active duty and thus presently\n\xe2\x80\x9cready to respond\xe2\x80\x9d should an emergency arise. Retired officers, even if they too\nmight be called upon in time of national emergency by being \xe2\x80\x9cordered to active\nduty,\xe2\x80\x9d 10 U.S.C. \xc2\xa7 688(a), (b)(1); see also id. \xc2\xa7 973(b)(1)(B) (referring to retired\nregular officer being called to active duty), presumably would not be presently\nready to respond in such a situation. The usage in section 1130 of the 1982 act\nthus, although not conclusively, suggests that Congress used \xe2\x80\x9cactive\xe2\x80\x9d as shorthand\nfor \xe2\x80\x9cactive duty.\xe2\x80\x9d It is reasonable to apply the same sense to the other use of the\nsame term in the 1982 statute. 1\nSecond, uses of the phrase \xe2\x80\x9cactive and reserve\xe2\x80\x9d and the term \xe2\x80\x9cactive service\xe2\x80\x9d in\ntitle 10 indicate, on the whole, that \xe2\x80\x9cactive\xe2\x80\x9d more commonly has the sense of\n\xe2\x80\x9cactive duty.\xe2\x80\x9d As to the phrase \xe2\x80\x9cactive and reserve,\xe2\x80\x9d which is the most relevant to\nthe usage in section 8 of the IG Act, section 167 of title 10, for example, speaks of\nthe \xe2\x80\x9cactive and reserve special operations forces of the armed forces stationed in\nthe United States\xe2\x80\x9d and says that they should be \xe2\x80\x9cassigned to the special operations\ncommand.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 167(b) (2006). And section 487 requires that certain\nreports include a description \xe2\x80\x9cidentify[ing] the active and reserve component units\nof the armed forces participating at the battalion, squadron, or an equivalent level\n(or a higher level) in contingency operations, major training events, and other\nexercises and contingencies of such a scale that the exercises and contingencies\nreceive an official designation.\xe2\x80\x9d Id. \xc2\xa7 487(b)(4). The references to \xe2\x80\x9cspecial\noperations forces\xe2\x80\x9d being \xe2\x80\x9cstationed\xe2\x80\x9d and \xe2\x80\x9cassigned\xe2\x80\x9d to a command, and to units\n\xe2\x80\x9cparticipating\xe2\x80\x9d in various \xe2\x80\x9coperations,\xe2\x80\x9d suggest that the \xe2\x80\x9cactive\xe2\x80\x9d forces and\ncomponent units being discussed are those on \xe2\x80\x9cactive duty.\xe2\x80\x9d Similarly, in the term\n\xe2\x80\x9cactive service\xe2\x80\x9d in title 10, \xe2\x80\x9cactive\xe2\x80\x9d has the sense of \xe2\x80\x9cactive duty\xe2\x80\x9d rather than\nreferring to anyone who is a member of the regular Armed Forces. Section 1175,\n\n1\n\nThe legislative history is largely inconclusive. The House Conference Report accompanying the\nfinal bill simply echoes the bill\xe2\x80\x99s terms: \xe2\x80\x9cBoth the House and Senate provisions would prohibit the\nappointment of a member of the Armed Forces, active or reserve, as Inspector General of the\nDepartment of Defense.\xe2\x80\x9d H.R. Conf. Rep. No. 97-749, at 176, reprinted in 1982 U.S.C.C.A.N. 1569,\n1581. The sponsor of the legislation in the Senate, Senator Roth, stated that his \xe2\x80\x9camendment would\nprovide for a civilian Inspector General in the Defense Department and would not permit any military\npersonnel to assume the Inspector General position.\xe2\x80\x9d 128 Cong. Rec. 9678 (May 12, 1982) (emphases\nadded). As we explain below, a retired Regular Army officer commonly would be understood as\n\xe2\x80\x9ccivilian\xe2\x80\x9d for purposes of appointment in the Department of Defense. But it is not clear in what sense\nSenator Roth was using the phrase \xe2\x80\x9cany military personnel.\xe2\x80\x9d\n\n142\n\n\x0cEligibility of Retired Army Officer to Be Inspector General of Department of Defense\n\nfor example, provides that a \xe2\x80\x9cmember entitled to voluntary separation incentive\npayments who is also entitled to basic pay for active or reserve service, or\ncompensation for inactive duty training, may elect to have a reduction in the\nvoluntary separation incentive payable for the same period in an amount not to\nexceed the amount of the basic pay or compensation received for that period.