b'October 20, 1978\n\n78-58 MEMORANDUM OPINION FOR THE\nDIRECTOR, COUNCIL ON WAGE AND PRICE\nSTABILITY\nFederal Property and Administrative Services Act of\n1949 (40 U.S.C. \xc2\xa7 481)\xe2\x80\x94Government Contracts\xe2\x80\x94\nWage and Price Standards in Government\nProcurement\nThis responds to your request for our opinion on several legal questions\nconcerning an administration proposal to require the observance of wage and\nprice guidelines by corporations and individuals as a condition for doing\nbusiness with the Federal Government. We believe that the President has the\nstatutory authority to require Government contractors to comply with wage and\nprice guidelines as a prerequisite for doing business with the Government. This\nview was upheld in AFL-CIO v. Kahn, 48 U.S.L.W. 2005 (D.C. Cir. June 22,\n1979), cert, denied, 443 U.S. 915 (July 2, 1979). We also believe that the\nGovernment can require Government contractors to receive from their subcon\xc2\xad\ntractors and suppliers certificates that the latter are in compliance with wage\nand price guidelines with regard to the products and services involved in\ncontracts related to the contractors\xe2\x80\x99 Government work.\n\nI. The President\xe2\x80\x99s Power to Establish Procurement Policies\nIn \xc2\xa7 201 of the Federal Property and Administrative Services Act of 1949\n(\xe2\x80\x9c 1949 Procurement Act\xe2\x80\x9d ), 40 U.S.C. \xc2\xa7 481, Congress established that\nGovernment procurement policies must be designed to promote \xe2\x80\x9c economy\xe2\x80\x9d\nand \xe2\x80\x9c efficiency\xe2\x80\x9d in Government procurement. In \xc2\xa7 205(a) of the 1949\nProcurement Act, 40 U.S.C. on \xc2\xa7 486(a), Congress specifically conferred on\nthe President the power to\n. . . prescribe such policies and directives, not inconsistent with the\nprovisions of this Act, as he shall deem necessary to effectuate the\nprovisions of said Act, which policies and directives shall govern the\nAdministrator [General Services] and executive agencies . . . .\nAs interpreted by the United States Court of Appeals for the Third Circuit,\n\xc2\xa7 205(a) grants broad discretion to the President to protect and advance a range\n239\n\n\x0cof governmental interests, including \xe2\x80\x9c the interest of the United States in all\nprocurement to see that its suppliers are not over the long run increasing its\ncosts . . . Contractors Association of Eastern Penrtyslvania v. Secretary of\nLabor, 442 F. (2d) 159, 170 (3d Cir. 1971), cert, denied, 404 U.S. 854 (1971).\nIn the Contractors case, the Third Circuit considered and affirmed the\nvalidity of the \xe2\x80\x9c Philadelphia Plan\xe2\x80\x9d promulgated pursuant to Executive Order\nNo. 11246, 3 CFR 406 (1969), 42 U.S.C. \xc2\xa7 2000e note. The Third Circuit, as\nwell as other courts of appeals, have consistently upheld the principle that\n\xc2\xa7 205(a) of the 1949 Procurement Act confers on the President the power to\nrequire nondiscrimination provisions in all Government contracts. See, e.g.,\nFarkas v. Texas Instrument, Inc., 375 F. (2d) 629 (5th Cir. 1967), cert, denied,\n389 U.S. 977 (1967); Southern Illinois Builders Association v. Ogilvie, 327 F.\nSupp. 1154 (S.D. 111. 1971), affd, 471 F. (2d) 680 (7th Cir. 1972). Prior\nAttorneys General have also opined that Executive Order No. 11246 and its\npredecessors were valid exercises of statutory authority. See 42 Op. A.G.\n97 (1961) (sustaining validity of Executive Order 10925); 42 Op. A.G.\n405 (1969) (sustaining validity of revised \xe2\x80\x9c Philadelphia Plan\xe2\x80\x9d ).\nIn its most recent encounter with a challenge to Executive Order No. 11246,\nthe United States Court of appeals for the Fifth Circuit observed that decisions\nof other courts of appeals had \xe2\x80\x9c candidly acknowledged the validity of the use\nby the President or Congress of the procurement process to achieve social and\neconomic objectives.\xe2\x80\x9d United States v. New Orleans Public Services, Inc.,\n553 F. (2d) 459, 466-67 (5th Cir. 1977), vacated on other grounds, 436 U.S.\n942 (1978).1 We believe that the backdrop formed by New Orleans Public\nService and prior cases interpreting \xc2\xa7 205(a) of the 1949 Procurement Act\nsuggests that in order to assess the general validity of a program requiring\ncompliance with the wage and price guidelines as a condition for doing\nbusiness with the Government, two questions must be considered. First, is such\na program authorized under the 1949 Procurement Act? Second, is such a\nprogram inconsistent with any other statutes?