b'Authority of the United States to Enter Settlements Limiting\nthe Future Exercise of Executive Branch Discretion\nThe A ttorney G eneral m ay en ter into settlem ents that w ould lim it the future exercise o f executive\nb ran ch d iscretion w hen that discretion h a s been conferred upon the executive branch pursuant to\nstatu te and there exists no independent statutory lim itation on the authority o f the executive branch\nto so lim it the future exercise o f that discretion.\nT he A ttorney G en eral\xe2\x80\x99s pow er to enter into settlem ents that w ould lim it the future exercise o f discretion\nth at has been conferred upon the executive branch directly by the C onstitution is constrained by\nthe very constitutional provisions that vest discretionary authority in the P resident and therefore\nnecessarily p reclude the President fro m subjecting th e exercise o f that discretion to the control\no f the o th er party to a settlem ent or to ju d icial enforcem ent.\nA rticle III o f the C o nstitution does not preclude the executive branch from entering into judicially\nenforceable, d iscretion lim iting settlem ents as a general m atter o r bar federal courts from entering\nco n sen t decrees that lim it executive b ran ch discretion w henever such decrees purport to provide\nb ro ad er relief than a court could have aw arded pursuant to an ordinary injunction. A rticle III lim ita\xc2\xad\ntio n s m ay arise, how ever, when, for exam ple, the term s o f the governm ental prom ise are too am or\xc2\xad\np h ous to be susceptible to Article III fed eral judicial enforcem ent.\nA lthough there m ay be sound policy reaso n s to reaffirm A ttorney G eneral M eese\xe2\x80\x99s 1986 policy regu\xc2\xad\nlating the use o f d iscretion limiting settlem ents, the concerns that led to its adoption do not, in\ngeneral, am ount to legally binding lim itations on the scope o f the executive branch\xe2\x80\x99s pow er to\nsettle litigation in a m anner that may lim it the future exercise o f executive branch discretion.\n\nJune 15, 1999\nM e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l\n\nThis memorandum addresses the degree to which federal law places restrictions\non the authority of the United States to enter into litigation settlements that purport\nto limit the exercise of executive branch discretion.1 It focuses primarily on the\nconcerns about the legality of discretion-limiting settlements that led to the adop\xc2\xad\ntion of Attorney General Meese\xe2\x80\x99s 1986 policy regulating the use of such settle\xc2\xad\nments by attorneys acting under the supervision of the Attorney General. In doing\nso, the memorandum addresses a central legal tenet of Attorney General Meese\xe2\x80\x99s\npolicy: that it is unconstitutional for the courts to enter consent decrees limiting\nthe exercise of executive branch discretion where the courts would not have had\nthe power to order such relief had the matter been litigated.\nAttorney General Meese issued the 1986 policy on consent decrees and settle\xc2\xad\nment agreements pursuant to his litigation and settlement authority. The policy\n\xe2\x80\x98 For purposes o f this memorandum, the term \xe2\x80\x9c settlements\xe2\x80\x9d is employed to refer to both settlement agreements\nand consent decrees. There are, however, practical and legal distinctions between settlement agreements and consent\ndecrees. Settlement agreements are simply private contracts, which may be enforced upon breach. Consent decrees\nare court orders, which may be enforced immediately by contempt and may be modified over the objections of\nthe parties to them. See U nited States v Sw ift & Co , 286 U S. 106 (1932); Timothy Stoltzfus Jost, Com mentary\nThe Attorney G eneral\'s Policy on Consent Decrees and Settlement Agreements, 39 Admin. L. Rev 101, 109-10\n(1987)\n\n126\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nrequires the Attorney General, the Deputy Attorney General, or the Associate\nAttorney General, to approve proposed consent decrees or settlement agreements\nthat:\n(1) commit the executive branch to expend unappropriated funds\nor seek appropriations from Congress;\n(2) commit the executive branch to promulgate, amend, or revise\nregulations; or\n(3) divest discretionary power granted by Congress or the Constitu\xc2\xad\ntion to respond to changing circumstances, to make policy or mana\xc2\xad\ngerial choices, or to protect the rights of third parties.2\nDetermining whether a settlement of the type identified in the Meese Policy\nconforms to federal law requires a close analysis of the relevant statutory and\nconstitutional provisions. A context-specific inquiry is beyond the scope of this\nmemorandum, however, and thus our intent is to set forth the basic approach that\nshould guide an evaluation of the legal validity of executive branch settlements\nthat purport to limit the exercise of executive branch discretion.3\nOur analysis proceeds with a summary of our legal conclusions. We then outline\nour understanding of the basic parameters of the Meese Policy and the types of\nsettlements to which it is directed. Next, we set forth the general legal principles\nthat establish the background against which the types of settlements identified\nin the Meese Policy must be evaluated. Finally, we apply the general legal prin\xc2\xad\nciples to the types of settlements to which the Meese Policy is directed.\nI. Summary of Conclusions\nDue to the length of this memorandum, it is useful to state our conclusions\nin summary form at the outset. In general, we conclude that the Attorney General\nis free to enter into settlements that would limit the future exercise of executive\nbranch discretion when that discretion has been conferred upon the executive\nbranch pursuant to statute and there exists no independent statutory limitation on\n2 See Memorandum for All Assistant Attorneys General and All United States Attorneys, from Edwin Meese III,\nAttorney General, R e \xe2\x80\xa2 Department Policy Regarding Consent Decrees and Settlement Agreements at 3, 4 (Mar. 13,\n1986) ( \xe2\x80\x9c Meese Policy\xe2\x80\x9d ). Regulations reflecting the Meese Policy are set forth at 28 C F R \xc2\xa7\xc2\xa70.160-0.163 (1998)\n3 \xe2\x80\x9c General principles may be drawn from dictum in cases dealing with the constitutional prohibition on state\nlaws impairing the obligation o f contracts, U.S Const art. 1, \xc2\xa7 10, from cases upholding one administration\xe2\x80\x99s decision\nto change a policy adopted by its predecessors; from cases limiting the power of the judiciary, in the absence of\nany contract, to direct the Executive in the exercise of its discretion; and from cases holding that particular contracts\nmade by one Administration are binding on its successors However, these broad principles might point to different\nresults in different contexts, depending on the legal nghts o f the private party, the type of policymaking discretion\ninvolved, and the extent to which, and for how long, the government\xe2\x80\x99s discretion is curtailed.\xe2\x80\x9d National Audubon\nSoc\xe2\x80\x99y, Inc. v. Watt, 678 F.2d 299, 305 n 12 (D.C. C ir 1982)\n\n127\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe authority of the executive branch to so limit the future exercise of that discre\xc2\xad\ntion. Significant general statutory limitations that, among others, must be consid\xc2\xad\nered in evaluating the lawfulness of possible discretion-limiting settlement terms\nare those contained in the Administrative Procedure Act, which sets forth restric\xc2\xad\ntions on the manner in which the executive branch may adopt and revise regu\xc2\xad\nlatory rules and procedures, and the Anti-Deficiency Act, which restricts the\nauthority of executive branch actors to incur financial obligations on behalf of\nthe United States. With respect to settlements that would limit the future exercise\nof discretion that has been conferred upon the executive branch directly by the\nConstitution, such as the discretion that is conferred upon the President by the\nPardon Power or the Recommendations Clause, the scope of the Attorney Gen\xc2\xad\neral\xe2\x80\x99s settlement power is constrained by the very constitutional provisions that\nvest discretionary authority in the President and therefore necessarily preclude the\nPresident from subjecting the exercise of that discretion to the control of the other\nparty to a settlement or to judicial enforcement.\nIn addition, we conclude that Article III may place independent constitutional\nlimitations on the power of federal courts to enforce settlements that the Attorney\nGeneral otherwise would have the legal authority to enter. These limitations may\narise when, for example, the terms of the governmental promise are too amorphous\nto be susceptible to Article III federal judicial enforcement. We do not believe,\nhowever, that Article HI precludes the executive branch from entering into\njudicially enforceable discretion limiting settlements as a general matter or that\nArticle III bars federal courts from entering consent decrees that limit executive\nbranch discretion whenever such decrees purport to provide broader relief than\na court could have awarded pursuant to an ordinary injunction.\nFrom these general conclusions, it is possible to set forth in summary form\nthe main determinations that we have reached regarding the extent to which fed\xc2\xad\neral law would preclude discretion-limiting settlements of the type that are subject\nto the requirements of the Meese Policy.\nFirst, the Meese Policy in sections 11(A)(2) and 11(B)(2) raises concerns about\nthe authority of the executive branch to enter into settlements that would commit\nthe United States to expend unappropriated funds or seek appropriations from\nCongress. See Meese Policy at 3-4. We conclude that there is no per se constitu\xc2\xad\ntional bar against executive branch settlements that obligate the future expenditure\nof unappropriated funds. As the Antideficiency Act itself makes clear, Congress\nmay authorize the executive branch to obligate funds in advance of appropriations.\nThus, settlements that incur such obligations are permissible so long as there is\nstatutory authority, whether explicit or implicit, for the assumption of the future\nfinancial obligation. Implicit authority to assume such obligations should not be\nreadily inferred from general statutory authority, however, nor should the interest\nin settling litigation be thought in and of itself, at least as a general matter, to\njustify a construction of general statutory authority that would suffice to permit\n128\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nsuch an obligation to be incurred. We also conclude that the Constitution does\nlimit the ability of the executive branch to settle litigation on terms that would\nrequire executive branch officers to seek appropriations from Congress. This\nlimitation arises primarily from the Recommendations Clause.\nSecond, the Meese Policy in sections 11(A)(1) and 11(B)(1) raises concerns about\nthe authority of the executive branch to enter into settlements that would convert\nthe otherwise discretionary authority of executive branch agencies to promulgate,\namend, or revise regulations into a mandatory regulatory duty. See Meese Policy\nat 3. We conclude that there is no per se constitutional prohibition against such\nsettlements, and that, in the main, the executive branch\xe2\x80\x99s authority to enter into\nsettlements that impose such limitations will be determined by the statutes that\ngovern the executive branch agency on whose behalf the settlement would be\nentered. We emphasize that the Administrative Procedure Act generally limits the\nmanner by which executive branch agencies may adopt, amend, or revise regu\xc2\xad\nlatory rules and procedures, and thus that it will be important to ensure that the\nterms of any settlement limiting the otherwise discretionary regulatory authority\nof an executive branch agency conform to the terms of that Act.\nThird, the Meese Policy in sections 11(A)(3) and 11(B)(2) raises concerns about\nthe authority of the executive branch to divest discretionary power granted by\nCongress or the Constitution to respond to changing circumstances, to make policy\nor managerial choices, or to protect the rights of third parties. See Meese Policy\nat 3\xe2\x80\x944. Here, we conclude that there is no per se constitutional prohibition against\nsettlements of this type that divest discretionary power granted by Congress, and\nthat, in the main, the executive branch\xe2\x80\x99s authority to enter into such settlements\nwill be determined by the statutes that govern the executive branch agency on\nbehalf of which the settlement would be entered. However, the Constitution does\nbar settlements that would divest the executive branch of discretionary power that\nhas been conferred directly by the Constitution, such as the Recommendations\nPower or the Pardon Power. In addition, while the executive branch may not settle\non terms that would infringe the constitutional rights of third parties, there is no\nindependent constitutional limitation on the authority of the executive branch to\nenter settlements that would constrain the federal government\xe2\x80\x99s discretion to pro\xc2\xad\ntect the non-constitutional interests of third parties. There may be, however, statu\xc2\xad\ntory provisions that protect the interests of third parties, such as the notice and\ncomment requirements of the Administrative Procedure Act, that limit the settle\xc2\xad\nment authority of the executive branch.\nIn sum, our review leads us to conclude that there are statements in the Meese\nPolicy that appear to adopt an overly narrow view of the legal authority of the\nAttorney General to settle litigation. In addition, we conclude the policy\xe2\x80\x99s distinc\xc2\xad\ntion between the rules that govern settlement agreements and consent decrees is\nnot one that a concern about the legal authority of Article III federal courts would\njustify. For these reasons, we conclude that while there may be sound policy rea\xc2\xad\n129\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nsons to reaffirm the Meese Policy, the concerns that led to its adoption do not,\nin general, amount to legally binding limitations on the scope of the executive\nbranch\xe2\x80\x99s power to settle litigation in a manner that may limit the future exercise\nof executive branch discretion.\nII. Background Assumptions\nBefore proceeding to a consideration of the legal principles that define the scope\nof the Attorney General\xe2\x80\x99s settlement power, it is useful to set forth the background\nassumptions that govern our understanding of the Meese Policy and that underlie\nour analysis of the lawfulness of the types of settlements that are subject to the\nrequirements of that policy.\nAs we have suggested, it is not entirely clear whether the restrictions set forth\nin the Meese Policy are rooted in policy or legal concerns. The Meese Policy\ndoes not by its terms appear to be premised on a conclusion that the Constitution\nor other federal law precludes the Attorney General from entering into settlements\nthat would limit the future exercise of executive branch discretion. The Meese\nPolicy does not actually preclude the United States from entering into any settle\xc2\xad\nments; it simply requires that certain settlements \xe2\x80\x94 i.e., those that purport to limit\nexecutive branch discretion \xe2\x80\x94 be approved by the Attorney General, the Deputy\nAttorney General, or the Associate Attorney General. See Meese Policy at 4. In\nthis respect, the Meese Policy appears to reflect a policy judgment about how\nsettlements decisions of certain types should be made within the Department of\nJustice (\xe2\x80\x9c Department\xe2\x80\x9d ) rather than a legal conclusion regarding the extent of the\nAttorney General\xe2\x80\x99s lawful power to enter into certain kinds of settlements.\nNevertheless, there are some indications that the Meese Policy is rooted in legal\nconcerns regarding the constitutionality of discretion-limiting executive branch\nsettlements. The policy declares that it is intended to respond to concerns that,\nin some cases, executive branch settlements have improperly authorized federal\ncourts to oversee the exercise of executive branch discretion and thereby have\ninfringed upon executive branch prerogatives in violation of the constitutional\nseparation of powers. See Meese Policy at 1. Furthermore, the Meese Policy\nasserts that it is designed to \xe2\x80\x9c ensure that litigation is terminated in a manner\nconsistent with the proper roles of the Executive and the courts.\xe2\x80\x9d Id.\', see also\nTranscript of Press Conference with Charles J. Cooper, Assistant Attorney Gen\xc2\xad\neral, Office of Legal Counsel at 2-3 (Mar. 21, 1986) (\xe2\x80\x9c Cooper Press Con\xc2\xad\nference\xe2\x80\x9d ).\nWhile there may be sound policy reasons for centralizing the process for\napproving certain lawful compromises that would limit executive branch discre\xc2\xad\ntion, see Stoltzfus Jost, supra at 105-06, this memorandum considers only the\ndegree to which the Constitution, or other federal law, as a general matter, limits\nthe use of settlements by the executive branch that purport to circumscribe the\n130\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nexercise of executive branch discretion. Thus, the memorandum is intended to\nmake clear the degree to which the limitations imposed by the Meese Policy are\nproperly rooted in constitutional or other legal concerns rather than to set forth\nthe preferred departmental policy for the use of such settlements.\nFor purposes of setting forth the nature of these legal limitations, it is important\nto describe the type of agreements to which we believe the Meese Policy is\ndirected and to which the following analysis applies. We understand the Meese\nPolicy to be concerned with, and we accordingly address, those settlements that\nare enforceable by Article III courts and that in some meaningful respect bind\nthe exercise of executive branch discretion. We therefore do not consider the limits\nthat federal law may place on the Attorney General\xe2\x80\x99s authority to enter into agree\xc2\xad\nments that may be enforced in non-Article III tribunals; that are not intended to\nbe legally binding in any adjudicative forum; or that provide as the sole remedy\nfor governmental breach the re-institution of the litigation in its entirety. See\nMemorandum for Anthony C. Liotta, Acting Assistant Attorney General, Land\nand Natural Resources Division, from Larry L. Simms, Acting Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Consent Judgment in Environmental\nDefense Fund, et al. v. Costle at 2 & n.* (Mar. 30, 1981) (\xe2\x80\x9c Costle Memo\xe2\x80\x9d );\nMeese Policy at 4 (stating that \xe2\x80\x9c revival of the suit\xe2\x80\x9d shall be \xe2\x80\x9c the sole remedy\xe2\x80\x9d\nfor the executive branch\xe2\x80\x99s failure to comply with the terms of a settlement agree\xc2\xad\nment that limits the exercise of executive branch discretion). Agreements of these\ntypes either impose no legally meaningful constraint on executive branch discre\xc2\xad\ntion, Costle Memo at 2, or raise separation of powers concerns that arc distinct\nfrom the ones that are identified by the Meese policy. See, e.g., Constitutional\nLimitations on Federal Government Participation in Binding Arbitration, 19 Op.\nO.L.C. 208 (1995) (\xe2\x80\x9c Binding Arbitration") (discussing constitutional concerns\nraised by giving binding effect to the decisions of congressionally controlled\narbitration panels).\nMoreover, although virtually every judicially enforceable executive branch\nsettlement limits the exercise of executive branch discretion to some degree, we\naddress here only those executive branch settlements that render ordinarily \xe2\x80\x98\xe2\x80\x98revisable\xe2\x80\x9d executive branch discretion less \xe2\x80\x9c revisable.