\xe2\x80\x9d Id.\n\xc2\xa7 1175(e)(2). The references to basic pay and separation, as well as the contrast\nbetween \xe2\x80\x9cactive . . . service\xe2\x80\x9d and \xe2\x80\x9cinactive duty training,\xe2\x80\x9d suggest that \xe2\x80\x9cactive\xe2\x80\x9d\nwas intended to mean the equivalent of \xe2\x80\x9cactive duty.\xe2\x80\x9d And section 942 speaks of\n\xe2\x80\x9ca person retired from the armed forces after 20 or more years of active service,\xe2\x80\x9d\nindicating that retirement and \xe2\x80\x9cactive service\xe2\x80\x9d are distinct. Id. \xc2\xa7 942(b)(4).\nSome provisions in title 10 are more ambiguous, particularly those referring to\n\xe2\x80\x9cactive and reserve components\xe2\x80\x9d of the various Armed Forces. Usage of \xe2\x80\x9cactive\xe2\x80\x9d\nin this phrase is the one where \xe2\x80\x9cactive\xe2\x80\x9d might most readily be an equivalent of the\nmore precise term \xe2\x80\x9cregular\xe2\x80\x9d discussed above: But even in this context, usage often\nsuggests a sense of \xe2\x80\x9cactive duty,\xe2\x80\x9d or at least that, even if the phrase \xe2\x80\x9cactive\ncomponent\xe2\x80\x9d technically includes persons retired from a regular component\n(because they remain members of the Armed Forces and are not in a reserve\ncomponent), its focus is on the active-duty members of that component. Section\n118, for example, refers to the \xe2\x80\x9cdischarge\xe2\x80\x9d of particular \xe2\x80\x9cmissions,\xe2\x80\x9d id.\n\xc2\xa7 118(d)(16) (requiring that a report submitted by the Secretary of Defense include\n\xe2\x80\x9c[t]he homeland defense and support to civil authority missions of the active and\nreserve components, including the organization and capabilities required for the\nactive and reserve components to discharge each such mission\xe2\x80\x9d); section 153\nrefers to the ability of active and reserve components to \xe2\x80\x9cexecute\xe2\x80\x9d a military\nstrategy, id. \xc2\xa7 153(d)(2)(G) (requiring an \xe2\x80\x9c[a]ssessment of the capabilities and\nadequacy of United States forces (including both active and reserve components)\nto successfully execute the national military strategy\xe2\x80\x9d), and to \xe2\x80\x9cthe readiness\xe2\x80\x9d of\nthose components, id. \xc2\xa7 153(d)(3)(B) (providing that \xe2\x80\x9cthe Chairman should make\nassumptions pertaining to the readiness of United States forces (in both the active\nand reserve components)\xe2\x80\x9d); and section 2815 refers to the \xe2\x80\x9cjoint use\xe2\x80\x9d of a\nconstruction project by active and reserve components, id. \xc2\xa7 2815(a) (defining\n\xe2\x80\x9cjoint use military construction project\xe2\x80\x9d to mean a construction project intended to\nbe used by \xe2\x80\x9cboth the active and a reserve component of a single armed force\xe2\x80\x9d or\n\xe2\x80\x9ctwo or more components (whether active or reserve components) of the armed\nforces\xe2\x80\x9d). On balance, then, the weight of the statutory evidence of usage seems to\nbe that Congress has used \xe2\x80\x9cactive\xe2\x80\x9d in the context of the Armed Forces either\nambiguously or as the equivalent of \xe2\x80\x9cactive duty,\xe2\x80\x9d and that, as \xe2\x80\x9cactive\xe2\x80\x9d is used in\nsection 8 of the IG Act, the better reading is that it is equivalent to \xe2\x80\x9cactive duty.\xe2\x80\x9d\nThird, other provisions governing the appointment of persons to non-military\noffices within the Department of Defense typically permit the appointment of both\nretired and reserve officers of the Armed Forces, establishing a background rule\nfor positions requiring presidential appointment and Senate confirmation that\n\xe2\x80\x9cactive duty\xe2\x80\x9d officers are the only ones excluded. Congress reasonably can be\n\n143\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntaken to have legislated in light of this background rule. And reading the ambiguous reference to \xe2\x80\x9cactive\xe2\x80\x9d in section 8 of the IG Act as meaning \xe2\x80\x9cactive duty\xe2\x80\x9d\nconforms the prohibition to this background rule as far as the text allows.