\nA. Authority Under the 1949 Procurement Act. We conclude that the 1949\nProcurement Act authorizes the proposed requirement of compliance with the\nwage and price guidelines. The general purpose of the proposed program\xe2\x80\x94to\nlower costs to the Government of the goods and services it purchases\xe2\x80\x94 is\nclearly consistent with the purposes of the Act. Nor does the program conflict\nwith any specific provision of the Act.\n\n\'In support of this statement, the court cited Roseni Contracting Co. v. Brennan, 508 F. (2d)\n1039, 1045 n. 18 (7th Cir. 1975), and Northeast Construction Co. v. Romney, 485 F. (2d) 752,760\n(D.C. Cir. 1973).\n\n\x0cB. Inconsistency With Other Statutes. The question whether the program as\ndevised is inconsistent with other statutes raises more subtle and difficult\nproblems. In the New Orleans Public Service case discussed above, the Fifth\nCircuit accepted the Government\xe2\x80\x99s contention that Executive Order No. 11246\nwas authorized not only by \xc2\xa7 205(a) of the 1949 Procurement Act, but also by\nTitle VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e et seq., and the\nEqual Employment Opportunity Act of 1972, 86 Stat. 103, which amended\nTitle VII. The court concluded that the order represented \xe2\x80\x9c a long standing\nprogram which Congress has recognized and approved.\xe2\x80\x9d 553 F. (2d) at 467.2\nThe court\xe2\x80\x99s analysis suggested that the 1949 Procurement Act, standing alone,\ndid not provide sufficient authority for the order but for the fact that it was\nsupported by a long history of the use of the procurement process to combat\ndiscrimination against minorities, a use that had been, in effect, ratified by the\nCongress.\nWe are unaware of any statute other than the 1949 Act which might be\nviewed as a source of statutory authority for this program. Implicit in the Fifth\nCircuit\xe2\x80\x99s opinion and its discussion of Youngstown Sheet & Tube, note 2,\nsupra, was the assumption that if Congress had passed some other statute which\nwas inconsistent with the order, then the court may have ruled differently on the\nvalidity of the order.3 It follows that a statute inconsistent with this wage and\nprice program would be viewed as a limitation on the power conferred by\n\xc2\xa7 205(a) of the 1949 Procurement Act.\nThe lack of other supportive statutory authority to implement this program\ndoes not pose a significant problem, primarily because the program is\ndemonstrably more closely related to the purposes of the 1949 Procurement Act\nthan the antidiscrimination programs established by Executive Order No.\n11246 and its predecessors. Thus, while courts may have felt obliged in\nExecutive Order No. 11246 cases to look for additional statutory support for the\nantidiscrimination policies embodied in the order, we believe that the 1949\nProcurement Act itself provides an ample statement of relevant national policy\nand authority\xe2\x80\x94to procure goods and services for the Government in an\neconomical fashion.\nWe now turn to the more difficult question, whether the program would\nconflict with some other statute. We believe that those aspects of the program\nrequiring individuals and companies doing business with the Government to\n\n2In a footnote accompanying this conclusion, the court dismissed an argument that Executive\nOrder No. 11246 constituted executive \xe2\x80\x9c lawmaking\xe2\x80\x9d of the type prohibited by the Court\xe2\x80\x99s decision\nin Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579 (1952). See 553 F. (2d) at 467-68, n. 8.\n3Such an assumption has been adopted in virtually all cases prior to New Orleans Public Service\nin which the validity of Executive Order No. 11246 has been challenged and upheld. See, Southern\nIllinois Builders Ass\'n v. Ogilvie, 327 F. Supp. 1154, 1162 (S.D. III. 1971), a ffd , 471 F. (2d) 680\n(7th Cir. 1972), Joyce v . McCrane, 320F. Supp. 1284, 1291 (D. N.J. 1970); Contractors Ass\' n of\nEastern Pennsylvania\'/. Secretary o f Labor, 442 F. (2d) 159, 171-175 (3d Cir. 1971), cert, denied,\n404 U.S. 854 (1971).\n241\n\n\x0cavoid price increases beyond a specified level may be inconsistent with 50\nU.S.C. App. \xc2\xa7 645b. That provision reads as follows:\nNothing contained in this Act or any other Federal Act (except the\nEmergency Price Control Act of 1942, as amended, the Stabilization\nAct of 1942, as amended, or the District of Columbia Emergency\nRent Act, approved December 2, 1941, as amended), shall be\nconstrued to authorize the establishment by any officer or agency of\nthe Government of maximum prices for any commodity or maximum\nrents for any housing accommodations.