\xe2\x80\x9d See Peter M. Shane, Federal\nPolicy Making by Consent Decree: An Analysis o f Agency and Judicial Discretion ,\n1987 U. Chi. Legal F. 241, 243^46.4 We have limited our analysis in this way\nbecause we understand the Meese Policy\xe2\x80\x99s limitations to be directed only at settle\xc2\xad\nments of this type. An example of a settlement that would render ordinarily revis\xc2\xad\nable executive branch discretion less revisable would be a binding promise by\nan agency to investigate a particular issue as a possible subject for rule making\nor enforcement. An agency\xe2\x80\x99s decision whether to conduct such an investigation\nis normally both discretionary and revisable; absent a statutory mandate, the\n4 We borrow the word \xe2\x80\x9c revisable\xe2\x80\x9d from Professor Shane, who uses the term to refer to those executive branch\ndeterminations that are ordinarily within the discretion of the executive branch actor who makes them See id\n\n131\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nagency generally need not investigate, and the agency is generally free to change\ncourse and halt the investigation if it later decides that continued investigation\nis unwarranted. See Chevron U.S.A., Inc. v. Natural Resources Defense Council,\nInc., 467 U.S. 837 (1984) (discussing executive branch agency authority to revise\nregulations); Heckler v. Chaney, 470 U.S. 821 (1985) (discussing executive\nbranch\xe2\x80\x99s enforcement discretion).\nA settlement that purported to restrict the agency\xe2\x80\x99s future investigatory discre\xc2\xad\ntion, by, for example, requiring the agency to pursue a particular investigation,\nwould, however, operate to transform the otherwise revisable exercise of executive\nbranch discretion over investigations into a legally enforceable obligation to inves\xc2\xad\ntigate. See Shane, supra at 245. The agency would have agreed to an enforceable\nsettlement that would require it to undertake certain investigations that it would\notherwise possess the statutory authority to forego as a matter of discretion. This\nmemorandum focuses on settlements that have this type of consequence.\nWe note that, by way of contrast, many discretionary governmental decisions\nare not normally subject to revision once they have been made. We do not address\nsettlements that contain promises to undertake such ordinarily non-revisable\ndiscretionary action, i.e., settlements that have the consequence of binding the\ngovernment to adhere to the terms of a choice that, although itself discretionary,\nis ordinarily not subject to revision once it has been made. For example, a decision\nby the government to pay money to compensate a tort victim in a settlement does\nnot constrain the exercise of revisable executive discretion as we use that concept\nhere. Under ordinary principles of contract law, the government\xe2\x80\x99s initial decision\nwhether it should pay money in return for the consideration that a plaintiff will\nterminate a suit is a discretionary one. The government\xe2\x80\x99s decision to make the\npromise to pay, however, is normally binding on the United States once it has\nbeen made and the consideration has been received in return. See, e.g., Lynch\nv. United States, 292 U.S. 571 (1934) (government contract binding); Perry v.\nUnited States, 294 U.S. 330 (1935) (same). A settlement to pay a tort victim\nmoney in consideration of the termination of the suit does not, therefore, constrain\nthe executive branch\xe2\x80\x99s discretion to make the initial discretionary judgment as\nto whether the settlement should be effected. It constrains only the government\xe2\x80\x99s\ncapacity to decline to provide a payment that it has, in its discretion, consented\nto make in return for the consideration that it has received from the other party\nto the settlement. As one commentator has noted, the \xe2\x80\x9c fact that a promise to\npay damages arises in the specific contractual context of settling a lawsuit does\nnot affect the ordinary status of the contracting decision as one that is nonrevisable.\xe2\x80\x9d Shane, supra at 245.\nIn this respect, executive branch settlements that purport to bind the exercise\nof revisable policymaking discretion are distinct from ordinary executive branch\ntort settlements, just as government contracts purporting to constrain the exercise\nof regulatory authority are distinct from ordinary government supply contracts.\n132\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nSee United States v. Winstar Corp., 518 U.S. 839, 913 (1996) (Breyer, J. concur\xc2\xad\nring) (distinguishing between types of government contracts); see Jeremy A.\nRabkin & Neal E. Devins, Averting Government by Consent Decree: Constitu\xc2\xad\ntional Limits on the Enforcement o f Settlements with the Federal Government,\n\n40 Stan. L. Rev. 203, 227 (1987) (discussing the analogy between government\nsettlements and government contracts); see also Michael W. McConnell, Why\nHold Elections? Using Consent Decrees to Insulate Policies from Political\nChange, 1987 U. Chi. Legal F. 295, 322-25 (same). As a result, we do not believe\n\nthat ordinary tort settlements that take the form of a binding promise by the United\nStates to pay money to a plaintiff in order to terminate a suit implicate the kind\nof separation of powers concerns that are identified by the Meese Policy.\nWe understand that settlements of the type identified in the Meese Policy typi\xc2\xad\ncally arise when executive branch agencies are defendants. See Memorandum for\nthe Associate Attorney General, from Deval L. Patrick, Assistant Attorney Gen\xc2\xad\neral, Civil Rights Division, Re: Department of Justice Policy Regarding Consent\nDecrees at 1 (Nov. 1 1994) ( \xe2\x80\x9c Patrick Memo\xe2\x80\x9d ); see also Cooper Press Conference\nat 11-12. In some cases, however, they may also arise in government initiated\nactions. See United States v. Board of Educ., 744 F.2d 1300, 1301 (7th Cir. 1984)\n(each party to the agreement assumed obligation to \xe2\x80\x9c make every good faith\neffort\xe2\x80\x9d to fund desegregation plan), cert, denied, 471 U.S. 1116 (1985); Patrick\nMemo at 4.\nFinally, we note that the Meese Policy draws a distinction between the authority\nof the executive branch to enter into consent decrees, which are agreements that\nare formally entered as judicial orders, and the authority of the executive branch\nto enter into settlement agreements, which are merely contracts that are judicially\nenforceable. Thus, while the Meese Policy generally limits the settlement authority\nof the executive branch in the manner set forth above, it describes the limitations\nthat apply to consent decrees differently from those that apply to settlement agree\xc2\xad\nments. For example, the Meese Policy states that it is \xe2\x80\x9c constitutionally impermis\xc2\xad\nsible for the courts to enter consent decrees containing [certain discretion limiting\nprovisions] where the courts would not have had the power to order such relief\nhad the matter been litigated,\xe2\x80\x9d but that the Attorney General retains plenary\nauthority to enter into most settlement agreements \xe2\x80\x9c on terms that a court could\nnot order if the suit were tried to conclusion.\xe2\x80\x9d Meese Policy at 2. It appears\nthat the distinction rests on the Meese Policy\xe2\x80\x99s conclusion that consent decrees\nare more constitutionally problematic than settlement agreements because they\nconstitute judicial orders, entered by Article III courts, rather than merely contracts\nbetween the executive branch and another party, whether public or private, to\nthe litigation.\nIn distinguishing between settlement agreements and consent decrees, the policy\nalso states that Department attorneys should not become parties to consent decrees\nthat limit executive discretion in a manner that would \xe2\x80\x9c unduly or improperly\n133\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nconstraint] executive discretion\xe2\x80\x9d if a similar limitation were imposed by injunc\xc2\xad\ntion. Specifically, it states that Department attorneys should not enter into consent\ndecrees that require a department or agency to revise, amend, or promulgate regu\xc2\xad\nlations where such actions would otherwise have been discretionary; to commit\nthe department or agency to expend funds that Congress has not appropriated and\nthat have not been budgeted for the action in question, or to seek a particular\nappropriation or budget authorization; or to divest the Secretary or agency\nadministrator, or his successors, of discretion committed to him by Congress or\nthe Constitution where such discretionary power was granted to respond to\nchanging circumstances, to make policy or managerial choices, or to protect the\nrights of third parties. Id. at 3-4.\nBy contrast, the policy sets forth different limitations concerning settlement\nagreements. The policy states that Department attorneys should not enter into a\nsettlement agreement that \xe2\x80\x9c interferes with the Secretary or agency administrator\xe2\x80\x99s\nauthority to revise, amend, or promulgate regulations through the procedures set\nforth in the Administrative Procedure Act;\xe2\x80\x9d that commits the Department or\nagency to expend funds that Congress has not appropriated and that have not\nbeen budgeted for the action in question; that agrees to have the Secretary or\nagency administrator exercise his discretion in a particular way, where such discre\xc2\xad\ntion was committed to him by Congress or the Constitution to respond to changing\ncircumstances, make policy or managerial choices, or protect the rights of third\nparties, unless the agreement makes revival of the suit the sole remedy for noncompliance. See id.\nIt is not entirely clear what substantive consequences are intended to follow\nfrom the difference in terminology that the Meese Policy uses in setting forth\nthe rules that should apply to consent decrees as compared to settlement agree\xc2\xad\nments. As we explain below, we do not believe that the distinction the Meese\nPolicy draws between consent decrees and settlement agreements is of independent\nlegal significance for purposes of determining the legal limits on discretion-limiting settlements except, perhaps, in rare cases. Nevertheless, where relevant to\nour analysis, we discuss the distinction that the Meese Policy draws between these\ntwo means of compromising litigation and how the distinction relates to federal\nconstitutional and statutory restrictions on the authority of the executive branch\nto settle cases on terms that would limit the future exercise of executive branch\ndiscretion.\nWith these qualifications and clarifications in place, we now turn to a consider\xc2\xad\nation of the general legal principles that define the limits of the Attorney General\xe2\x80\x99s\npower to effect the types of settlements that are at issue in the Meese Policy.\nAfter setting forth these general legal principles, we consider in Part IV how these\ngeneral principles apply with respect to the types of settlements that are the subject\nof the Meese Policy.\n134\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nIII. General Legal Principles\nA. The Source of the Attorney General\xe2\x80\x99s Settlement Authority\nWe begin by considering the source of the Attorney General\xe2\x80\x99s settlement power.\nThe Office of the Attorney General is established by statute. Within broad con\xc2\xad\nstitutional bounds that are not directly relevant here, therefore, the Attorney Gen\xc2\xad\neral\xe2\x80\x99s power to settle litigation is defined, expressly or implicitly, by statute. See\nTenaska Washington Partners v. United States, 34 Fed. Cl. 434, 440 (1995).5 The\nAttorney General\xe2\x80\x99s settlement power is not expressly identified by statute, but\nit has long been understood to exist as an incident to the Attorney General\xe2\x80\x99s statu\xc2\xad\ntory authority to supervise litigation for the United States. See Swift & Co. v.\nUnited States, 276 U.S. 311 (1928); 28 U.S.C. \xc2\xa7\xc2\xa7516, 519 (1994); Power o f the\nAttorney General in Matters of Compromise, 38 Op. Att\xe2\x80\x99y Gen. 124, 126 (1934)\n(the authority \xe2\x80\x9c is in part inherent, . . . and in part derived from various statutes\nand decisions\xe2\x80\x9d ); Executive Bus. Media, Inc. v. United States D ep\xe2\x80\x99t of Defense,\n3 F.3d 759, 761-62 (4th Cir. 1993); United States v. Hercules, Inc., 961 F.2d\n796, 798 (8th Cir. 1992). \xe2\x80\x9c Included within this broad grant of plenary power\nover government litigation is the power to compromise and settle litigation over\nwhich the Attorney General exercises supervisory authority.\xe2\x80\x9d The Attorney Gen\xc2\xad\neral\xe2\x80\x99s Role as Chief Litigator for the United States, 6 Op. O.L.C. 47, 59 (1982).\nIn addition, Executive Order No. 6166 transferred to the Department of Justice\nthe powers of other agencies \xe2\x80\x9c to prosecute, or to defend, or to compromise, or\nto appeal, or to abandon prosecution or defense\xe2\x80\x9d of actions involving the United\nStates. See Exec. Order No. 6166 (1933), reprinted in 5 U.S.C. \xc2\xa7901 note (1994).\nThe Attorney General\xe2\x80\x99s settlement power ordinarily attaches upon her receipt\nof a case and permits her to exercise broad discretion in determining when, and\non what terms, settlement would best serve the interests of the United States.\nSee 6 Op. O.L.C. at 59; Hughes Aircraft Co. v. United States, 534 F.2d 889,\n901 (Ct. Cl. 1976).6 The settlement power is sweeping, but the Attorney General\nmust still exercise her discretion in conformity with her obligation to \xe2\x80\x9c enforce\nthe Acts of Congress.\xe2\x80\x9d The Attorney General\xe2\x80\x99s Duty to Defend and Enforce Con\xc2\xad\nstitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 55 (1980); Kendall v.\nUnited States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 609-13 (1838); cf Angelus\nMilling Co. v. Comm\xe2\x80\x99r, 325 U.S. 293, 296 (1945) ( \xe2\x80\x9c Insofar as Congress has made\nexplicit statutory requirements, they must be observed and are beyond the dis\xc2\xad\n5 We do not consider in this memorandum the outer limits o f Congress\xe2\x80\x99s constitutional authority to control the\nsettlement discretion of the executive branch\n6 See, e.g , 28 U S.C. \xc2\xa72414 (1994) ( \xe2\x80\x9c Except as otherwise provided by law, compromise settlements o f claims\nreferred to the Attorney General for defense of imminent litigation or suits against the United States, or against\nits agencies o r officials upon obligations or liabilities o f the United States, made by the Attorney General or any\nperson authonzed by him, shall be settled and paid in a manner similar to judgments in like causes . . .\xe2\x80\x9d ), Id.\n\xc2\xa72677 ( \xe2\x80\x9c The Attorney General or his designee may arbitrate, compromise, or settle any claim cognizable under\n[28 U S C.] section 1346(b)\nafter the commencement o f an action thereon \xe2\x80\x99*).\n\n135\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\npensing power of [Executive] officials.\xe2\x80\x9d ). Thus, the Attorney General must, as\na general matter, exercise her broad settlement discretion in a manner that con\xc2\xad\nforms to the specific statutory limits that Congress has imposed upon its exercise.\nSee Waiver o f Statutes o f Limitations in Connection with Claims Against the\nDepartment o f Agriculture, 22 Op. O.L.C. 127, 137-38 (1998).7\n\nB. Congressional Limitations on the Settlement Power\nIn addition to statutory limitations directly targeting the Attorney General\xe2\x80\x99s\nsettlement power in particular, Congress may place limits on the scope of the\nAttorney General\xe2\x80\x99s settlement power through the general laws that govern the con\xc2\xad\nduct of the agencies on behalf of which the Attorney General purports to settle.\nSee Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995);\nExecutive Bus. Media, 3 F.3d at 762 (\xe2\x80\x9c [the settlement power] stops at the walls\nof illegality\xe2\x80\x9d ); Settlement Authority of the United States in Oil Shale Cases, 4B\nOp. O.L.C. 756, 758 (1980); Costle Memo at 1-2. For example, the statutory\nrequirement that the Department o f Defense engage in competitive bidding has\nbeen held to preclude the Attorney General from settling a breach of contract\nclaim by promising to award a Department\' contract outside the competitive bid\xc2\xad\nding process, wholly apart from any concerns about the limitations such a settle\xc2\xad\nment would impose upon the future exercise of executive branch discretion. See\nExecutive Bus. Media, 3 F.3d at 762. Similarly, the United States Court of Appeals\nfor the District of Columbia Circuit has explained that a federal statutory limitation\non the applicability of the National Environmental Policy Act ( \xe2\x80\x9c NEPA\xe2\x80\x9d ) to a\nfederal construction project would constrain the authority of the Attorney General\nto stipulate that the Secretary of the Interior would stay that project pending reso\xc2\xad\nlution of an environmental lawsuit. See National Audubon Soc\xe2\x80\x99y, Inc. v. Watt 678\nF.2d 299, 308 n.18 (D.C. Cir. 1982) (explaining that \xe2\x80\x9c the general authority of\nthe Justice Department over the conduct of . . . litigation . . . does not com\xc2\xad\npensate for the Secretary\xe2\x80\x99s lack of authority under NEPA\xe2\x80\x9d ). See also Alliance\nto End Repression v. City of Chicago, 742 F.2d 1007, 1014 (7th Cir. 1984) (sug\xc2\xad\ngesting that consent decree limiting the investigatory authority of the Federal\nBureau of Investigation may conflict with federal statutes that criminalize certain\nterrorist conduct).\nWhen statutory limits on the scope of the Attorney General\xe2\x80\x99s settlement discre\xc2\xad\ntion are unclear, the Attorney General is presumed to have been authorized by\nCongress to settle on the terms that she determines would best serve the interests\nof the United States. See Hercules, 961 F.2d at 799 (holding that, since sections\n122(a)-(f) inclusive of CERCLA do not apply to a cost recovery settlement,\n\xe2\x80\x9c those provisions cannot be said to contain any clear and unambiguous limitation\n7 In rare cases, however, congressional directives regarding the exercise o f executive power may be justifiably\ndisobeyed on constitutional grounds. See 4A O p . O.L.C. at 55.\n\n136\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\non the Attorney General\xe2\x80\x99s plenary ability to enter into settlements of cost recovery\nlitigation\xe2\x80\x9d ); 6 Op. O.L.C. at 59. The presumption in favor of a broad construction\nof the settlement power reflects the strong public interest in the swift resolution\nof burdensome litigation involving the United States, see, e.g., Utility Reform\nProject v. Bonneville Power Admin., 869 F.2d 437, 442 (9th Cir. 1989); Citizens\nfo r a Better Env\xe2\x80\x99t v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983), cert, denied,\n467 U.S. 1219 (1984); 6 Op. O.L.C. at 59, as well as a recognition of the Attorney\nGeneral\xe2\x80\x99s broad authority to control the conduct of litigation undertaken on behalf\nof the United States. Although Congress may restrict that authority through the\nimposition of statutory limitations on the conduct of the agency on behalf of which\nthe settlement would be entered, it is important to emphasize that the agencies\nrepresented by the Attorney General are generally entitled to deference in con\xc2\xad\nstruing the scope of ambiguous statutory restrictions on their conduct. See Citizens\nfo r a Better Env\xe2\x80\x99t, 718 F.2d at 1126; SEC v. Randolph, 736 F.2d 525 (9th Cir.\n1984) (deferring to Securities and Exchange Commission\xe2\x80\x99s construction of statutes\ngoverning decree); Chevron U.S.A., Inc. v. Natural Resources Defense Council,\nInc., 467 U.S. 837 (1984); 6 Op. O.L.C. at 55 (explaining that \xe2\x80\x9c in exercising\nsupervisory authority over the conduct of agency litigation, the Attorney General\nwill generally defer to the policy judgments of the client agency. This deference\nreflects a recognition of the agency\xe2\x80\x99s considerable expertise in the substantive\narea with which it is primarily concerned.