\nNumerous sections in title 10 require that presidentially appointed, Senateconfirmed officers in the Department be \xe2\x80\x9cappointed from civilian life.\xe2\x80\x9d See, e.g.,\n10 U.S.C. \xc2\xa7\xc2\xa7 113(a) (2006) (Secretary), 132(a) (Deputy Secretary), 133(a) (Under\nSecretary for Acquisition, Technology, and Logistics), 134(a) (Under Secretary for\nPolicy), 135(a) (Under Secretary (Comptroller)), 136(a) (Under Secretary for\nPersonnel and Readiness), 137(a) (Under Secretary for Intelligence), 138(a)\n(Assistant Secretaries), 140(a) (General Counsel), 3013(a) (Secretary of the\nArmy), 5013(a) (Secretary of the Navy), 8013(a) (Secretary of the Air Force).\nYour office has informed us that the Department of Defense long has understood\nthat language to permit the appointment of retired and reserve officers not on\nactive duty. This understanding is supported by, and may well be based on, a 1961\nmemorandum of this office for your department, in which we concluded that a\nretired regular officer is not automatically disqualified from appointment to such\npositions, and that whether he is \xe2\x80\x9cin civilian life\xe2\x80\x9d depends on whether he has in\nfact \xe2\x80\x9cceased to engage in military service and ha[s] entered civil life and civil\npursuits.\xe2\x80\x9d Memorandum for Cyrus R. Vance, General Counsel, Department of\nDefense, from Harold F. Reis, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: Eligibility of a Retired Regular Officer of the Armed Forces to be\nAppointed to the Position of Under Secretary or Assistant Secretary of One of the\nMilitary Departments at 3 (Feb. 3, 1961) (internal quotation marks omitted). We\nadded that, when Congress does seek categorically to exclude retired regular\nofficers from appointment to an office, it does so \xe2\x80\x9cin unmistakable language,\xe2\x80\x9d id.,\nand \xe2\x80\x9cexpressly,\xe2\x80\x9d id. at 4.\nThis background rule is not unqualified, but typically there is only a brief waiting period immediately following retirement, or an exception for reserve or retired\nofficers called to extended active duty. Thus, consistent with this agency understanding, 5 U.S.C. \xc2\xa7 3326(b) provides that a \xe2\x80\x9cretired member of the armed forces\nmay be appointed to a position in the civil service in or under the Department of\nDefense . . . during the period of 180 days immediately after his retirement\xe2\x80\x9d only\nunder specific circumstances, including a \xe2\x80\x9cstate of national emergency.\xe2\x80\x9d Section\n973 of title 10 similarly prohibits an \xe2\x80\x9cactive duty\xe2\x80\x9d officer from \xe2\x80\x9chold[ing] . . . or\nexercis[ing] the functions of\xe2\x80\x9d a presidentially appointed and Senate-confirmed\n\xe2\x80\x9ccivil office in the Government of the United States,\xe2\x80\x9d 10 U.S.C. \xc2\xa7 973(b)(2)(A)\n(2006), and includes within the prohibition a retired or reserve officer who is\n\xe2\x80\x9cunder a call or order to active duty for a period in excess of 270 days,\xe2\x80\x9d id.\n\xc2\xa7 973(b)(1)(B) & (C).\nTaken together, these provisions indicate that Congress has broadly allowed\nretired as well as reserve members of the Armed Forces to hold Senate-confirmed\ncivilian positions in the Department of Defense, and in particular that both retired\n\n144\n\n\x0cEligibility of Retired Army Officer to Be Inspector General of Department of Defense\n\nand reserve members of the Armed Forces are in \xe2\x80\x9ccivilian life\xe2\x80\x9d so long as they are\nnot called to active duty. The IG for the Defense Department also holds a Senateconfirmed position. It is appropriate to read the prohibition in section 8 of the IG\nAct to be as consistent with this background rule as the text allows. To the extent\nthat section 8 unambiguously applies to \xe2\x80\x9creserve\xe2\x80\x9d members of the Armed Forces,\nit clearly overrides the background rule; but given the ambiguity of the use of\n\xe2\x80\x9cactive\xe2\x80\x9d in section 8, it is appropriate to read that term as consistent with the\nbackground rule, excluding \xe2\x80\x9cactive duty\xe2\x80\x9d members but not members retired from\nactive duty. (We need not here consider the application of section 8 or of 10\nU.S.C. \xc2\xa7 973 if a retired member serving as IG were called to active duty.)