\nThe provision would appear to impose on the executive and judicial branches\na rule of statutory construction that would prohibit a finding of implicit, as\nopposed to explicit, power in any Federal statute to establish \xe2\x80\x9c maximum\nprices\xe2\x80\x9d for \xe2\x80\x9c any commodity,\xe2\x80\x9d 4 whether the commodity is sold solely within\nthe private sector or to the Government. Because the setting of a percentage\nguideline beyond which a contractor may not increase his prices charged to the\nGovernment would appear as the setting of a \xe2\x80\x9c maximum price,\xe2\x80\x9d it could be\nargued that \xc2\xa7 645b, on its face, bars the President from utilizing the 1949\nProcurement Act, or any other statute, to establish and enforce price guidelines\neven with regard to those who do business with the Government.\nThe legislative history of \xc2\xa7 645b does not clearly indicate whether the\nCongress passing the provision necessarily intended it to condition a subsequently\nenacted statute, here \xc2\xa7 205(a) of the 1949 Procurement Act. In June of 1946,\nPresident Truman vetoed a bill which would have extended, as amended, the\nEmergency Price Control Act of 1942 (EPCA), 56 Stat. 23, because of his view\nthat the bill was inadequate. Under the 1942 Act, discussed in greater detail\nbelow, the President was empowered to establish maximum prices with regard\nto a wide range of goods and services sold within the private sector and to the\nGovernment. In apparent anticipation of the President\xe2\x80\x99s veto, a late amendment\nwas added by Senator Moore to a bill extending various powers under the\nSecond War Powers Act, 56 Stat. 176.\nMost titles of the Second War Powers Act expired or were repealed by June\n30, 1950, but the Moore amendment had no express expiration date and it has\nnever been repealed. Later in 1946, a law extending the EPCA (but not the\nStabilization Act of 1942) was adopted. That law provided for ceilings on rents\nand most prices but added a number of important exceptions.\nWe believe that the intent of Senator Moore and the Congress in adopting\n\xc2\xa7 645b was limited to placing a prohibition on President Truman\xe2\x80\x99s construing\nany then existing Federal statutes as conferring on him power to control prices\nuntil such time as he and the Congress resolved their dispute over the extension\nof the EPCA. We find nothing inconsistent with this interpretation of \xc2\xa7 645b in\nthe congressional debates on the Moore amendment, 92 Cong. Rec. 7312\n\xe2\x96\xa0*The meager legislative history of the provision suggests that its reference to prices of \xe2\x80\x9c any\ncom m odity" was intended to include the full range of goods and services included in the\nEmergency Price Control Act of 1942, 56 Stat. 23. See H. Rept. No. 2395, 79th Cong., 2d sess.\n(1946); 92 Cong. Rec. 7312, 7872, 7926 (1946).\n\n242\n\n\x0c(1946). In addition, we are unable to find any evidence that any Congress\nsubsequent to the Seventy-ninth has viewed \xc2\xa7 645b as having continued\nvitality.5\nWith regard to those aspects of the proposed program that require compli\xc2\xad\nance with wage guidelines by employers doing business with the Government,\na potential problem is presented by the Davis-Bacon Act, 40 U.S.C. \xc2\xa7 276a,\nwhich generally requires Government contractors to pay minimum levels of\nwages to their employees. Should wages in the private sector rise at a greater\nrate than that established by the wage guidelines to be issued under this program\nby the Council on Wage and Price Stability, it may become necessary for the\nPresident to exercise his authority under 40 U.S.C. \xc2\xa7 276a-5, \xc2\xa7 6 of the\nDavis-Bacon Act, to suspend application of the Act.6 In addition, under Title II\nof the National Emergencies Act o f 1972, Pub. L. No. 94-412, a Presidential\ndeclaration of national emergency required in order to suspend Davis-Bacon\nwould be subject to veto by a concurrent resolution of the Congress. We believe\nthat the so-called legislative veto device such as that contained in the 1976 Act\nis unconstitutional. However, this issue has not yet been resolved by the courts\nand, therefore, were Congress to pass such a concurrent resolution, we may\nanticipate a suit to be filed attempting to block the suspension.