\xe2\x80\x9d ).8\nIn general, then, limits on the Attorney General\xe2\x80\x99s presumptively broad settle\xc2\xad\nment power must take the form of clear statutory directives in order to be effec\xc2\xad\ntive. See, e.g, Utility Reform Project, 869 F.2d at 443 (affirming settlement in\nwhich the administration agreed to halt construction of a nuclear power plant\npursuant to statute conferring settlement authority upon the administration); Her\xc2\xad\ncules, 961 F.2d at 798 (limits must be \xe2\x80\x9c clear and unambiguous\xe2\x80\x9d ). Those limits\nmay take the form, however, of not only targeted restrictions on the exercise of\nthe settlement power itself but also restrictions on the conduct of the agency that\nincidentally serve to circumscribe the permissible terms of a settlement.\nWe emphasize, in this regard, that the statutory limitations on the Attorney Gen\xc2\xad\neral\xe2\x80\x99s settlement authority need not take the form of direct prohibitions against\nthe exercise of that authority. The Attorney General generally possesses the\ncongressionally conferred power to settle on terms that would serve the best\ninterests of the United States, but the considerations and terms that inform and\nstructure a settlement must be traceable, nonetheless, to a discernible source of\nstatutory authority. We have explained that \xe2\x80\x9c [i]n deciding to settle or abandon\n8 At the same time, in many circumstances agencies are not free in the course of litigation to alter, amend, or\nadopt a regulatory interpretation o f a statutory provision that governs their conduct Agencies may be required by\nthe Administrative Procedure Act, for example, to adopt such an interpretation only through notice and comment\nrulemaking Thus, the Attorney General may be unable to rely on an agency\xe2\x80\x99s construction of an ambiguous statutory\nprovision in circumstances in which, outside the settlement context, the agency would not be entitled either to adopt\nsuch an interpretation or to receive judicial deference for it.\n\n137\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\na claim, or not to prosecute at all, the Attorney General is not restricted to consid\xc2\xad\nerations only of litigative probabilities, but rather may make a decision, in his\ndiscretion, on the basis of policies espoused by the Executive.\xe2\x80\x9d 6 Op. O.L.C.\nat 60. At the same time, however, we qualified this statement by explaining that\nthe President\xe2\x80\x99s constitutional obligation to \xe2\x80\x9c take Care that the Laws be faithfully\nexecuted\xe2\x80\x9d necessarily serves to limit the exercise of the Attorney General\xe2\x80\x99s settle\xc2\xad\nment authority so that it does not become a dispensing power. Id.\nAs a general matter, certain considerations, such as litigation risk, are inherent\nin a settlement power itself, and thus the authority to settle on the basis of such\nconsiderations may be assumed to have been conferred by the statutes that serve\nas the basis for the existence of the Attorney General\xe2\x80\x99s general settlement power,\nnamely the statutes that entrust the Attorney General with the supervisory\nauthority over litigation involving the United States. See Compromise o f Claims\nUnder Sections 3469 and 3229 o f the Revised Statutes, 38 Op. Att\xe2\x80\x99y Gen. 94\n(1933). Other types of considerations that concern more particular policy aims,\nhowever, generally must be rooted in the purposes of the statutes that govern\nthe agency that has been vested by Congress with the policymaking discretion\nand on whose behalf the settlement would be effected. It is the governing statutes\nof the agency involved in the litigation, therefore, that in many instances must\nprovide the authority for a settlement. As we have previously explained in a\nrelated context,\n[sjtrictly speaking, \xe2\x80\x9cpolicy\xe2\x80\x9d judgments are confined to those sub\xc2\xad\nstantive areas in which the agency has developed a special expertise\nand in which the agency is vested by law with the flexibility and\ndiscretion to make policy judgments. However, it is increasingly\nthe case that policy concerns are implicated in decisions dealing\nwith litigation strategy, and in such cases, the Attorney General\nwill accommodate the agency\xe2\x80\x99s policy judgments to the greatest\nextent possible without compromising the law, or broader national\npolicy considerations.\nSee 6 Op. O.L.C. at 55; Lars Noah, Administrative Arm-Twisting in the Shadow\no f Congressional Delegations o f Authority, 1997 Wis. L. Rev. 873, 926 ( \xe2\x80\x9c [T]here\n\nis no inherent executive authority to settle cases on terms that have no connection\nwith the agency\xe2\x80\x99s statutory warrant.\xe2\x80\x9d ) (quoting Marshall J. Breger, Regulatory\nFlexibility and the Administrative State, 32 Tulsa L. J. 325, 338 (1996)).\nIn the end, the precise line that distinguishes a limitation on an administrative\nagency\xe2\x80\x99s authority from a limitation that also applies against the Attorney Gen\xc2\xad\neral\xe2\x80\x99s power to settle litigation on an agency\xe2\x80\x99s behalf is necessarily imprecise.\nIn an earlier opinion, we explained that there is some \xe2\x80\x9c tension\xe2\x80\x9d between the\nAttorney General\xe2\x80\x99s broad settlement power and the Attorney General\xe2\x80\x99s obligation\n138\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nto enforce valid statutes. 4B Op. O.L.C. at 758. Under the broad settlement\nauthority conferred upon the Attorney General, \xe2\x80\x9c it is reasonably clear that the\nAttorney General \xe2\x80\x94 in the exercise of his settlement responsibilities \xe2\x80\x94 is not\nbound by each and every statutory limitation and procedural requirement that Con\xc2\xad\ngress may have specifically imposed upon some other agency head in the adminis\xc2\xad\ntration of [the] agency\xe2\x80\x99s programs.\xe2\x80\x9d Id. We further explained that \xe2\x80\x9c congressional\nrequirements imposed on officials other than the Attorney General should not be\nthought to be directly [attributable] to him for the performance of his litigation\nfunction.\xe2\x80\x9d Id. We went on to explain, however, that \xe2\x80\x9c Congress\xe2\x80\x99s will is surely\nnot irrelevant to the Attorney General\xe2\x80\x99s discretion,\xe2\x80\x9d id., and that statutory limita\xc2\xad\ntions on the authority of an agency head may make it \xe2\x80\x9c reasonable to question\nwhether the Attorney General\xe2\x80\x99s general litigation supervisory powers would give\nhim a greater discretion.\xe2\x80\x9d Id. at 758 n.2. We concluded, therefore, that \xe2\x80\x9c if there\nis a greater ambit of discretion, it must be located in Congress\xe2\x80\x99 actions in creating\na centralized litigating department and clothing it with overriding authority to\nsettle particular cases.\xe2\x80\x9d Id.\nAs the settlement there in question had already been resolved, we declined to\npursue the question any further at that time, other than to conclude that a settle\xc2\xad\nment that would result in action \xe2\x80\x9c plainly at variance with Congress\xe2\x80\x99 intent\xe2\x80\x9d would\nbe foreclosed and thus that a determination of the scope of the settlement power\nin particular cases must ultimately be made with attention to the specific statutes\ngoverning the activities that form the subject matter of the litigation. Id. at 758.\nThat basic conclusion remains sound. The ultimate task is to arrive at a faithful\ndetermination of Congress\xe2\x80\x99s intent, taking into account both the purposes that\nunderlie the Attorney General\xe2\x80\x99s statutorily conferred settlement power and the\nterms and purposes of the statutes that are relevant to the particular matter in\nlitigation, including the statutes that limit the discretion of the agency on behalf\nof which the Attorney General would be entering into a settlement.\nIn addition to the limitations that Congress may place on the terms of settle\xc2\xad\nments, Congress may also place limits on the kinds of claims that the Attorney\nGeneral, as opposed to some other official, may settle, but these limits as well\nmust be \xe2\x80\x9c clear and unambiguous.\xe2\x80\x9d See Hercules, 961 F.2d at 798; 4B Op. O.L.C.\nat 756. These limits must be directed at the Attorney General\xe2\x80\x99s own settlement\npower, rather than the settlement power of other agency heads. Because Congress\nhas entrusted the Attorney General alone with general supervisory power over\nlitigation conducted on behalf of the United States, her settlement authority with\nrespect to certain claims is presumed to remain even when Congress has expressly\ncurtailed the settlement authority with respect to those same claims of some other\nexecutive branch official. Id. Thus, for example, a statute that prohibited the Sec\xc2\xad\nretary of the Treasury from settling certain tax claims was not thought to preclude\n139\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe Attorney General from settling those same claims. See 38 Op. Att\xe2\x80\x99y Gen.\nat 94.9\nC. Constitutional Limitations on the Settlement Power\nEven when Congress has authorized the Attorney General to settle litigation\non terms that would limit the future exercise of executive branch discretion, the\nConstitution may prevent her from doing so. Most obviously, basic constitutional\nrestrictions on governmental action, whether or not such action is taken in the\ncontext of a litigation settlement, constrain the Attorney General\xe2\x80\x99s exercise of her\nsettlement discretion. Thus, for example, she may not enter into a decree that\nwould require unconstitutional governmental action in violation of the rights of\nprivate parties or the structural prerogatives of the states. Cf Local 93, Int\xe2\x80\x99l A ss\xe2\x80\x99n\no f Firefighters v. City o f Cleveland, 478 U.S. 501, 526 (1986) (explaining that\nconsent decree mandating affirmative action plan would have to conform to the\nEqual Protection Clause).\nIn addition, the Constitution places particular limitations on the authority of\nthe Attorney General to enter into judicially enforceable settlements that would\nlimit the exercise of executive branch discretion. These limitations inhere in (1)\nthe constitutional limitations that are rooted in both the general executive power\nthat Article II of the Constitution vests in the President and that may constrain,\nin extreme cases, the executive branch\xe2\x80\x99s authority to adopt enforceable limitations\non the future exercise of congressionally conferred executive discretion, as well\nas the specific discretionary powers that Article II confers directly upon the Presi\xc2\xad\ndent, such as the power to recommend legislation to Congress and (2) the restric\xc2\xad\ntions that Article III imposes on the power of federal courts to enforce certain\ntypes of executive branch settlements that are otherwise constitutionally permis\xc2\xad\nsible. We consider below each o f these types of constitutional limitations on the\nexecutive branch\xe2\x80\x99s power to enter into judicially enforceable settlements.\n1. Article II Limitations on the Attorney General\xe2\x80\x99s Settlement Authority. It is\nimportant to distinguish between two types of executive branch settlements, each\nof which derives from one of the two sources for executive branch power: the\npower vested in the executive branch by Congress pursuant to statute and the\n9 In concluding that the Attorney General\xe2\x80\x99s authority to settle on terms that would limit the future exercise of\ncongressionally conferred executive discretion must be rooted in a statutory grant of power, we do not address\nthe distinct question o f the degree to which th e constitutional separation o f powers would permit the Congress to\ncircum scribe the Attorney G eneral\xe2\x80\x99s authority to decline to pursue an enforcement action in the first instance (or\nto dismiss such an action after it has been commenced). See Memorandum for Abbot B. Lipsky, Jr., Deputy Assistant\nAttorney General, Antitrust Division, from L a n y L Simms, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Constitutionality o f Applying the Tunney Act or Similar Legislation to Dismissals by the United Slates\no f Civil Antitrust Actions (June 7, 1983) (discussing potential separation o f powers issues raised by legislation that\nw ould circum scribe the Attorney General\xe2\x80\x99s authonty to dismiss antitrust suits) A limitation of this type would con\xc2\xad\nstitute a direct infringement o f the discretion that the executive would choose to exercise if permitted to do so,\nwhile settlements o f the type at issue here concern the judicial enforcement of limitations that the executive has\nvoluntarily agreed to assume\n\n140\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\npower vested in the executive branch by the Constitution directly. See Youngstown\nSheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concur\xc2\xad\nring). First, there are settlements that purport to limit the future exercise of the\ndiscretion that Congress has conferred upon the executive branch pursuant to\nstatute. Settlements of this type are generally permissible but may in extraordinary\ncases implicate structural limitations regarding the authority of the executive\nbranch to divest itself of the administration of federal law. Second, there are settle\xc2\xad\nments that purport to limit the future exercise of the discretion that the Constitu\xc2\xad\ntion itself, by virtue of Article II, commits to the executive branch without regard\nto whether there has been a congressional delegation of authority. See Shane,\nsupra at 255. Settlements of this type are generally impermissible.\n(a) Settlements That Limit Congressionally Conferred Executive Branch Discre\xc2\xad\ntion. In general, Congress may define the scope of the discretion that it authorizes\nthe executive branch to exercise without infringing upon the constitutional separa\xc2\xad\ntion of powers between the legislative and executive branches. See Heckler v.\nChaney, 470 U.S. 821, 833 (1985); see also Lincoln v. Vigil, 508 U.S. 182, 193\n(1993) (\xe2\x80\x9c an agency is not free simply to disregard statutory responsibilities: Con\xc2\xad\ngress may always circumscribe agency discretion to allocate resources by putting\nrestrictions in . . . operative statutes\xe2\x80\x9d ). Because Congress may, within broad con\xc2\xad\nstitutional boundaries, define the scope of the discretionary authority that it confers\nupon the executive branch, see Mistretta v. United States, 488 U.S. 361, 37273 (1989) (holding that it is \xe2\x80\x9c constitutionally sufficient if Congress clearly delin\xc2\xad\neates the general policy, the public agency which is to apply it. and the boundaries\nof th[e] delegated authority\xe2\x80\x9d ) (citation omitted), it possesses the power to confer\nupon the executive branch the authority to settle litigation on terms that place\nlimits upon the exercise of that discretion. As one commentator has explained,\nconstraints on executive authority to limit discretion that has been\nvested in the executive by statute are themselves essentially statu\xc2\xad\ntory and must be determined with reference to legislative intent.\nThe discretion subject to limitation is discretion delegated by Con\xc2\xad\ngress, at its discretion. Whether the President may compromise\ndiscretion Congress has so vested is likewise a matter within\nCongress\xe2\x80\x99s power to decide.\nShane, supra at 255.\nThe constitutional requirement that the President \xe2\x80\x9c take Care that the Laws be\nfaithfully executed,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa73, is consistent with the conclusion\nthat Congress may authorize the Attorney General to settle litigation on terms\nthat place limits on the future exercise of congressionally conferred executive\nbranch discretion. The Take Care Clause \xe2\x80\x9c simply requires the President to \xe2\x80\x98take\nCare\xe2\x80\x99 that whatever valid legal requirements might exist are followed.\xe2\x80\x9d Binding\n141\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nArbitration, 19 Op. O.L.C. at 224. It-does not, in and of itself, affect the power\n\nof the Attorney General to limit the exercise of discretion conferred by Congress,\nwhen Congress grants her the broad power to do so through settlement, and no\nindependent constitutional provision stands as an obstacle. Id. (reaching the same\nconclusion with respect to the government\xe2\x80\x99s power to submit to binding arbitration\nin the absent of either a statutory command to do so or a statutory prohibition\nagainst doing so). Therefore, to the extent that the Constitution imposes restric\xc2\xad\ntions on executive branch settlements that limit the exercise of congressionally\ndelegated discretion, the Take Care Clause is not the basis for those limitations.\nThose limitations must be found elsewhere.10\nNotwithstanding the broad power that Congress possesses to authorize the\nexecutive branch to limit its statutorily conferred discretion through an enforceable\nsettlement, Article II, which vests the executive power in the President, and\nconsiderations of the constitutional structure may in extraordinary cases give rise\nto concerns about congressionally authorized executive branch settlements that\nrestrict the exercise of such discretion. As a practical matter, it is unlikely that\nit will be necessary to consider these possible constitutional limitations, as Con\xc2\xad\ngress will rarely, if ever, authorize the executive branch to settle on terms that\nwould divest itself of the kind of administrative authority over federal law that\nit might be constitutionally required to maintain. Certainly a general conferral of\nsettlement authority would not suffice to authorize an irrevocable divestment of\nthe kind of significant policymaking authority that, as a conceptual matter, would\nraise constitutional concerns.\nIn circumstances where a settlement that would effect such a divestment is con\xc2\xad\ntemplated, some guidance as to the proper constitutional analysis may be drawn\nfrom the precedents that concern the constitutionality of statutory provisions that\ninterfere with the general separation of powers principle, which precludes one\nbranch from unduly interfering with the ability of another branch to perform its\nconstitutionally assigned functions. Nixon v. Administrator o f Gen. Servs., 433\nU.S. 425, 443 (1977); The Constitutional Separation o f Powers, 20 Op. O.L.C.\nat 133-35.11 This general principle, in certain circumstances, may constrain the\nauthority of Congress to delegate the administration of federal law to non-execu\xc2\xad\n10Because Article III judges are not congressional agents, Congress does not confer power on itself or its agents\nwhen it authorizes the A ttorney General lo settle litigation in federal court on certain terms C f Binding Arbitration,\n19 Op. O L.C. at 225 (discussing constitutional limits on Congress\xe2\x80\x99s power to exercise continuing control over an\narbitrator). It merely authorizes the executive branch to execute the laws \xe2\x80\x94 namely, the laws conferring settlement\ndiscretion\xe2\x80\x94 free from congressional control an d in accord with judicially enforced limitations. Accordingly, statutes\nthat confer settlement pow er upon the Attorney General do not implicate the anti-aggrandizement principle, which\n\xe2\x80\x9c forbids Congress, directly or through an agent subject to removal by Congress, from intervening in the decision\nmaking necessary to execute the law \xe2\x80\x9d The Constitutional Separation o f Powers Between the President and Congress,\n20 Op. O L.C 124, 131 (1996) (footnote om itted) (\xe2\x80\x9c The Constitutional Separation o f Powers\xe2\x80\x9d ) Such statutes merely\nauthorize the executive branch to exercise discretion in a manner that may invite judicial supervision. As we discuss\nbelow, however, the enforcement o f such settlements may, in certain instances, constitute impermissible exercises\no f the judicial pow er conferred on the federal courts by Article III.