\nReading section 8 in light of this background rule also answers any conflict of\ninterest concerns that one might see in the appointment of a retired member of the\nArmed Forces to be IG for the Defense Department. For example, an IG who is\nretired from the Regular Army may have occasion to audit the Army\xe2\x80\x99s retirement\nprogram or, in the course of an audit, recommendation, or other analysis, to apply\naspects of the Uniform Code of Military Justice. But the same sorts of issues could\narise if such a person filled one of the myriad senior positions cited above, yet\nCongress has not deemed such attenuated potential \xe2\x80\x9cconflicts\xe2\x80\x9d to be disqualifying.\nThus, such concerns provide no ground for us to question our interpretation.\nFinally, the term \xe2\x80\x9cactive\xe2\x80\x9d as used in section 8 of the IG Act should, to the extent it is ambiguous, be read narrowly to protect the President\xe2\x80\x99s discretion under\nthe Constitution\xe2\x80\x99s Appointments Clause in selecting \xe2\x80\x9cOfficers of the United\nStates.\xe2\x80\x9d Congress may, as an incident of establishing an office, prescribe \xe2\x80\x9creasonable and relevant qualifications and rules of eligibility of appointees.\xe2\x80\x9d Myers v.\nUnited States, 272 U.S. 52, 129 (1926). The Attorney General has held this same\nview since well before the Court decided Myers. See Civil-Service Commission, 13\nOp. Att\xe2\x80\x99y Gen. 516, 520\xe2\x80\x9321 (1871). But the discretion in selecting and appointing\nthe best person to fill the office is the President\xe2\x80\x99s alone. See The Federalist No. 76,\nat 512 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (\xe2\x80\x9cIn the act of nomination his judgment alone would be exercised; and as it would be his sole duty to\npoint out the man, who with the approbation of the Senate should fill an office, his\nresponsibility would be as complete as if he were to make the final appointment.\xe2\x80\x9d).\nAs a result, qualifications imposed by Congress may \xe2\x80\x9cnot so limit selection and so\ntrench upon executive choice as to be in effect legislative designation,\xe2\x80\x9d Myers, 272\nU.S. at 128, and Congress\xe2\x80\x99s \xe2\x80\x9cright to prescribe qualifications is limited by the\nnecessity of leaving scope for the judgment and will\xe2\x80\x9d of the appointing authority,\nCivil-Service Commission, 13 Op. Att\xe2\x80\x99y Gen. at 520. Thus, \xe2\x80\x9c[c]ongressional\nattempts to limit the class of persons from whom the President may appoint the\nhighest officers of the government . . . raise serious constitutional concerns.\xe2\x80\x9d\nApplication of 28 U.S.C. \xc2\xa7 458 to Presidential Appointments of Federal Judges, 19\nOp. O.L.C. 350, 357 (1995); see FEC v. NRA Political Victory Fund, 6 F.3d 821,\n824 (D.C. Cir. 1993) (\xe2\x80\x9cCongressional limitations\xe2\x80\x94even the placement of burdens\xe2\x80\x94on the President\xe2\x80\x99s appointment power may raise serious constitutional\n\n145\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nquestions. . . . Presidents have often viewed restrictions on their appointment\npower not to be legally binding.