\nIn considering whether the use of wage and price guidelines to control the\nprice of goods and services to the Government is inconsistent with statutes\nother than the 1949 Procurement Act, we believe it is important to recognize\nthat there is no history of the use of such guidelines. This is important because\nmost of the decisions upon which we would rely in litigation\xe2\x80\x94those upholding\nExecutive Order No. 11246\xe2\x80\x94were decided several decades after President\nRoosevelt first implemented an anti-discrimination program in 1941. See\nExecutive Order No. 8802. When the courts finally came to pass on the validity\nof Executive Order No. 11246, the authority to issue that order and its\npredecessors was historically well established. In contrast, the history of\nmandatory wage and price controls from World War II to the present suggested\na pattern of tight congressional control over both the delegation of power to the\nPresident and over its exercise. Moreover, control of the wages and prices of\nGovernment contractors has always been treated as part of general controls over\nthe entire economy.\nOn April 11, 1941, President Roosevelt established the Office of Price\nAdministration and Civilian Supply. Executive Order No. 8734, 6 Fed. Reg.\n5It could not be successfully contended that the 1949 Act implicitly repealed the Moore\namendment given the burden usually imposed on those arguing that a statute has been repealed by\nimplication. See, Tennessee Valley Authority v. Hill, 437 U.S. 153, 187 (1978).\n6The experience of this office with a previous suspension of Davis-Bacon in 1971 suggested\nseveral problems that we may expect to arise should that Act or any one of some 6 1 other similar\nstatutes identified in 1961 require suspension. First, any suspension should be applied prospectively.\nSecond, some contractors who deal with the Government may also be subject to State laws similar\nto Davis-Bacon. See, e.g., N.Y. Labor Law, Art. 8; Cal. Labor Code \xc2\xa7\xc2\xa7 1771 et seq. This office\nconcluded in 1970 that suspension of Davis-Bacon would have the effect of suspending or pre\xc2\xad\nempting any applicable State laws.\n\n243\n\n\x0c1917. That agency was empowered to issue formal price schedules, but relied\nfor enforcement solely on publicity and persuasion. One of the functions\nconferred on the agency by \xc2\xa7 2(d) of the order was to\nAdvise and make recommendations to other departments and\nagencies . . . in respect to the purchase or acquisition of materials and\ncommodities by the Government [and] the prices to be paid there\xc2\xad\nfor . . . .\nOn July 30, 1941, President Roosevelt transmitted to Congress a message\nrequesting legislative authority to deal with the impact of inflationary price\nrises.7 The President pointed out that one consequence of the inflationary spiral\nwas the increase in \xe2\x80\x9c [c]osts to the Government.\xe2\x80\x9d In asking for the legislation,\nthe President also stated that, \xe2\x80\x9c,[l]ike other defense legislation, it should expire\nwith the passing of the need, within a limited time after the end of the\nemergency.\xe2\x80\x9d\nThe 77th Congress responded by enacting the Emergency Price Control Act\nof 1942. Section 1(a) declared two purposes of that Act to be: (1) insuring\n\xe2\x80\x9c that defense appropriations are not dissipated by excessive prices\xe2\x80\x9d ; and (2)\npreventing \xe2\x80\x9c hardships\xe2\x80\x9d that would befall \xe2\x80\x9c Federal, State, and local govern\xc2\xad\nment, that would result from abnormal increases in prices.\xe2\x80\x9d But Congress did\nnot grant power to control wages, and in the Senate report on the Act it was\nstated that wage controls\n. . . could, in no event, be acceptable unless coupled with direct and\nspecific determination of the salaries of management, the dividends\nof stockholders, the interest payments received by bondholders, the\nincomes of fanners or merchants of professional persons and of all\nothers.8\nThe EPCA also dealt specifically with the regulation of the prices of\nagricultural commodities, proscribing any control until those prices exceeded\n110 percent of parity or the levels reached during any one of three previous\nperiods, whichever was highest.\nOn October 2, 1942, Congress passed the Stabilization Act, 56 Stat. 765,\nwhich gave the President the power to impose ceilings over agricultural prices\nand to forbid wage raises that had not been approved by the War Labor Board.