\n11 W e do not address here the extent to w hich the general separation of powers principle, as applied as a constraint\non limitations on executive power, is rooted in part in the Take Care Clause.\n\n142\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\ntive branch actors because such delegations, like restrictions on the removal\npower, may undermine the executive branch\xe2\x80\x99s ability to perform its constitu\xc2\xad\ntionally assigned functions with respect to the administration of federal law. See\nid. at 176-77. The general separation of powers principle does not bar delegations\nof this type as a general matter, but it may do so in circumstances in which \xe2\x80\x9c a\ncongressional delegation of authority to non-federal officials or to private parties\nmight have a significant impact on the executive branch\xe2\x80\x99s ability to fulfill its con\xc2\xad\nstitutional functions.\xe2\x80\x9d Id. at 177 (discussing delegations to actors outside the fed\xc2\xad\neral government that have been made pursuant to congressional mandates); see\nalso Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (striking down congres\xc2\xad\nsional delegation to industry group); A.L.A. Schechter Poultry Corp. v. United\nStates, 295 U.S. 495, 537 (1935) (same); Rabkin & Devins, supra at 225\n(explaining that \xe2\x80\x9c [w]here Congress has . . . vested responsibility in an executive\nprogram, directly parallel constitutional objections would surely apply to any effort\nto subdelegate this . . . responsibility to private parties.\xe2\x80\x9d ).12\nIn an extraordinary case, a legally enforceable settlement could be said to have\na similarly significant impact on the executive branch\xe2\x80\x99s ability to fulfill its con\xc2\xad\nstitutionally assigned functions. Some settlements that irrevocably conferred\nsubstantial administrative discretion to determine the substance of federal regula\xc2\xad\ntions affecting the conduct of third parties could, for example, raise constitutional\nconcerns as the other party to the settlement would not be under the executive\nbranch\xe2\x80\x99s control. Thus, the vesting of the executive power in the President, as\nwell as more general principles of constitutional structure, raise concerns about\nthe constitutionality of binding settlements that would have the consequence of\ndelegating to non-executive branch actors substantial administrative discretion of\na type that Congress could not itself delegate to actors wholly outside the execu\xc2\xad\ntive branch\xe2\x80\x99s control. In this respect, the general settlement power of the Attorney\nGeneral should not be construed to authorize the kind of extraordinary settlements\nthat would implicate these constitutional concerns.\nEven apart from constitutional concerns that relate to the executive\xe2\x80\x99s administra\xc2\xad\ntion of the laws that Congress has enacted, settlements of this type may also raise\nindependent concerns under the Due Process Clause. For example, such concerns\nmay be presented to the extent that such settlements would preclude third parties\nfrom receiving notice of, or commenting upon, substantive regulations that the\nUnited States would agree in the settlement to promulgate and that would have\nan \xe2\x80\x9c immediate and direct affect on [the third party\xe2\x80\x99s] activities\xe2\x80\x9d prior to their\nadoption. See Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1257\n12 This office is no longer o f the view that the Appointments Clause prohibits the delegation of rulemaking authority\nto pnvate groups as a general matter, see The Constitutional Separation o f Powers, 20 Op. O.L.C. at 142 & n 52,\nalthough prior opinions o f this office had reached that conclusion. See, e .g , Constitutional Limits on "Contracting\nO u t" Department o f Justice Functions Under OMB Circular A -7 6 , 14 Op O L C 94 (1990). W e now believe\nthat such delegations are more properly considered as implicating the general separation of powers principle See\nThe Constitutional Separation o f Powers, 20 Op O.L.C. at 176-77\n\n143\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\n(D.C. Cir. 1980). These concerns are heightened when the settlement, by granting\na private party an enforceable right to direct the regulatory discretion of the execu\xc2\xad\ntive branch, effectively authorizes one industry to regulate its competitors. See,\ne.g., Carter Coal , 298 U.S. at 311. The serious constitutional concerns such\nextraordinary settlements raise provide an additional basis for construing the scope\nof the present settlement power to preclude such settlements. See The Constitu\xc2\xad\ntional Separation o f Powers, 20 Op. O.L.C. at 178 (discussing canon of narrow\nconstruction to avoid separation of powers issues); cf. United States v. Winstar\nCorp., 518 U.S. 839, 913 (1996) (Breyer, J., concurring) (explaining that \xe2\x80\x9c [t]he\nsimple fact that it is the Government may well change the underlying cir\xc2\xad\ncumstances, leading to a different inference as to the parties\xe2\x80\x99 likely intent \xe2\x80\x94 say,\nmaking it far less likely that they intend to make a promise that will oblige the\ngovernment to hold private parties harmless in the event of a change in the law)\n(emphasis added).\nNotwithstanding the limitations that Article II and the Due Process Clause may\nimpose upon the executive settlement power in certain extreme cases, Congress\xe2\x80\x99s\ngeneral power to authorize the executive branch to settle litigation on terms that\nwould limit the exercise of congressionally conferred executive branch discretion\nis broad. Indeed, it extends even, as a constitutional matter, to permit Congress\nto authorize a present administration\xe2\x80\x99s executive branch to enter into a settlement\nthat would bind a subsequent administration\xe2\x80\x99s exercise of that same statutorily\nconferred executive discretion. See Robert V. Percival, The Bounds of Consent:\nConsent Decrees, Settlements and Federal Environmental Policy Making, 1987\nU. Chi. Legal F. 327, 344.13 Just as Congress may authorize an agency to enter\ninto a settlement that would govern the mode of enforcement of a particular statute\nfor six months, it may authorize an agency to agree to a settlement that would\ngovern the mode of enforcement for six years. In either case, Congress would\nhave simply authorized the agency to limit the future exercise of congressionally\nconferred executive discretion. And because the limitation would apply only to\ndiscretion that Congress had itself conferred, the limitation would in no way\ninfringe upon the executive\xe2\x80\x99s constitutional power. \xe2\x80\x9c If the laws Congress passes\nenable one president to curtail the enforcement discretion of later administrations,\nand a president invokes such authority, then later administrations, implementing\ntheir curtailed discretion, are faithfully executing the laws, as Congress has\nenacted them; no constitutional power has been lost.\xe2\x80\x9d See Shane, supra at 291\nn.181.\n13Some commentators have suggested that a contrary rule follows from IN S v Chadha, 462 U S . 919, 947 (1983),\nin which the Court permitted President Reagan to challenge the constitutionality of a legislative veto provision that\nPresident Kennedy had signed into law. See, e g ., Rabkin & Devins, supra at 219-20 (citing other similar cases\nas well) Chadha supports only the more lim ited proposition that one administration may not sign unconstitutional\nlegislation and thereby preclude subsequent administrations from challenging that law\xe2\x80\x99s constitutionality. Thus, while\nChadha helps to explain why settlements th at unconstitutionally constrain a present administration may not bind\na subsequent one, it does not address w hether settlements that permissibly constrain a present administration may\nconstitutionally bind a subsequent one.\n\n144\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nThat an agreement of this type would extend beyond the duration of the present\nadministration would not appear to be of independent constitutional significance.\nNumerous exercises of executive discretion that are made pursuant to congres\xc2\xad\nsional authority limit the scope of congressionally conferred discretion and bind\nsubsequent administrations. See Winstar, 518 U.S. at 872-73 (holding United\nStates liable for prior promises to bear costs of regulatory change made by execu\xc2\xad\ntive branch agency officials) (opinion of Souter, J.); id. at 876 (explaining that\n\xe2\x80\x9c it is clear that the National Government has some capacity to make agreements\nbinding future Congresses by creating vested rights\xe2\x80\x9d ); Fletcher v. Peck, 10 U.S.\n(6 Cranch) 87, 135 (1810); Percival, supra at 344 (\xe2\x80\x9c By necessity, executive agen\xc2\xad\ncies undertake many actions that have a profound impact on the policy choices\navailable to future administrations.\xe2\x80\x9d ). The critical point is that such agreements\nserve to circumscribe and define the enforcement discretion that Congress itself\nhas delegated, not to diminish the executive power that the Constitution has com\xc2\xad\nmitted to the executive branch.\nIt should be acknowledged, however, that the Supreme Court\xe2\x80\x99s general state\xc2\xad\nments regarding the authority of Congress to bind the future exercise of\nCongress\xe2\x80\x99s legislative discretion have appeared in cases that have involved claims\nfor damages that have resulted from the enactment of subsequent legislation rather\nthan in cases that have involved claims for injunctions against the enforcement\nof such subsequent legislation. The Court has stated that a present Congress may\nauthorize action that will incur financial obligations that will be borne far into\nthe future, thereby limiting the future lawmaking discretion of Congress in some\nrespects. It has also made reference in several cases, however, to what it has\ntermed the \xe2\x80\x9c reserved powers\xe2\x80\x9d doctrine, \xe2\x80\x9c which [has] held that certain substantive\npowers of sovereignty could not be contracted away.\xe2\x80\x9d Winstar, 518 U.S. at 874\n(opinion of Souter, J.). As Justice Souter recently explained, this general doctrine\n\xe2\x80\x9c has always lived in some tension with the constitutionally created potential for\na legislature, under certain circumstances, to place effective limits on its succes\xc2\xad\nsors or to authorize executive action resulting in such a limitation.\xe2\x80\x9d Id. at 873.\nThe reserved powers doctrine may be traced to early cases in which the Supreme\nCourt confronted claims that the state legislature had, through subsequent legisla\xc2\xad\ntion, purported to abrogate apparent state promises to exempt certain private par\xc2\xad\nties from the future application of state regulatory power. In the course of rejecting\nthe Contracts Clause claims of these private parties, the Supreme Court concluded\nthat state legislatures lacked the power to contract away certain of their state\npowers. See, e.g., Stone v. Mississippi, 101 U.S. 814 (1879) (state may not contract\naway its police power). The reserved powers doctrine has not been applied directly\nagainst the federal government to invalidate federal legislation, but, as we have\nmentioned, Justice Souter\xe2\x80\x99s opinion in Winstar recently invoked the doctrine in\nconstruing a promise that had been made by a federal regulatory agency so as\nnot to limit the future power of Congress to subject private parties to newly\n145\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nimposed regulatory requirements. See Winstar, 518 U.S. at 873-74 (opinion of\nSouter, J.).\nThe reserved powers doctrine would not appear to preclude the executive branch\nfrom making a judicially enforceable promise that would limit the future exercise\nof congressionally conferred executive discretion. Such a promise would not itself\nbind the legislature; it would merely set forth a limitation on the discretion that\nthe executive branch could exercise pursuant to its then applicable statutory\nauthority. Thus, the consent by an agency to an enforceable limitation on the\nfuture regulatory authority of that agency would not, absent independent constitu\xc2\xad\ntional limitations that may be imposed by the Due Process or Takings Clauses,\nlimit the ability of Congress to enforce regulatory measures pursuant to a subse\xc2\xad\nquent legislative measure. Indeed, there would be compelling reason to doubt,\nin the absence of a clear indication to the contrary, that an executive branch\nagency would be authorized to promise that a particular party would be free from\na future, congressionally mandated regulatory change.\nFinally, we note that, although there is no general bar to executive branch settle\xc2\xad\nments that limit the future exercise of congressionally conferred executive branch\ndiscretion, courts often construe the actual terms of executive branch settlements\nnarrowly on the assumption that they are not intended to bind subsequent adminis\xc2\xad\ntrations and out of respect for executive branch prerogatives. See, e.g., Evans v.\nCity o f Chicago, 10 F.3d 474, 479 (7th Cir. 1993) (explaining importance of nar\xc2\xad\nrow constructions of decrees that bind the exercise of governmental discretion),\ncert, denied, 511 U.S. 1082 (1994); Alliance to End Repression v. City o f Chicago,\n742 F.2d at 1013 (explaining that \xe2\x80\x9c a court will hesitate to assume that by signing\na consent decree the government knowingly bartered away important public\ninterests merely to avoid the expense of a trial\xe2\x80\x9d ). Indeed, the Supreme Court\nsuggested in Rufo v. Inmates o f Suffolk County Jail that the fact that a new\nadministration had taken office was generally relevant to a determination whether\na consent decree limiting governmental discretion may be modified. See 502 U.S.\n367, 383 (1992).\nIn this respect, the interpretive practice comports with the rules that apply to\ngovernment contracts generally. The practice is rooted in an assumption about\nthe government\xe2\x80\x99s likely intentions in settling litigation, rather than in a conclusion\nabout the scope of the executive branch\xe2\x80\x99s constitutional authority to settle litiga\xc2\xad\ntion in a manner that limits the future exercise of its statutorily vested discretion.\nCf. Winstar, 518 U.S. at 913 (Breyer, J., concurring) (explaining that \xe2\x80\x9c [t]he simple\nfact that it is the government [that is a party to the agreement] may well change\nthe underlying circumstances, leading to a different inference as to the parties\xe2\x80\x99\nlikely intent \xe2\x80\x94 say, making it far less likely that they intend to make a promise\nthat will oblige the government to hold private parties harmless in the event of\na change in the law\xe2\x80\x9d ). This interpretive practice, however, indicates that settle\xc2\xad\nments that are intended to contain commitments of substantial duration should\n146\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nmake that intention manifest, assuming, of course, that such unusual commitments\nare authorized.\n(b)\n\nSettlements That Limit Constitutionally Conferred Executive Branch Discre\xc2\xad\n\ntion. Settlements by the Attorney General that purport to resolve litigation on\nterms that would limit the exercise of discretion that the Constitution itself confers\n\nupon the executive branch raise different constitutional questions from those pre\xc2\xad\nsented by settlements that purport to limit the exercise of congressionally con\xc2\xad\nferred discretion. In addition to vesting the general executive power in the Presi\xc2\xad\ndent, which, as we have seen, may result in limitations on the executive branch\xe2\x80\x99s\npower to settle litigation on terms that would result in open-ended delegations\nof administrative authority over federal law to non-executive branch actors, Article\nII also vests certain more specified powers directly in the President, see Youngs\xc2\xad\ntown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and commits their exer\xc2\xad\ncise to the President\xe2\x80\x99s unfettered discretion. See Public Citizen v. United States\nD ep\xe2\x80\x99t o f Justice, 491 U.S. 440, 486 (1989) (Kennedy, J., concurring) (distin\xc2\xad\nguishing between these two types of executive power). An analysis of the\nexpressly named discretionary functions that, in addition to the vesting of the\nexecutive power itself, the Constitution commits to the President is beyond the\nscope of this memorandum. As we discuss below, however, the President\xe2\x80\x99s power\nto make recommendations to Congress is among them. See Memorandum\nRegarding Delegation of Presidential Functions at 32 (Sept. 1, 1955) (\xe2\x80\x9c Delega\xc2\xad\ntion Memo\xe2\x80\x9d ); see also Binding Arbitration, 19 Op. O.L.C. at 226 (discussing\npardon, Commander in Chief, and foreign affairs powers).Congress need not act\nin order for the President to exercise such constitutionally vested discretionary\npowers, and it is powerless to restrict the President\xe2\x80\x99s discretionary exercise of\nthem. See, e.g., Schick v. Reed, 419 U.S. 256, 266 (1974) (explaining that the\npardon power \xe2\x80\x9c flows from the constitution alone . . . and . . . cannot be modi\xc2\xad\nfied, abridged, or diminished by the Congress\xe2\x80\x9d ). In vesting these discretionary\npowers in the President, the Constitution necessarily precludes the Attorney Gen\xc2\xad\neral from settling litigation on terms that would require that their exercise comply\nwith the terms of a binding settlement. See Memorandum for Michael J. Horowitz,\nCounsel to the Director and General Counsel, Office of Management and Budget,\nfrom Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel,\nRe: Chicago School Case at 15-16 & n.9 (Aug. 6, 1984) (\xe2\x80\x9c Chicago School\nCase") ( \xe2\x80\x9c The essence of such non-delegable functions is that the President alone\nretains, and must constitutionally retain, the discretion to perform them.\xe2\x80\x9d ). Such\na settlement would authorize a private party or the courts to constrain the exercise\nof the very unfettered discretion that the Constitution has vested in the President,\nand thus the very discretionary character of those constitutionally vested powers\nprecludes the executive branch from entering into a settlement that would con\xc2\xad\nstrain their otherwise unfettered future exercise. See generally Delegation Memo\nat 28. As a result, Congress may not authorize the executive branch to settle litiga\xc2\xad\n147\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ntion on terms that would interfere with the exercise of such non-delegable, con\xc2\xad\nstitutionally-committed executive discretion.\n2. Article III Limitations on the Settlement Power. Article III provides that\n\xe2\x80\x9c [t]he judicial Power of the United States shall be vested in one supreme Court,\nand in such inferior Courts as the Congress may from time to time ordain and\nestablish.\xe2\x80\x9d See U.S. Const, art. Ill, \xc2\xa7 1. Article III federal courts may not enforce\nunauthorized executive branch settlements, and, for that reason, the scope of the\nAttorney General\xe2\x80\x99s settlement power, as defined by both statutory and constitu\xc2\xad\ntional limitations, necessarily limits the enforcement power of federal courts. See\nCostle Memo at 2 (explaining that \xe2\x80\x9c one must first determine what the agency\nitself has authority to do in the way of agreeing or consenting to limitations on\nits own power\xe2\x80\x9d ); cf. Winstar, 518 U.S. at 891-92 (considering whether agency\nhad the statutory authority to enter into a contract that had been allegedly\nbreached).