\xe2\x80\x9d). In this case, to read \xe2\x80\x9cactive\xe2\x80\x9d as equivalent to\n\xe2\x80\x9cregular\xe2\x80\x9d would exclude from the President\xe2\x80\x99s consideration for appointment all\nretired regular military personnel\xe2\x80\x94in addition to all of the active duty and reserve\nmembers, whom section 8 plainly excludes. To expand the exclusion according to\nsuch a reading would presumably bar a large additional number of persons from\nconsideration, and Congress has not clearly indicated why it is relevant to\nfaithfully performing the duties of Defense Department IG that one be entirely\ndivorced from the regular Armed Forces. Indeed, that group may well contain\nsome of the candidates whose experience and special competence best qualify\nthem to perform those duties. By resolving the ambiguity in section 8 in favor of\nreading the word \xe2\x80\x9cactive\xe2\x80\x9d to mean \xe2\x80\x9cactive duty\xe2\x80\x9d rather than \xe2\x80\x9cregular,\xe2\x80\x9d we avoid\nunnecessarily constricting the President\xe2\x80\x99s discretion in appointing the candidate he\ndetermines to be best for the job.\nOur analysis does lead to one interpretive oddity: A retired regular officer could\nbe appointed as IG (so long as he had not been called to active duty), but a retired\nreserve officer could not (because he would still be a \xe2\x80\x9creserve\xe2\x80\x9d member of the\nArmed Forces, see 10 U.S.C. \xc2\xa7\xc2\xa7 10141 & 10154 (2006)). If Congress\xe2\x80\x99s desire was\nto bar from the position of IG persons who had \xe2\x80\x9ctoo much\xe2\x80\x9d connection to the\nmilitary, this result may seem counterintuitive, as one assumes that a person\nretired from a regular rather than reserve component would have the greater\nconnection. This result is a consequence of the fact that \xe2\x80\x9creserve\xe2\x80\x9d has a clear\nstatutory meaning whereas \xe2\x80\x9cactive\xe2\x80\x9d does not. Congress\xe2\x80\x99s decision to use language\nbarring any \xe2\x80\x9cmember of the Armed Forces, active or reserve,\xe2\x80\x9d rather than the more\ncommon language requiring that the appointee be \xe2\x80\x9cfrom civilian life,\xe2\x80\x9d does\nsuggest an intention to exclude more persons than the latter, ordinary requirement\ndoes, but our reading of \xe2\x80\x9creserve\xe2\x80\x9d gives effect to that intention: Persons on active\nduty are excluded, per the usual background rule, and, beyond that, persons who\nare reserve members also are excluded. In addition, if we were to read \xe2\x80\x9cactive\xe2\x80\x9d as\nequivalent to \xe2\x80\x9cregular,\xe2\x80\x9d then, as suggested above, the phrase \xe2\x80\x9cactive or reserve\xe2\x80\x9d in\nsection 8, which is added to the phrase \xe2\x80\x9cmember of the Armed Forces,\xe2\x80\x9d would\nserve no clear purpose, contrary to normal rules of construction.\nFor these reasons, we conclude that section 8 of the IG Act does not preclude\nappointment of a retired Regular Army officer not on active duty as IG for the\nDepartment of Defense.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n146\n\n\x0c'


b'Immigration Emergency Fund\nThe $20 million that the Immigration and Naturalization Act makes available, in the Immigration\nEmergency Fund, for reimbursement o f states and localities for certain immigration-related assist\xc2\xad\nance is available annually, not just one time during the life of the IEF.\n\nJanuary 26, 1996\nM e m o r a n d u m O p in io n\nA s s is t a n t A t t o r n e y G e n e r a l\n\nfo r t h e\n\nfo r\n\nA d m i n is t r a t io n\n\nYou have asked us whether the $20 million in the Immigration Emergency Fund\nfor reimbursement of states and localities for certain immigration-related assist\xc2\xad\nance is available annually or whether a total of $20 million is available from\nthe account for such expenses. We conclude that the $20 million is available annu\xc2\xad\nally.\nSection 404(b) of the Immigration and Nationality Act, see 8 U.S.C. \xc2\xa7\xc2\xa7 1101\xe2\x80\x94\n1537, created an Immigration Emergency Fund (\xe2\x80\x9c IEF\xe2\x80\x9d or \xe2\x80\x9c fund\xe2\x80\x9d ) that could\nbe drawn upon to increase the Immigration and Naturalization Service\xe2\x80\x99s (\xe2\x80\x9c INS\xe2\x80\x9d )\nenforcement activities, and to reimburse states and localities in providing assist\xc2\xad\nance, as requested by the Attorney General in meeting an immigration emergency\ndeclared by the President. Immigration Reform and Control Act of 1986, Pub.\nL. No. 99-603, \xc2\xa7113, 100 Stat. 3359, 3383 (codified as amended at 8 U.S.C.\n\xc2\xa71101 note). A 1990 amendment expanded the use of the IEF by providing in\nsections 404(b)(2)(A)-(B) that up to $20 million in the IEF shall be available\nfor the reimbursement of states and localities 1 \xe2\x80\x9c providing assistance as required\nby the Attorney General\xe2\x80\x9d when asylum applications in any INS district increase\nby at least 1000, when the lives, property, safety, or welfare of state or local\nresidents are endangered, or \xe2\x80\x9c in any other circumstances as determined by the\nAttorney General.\xe2\x80\x9d Immigration Act of 1990, Pub. L. No. 101-649, \xc2\xa7705, 104\nStat. 4978, 5087. The Attorney General may make such expenditures without a\npresidential determination that an immigration emergency exists. \xc2\xa7 404(b)(2)(C).\nCongress created the IEF as a \xe2\x80\x9c no-year fund.\xe2\x80\x9d 2 As such, the appropriations\nto the IEF are not limited to use in any specific fiscal year and the funds within\nthe IEF remain available for its purposes until expended. In stating that there\n\xe2\x80\x9c are authorized to be appropriated (for fiscal year 1991 and any subsequent fiscal\nyear) to an immigration emergency fund . . . an amount sufficient to provide\n\'T h e specific reference to \xe2\x80\x9c all localities\xe2\x80\x9d in section 404(b)(2)(B), given the additional reference to section\n404(b)(2)(A), must be read to encompass both states and localities.\n2The standard language used to make a \xe2\x80\x9c no-year\xe2\x80\x9d appropriation is \xe2\x80\x9c \xe2\x80\x98to remain available until expended.\xe2\x80\x99 \xe2\x80\x9d\nOffice o f General Counsel, General Accounting Office, 1 Principles o f Federal Appropriations Law 5 -6 (2d ed.\n1991). W hen the EEF was first funded, in 1989, Congress appropriated $35 million \xe2\x80\x9c [f]or necessary expenses o f\nthe immigration emergency fund . . . to remain available until expended." Departments of Commerce, Justice, and\nState, the Judiciary, and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-162, 103 Stat. 988, 1000\n(1989).\n\n23\n\n\x0cOpinions o f the Attorney General in Volume 20\n\nfor a balance of $35,000,000\xe2\x80\x9d in the IEF, Congress appears to have contemplated\nthat it would appropriate money from time to time in subsequent fiscal years to\nreplenish the fund to provide for a balance of $35 million. \xc2\xa7 404(b)(1). Indeed,\nin subsequent years, Congress has appropriated monies that have totalled far more\nthan $35 million. Congress appropriated $35 million to the IEF in 1989;3 $6 mil\xc2\xad\nlion in 1993;4 and $75 million in 1994.5\nSection 404(b)(2)(B) states that \xe2\x80\x9c [n]ot more than $20,000,000 shall be made\navailable for all localities under this paragraph.\xe2\x80\x9d \xe2\x80\x9c This paragraph\xe2\x80\x9d refers to sec\xc2\xad\ntion 404(b)(2)(A), which states that \xe2\x80\x9c [f]unds which are authorized to be appro\xc2\xad\npriated by paragraph (1), subject to the dollar limitation contained in subparagraph\n(B), shall be available\xe2\x80\x9d for the three purposes for which reimbursement to states\nand localities is permitted. The reference in that provision to \xe2\x80\x9c paragraph (1),\xe2\x80\x9d\nin turn, refers back to section 404(b)(1), the provision that anticipates appropria\xc2\xad\ntions in an unlimited number of subsequent fiscal years. Moreover, section\n404(b)(1), by its terms, provides that the monies appropriated to the IEF are \xe2\x80\x9c to\nbe used to carry out paragraph (2),\xe2\x80\x9d (for state and local assistance to the Attorney\nGeneral) in addition to the specified uses in the case of an emergency declared\nby the President.