\nEven when the Attorney General has been authorized statutorily and constitu\xc2\xad\ntionally to settle litigation in a manner that limits the exercise of executive branch\ndiscretion, Article III may place independent limits on the power of Article III\nfederal courts to enforce those settlements. The Meese Policy suggests that this\nis the chief limitation that applies to the Attorney General\xe2\x80\x99s use of consent\ndecrees \xe2\x80\x94 as opposed to settlement agreements \xe2\x80\x94 that limit executive branch\ndiscretion. The Meese Policy apparently assumes that Article III prohibits an\nArticle III federal court from entering a consent decree of this type unless the\ncourt could have imposed an ordinary injunction that would have imposed the\nsame limitations on the exercise of executive discretion. See Cooper Press Con\xc2\xad\nference at 8 (\xe2\x80\x9c Our position is, obviously, that no judge can or no judge\xe2\x80\x99s powers\nare enhanced by the agreement of the parties before him. His powers are limited,\nin a consent decree, to those that . . . he or she could exercise in a litigated\ndecree. You can\xe2\x80\x99t go beyond it. And that is, I guess, one of the fundamental\npremises of these consent decree guidelines.\xe2\x80\x9d ). It therefore states that \xe2\x80\x9c [a] depart\xc2\xad\nment or agency should not limit its discretion by consent decree where it would\nassert that a similar limitation imposed by injunction unduly or improperly con\xc2\xad\nstrains executive discretion.\xe2\x80\x9d Meese Policy at 3. This aspect of the Meese Policy\napparently rests on the view that consent decrees, as enforceable court orders,\nmust, by reason of Article III, necessarily be more limited in scope than settlement\nagreements, which are merely a species of contract.\nAfter the Meese Policy was issued, however, the Supreme Court set forth a\nmore expansive conception of the permissible scope of consent decrees than the\none on which the Meese Policy apparently rests. See Local 93, Int\xe2\x80\x99l A ss\xe2\x80\x99n of\nFirefighters v. City o f Cleveland, 478 U.S. 501 (1986). While acknowledging that\nfederal courts are not mere \xe2\x80\x9c \xe2\x80\x98recorders] of contracts\xe2\x80\x99 from whom parties can\npurchase injunctions[,]\xe2\x80\x9d id. at 525 (citation omitted), the Court explained that\nit is the parties\xe2\x80\x99 agreement, \xe2\x80\x9c rather than the force of the law upon which the\n148\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\ncomplaint was originally based, that creates the obligations embodied in a consent\ndecree.\xe2\x80\x9d Id. at 522. As a result, Firefighters held that consent decrees were distin\xc2\xad\nguishable from ordinary injunctions, and that Article III federal courts could use\nconsent decrees to provide \xe2\x80\x9c broader relief than [courts] could have awarded after\na trial.\xe2\x80\x9d Id. The Court ruled that so long as an agreement between parties resolves\na dispute within the court\xe2\x80\x99s subject matter jurisdiction, comes within the general\nscope of the case made by the pleadings, furthers the purposes of the law on\nwhich the complaint is based, and does not otherwise violate federal law, it may\nbe entered as a consent decree even though its terms could not have been included\nin an ordinary injunction and even though the decree itself has the force of a\ncourt order. See id. at 525-26.\nThe Supreme Court reaffirmed Firefighters in Rufo, another case decided after\nthe Meese Policy had been issued. In setting forth the legal standard that governs\nconsent decree modification, the Rufo Court explained that a consent decree may\nprovide relief in excess of what a court could impose absent party consent:\nFederal courts may not order States or local governments, over their\nobjection, to undertake a course of conduct not tailored to curing\na constitutional violation that has been adjudicated. See Milliken\nv. Bradley (Milliken II), 433 U.S. 267, 281 (1977). But we have\nno doubt lhat, to \xe2\x80\x98save themselves the time, expense, and inevitable\nrisk of litigation,\xe2\x80\x99 United States v. Armour & Co., 402 U.S. 673,\n681 (1971), petitioners could settle the dispute over the proper\nremedy for the constitutional violations that had been found by\nundertaking to do more than the Constitution itself requires (almost\nany affirmative decree beyond a direction to obey the Constitution\nnecessarily does that), but also more than what a court would have\nordered absent the settlement.\n502 U.S. at 389. Together, Firefighters and Rufo reaffirm the essential portions\nof the longstanding rule that \xe2\x80\x9c [p]arties to a suit have the right to agree to any\nthing they please in reference to the subject-matter of their litigation, and the\ncourt, when applied to, will ordinarily give effect to their agreement, if it comes\nwithin the general scope of the case made by the pleadings.\xe2\x80\x9d Pacific R.R. v.\nKetchum, 101 U.S. 289, 297 (1879).\nAlthough both Rufo and Firefighters involved decrees that limited state and\nlocal governmental discretion, rather than federal executive branch discretion, we\ndo not believe that this distinction is of consequence for purposes of determining\nthe limits that inhere in Article III. In upholding the decree in Firefighters, the\nCourt approvingly cited the D.C. Circuit\xe2\x80\x99s opinion in Citizens fo r a Better\nEnvironment, see Firefighters, 478 U.S. at 525, which expressly rejected the\ncontention that the Constitution prohibits a consent decree \xe2\x80\x94 but not a settlement\n149\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nagreement \xe2\x80\x94 from imposing limits on executive branch discretion unless the same\nlimits could have been imposed by injunction after trial. See Citizens for a Better\nEnv\xe2\x80\x99t v. Gorsuch, 718 F.2d 1117, 1126-29 (D.C. Cir. 1983). Other courts of\nappeals have concurred in this conclusion with respect to settlements by the fed\xc2\xad\neral government. See, e.g., Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985)\n(approving consent decree involving Department of Health and Human Services);\nTurner v. Orr, 759 F.2d 817 (11th Cir. 1985) (approving consent decree involving\nSecretary of the Air Force), cert, denied, 478 U.S. 1020 (1986); Sansom Com\xc2\xad\nmittee v. Lynn, 735 F.2d 1535, 1540 (3d Cir.) (approving consent decree involving\nDepartment of Housing and Urban Development), cert, denied, 469 U.S. 1017\n(1984). Thus, we do not believe that Article III prohibits a federal court from\nentering a consent decree that provides broader relief than the court could have\nordered in the absence of consent, even when the terms of the decree would limit\nthe exercise of executive branch discretion.\nNor do we believe that the judicial enforcement of a term of a settlement,\nwhether such term is contained in a consent decree or a settlement agreement,\nis beyond the powers of an Article III court whenever such enforcement would\ntake the form of an injunction that could not have been imposed in the absence\nof a settlement. The Supreme Court\xe2\x80\x99s decision in Vermont Yankee Nuclear Power\nCorp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), is not\ninconsistent with this conclusion. In Vermont Yankee, the Court held that Article\nIII federal courts were barred, for separation of powers reasons, from imposing\nrulemaking procedures upon executive branch agencies that go beyond those\nprocedures that Congress had required the agency to obey. Id. at 524\xe2\x80\x9425. The\nCourt did not address, however, the distinct question whether federal courts were\nsimilarly precluded from requiring executive branch agencies to adhere to the\nterms of settlements that they had voluntarily entered into in order to resolve\nlitigation.\nOutside the settlement context, lower federal courts have held that Vermont\nYankee does not apply to bar the judicial enforcement of a procedure that an\nagency has voluntarily adopted in the exercise of its administrative discretion so\nlong as there is some independent legal limitation on the agency\xe2\x80\x99s authority to\ndeviate from that procedure once it has been adopted. See, e.g., USAir, Inc. v.\nDepartment o f Transp., 969 F.2d 1256, 1260 (D.C. Cir. 1992). Under these\ndecisions, Article III courts may, consistent with Vermont Yankee, preclude an\nagency from deviating from a procedure even though Congress has not mandated\nthat the agency adopt such a procedure in the first instance. So long as Congress\nhas authorized an agency to exercise its discretion in a manner that imposes new\nprocedural obligations upon it, and has precluded the agency from divesting itself\nof those obligations without following certain independent, statutorily-prescribed\nprocedures, a federal court may hold the agency to the procedures that it initially\nadopted as a matter of discretion until such time as it has withdrawn those proce\xc2\xad\n150\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\ndural requirements in the manner that Congress has prescribed. See International\nFabricare Inst. v. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (explaining that the\nAdministrative Procedure Act requires agencies to adhere to procedural rules\nwhich they adopt even when those rules are not themselves required by statute).\nThis same logic indicates that when agencies consent to settlement terms that\naccord with statutory limitations but compel them to exercise their statutorily con\xc2\xad\nferred discretion in the absence of any statutory mandate to do so, no Article\nIII problem of the type identified in Vermont Yankee arises from the fact that\nthe settlement thereby empowers a federal court to hold the agency to its volun\xc2\xad\ntarily assumed obligations in a manner that comports with the applicable statutes.\nSee Citizens for a Better Env\xe2\x80\x99t, 718 F.2d at 1127-29, Costle Memo at 5-6. The\nrationale for this conclusion rests on the essential distinction for separation of\npowers purposes between the judicial enforcement of a voluntarily assumed, and\ncongressionally authorized, executive branch obligation and the judicial imposition\nof an executive branch obligation that the agency has not assumed and that Con\xc2\xad\ngress has not required it to assume. In other words, the rationale rests on the\nvery distinction between consent decrees and injunctions that the Court described\nin Firefighters. See, e.g., Citizens for a Better Env\xe2\x80\x99t, 718 F.2d at 1128 (\xe2\x80\x9c \xe2\x80\x98mani\xc2\xad\nfestly the requirements imposed by the Decree do not represent judicial intrusion\ninto the Agency\xe2\x80\x99s affairs to the same extent they would if the Decree were \xe2\x80\x98a\ncreature of judicial cloth\xe2\x80\x99 \xe2\x80\x9d ) (quoting Weinberger v. Catholic Action of Hawaii/\nPeace Educ. Project, 454 U.S. 139, 141 (1981)); see Costle Memo at 5-6.\nMoreover, the judicial enforcement of executive branch settlements that purport\nto limit the exercise of executive branch discretion generally do not conflict with\nthe Article III rule that \xe2\x80\x9c [q]uestions of policy are not submitted to judicial deter\xc2\xad\nmination, and the courts have no general authority of supervision over the exercise\nof discretion which under our system is reposed in the people or other departments\nof government.\xe2\x80\x9d Green v. Frazier, 253 U.S. 233, 240 (1920). This general limita\xc2\xad\ntion on Article III federal court power serves to prevent a federal court from\ncompelling an executive branch entity to exercise the discretion that Congress\nhas conferred in a particular manner by, for example, imposing a procedural\nrequirement upon an agency that Congress has not itself imposed. An Article III\nfederal court ordinarily lacks the authority \xe2\x80\x94 in the absence of a contrary constitu\xc2\xad\ntional imperative, such as the requirement of due process of law \xe2\x80\x94 to make the\npolicy determination regarding the procedures that an agency should adopt both\nbecause Congress has delegated the discretion to make such determinations to\nthe agency and because of the discretionary nature of the determination. See\nVermont Yankee, 435 U.S. at 524\xe2\x80\x9425.\nThis general limitation on the power of Article III federal courts does not, how\xc2\xad\never, suffice to prevent the judicial enforcement of a procedural requirement with\nwhich an agency has agreed to comply in a consent decree or settlement agree\xc2\xad\nment. The enforcement of a requirement contained in a settlement generally will\n151\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nnot require an Article HI federal court to make a policy judgment regarding the\nmerits of that requirement. Enforcement of such a requirement will merely require\nan Article III federal court to perform its core function of enforcing a congression\xc2\xad\nally authorized limitation on executive branch policymaking discretion \xe2\x80\x94 namely,\nthe limitation that the executive branch agency has itself adopted, in the exercise\nof its statutorily conferred discretion, through its consent to the requirement con\xc2\xad\ntained in the decree or settlement agreement. In this respect, the judicial enforce\xc2\xad\nment of settlement terms does not differ for purposes of Article Ill\xe2\x80\x99s restriction\non the authority of federal courts to decide \xe2\x80\x98\xe2\x80\x98questions of policy\xe2\x80\x99\xe2\x80\x99 from the judicial\nenforcement of statutory limits on executive branch discretion. See Berger, 111\nF.2d at 1579 (comparing consent decree requiring agency to issue regulations to\ninjunction requiring agency to redraft regulations to bring them into compliance\nwith statute).\nAs we have suggested, however, Article HI does place independent limits on\nthe power of Article III federal courts to enforce executive branch settlements\nin some circumstances. Cf. Morrison v. Olson, 487 U.S. 654, 680-81 (1988)\n(Article III judges \xe2\x80\x9c may not encroach upon executive or legislative authority or\nundertake tasks that are more properly accomplished by those branches.\xe2\x80\x9d );\nBuckley v. Valeo, 424 U.S. 1, 123 (1976) (Article III courts may not exercise\n\xe2\x80\x9c executive or administrative duties of a nonjudicial nature.\xe2\x80\x9d ). For example,\nexecutive branch settlements may not be enforced if their terms lack judiciallydiscoverable and manageable standards for enforcement, cf. Baker v. Carr, 369\nU.S. 186, 217 (1962) (discussing political question doctrine), or depend upon the\nenforcing court to make \xe2\x80\x9c an initial policy determination of a kind clearly for\nnonjudicial discretion.\xe2\x80\x9d The precise nature of these limits are unclear, and we\nare not aware of any settlements that the Supreme Court has deemed unenforce\xc2\xad\nable as a consequence of these ill-defined limits. See, e.g., William A. Fletcher,\nThe Discretionary Constitution: Institutional Remedies and Judicial Legitimacy,\n\n91 Yale L.J. 635 (1982); Robert F. Nagel, Separation of Powers and the Scope\no f Federal Equitable Remedies, 39 Stan. L. Rev. 661 (1978).14\nSome guidance as to the types of judicial judgments that would transgress the\nlimitations on the judicial power that are imposed by Article III may be found\nin our opinion on the constitutional concerns that arose in the context of a pro\xc2\xad\n14 The D.C. C ircuit recently expressed concern that the general and amorphous \xe2\x80\x9c public interest\xe2\x80\x9d standard that\nthe Tunney Act, 15 U S.C \xc2\xa7 16(e) (1994), instructs courts to apply in reviewing the United States\xe2\x80\x99 authority to\nenter proposed consent decrees for the resolution of antitrust suits violates Article III. See United States v Microsoft\nCorp., 56 F.3d 1448 (D.C C ir 1995) (concluding that judicial rejection of consent decree under the \xe2\x80\x9c public interest\xe2\x80\x9d\nstandard violated the Tunney Act and that a contrary interpretation of the judicial authority conferred by the Act\nwould raise substantia] Article III concerns), see also M aryland v. United States, 460 U.S 1001 (1983) (Rehnquist,\nJ , joined by Burger, C J., and White, J , dissenting), Constitutionality o f the Qui Tam Provisions o f the False Claims\nA ct, 13 Op. O L C 207, 219 n.7 (1989) (noting that there are \xe2\x80\x9c very senous doubts as to the constituuonality\xe2\x80\x9d\no f the Tunney Act because it \xe2\x80\x9c intrudes into the executive pow er and requires courts to decide\xe2\x80\x9d policy questions\nnormally reserved for the political branches); but c f Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386\nU.S 129, 141 (1967) (rejecting anutmst \xe2\x80\x9c settlement\xe2\x80\x9d after noting that the Department of Justice had \xe2\x80\x9c knuckled\nunder\xe2\x80\x9d ); United States v. CIBA Corp , 50 F.R .D 507 (S.D N.Y. 1970) (reviewing post-Cascade cases)\n\n152\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nposed modification to a consent decree that the Attorney General had entered into\nin an antitrust suit. See Memorandum for Kenneth G. Starling, Deputy Assistant\nAttorney General, Antitrust Division, from John O. McGinnis, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Legal Implications of Antitrust\nDivision\'s Failure to Accede to Judge\xe2\x80\x99s Requested Modification o f Antitrust Con\xc2\xad\nsent Decree at 11 (May 4, 1988). Among the types of judgments that we identified\n\nin that opinion as constitutionally problematic for an Article III court to make\nwere \xe2\x80\x9c weighing the relative merits of imposing particular side-conditions vis-avis formulating alternative consent decree proposals for judicial consideration;\ndetermining what the benefits (or costs) of further prosecution would be; assessing\nhow particular strategies may enhance the effectiveness of antitrust enforcement\nand aid the Executive Branch\xe2\x80\x99s overall policies and programs; and determining\nhow the Government\xe2\x80\x99s limited law enforcement resources may best be used.\xe2\x80\x9d\nId. We note as well that the Supreme Court has suggested that it would transgress\nthe bounds of Article III for federal courts to \xe2\x80\x9c supervise\xe2\x80\x9d the prosecutorial discre\xc2\xad\ntion of the executive branch. See Morrison , 487 U.S. at 681 (upholding the Inde\xc2\xad\npendent Counsel Act and noting that it did not confer upon the federal courts\n\xe2\x80\x9c the power to \xe2\x80\x98supervise\xe2\x80\x99 the independent counsel in the exercise of his or her\ninvestigative or prosecutorial authority\xe2\x80\x9d ).\nThese limitations on the scope of an Article III court\xe2\x80\x99s authority were identified,\nhowever, in connection with the consideration of statutory provisions that con\xc2\xad\nferred authority upon Article HI federal courts either to limit the executive\nbranch\xe2\x80\x99s power to modify a decree or to exercise some measure of control over\nappointment and removal of the independent counsel. Here, by contrast, we are\nconcerned with the authority of Article III courts to review and enforce the terms\nof settlements entered into by executive branch actors pursuant to the exercise\nof their congressionally conferred authority. It is conceivable that Article III fed\xc2\xad\neral courts would have somewhat greater authority in the context of enforcing\nthe terms of a settlement that the executive branch had itself consented to enter.\nNevertheless, the executive branch surely has no power to expand the types of\nquestions that an Article III court may resolve to include the resolution of policy\nquestions that are not ordinarily susceptible of judicial determination. As a general\nmatter, therefore, settlements that confer upon federal courts the broad authority\nto determine whether executive branch enforcement action has met some general\nstandard, as opposed to whether it has satisfied a specific promise to undertake\npreviously specified action, would raise Article III concerns.\nOf course, litigation compromises that would require Article III judges to make\nthe kind of determinations in the course of enforcing their terms that would press\nthe bounds of Article III also would likely raise substantial constitutional concerns\nindependent of the limitations imposed upon the exercise of the judicial power\nby Article III. As we have explained, settlements that contain terms that authorize\nArticle III judges to make discretionary determinations in the course of the exer\xc2\xad\n153\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ncise of their enforcement powers may be objectionable as impermissible delega\xc2\xad\ntions of executive branch authority under Article II. Cf. The Constitutional Separa\xc2\xad\ntion o f Powers, 20 Op. O.L.C. at 176-77 (discussing delegations to actors outside\nthe federal government that have been made pursuant to congressional mandates).\nSettlements that contain such open-ended terms potentially confer too much\nauthority over the exercise of congressionally conferred executive authority upon\nthe non-executive branch actors with whom the settlement is effected, and for\nthat reason could be constitutionally suspect without regard to the limitations that\nArticle III places on federal court enforcement. Id.\nNotwithstanding the Article III limitations described above, executive branch\nsettlements that limit the future exercise of congressionally conferred executive\ndiscretion do not necessarily, or even generally, require Article III federal courts\nto make constitutionally suspect policy judgments in enforcing their terms. Gen\xc2\xad\nerally, the judiciary is simply called upon to enforce a clear limitation that the\nexecutive branch has voluntarily adopted, in much the same manner that the\njudiciary may be called upon to enforce either an administrative procedure that\nan agency has agreed, in its discretion, to be bound by, or a clear statutory limita\xc2\xad\ntion that has been imposed upon an executive branch actor\xe2\x80\x99s discretion. Moreover,\nout of respect for the limits that Article III imposes on the judiciary\xe2\x80\x99s power to\nsupervise executive branch decision making, federal courts generally construe the\nterms of authorized executive branch settlements narrowly so as to avoid the\nconclusion that the executive branch has agreed to submit the exercise of other\xc2\xad\nwise unreviewable discretion to judicially enforceable limits. See, e.g., Alliance\nto End Repression v. City of Chicago, 742 F.2d 1007, 1019 (7th Cir. 1984) (con\xc2\xad\nstruing consent decree narrowly to avoid constraining investigatory discretion of\nFBI); National Audubon Soc\'y, Inc. v. Watt, 678 F.2d 299, 305 n.12, 306 (D.C.\nCir. 1982) (construing stipulation committing Secretary of Interior to stay federal\nconstruction project narrowly to avoid constitutional concerns).\nIV. Specific Limits Set Forth in the Meese Policy\nA. Promises to Spend Unappropriated Funds or to Seek Appropriations\nWe now consider the more specific limits on the Attorney General\xe2\x80\x99s settlement\npower that the Meese Policy identifies. We begin with the Attorney General\xe2\x80\x99s\npower to settle litigation on terms that commit the executive branch to expend\nunappropriated funds or to seek congressional appropriations.\nThe Meese Policy states that lawyers under the Attorney General\xe2\x80\x99s supervision\nmay not enter into consent decrees that \xe2\x80\x9c commit[] the department or agency to\nexpend funds that Congress has not appropriated and that have not been budgeted\nfor the action in question, or commits a department or agency to seek a particular\nappropriation or budget authorization.\xe2\x80\x9d Meese Policy at 3. The policy also pro\xc2\xad\n154\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nhibits such attorneys from entering into settlement agreements that \xe2\x80\x9c commit[]\nthe Department or agency to expend funds that Congress has not appropriated\nand that have not been budgeted for the action in question.\xe2\x80\x9d Meese Policy at\n3 _ 4 . i 5 We are advised that the policy aids agencies in settlement negotiations\nby circumscribing the possible scope of a settlement, see Memorandum for John\nR. Schmidt, Associate Attorney General, from Lois Schiffer, Assistant Attorney\nGeneral, Environment and Natural Resources Division, Re: Department Policy\nRegarding Consent Decrees and Settlement Agreements (Nov. 1, 1994), but our\nconcern is solely with the degree to which federal law precludes settlements that\nwould contain such commitments.\n1. The legal limits on commitments to make unappropriated expenditures. The\nAppropriations Clause states that \xe2\x80\x9c No Money shall be drawn from the Treasury,\nbut in Consequence of Appropriations made by Law.\xe2\x80\x9d U.S. Const, art. 1, \xc2\xa79,\ncl. 7. The Clause \xe2\x80\x9c assurefs] that public funds will be spent according to the letter\nof the difficult judgments reached by Congress as to the common good and not\naccording to the individual favor of Government agents or the individual pleas\nof litigants.\xe2\x80\x9d Office o f Personnel Management v. Richmond, 496 U.S. 414, 42728 (1990). The Anti-Deficiency Act implements and enforces this principle by\nprohibiting executive officials from making promises to expend funds in advance\nof appropriation unless \xe2\x80\x9c authorized by law.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341 (1994).\nNeither the Antideficiency Act nor the Appropriations Clause compels a blanket\nprohibition against settlements that require the executive branch to expend\nunappropriated funds. The Appropriations Clause does not preclude authorized\npromises to make expenditures or to incur obligations in advance of appropria\xc2\xad\ntions, and such promises, if authorized by Congress, do not wrest the power of\nthe purse from Congress. Nor do binding commitments to pay money in advance\nof appropriations place unconstitutional constraints on the exercise of executive\ndiscretion. Such commitments may restrict the discretion of executive branch\nactors in the future by imposing financial obligations that either limit future\nexpenditures or necessitate request for additional appropriations, but the Constitu\xc2\xad\ntion does not prohibit executive branch actions that have these consequences. See\nUnited States v. Winstar Corp., 518 U.S. 839, 873-74 (1996) (holding United\nStates liable for prior promises to bear costs of regulatory change made by execu\xc2\xad\ntive branch agency officials); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810);\nPercival, supra at 344 (\xe2\x80\x9c By necessity, executive agencies undertake many actions\nthat have a profound impact on the policy choices available to future administra\xc2\xad\ntions.\xe2\x80\x9d )\n15 Although the policy distinguishes between commitments concerning funds \xe2\x80\x9c appropriated\xe2\x80\x9d and commitments\nconcerning funds \xe2\x80\x9c budgeted,\xe2\x80\x9d u is not clear what that distinction is intended to signify, and, in any event, the\nConstitution does not suggest any such distinction. Nor does the Constitution require the policy\xe2\x80\x99s different rules\nregarding funding commitments made in consent decrees and settlement agreements, at least insofar as the com m it\xc2\xad\nment contained in each type o f settlement is intended to be enforceable by an Article III court.\n\n155\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nIndeed, the Antideficiency Act implicitly recognizes that promises to expend\nunappropriated funds are constitutional because it excepts \xe2\x80\x9c authorized\xe2\x80\x9d promises\nof this type from its reach, and courts have held that authorized promises to\nexpend unappropriated funds give rise to enforceable obligations on the United\nStates. See Louis Fisher, The Authorization-Appropriation Process in Congress:\nFormal Rules and Informal Practices, 29 Cath. U. L. Rev. 51, 61-62 (1979) (col\xc2\xad\nlecting cases).16 Thus, just as Congress may authorize executive branch officials\nto impound appropriated funds in certain circumstances, see, e.g., Train v. City\nof New York, 420 U.S. 35, 42-47 (1975), it may authorize executive branch offi\xc2\xad\ncials to commit to the expenditure of unappropriated funds in certain cir\xc2\xad\ncumstances as well.\nNevertheless, as we have explained, the settlement power may not be exercised\nin a manner that is inconsistent with statutory limits. This general principle, as\napplied in this context, means that the limitations that applicable statutory provi\xc2\xad\nsions place on the authority of an agency to incur financial obligations in advance\nof appropriations outside the settlement context will, at least in the ordinary case,\nalso limit the authority of the Attorney General to settle litigation on behalf of\nthat agency on terms that would incur such obligations. In light of the express\nterms of the Anti-Deficiency Act,17 this general principle, as applied here, also\nmeans that there must be an identifiable source of statutory authority to incur\nan obligation in advance of an appropriation before a settlement may be entered\nthat would incur one.\nThe question whether such authority exists will sometimes be a difficult one.\nAs Professor Tribe explains in discussing the distinct, but nonetheless related, con\xc2\xad\ntext of impoundment, Congress may authorize impoundment implicitly rather than\nexpressly:\n[t]he language and purpose of a particular appropriations bill\ninvolved may permit the conclusion that impoundment is consistent\nwith the legislative will. In some cases, the appropriations bill very\nclearly invests the Executive branch with wide discretion regarding\nthe spending level. In other cases, the use of mandatory language\nindicates that Congress has not sanctioned impoundment. Needless\nto say, the vast majority of cases fall somewhere between these\n16 For exam ple, if a statute authorizes the government to contract for goods and services and the contract is per\xc2\xad\nformed, an obligation may arise that the United States may not avoid simply by refusing to appropriate funds See\nFisher, supra at 61. (O f course, it may be that the obligation will not be satisfied if Congress refuses to appropriate\nthe funds lawfully due.) By contrast, when statutes expressly condition performance by the United States upon\ncongressional appropriations, the government\xe2\x80\x99s promise may be enforced only if an appropriation is forthcoming\nId. at 62.\nn T he Anti-Deficiency Act provides, in relevant part, that \xe2\x80\x9c [a]n officer or employee of the United States Govern\xc2\xad\nment or o f the District o f Columbia government may not . . . make or authorize an expenditure or obligation\nexceeding an amount available in an appropriation or fund for the expenditure or obligation\xe2\x80\x9d and may not \xe2\x80\x98\xe2\x80\x98involve\neither government in a contract or obligation for the payment o f money before an appropriauon is made unless\nauthorized by law .\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a)(1)(A), (B).\n\n156\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\ntwo polls. The Supreme Court has indicated that it will study the\nlegislative history of the appropriations statute and carefully dissect\nits language in order to determine whether impoundment is permis\xc2\xad\nsible.\nSee Laurence H. Tribe, American Constitutional Law 259 n.13 (2d ed. 1988).\nThere is a similar range from the express to the implied grant among statutory\nprovisions that grant executive branch officials the authority to commit to financial\nobligations in advance of appropriations.\nIn 1980, Attorney General Civiletti elaborated on this point in setting forth the\nproper analysis for determining whether an agency or official possesses the statu\xc2\xad\ntory authority to assume a financial obligation in advance of an available appro\xc2\xad\npriation. See Authority for the Continuance of Government Functions During a\nTemporary Lapse in Appropriations, 5 Op. O.L.C. 1 (1981). The analysis that\nhe set forth does not make express reference to the settlement context, but it pro\xc2\xad\nvides useful guidance nonetheless. Attorney General Civiletti explained that \xe2\x80\x9c [i]n\na few cases Congress has expressly authorized agencies to incur obligations with\xc2\xad\nout regard to available appropriations,\xe2\x80\x9d id. at 3 & n.4 (citing 25 U.S.C. \xc2\xa799;\n31 U.S.C. \xc2\xa7668; 41 U.S.C. \xc2\xa711), but that it will often be \xe2\x80\x9c necessary to inquire\nunder what circumstances statutes that vest particular functions in government\nagencies imply authority to create obligations for the accomplishment of those\nfunctions despite the lack of current appropriations.\xe2\x80\x9d Id. at 3. In general, he con\xc2\xad\ncluded, \xe2\x80\x9c statutory authority to incur obligations in advance of appropriations may\nbe implied as well as express, but may not ordinarily be inferred, in the absence\nof appropriations, from the kind of broad, categorical authority, standing alone,\nthat often appears, for example, in the organic statutes of government agencies.\xe2\x80\x9d\nId. at 4. The authority to make such a commitment instead \xe2\x80\x9c must be necessarily\ninferrable from the specific terms of those duties that have been imposed upon,\nor of those authorities that have been invested in, the officers or employees pur\xc2\xad\nporting to obligate funds on behalf of the United States.\xe2\x80\x9d Id.\nIn further elaborating upon this analysis, Attorney General Civiletti referred to\nprior Attorney General opinions that had established that \xe2\x80\x9c when Congress specifi\xc2\xad\ncally authorizes contracts to be entered into for the accomplishment of a particular\npurpose, the delegated officer may negotiate such contracts even before Congress\nappropriates all the funds necessary for their fulfillment.\xe2\x80\x9d Id. He also explained,\nhowever, that other Attorney General opinions had established that \xe2\x80\x9c when\nauthority for the performance of a specific function rests on a particular appropria\xc2\xad\ntion that proves inadequate to the fulfillment of its purpose, the responsible officer\nis not authorized to obligate further funds for that purpose in the absence of addi\xc2\xad\ntional appropriations.\xe2\x80\x9d Id. As a consequence, the scope of \xe2\x80\x9c necessarily\ninferrable\xe2\x80\x9d authority to incur financial obligations in advance of appropriations\nis quite limited. As we have more recently explained, the \xe2\x80\x9c limited number of\n157\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ngovernment functions funded through annual appropriations [that] must otherwise\ncontinue despite a lapse in their appropriations\xe2\x80\x99\xe2\x80\x99 include, for example, the \xe2\x80\x98\xe2\x80\x98check\nwriting and distributing functions necessary to disburse\xe2\x80\x9d benefits that operate\nunder indefinite appropriations, the minimal duties that are necessary to closing\nup an agency during a lapse in appropriations, and the contracting for materials\nessential to the performance of those emergency services that may continue during\na lapse pursuant to an express provision of the Anti-deficiency Act. See Memo\xc2\xad\nrandum for Alice Rivlin, Director, Office of Management and Budget, from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Government\nOperations in the Event o f a Lapse in Appropriations at 4 (Aug. 16, 1995).\nAttorney General Civiletti added that, notwithstanding the statutory limitations\nthat would ordinarily constrain executive branch authority to incur obligations in\nadvance of appropriations, \xe2\x80\x9c the President performs not only functions that are\nauthorized by statute, but functions authorized by the Constitution as well.\xe2\x80\x9d 5\nOp. O.L.C. at 5. He therefore concluded that \xe2\x80\x9c the Antideficiency Act should not\nbe read as necessarily precluding exercises of executive power through which the\nPresident, acting alone or through his subordinates, could have obligated funds\nin advance of appropriations had the Antideficiency Act not been enacted.\xe2\x80\x9d Id.\nat 6. He then identified the conduct of foreign affairs essential to the national\nsecurity as \xe2\x80\x9c [o]ne likely category into which certain of these functions would\nfall.\xe2\x80\x9d Id. at 7 n.10.\nIn accord with the above analysis, settlements may raise concerns if they contain\nterms that contemplate the federal government undertaking actions to be carried\nout beyond the current appropriations cycle or the terms of the appropriation that,\nat the moment of settlement, is understood to provide the funding for carrying\nthem out. It may be unclear in such cases whether, at the moment of settlement,\nfunds have been appropriated for carrying out those actions in the future. It may\nalso be unclear whether statutory authority exists that would permit the Attorney\nGeneral to assume an obligation for the federal government to carry out activities\nin advance of appropriations to fund them.\nOf course, in many instances, the source of the funding for the activity may\nbe the general salaries and expenses appropriation of an agency. Such an appro\xc2\xad\npriation for general salaries and expenses may be available for only one year,\nbut it will in most cases almost certainly be replaced with a substantial, similarly\ngeneral appropriation the following year. The fact that an available appropriation\nmay be reasonably expected in the following year, however, does not suffice to\nrelieve concern that an executive branch promise to undertake actions in subse\xc2\xad\nquent years may constitute an unauthorized promise to expend funds or incur\nobligations in advance of an appropriation. An expectation of an appropriation\ndoes not itself constitute an appropriation. Thus, absent sufficient authorization,\ncare should be taken to avoid promising to undertake activities in advance of\nappropriations in entering into even seemingly routine settlements. The possibility\n158\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nalways exists, for example, that an appropriations rider may be appended to the\notherwise generally available salaries and expenses appropriation in a subsequent\nyear, which would preclude use of the appropriated funds for the promised pur\xc2\xad\npose.\nBecause of the limited circumstances in which it is likely to be determined\nthat Congress has conferred the unusual authority to incur financial obligations\nin advance of appropriations, settlements that would commit the executive branch\nto undertake activities that would require expenditures in the future should not\nbe understood to constitute enforceable obligations to undertake such activities\nin the event of lapses in available appropriations unless it is made clear in the\nsettlement\'that the federal government does intend to incur such an obligation.\nCf United States v. International Brotherhood o f Teamsters, 172 F.3d 217 (2d\nCir. 1999) (holding that the United States had not promised to monitor a union\nelection). In addition, the executive branch should make clear its intention to incur\nan obligation in advance of appropriations only when (1) the statutory authority\nto assume a financial obligation in advance of an appropriation may be divined\nfrom either express statutory language or \xe2\x80\x9c necessary implication from the specific\nterms of duties that have been imposed on, or of authorities that have been\ninvested in, the agency,\xe2\x80\x9d 5 Op. O.L.C. at 5, or (2) the obligation in question\nis \xe2\x80\x9c necessarily incident to presidential initiatives undertaken within his constitu\xc2\xad\ntional powers.\xe2\x80\x9d Id. at 7.\nThe existence of the continuing and indefinite appropriation for the satisfaction\nof certain judgments and settlements, commonly referred to as the judgment fund,\ndoes not suffice to constitute broad authorization for settlements that would other\xc2\xad\nwise appear to constitute unauthorized obligations in advance of appropriations.\nSee 31 U.S.C. \xc2\xa7 1304 (1994 & Supp. II 1996). \xe2\x80\x9c A law that identifies the source\nof funds is not to be confused with the conditions prescribed for their payment.