\nBecause sections 404(b)(1), 404(b)(2)(A), and 404(b)(2)(B) are so intertwined,\nthey must be read together as part of Congress\xe2\x80\x99s overall plan to establish an on\xc2\xad\ngoing fund into which it would appropriate monies from time to time in any fiscal\nyear it deems appropriate, to be used by the President and Attorney General for\nspecified purposes. See SEC v. Sloan, 436 U.S. 103, 121-23 (1978). We believe\nthat the language of section 404 is properly interpreted to provide that the $20\nmillion is available in any fiscal year when the IEF\xe2\x80\x99s balance permits, and not\njust one time during the life of the IEF.6\nAlthough we conclude that this construction is the most sensible reading of\nthese provisions of section 404, we acknowledge that the question is not free\nfrom doubt because the provisions are less than explicit. Congress tied sections\n404(b)(2)(A) and (B) to section 404(b)(1), thus indicating its intent that the $20\nmillion be available for fiscal year 1991 and in any number of subsequent fiscal\nyears. But it did not expressly state that the availability of the $20 million for\nstates and localities is annual. Viewed in isolation, the phrase in section\n3 See Departments o f Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990,\n103 Stat. at 1000.\n4 See Departments o f Com m erce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1994,\nPub. L. No. 103-121, 107 Stat. 1153,1161 (1993).\n5 See Departments o f Com m erce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995,\nPub. L. No. 103-317, 108 Stat. 1724, 1732 (1994). In 1995, C ongress rescinded $45 million of that $75 million\nappropriation. Em ergency Supplemental Appropriations and Rescissions for the Department o f Defense to Preserve\nand Enhance M ilitary Readiness A ct of 1995, Pub. L. No. 104-6, 109 Stat. 73, 83.\n6 W e note that the O ffice o f the General Counsel, Office o f M anagement and Budget, also interprets section 404\nlo make the $20 m illion for state and local assistance available on an annual basis. Telephone conversation between\nTeresa W ynn Roseborough, D eputy Assistant Attorney G eneral, Office o f Legal Counsel, and Rosalyn Rettman,\nAssociate General Counsel, O ffice o f Management and Budget (Jan. 19, 1996).\n\n24\n\n\x0cImmigration Emergency Fund\n\n404(b)(2)(B) that \xe2\x80\x9c [n]ot more than $20,000,000 shall be made available for all\nlocalities\xe2\x80\x9d might be read to put an overall limit on the amount of monies going\nto states and localities. However, as we explain above, when the statutory limita\xc2\xad\ntion is viewed in its entirety \xe2\x80\x94 \xe2\x80\x9c under this paragraph\xe2\x80\x9d \xe2\x80\x94 and in context with the\nnecessary references to other pertinent parts of section 404, it is most reasonably\ninterpreted to provide for annual availability.\nTo the extent some ambiguity in the statute exists, the issue is resolved by\nthe legislative history on the establishment and functioning of the fund. A report\naccompanying H.R. 4300, 101st Cong. (1990), the enabling legislation for the\nIEF, states that:\nUnder current law, the President must declare that an immigration\nemergency exists before any amounts in the fund can be spent. H.R.\n4300 would require that amounts in the fund up to $20 million\nannually be used to reimburse state and local governments if the\nnumber of asylum applicants has increased by 1,000 during any\ncalendar quarter after January 1, 1989.\nH.R. Rep. No. 101-723, pt. 1, at 86 (1990) (emphasis added), reprinted in 1990\nU.S.C.C.A.N. 6710, 6766. This language demonstrates that Congress intended the\n$20 million for states and localities to be available annually, not just one time\nduring the life of the IEF. Thus, it supports our conclusion that under the most\nreasonable reading of the statute, the $20 million available for states and localities\nunder section 404(b)(2)(B) of the Immigration and Naturalization Act is available\non an annual basis.\nTERESA WYNN ROSEBOROUGH\nDeputy A ssistant Attorney General\nOffice o f Legal Counsel\n\n25\n\n\x0c'