\xe2\x80\x9d\nOffice of Personnel Management, 496 U.S. at 432. The general statute appro\xc2\xad\npriating funds for judgments and settlements appropriates funds for the payments\nobligated only by certain types of authorized settlements. Id. It is important to\nnote, in this regard, that the settlements identified in the Meese Policy are likely\nto give rise to expenditures that would not be payable out of the judgment fund.\nFor example, it is likely that Congress will have intended for agency appropria\xc2\xad\ntions to fund the activity that the government promises to perform in the settle\xc2\xad\nment, and the mere fact that such agency appropriations are insufficient to permit\nthe activity to be performed will not suffice to make the judgment fund available.\nSee Availability o f the Judgment Fund for the Payment o f Judgments or Settle\xc2\xad\nments in Suits Brought Against the Commodity Credit Corporation Under the Fed\xc2\xad\neral Tort Claims Act, 13 Op. O.L.C. 362, 366 n.6 (1989) (quoting 66 Comp.\nGen. 157, 160 (1986)); see 3. Office of the General Counsel, United States General\nAccounting Office, Principles o f Federal Appropriations Law 14\xe2\x80\x9426 (2d ed. 1994)\n\n(\xe2\x80\x9c [I]f payment of a particular judgment is \xe2\x80\x98otherwise provided for\xe2\x80\x99 as a matter\n159\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nof law, the judgment appropriation is not available, and the fact that the defendant\nagency may have insufficient funds at that particular time does not operate to\nmake the judgment appropriation available.\xe2\x80\x9d ). Similarly, it is likely that the terms\nof such settlements will not be appropriately characterized as involving \xe2\x80\x9c money\njudgment\xe2\x80\x99\xe2\x80\x99 claims, and thus that they will fall outside the scope of the judgment\nfund for that reason. See Availability of Judgment Fund in Cases Not Involving\na Money Judgment Claim , 13 Op.O.L.C. 98, 98-99 (1989) (explaining that \xe2\x80\x9c final\njudgments [or settlements of such judgments] whose payment is not \xe2\x80\x98otherwise\nprovided for\xe2\x80\x99 are payable from the Judgment Fund if they require the government\nto make direct payments of money to individuals, but not if they merely require\nthe government to take actions that result in the expenditure of government\nfunds.\xe2\x80\x9d ). Thus, the judgment fund should not be thought to obviate the need for\nan inquiry into either whether funds would be available in the future or whether\nauthority exists for the executive branch to incur an obligation in advance of avail\xc2\xad\nable appropriations.\n2.\nThe legal limits on executive branch commitments to seek appropriations\nfrom Congress. We previously considered this question in connection with a pro\xc2\xad\nposed consent decree that would have required the Departments of Navy and\nEnergy to seek certain appropriations from Congress. We concluded that such\na commitment would not have been judicially enforceable. We explained that this\nconclusion followed from the position we had previously taken that \xe2\x80\x98\xe2\x80\x98no executive\nbranch official, including the President, constitutionally could agree to constrain\nthe President\xe2\x80\x99s discretion to make whatever legislative proposals he or his succes\xc2\xad\nsors deemed desirable[.]\xe2\x80\x9d Letter for Steven S. Honigman, General Counsel,\nDepartment of the Navy, and Robert R. Nordhaus, General Counsel, Department\nof Energy, from Walter Dellinger, Assistant Attorney General, Office of Legal\nCounsel (Sept. 12, 1995) (\xe2\x80\x9cHonigman Letter\xe2\x80\x9d ).\nThe constitutional constraint is rooted in Article II, Section 3 of the Constitution,\nwhich confers upon the President the duty to \xe2\x80\x9c recommend to [Congress\xe2\x80\x99s] Consid\xc2\xad\neration such Measures as he shall judge necessary and expedient.\xe2\x80\x9d Through this\nclause, the Constitution expressly commits the President to exercise his personal\ndiscretion in making legislative recommendations to Congress. See Chicago\nSchool Case at 17-18; see generally J. Gregory Sidak, The Recommendations\nClause, 11 Geo. L.J. 2079 (1989) (discussing history of the Clause).18 The Presi\xc2\xad\ndent may not divest himself of his constitutional obligation to judge personally\nwhich recommendations should be made to Congress, and thus he may not dele\xc2\xad\ngate the authority to exercise that discretion to another person. See Delegation\n18 Some have argued that the Recommendations Clause m akes plain that the President is constitutionally permitted\nto recommend legislation to Congress and does not restrict the President\xe2\x80\x99s ability to forego the exercise of his personal\ndiscretion in making such recommendations. See, e g , Chicago School Case at 17. O ur office has rejected that\nview. See id at 17-18; Honigman Letter, supra.\n\n160\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nMemo at 32 (\xe2\x80\x9c if the messages or recommendations are intended to be in exercise\nof Constitutional duties, the President cannot delegate the responsibilities\xe2\x80\x9d ).\nA settlement of the type at issue in this memorandum that contains a presidential\npromise to seek certain legislation would constitute an impermissible delegation\nof the President\xe2\x80\x99s Recommendations Power. As we have explained, we are con\xc2\xad\ncerned in this memorandum only with settlements the terms of which would be\nsubject to direct enforcement by an Article III court. In consenting to a settlement\nof this type containing a term requiring the President to seek certain appropriations\nfrom Congress, the Attorney General necessarily would be consenting to the\nissuance of a judicial order compelling the President to make a certain legislative\nrecommendation in the event that he failed to do so in conformity with the settle\xc2\xad\nment. In this respect, such a settlement would necessarily delegate a portion of\nthe President\xe2\x80\x99s recommendation power to the other party to the agreement, as\nit would permit that party to call upon the court to require the President to make\na legislative recommendation, even if the President\xe2\x80\x99s own judgment at the moment\nof enforcement were that such a recommendauon was neither necessary nor expe\xc2\xad\ndient. Chicago School Case at 15-16 & n.9. Because of the President\xe2\x80\x99s constitu\xc2\xad\ntional obligation to exercise personal discretion in making recommendations to\nCongress, moreover, courts are likely to construe narrowly promises that appear\nto commit the President to seek certain appropriations from Congress. See id.\nSettlements that commit executive branch officials to make certain legislative\nrecommendations are constitutionally problematic even if they do not purport to\npreclude the President from making recommendations on his own. The President\xe2\x80\x99s\nconstitutional authority to exercise the Recommendations Power could be under\xc2\xad\nmined if the President were precluded from preventing a subordinate executive\nbranch official from making a recommendation by reason of the executive\nbranch\xe2\x80\x99s prior consent to a binding term of a settlement. For example, the Presi\xc2\xad\ndent may judge that it is necessary or expedient that no recommendation on a\nparticular matter be made at a particular time. However, that presidential judgment\nwould be compromised if an executive branch actor\xe2\x80\x99s prior entry into a settlement\ncould give rise to a judicially enforceable obligation that an executive branch offi\xc2\xad\ncial make a recommendauon on the precise issue on which the President had\njudged it necessary and expedient to remain silent. Similarly, the President may\nhave judged that it is necessary and expedient to make a recommendauon, the\nterms of which would contradict the recommendation that a prior settlement would\nrequire a subordinate executive branch actor to make. The President\xe2\x80\x99s ability to\nexercise his own recommendation power could be undermined if he lacked the\npower to preclude a subordinate from presenting a contradictory recommendation\nto Congress. Thus, such commitments, even if made by subordinate executive\nbranch officers could \xe2\x80\x9c constrain the President\xe2\x80\x99s discretion to make whatever legis\xc2\xad\nlative proposals he or his successors deemed desirable[.]\xe2\x80\x9d Honigman Letter at\n1.\n161\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nIn addition, Article II, Section 2, Clause 1 of the Constitution states that \xe2\x80\x9c [the\nPresident] may require the Opinion, in writing, of the principal Officer in each\nof the executive Departments, upon any subject relating to the Duties of their\nrespective Offices.\xe2\x80\x9d A settlement may not commit a principal officer in a Depart\xc2\xad\nment to recommend certain appropriations to Congress if such a commitment\nwould impinge upon the President\xe2\x80\x99s capacity to obtain information pursuant to\nthe Opinion Clause. For example, an agreement that precluded the officer from\ndisavowing the recommendation when asked by the President for his views would\nimpermissibly interfere with the free flow of information to the President con\xc2\xad\ntemplated by the Opinion Clause. See Relation of the President to the Executive\nDepartments, 1 Op. Att\xe2\x80\x99y Gen. 453, 463 (1855) (explaining that the Opinion\nClause requires that the \xe2\x80\x9c advice or opinion must of course embody the individual\nthought of the officer giving it\xe2\x80\x9d ); Akhil Reed Amar, Some Opinions on the\nOpinion Clause, 82 Va. L. Rev. 647, 672-73 (1996) (discussing how the Clause\nfacilitates the President effective execution of the laws). Finally, the judicial\nenforcement of settlements that require executive branch officials to provide cer\xc2\xad\ntain advice within the executive branch, or that commit executive branch officials\nto make certain recommendations directly to Congress, would raise serious separa\xc2\xad\ntion of powers concerns apart from any limitations that the Recommendations\nClause or the Opinions Clause might impose. See United States v. Nixon, 418\nU.S. 683, 708 (1974) (tracing executive privilege to separation of powers concerns\narising from disruption of President\xe2\x80\x99s internal decision making processes); Citizens\nto Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (explaining\nthat \xe2\x80\x9c inquiry into the mental processes of administrative decisionmakers is usually\nto be avoided\xe2\x80\x9d ); Smith v. United States, 333 F.2d 70, 72 (10th Cir. 1964) (holding\nthat federal court could not mandamus the Secretary of the Interior to make legis\xc2\xad\nlative recommendations to Congress); see Chicago School Case at 17, 19. That\nis particularly true when executive branch officials promise to adhere to general\nstandards of conduct in advising the President, such as making \xe2\x80\x9c best efforts\xe2\x80\x9d\nin seeking certain appropriations. See Chicago School Case at 19. Promises of\nthe former type not only invite impermissible judicial supervision of the executive\nbranch but also lack judicially-manageable enforcement criteria. As the Seventh\nCircuit has explained, its decision to construe the executive branch consent decree\ncontained in United States v. Board o f Educ., 744 F.2d 1300 (7th Cir. 1984),\ncert, denied, 471 U.S. 1116 (1985), so as not to require the United States to seek\ncertain appropriations from Congress was based \xe2\x80\x9c in substantial measure . . . [on\nthe] concern that judges should not take control of the budgetary process even\nwith the consent of the parties\xe2\x80\x9d See Evans v. City o f Chicago, 10 F.3d 474, 480\n(7th Cir. 1993), cert, denied, 511 U.S. 1082 (1994).\n\n162\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nB. Promises to Promulgate Rules\nThe Meese policy states that a \xe2\x80\x9c department or agency should not enter into\na consent decree that converts into a mandatory duty the otherwise discretionary\nauthority of the Secretary or agency administrator to revise, amend, or promulgate\nregulations.\xe2\x80\x9d Meese Policy at 3. The policy also states that a \xe2\x80\x9c department or\nagency should not enter into a settlement agreement that interferes with the Sec\xc2\xad\nretary or agency administrator\xe2\x80\x99s authority to revise, amend, or promulgate regula\xc2\xad\ntions through the procedures set forth in the Administrative Procedure Act.\xe2\x80\x9d Id.19\nThe policy does not identify the types of agency actions that it intends to encom\xc2\xad\npass within the term \xe2\x80\x9c regulations\xe2\x80\x9d but we consider a broad range of agency regu\xc2\xad\nlatory actions below, from the promulgation of legislative rules, which ordinarily\nare subject to notice-and-comment requirements, to the initiation of investigations,\nwhich ordinarily are not.\nAs we have already explained, the Attorney General ordinarily may not settle\nlitigation on terms that would transgress valid, otherwise applicable, statutory\nrestrictions on agency conduct. See Executive Bus. Media, Inc. v. United States\nD ep\xe2\x80\x99t o f Defense, 3 F.3d 759, 762 (4th Cir. 1993). If, for example, a statute pro\xc2\xad\nhibits an agency from considering a particular factor in evaluating whether to pro\xc2\xad\npose a rule, or specifically limits an agency\xe2\x80\x99s consideration of potential rules to\ncertain enumerated factors, the Attorney General generally may not settle litigation\nby committing the agency to consider the prohibited factors in future rule makings.\nA contrary conclusion would transform the settlement power into a general dis\xc2\xad\npensing power with respect to those statutes that purported to govern agency con\xc2\xad\nduct. C f Motor Vehicle Mfrs. A ss\xe2\x80\x99n v. State Farm Mutual Auto. Ins., Co., 463\nU.S. 29, 43 (1983) (explaining that \xe2\x80\x9c an agency rule would be arbitrary and capri\xc2\xad\ncious if the agency has relied on factors which Congress has not intended it to\nconsider\xe2\x80\x9d ); Citizens to Preserve Overton Park, 401 U.S. at 416.\nSimilarly, when the Administrative Procedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ) governs the means\nby which a rule may be adopted, proposed, or considered, the Attorney General\nmay not resolve litigation, in the absence of an express congressional authoriza\xc2\xad\ntion, by committing an agency to follow a contrary rulemaking process. Cf.\nChrysler Corp. v. Brown, 441 U.S. 281, 302-03 (1979) (holding agency rule not\nbinding on a court where promulgated in violation of the APA). For example,\nthe Act may require the agency to proceed only pursuant to notice and comment\nrulemaking, thereby precluding the agency from making an enforceable promise\nto undertake regulatory action through means other than the notice and comment\n,9 While the policy forbids only those consent decrees that would limit the discretion to revise, amend, or promul\xc2\xad\ngate regulations, it prohibits any settlement agreements that \xe2\x80\x9c interfere[]\xe2\x80\x9d with the revision, amendment or prom ulga\xc2\xad\ntion of regulations through procedures set forth in the Administrative Procedure Act. It is not clear whether the\ndifference in terminology is intended to reflect a difference in substance. For purposes of this memorandum, we\nput aside the policy\xe2\x80\x99s distinction between consent decrees and settlement agreements and consider the constraints\nthat limit the Attorney General\xe2\x80\x99s settlement power generally\n\n163\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nprocedure. See Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229,125355 (D.C. Cir. 1980) (rejecting challenge to EPA consent decree brought under\nthe APA on the ground that the commitment to undertake a preliminary investiga\xc2\xad\ntion does not constitute a rule within the meaning of the Administrative Procedure\nAct). Thus, while the APA does not, as a general matter, preclude the executive\nbranch from entering into settlements that would limit the future exercise of\ncongressionally conferred executive branch discretion, actions taken pursuant to\nsettlements are not inherently immune from APA review. Id. at 1253-55. To the\nextent that a discretion-limiting settlement is subject to APA review, moreover,\nit must conform to the substantive and procedural requirements that the APA\nimposes upon agency action outside the settlement context. For that reason, settle\xc2\xad\nments that commit an executive branch agency to promulgate substantive rules,\nwhich normally may be promulgated only pursuant to notice and comment proce\xc2\xad\ndures, are likely to raise serious concerns that they will transgress the APA\xe2\x80\x99s\nlimitations on an agency\xe2\x80\x99s rulemaking authority.\nIn addition to the questions that may arise concerning the limitations that the\nAPA may impose on an agency\xe2\x80\x99s authority to constrain its regulatory discretion\npursuant to a settlement, it will also be important to ensure that a discretionlimiting settlement would not divest an agency of discretion that Congress has\nmandated that it retain. See Kendall v. United States ex rel Stokes, 37 U.S. (12\nPet.) 524, 609-13 (1838); Binding Arbitration, 19 Op. O.L.C. at 224 (discussing\nexecutive\xe2\x80\x99s obligation to \xe2\x80\x9c comply with the terms of valid statutes\xe2\x80\x9d committing\ndiscretionary power to executive branch officials); see also Rabkin & Devins,\nsupra at 226 (explaining that courts have held that where a statute vests ultimate\ndecisional responsibility in the executive secretary the secretary cannot delegate\nthis authority); Morgan v. United States, 304 U.S. 1, 1-4 (1938) (discussing statu\xc2\xad\ntory limitations on subdelegation of executive functions). Difficult interpretive\nquestions arise, however, when the statutes that govern agency conduct confer\ndiscretion without making clear either that the executive branch\xe2\x80\x99s discretion must\nbe retained or that it may be divested.\nFor example, numerous statutes authorize agencies to exercise their discretion\nto adopt rulemaking procedures beyond those that Congress has expressly man\xc2\xad\ndated. See, e.g., USAir, Inc. v. Department o f Transp., 969 F.2d 1256, 1260 (D.C.\nCir. 1992). It is generally presumed that, although agencies are bound to follow\nsuch discretionary procedures once they have been adopted, they retain the power\nto revise these discretionary procedures in accord with statutory requirements gov\xc2\xad\nerning the process for the revision of such procedures. Id. at 1260. It is far less\nclear, however, that Congress, in conferring procedural discretion upon agencies,\nintended to permit them to settle litigation on terms that would divest them of\ntheir statutorily conferred power to revise such procedures, and that question will\nbe present even in circumstances in which the revision would be undertaken in\naccord with the statutory provisions governing the process of revision. Similar\n164\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nconfusions may arise with respect to congressional intent regarding the substantive\nregulatory power of agencies. Congress often authorizes agencies to exercise their\ndiscretion in selecting substantive regulatory outcomes without making clear\nwhether those agencies are precluded from settling litigation on terms that would\npreclude them from revising those selections in the future.\nDefinitive answers to the interpretive questions that arise when the relevant stat\xc2\xad\nutes do not clearly address the executive branch\xe2\x80\x99s authority to bind the exercise\nof the discretion that has been statutorily conferred will necessarily depend upon\nan examination of the particular statutory context. Nevertheless, certain general\nprinciples may help to guide analysis. These principles are set forth in the leading\ncase to have considered the interpretive questions posed by settlements that pur\xc2\xad\nport to regulate the policy discretion of executive branch agencies: Citizens for\na Better Environment v. Gorsuch, 718 F.2d 1117 (D.C. Cir. 1983).\nIn Citizens fo r a Better Environment, the court considered a legal challenge\nto the so-called Flannery Decree, which the Environmental Protection Agency\n(\xe2\x80\x9c EPA\xe2\x80\x9d ) entered into with environmental groups in order to resolve claims that\nit had failed to implement certain provisions of the Clean Water Act (\xe2\x80\x9c CWA\xe2\x80\x9d ).\nId. at 1120. The consent decree committed the EPA to a \xe2\x80\x9c detailed program for\ndeveloping regulations to deal with the discharge of toxic pollutants under the\nCWA.\xe2\x80\x9d Id. Specifically, the decree:\nrequired EPA to promulgate guidelines and limitations governing\nthe discharge by 21 industries of 65 specified pollutants. It also\nmandated the use of certain scientific methodologies and decision\xc2\xad\nmaking criteria by EPA in determining whether additional regula\xc2\xad\ntions should be issued and whether other pollutants should be\nincluded in the regulatory scheme. It did not specify the substantive\nresult of any regulations EPA was to propose and only required\nEPA to initiate \xe2\x80\x9c regulatory action\xe2\x80\x9d for other pollutants identified\nthrough the research program. The regulations envisaged by the\nAgreement were, after full notice and comment, to be promulgated\nin phases by December 31, 1979 and the industries affected by them\nwere to comply with them by June 30, 1983.\nId. at 1120-21.\n\nAfter the district court entered the decree, an appeal was taken, and the court\nof appeals remanded for a determination whether the agreement \xe2\x80\x9c impermissibly\ninfringe[d] on the discretion Congress committed to the EPA Administrator to\nmake certain decisions under the CWA.\xe2\x80\x9d Citizens for a Better Env\xe2\x80\x99t, 718 F.2d\nat 1121 (describing decision in Environmental Defense Fund, Inc. v. Costle, 636\nF.2d 1229, 1259 (D.C. Cir. 1980)). The court of appeals began by rejecting the\ncontention that the consent decree exceeded Article III limits on the judicial\n165\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\npower. Anticipating the Supreme Court\xe2\x80\x99s eventual holding in Local 93, Int\xe2\x80\x99l A ss\xe2\x80\x99n\nof Firefighters v. City o f Cleveland, 478 U.S. 501, 526 (1986), the court concluded\nthat Article III permitted the district court to issue the consent decree even though\nit provided relief in excess of what the court could have imposed by injunction.\nSee Citizens fo r a Better Env\xe2\x80\x99t, 781 F.2d at 1124-27. The court also rejected\nthe contention that the Article III limits on judicial power established in Vermont\nYankee (435 U.S. 519 (1978)) prevented the district court from entering a decree\nthat committed the EPA to undertake regulatory steps that \xe2\x80\x9c go beyond statutory\nrequirements.\xe2\x80\x9d Citizens fo r a Better Env\xe2\x80\x99t, 718 F.2d at 1125. The court explained\nthat \xe2\x80\x9c [t]he Decree here was largely the work of the EPA and the other parties\nto these suits, not the district court; manifestly the requirements imposed by the\nDecree do not represent judicial intrusion into the Agency\xe2\x80\x99s affairs to the same\nextent they would if the Decree were \xe2\x80\x98a creature of judicial cloth.\xe2\x80\x99 \xe2\x80\x9d Id. at 1128\n(quoting Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S.\n139, 141 (1981)). It further explained that\n[s]ince the solution arrived at was to a considerable extent the work\nof the Agency itself, and since the district court\xe2\x80\x99s role was confined\nto approving the fairness of the consent decree which incorporates\nit and ensuring the consistency of the Decree with the Act, Vermont\nYankee\xe2\x80\x99s concern for \xe2\x80\x98judicially-conceived notions of administrative\nfair play\xe2\x80\x99 is inapposite here.\nCitizens fo r a Better Env\xe2\x80\x99t, 718 F.2d at 1128; see Costle Memo at 5-6.\n\nThe court of appeals next turned to the question whether statutory provisions\nthat restricted agency authority barred the EPA from binding its discretion in the\nmanner required by the decree. The court noted that the decree imposed only\na \xe2\x80\x9c limited infringement on the Agency\xe2\x80\x99s discretion,\xe2\x80\x9d Citizens fo r a Better Env\xe2\x80\x99t,\n718 F.2d at 1129-30, because \xe2\x80\x9c it requires EPA to begin the process of formu\xc2\xad\nlating regulations in compliance with the Act and describes a methodology to\nbe followed by the Agency, but it leaves the outcome of the process (the sub\xc2\xad\nstantive regulations) to the Agency\xe2\x80\x99s discretion.\xe2\x80\x9d Id. at 1129 n.14. Moreover, it\nconcluded that Congress had impliedly sanctioned this limited, voluntarily-adopted\nrestriction on agency discretion when it amended the CWA in a manner that pre\xc2\xad\nserved the decree. Id. at 1130.\nIn so analyzing the issues, the majority impliedly rejected the dissent\xe2\x80\x99s constitu\xc2\xad\ntional arguments against the decree. The dissent contended that the decree violated\nthe constitutional separation of powers because it permitted an Article III court\nto require an executive branch agency to \xe2\x80\x9c exercise its administrative discretion\nin a particular way.\xe2\x80\x9d Id. at 1131 (Wilkey, J., dissenting). As a result, the dissent\nconcluded that it was of no consequence that the decree purported to restrict the\nEPA\xe2\x80\x99s discretion only with respect to preliminary procedural decisions, as opposed\n166\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\nto final substantive rules. Any judicially imposed limitation on executive discre\xc2\xad\ntion, the dissent contended, was unconstitutional. Moreover, the dissent contended,\nthe decree was particularly problematic because it purported to constrain the\ndiscretion of subsequent administrations. In this respect, the dissent argued, the\ndecree could not be said to constitute a voluntary limitation on executive discre\xc2\xad\ntion. Rather, the discretion of subsequent administrations would be involuntarily\nconstrained by judicial order.\nThe majority adopted a contrary premise. It held that Congress may authorize\nexecutive branch agencies to divest themselves of the statutorily conferred discre\xc2\xad\ntion that they would otherwise have been entitled to exercise, and thus to bind\nthemselves to comply with voluntarily-adopted, judicially enforceable commit\xc2\xad\nments that Congress had not mandated. As we have explained above, our analysis\nof the constitutional limitations on executive branch settlements that limit congres\xc2\xad\nsionally conferred executive branch discretion accords with this holding.\nMoreover, although the court of appeals emphasized the distinction between\nan agency\xe2\x80\x99s commitment to undertake certain preliminary procedures in formu\xc2\xad\nlating rules and an agency\xe2\x80\x99s commitment to reach certain \xe2\x80\x9c substantive outcomes\xe2\x80\x9d\nin final regulations, it did not suggest that such a distinction was necessarily of\nconstitutional significance. It simply concluded that this distinction was relevant\nto a determination whether Congress had intended to permit the EPA to settle\non terms that would limit the exercise of its discretion. Citizens for a Better Env \xe2\x80\x99t,\n718 F.2d at 1126. Again, we believe this analysis to be correct, and, indeed, the\ndistinction drawn by the court accords with our conclusion that a settlement that\nwould commit an agency to promulgate substantive regulations of the kind ordi\xc2\xad\nnarily subject to the notice and comment requirements of the APA would likely\nbe prohibited by the APA.\nThe Constitution does not generally prohibit Congress from authorizing the\nAttorney General to enter into a settlement that binds an agency to adopt regula\xc2\xad\ntions, whether they are substantive or procedural in nature, but there are neverthe\xc2\xad\nless sound reasons to conclude that an agency\xe2\x80\x99s commitment regarding procedural\nrules is more likely to have been authorized by Congress than an agency\xe2\x80\x99s\ncommitment regarding certain substantive regulatory outcomes. See Costle Memo\nat 5. Similarly, agency commitments of shorter duration are less likely to press\nthe limits of congressional authorization than agency commitments of longer dura\xc2\xad\ntion. As Professor Shane explains:\n[A] promise to maintain a rule in place for ten years absent\n\xe2\x80\x9c exigent circumstances\xe2\x80\x9d or a \xe2\x80\x9c national emergency\xe2\x80\x9d would appear\nsuch a bizarre departure from ordinary administrative procedure \xe2\x80\x94\na procedure that Congress has never adopted for any regulation\nwhatsoever \xe2\x80\x94 that authority to make such a promise could not\n167\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 23\n\nreasonably be implied merely from a general authorizing statute and\nthe Attorney General\xe2\x80\x99s broad authority to conduct litigation.\nShane, supra at 255; see also Bowen v. Georgetown University Hosp., 488 U.S.\n204, 224 (1988) (agency must be expressly authorized to engage in \xe2\x80\x9c extraor\xc2\xad\ndinary\xe2\x80\x99\xe2\x80\x99 exercise of retroactive rulemaking).\nIn addition, in individual cases, the distinction between preliminary procedural\nregulations and final substantive rules may be relevant to due process limitations\non agency rulemaking power, see Environmental Defense Fund, 636 F.2d at 1257,\nor concerns regarding the executive\xe2\x80\x99s ability to carry out its constitutionally\nassigned functions. Cf. The Constitutional Separation o f Powers, 20 Op. O.L.C.\nat 176-77. In accord with basic principles of statutory construction, therefore,\nthese constitutional concerns may justify the conclusion that, in some instances,\nthe ordinary presumption in favor of the Attorney General\xe2\x80\x99s settlement power\nshould give way to the countervailing principle that statutes should be construed\nto avoid serious constitutional concerns.\nThe central point is that federal law restrictions on the scope of settlements\nthat purport to constrain agency rulemaking authority\xe2\x80\x94 both procedural and sub\xc2\xad\nstantive \xe2\x80\x94 are primarily rooted in legislative intent, rather than constitutional rule.\nGeneral presumptions regarding legislative intent may provide a basis for con\xc2\xad\ncluding that an agency has broader settlement discretion with respect to its proce\xc2\xad\ndures than its substantive regulatory decisions, and these presumptions may be\ntraceable to underlying constitutional principles. In the end, however, it is legisla\xc2\xad\ntive intent that will, within the broad constitutional limits discussed above, deter\xc2\xad\nmine the scope of an agency\xe2\x80\x99s discretion to circumscribe the exercise of its statu\xc2\xad\ntorily-conferred regulatory authority.\nSimilar issues regarding the limits that federal law places on settlements that\npurport to restrict the regulatory discretion of executive branch agencies arise out\xc2\xad\nside the specific context of the rulemaking process. For example, settlements may\npurport to restrict the enforcement discretion of executive branch agencies. The\nproper analysis is essentially the same as applies to settlements that limit rulemaking discretion.\nIn Schering Corp. v. Heckler, 779 F.2d 683 (D.C. Cir. 1985), for example, the\nUnited States Court of Appeals for the District of Columbia Circuit considered\na suit in which a drug manufacturer sought to invalidate a settlement agreement\nbetween a competing drug manufacturer and the Food and Drug Administration\n(\xe2\x80\x9c FDA\xe2\x80\x9d ). The settlement would have prohibited the FDA from undertaking cer\xc2\xad\ntain enforcement activities for 18 months. The settlement concluded litigation that\narose after the FDA had seized a drug that it had claimed was unapproved because\nit was \xe2\x80\x9c new\xe2\x80\x9d within the meaning of the relevant statutory framework. The drug\nmanufacturer then brought a declaratory judgment action contending that the drug\nwas not \xe2\x80\x9c new,\xe2\x80\x9d and the FDA counterclaimed. In return for the dismissal of the\n168\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\ndeclaratory judgment action, the FDA agreed not to pursue enforcement activities\nagainst the manufacturer with respect to the drug in question for 18 months. The\ncompeting drug manufacturer contended that the settlement agreement amounted\nto an abdication of the FDA\xe2\x80\x99s statutory enforcement obligations.\nIn rejecting the competing drug manufacturer\xe2\x80\x99s claim, the court of appeals\nexplained that the agency had harbored doubts about the status of the drug in\nquestion and wished to avoid having the status of the drug determined in a judicial\nrather than an administrative proceeding. \xe2\x80\x98\xe2\x80\x98This was precisely the sort of balancing\nof agency priorities and objectives, informed by judgments on agency expertise,\nthat, absent some \xe2\x80\x98law to apply,\xe2\x80\x99 should not be second-guessed by a court.\xe2\x80\x9d 779\nF.2d at 686. The fact that the agency had agreed to bind the exercise of its enforce\xc2\xad\nment discretion for 18 months did not change the analysis. It simply represented\n\xe2\x80\x9c the quid pro quo that the agency found necessary to procure [the plaintiffs]\nabandonment of its declaratory judgment action. We can no sooner question the\nsoundness of this bargain than we could a unilateral agency decision not to pros\xc2\xad\necute ab ibnitio . . .\nId.20 Thus, as in Citizens for a Better Environment, the\ncourt of appeals considered the question as one that turned on congressional intent,\nrather than constitutional restrictions on the power of the executive branch to limit\nits discretion to enforce congressional statutes.\nC. Promises to Divest Discretion\nThe Meese policy states that a \xe2\x80\x9c department or agency should not enter into\na consent decree that divests the Secretary or agency administrator, or his succes\xc2\xad\nsors, of discretion committed to him by Congress or the Constitution where such\ndiscretionary power was granted to respond to changing circumstances, to make\npolicy, or managerial choices, or to protect the rights of third parties.\xe2\x80\x9d See Meese\nPolicy at 3. The Meese policy also states that\nin any settlement agreement in which the Secretary or agency\nadministrator agrees to exercise his discretion in a particular way,\nwhere such discretionary power was committed to him by Congress\nor the Constitution to respond to changing circumstances, to make\npolicy or managerial choices, or to protect the rights of third parties,\nthe sole remedy for the department or agency\xe2\x80\x99s failure to comply\nwith those terms of the settlement agreement should be the revival\nof the suit.21\n20 The court noted that because the agency had restricted its enforcement discretion only for a limited penod\nof time, see Schering, 779 F.2d at 685-86, and had not finally concluded that the drug was \xe2\x80\x9c new,\xe2\x80\x9d id. at 685\nn 18, there was no question that the agency \xe2\x80\x9c has implemented a policy or pattern of nonenforcement that amounts\nto \xe2\x80\x98an abdication of its statutory responsibilities^]\xe2\x80\x99 " I d at 686\n21 Again, the Meese policy\xe2\x80\x99s distinction between the rules that should apply to consent decrees as opposed to\nsettlement agreements is not mandated by federal law\n\n169\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nId.\n\nTo the extent that this final limit on the Attorney General\xe2\x80\x99s settlement power\nsimply requires executive officials to exercise the discretion that they are required\nby law to retain, it is unremarkable. As we have explained, when Congress man\xc2\xad\ndates that the executive branch retain discretion over certain questions, the execu\xc2\xad\ntive branch generally has no authority to divest itself of that discretion. See Costle\nMemo at 5-6. Similarly, when the Constitution vests a discretionary power in\nthe President, such as the power to make recommendations to Congress, the\nAttorney General may not enter into settlements that divest the President of that\nconstitutionally committed discretion. Absent that constitutional requirement, how\xc2\xad\never, the Attorney General\xe2\x80\x99s settlement discretion turns largely on whether Con\xc2\xad\ngress has authorized the limitation on administrative discretion proposed in the\nsettlement.\nWith respect to the effect of settlements on the rights of third parties, there\nis no general constitutional limitation on discretion-limiting settlements even\nthough such settlements may have consequences for persons or entities not party\nto the settlements and even though the settlement may therefore constrain the\nexecutive branch\xe2\x80\x99s capacity to take account of the interests of non-parties in the\nfuture. To the extent that a settlement would infringe a legal right of a third party,\nwhether statutory or constitutional, however, the settlement would likely be unlaw\xc2\xad\nful as an initial matter, wholly apart from the question whether it may be subject\nto collateral attack. See Local 93, Int\xe2\x80\x99l A ss\xe2\x80\x99n of Firefighters, 478 U.S. at 526\n(explaining that consent decree mandating affirmative action plan would have to\nconform to the Equal Protection Clause); Martin v. Wilks, 490 U.S. 755, 762\n(1989) (holding, in connection with challenge to consent decree implementing\naffirmative action program, that \xe2\x80\x9c [a] judgment or decree among parties to a law\xc2\xad\nsuit resolves issues as among them, but it does not conclude the rights of strangers\nto those proceedings\xe2\x80\x9d ). Finally, general statutory provisions such as the Adminis\xc2\xad\ntrative Procedure Act may limit the manner in which agencies may adopt certain\nregulations that would affect the interests of third parties, by, for example,\nrequiring that such regulations be adopted only after notice and an opportunity\nfor comment by interested parties has been provided. These statutory limitations\nmay therefore constrain the exercise of the settlement power in a manner that\nis protective of third parties.\nV. Conclusion\nIn general, the Attorney General is free to enter into settlements that would\nlimit the future exercise of executive branch discretion that has been conferred\npursuant to statute. Such settlements must be consistent, however, with statutory\nprovisions that directly limit the Attorney General\xe2\x80\x99s settlement power as well as\nstatutory limitations that constrain the authority of the executive branch agencies\n170\n\n\x0cAuthority to Enter Settlements Limiting the Future Exercise o f Executive Branch Discretion\n\non behalf of which the settlement is entered. The Constitution may bar settlements\nlimiting the exercise of statutorily conferred discretion in extraordinary cir\xc2\xad\ncumstances, and Article III may render certain types of promises contained in\nsuch settlements unenforceable, but neither Article II nor Article III should be\nunderstood to impose substantial impediments to the generally broad power of\nthe Attorney General to exercise the settlement discretion that Congress has\nauthorized her to exercise. Article HI does not preclude her from settling simply\nbecause a court could not have imposed similar discretion-limiting terms by an\nordinary injunction. On the other hand, with respect to settlements that would\nlimit the future exercise of discretion that has been conferred upon the executive\nbranch directly by the Constitution, such as the discretion that is conferred upon\nthe President by the Pardon Power or the Recommendations Clause, the scope\nof the Attorney General\xe2\x80\x99s settlement power is constrained by the very constitu\xc2\xad\ntional provisions that vest discretionary authority in the President and therefore\nnecessarily preclude the President from subjecting the exercise of that discretion\nto the control of the other party to a settlement or to judicial enforcement.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n171\n\n\x0c'