\nUnder \xc2\xa7 5(a), the Government was entitled to disregard wage payments ruled to\nbe illegal for several purposes, including, inter alia, \xe2\x80\x9c compensation under\ncost-plus contracts and other governmental transactions.\xe2\x80\x9d See, Allen v. Grand\nCentral Aircraft Co., 347 U.S. 535 (1954).9\nIn September of 1950, Congress passed the Defense Production Act (DPA),\nwhich granted authority to the President to control prices either selectively\n7See H. Doc. No. 332, 77th Cong., 1st sess. (1941).\n"See S. Rept. No. 931, 77th Cong., 2d sess. 12 (1942).\n9Under the regulations published pursuant to the Stabilization Act, a determination by the\nNational W ar Labor Board that wage payments were in contravention of that Act was \xe2\x80\x9c conclusive\nupon all Executive Departments and agencies . . . for the purpose of determining costs or expenses\nunder any contract made by or on behalf of the United States." 7 F.R. 8749 (1942).\n\n244\n\n\x0cwithin one industry or sector of the economy or across the board.10 If prices\nwere controlled, then wages would also be required to be controlled. The DPA,\nas had the Stabilization Act, contained an explicit provision empowering the\nPresident to determine whether \xe2\x80\x9c any wage, salary, or other compensation\xe2\x80\x9d had\nbeen paid in violation of the controls and to \xe2\x80\x9c prescribe the extent\xe2\x80\x9d to which\nsuch illegal payments could be \xe2\x80\x9c disregarded by the executive departments and\nother governmental agencies\xe2\x80\x9d with regard to Government contracts. The\nSupreme Court later observed that the \xe2\x80\x9c substance\xe2\x80\x9d of these two provisions was\n\xe2\x80\x9c inescapably the sam e.." Allen v. Grand Central Aircraft Co., supra, at 546.11\nIn the Allen case, the Government contractor argued that the regulations\nmandating the disallowance of illegal wages in computing the sums owed for\nwork or goods sold to the Government were not authorized by the DPA. The\nGovernment\xe2\x80\x99s brief discussed in detail the history of administrative sanctions to\nenforce the wage provisions of the Stabilization Act12 and noted the degree of\noversight which\'Congress had exercised during its existence.13\nIn 1970, Congress reentered the field of wage and price controls by enacting\nanother Economic Stabilization Act, 84 Stat. 799, which generally empowered\nthe President to impose wage and price controls even though President Nixon\nhad specifically opposed the grant of such authority.14 Nothing in the legislative\nhistory of the 1970 Act suggested that Congress believed that there was any\nother statutory authority in the Executive to impose wage and price controls.\nIn 1971, after the President had used the authority under the 1970 Act to\nfreeze wages and prices for a 90-day period, Congress considered administra\xc2\xad\ntion and other proposals to extend the wage and price control authority beyond\nthe expiration date of April 30, 1972. As finally enacted, the Stabilization Act\nAmendments of 1971 added to the President\xe2\x80\x99s arsenal the power to \xe2\x80\x9c stabilize\xe2\x80\x9d\ninterest rates, corporate dividends and \xe2\x80\x9c similar transfers.\xe2\x80\x9d 15\nIn enacting the 1971 amendments, Congress did much to fill in the details\nthat had not been addressed by the 1970 Act. This was done as least partially in\nreponse to the decision in Amalgamated Meat Cutters & Butchers Workmen v.\nConnally, 337 F. Supp. 737 (D.D.C. 1971) (three-judge court), in which a\nclaim that the 1970 Act constituted an unconstitutional overbroad delegation of\nlegislative power to the Executive had been rejected. Nothing in the Amalga\xc2\xad\nmated case suggested any source of power in the President to impose wage and\nprice controls other then the 1970 Act, which the Court upheld largely on the\ntheory that its \xe2\x80\x9c fair and equitable\xe2\x80\x9d standard and other statutory details were\nl0The DPA, like its predecessors, contained a termination date (June 30, 1951) for wage and\nprice control authority, an authority subsequently extended, 64 Stat. 822, to April 30. 1953.\n"U nder the regulations promulgated pursuant to the DPA the "sanction\xe2\x80\x9d against employers who\npaid illegal wages to their employees in connection with work performed on Government contracts\nwas disallowance of the illegal wages paid in computing the money due under the contract or from\nthe Government. See 16 F. R. 6028, 6029, 7284 (1951).\nl2Brief, at 43-58.\nn ld \xe2\x80\x9e at 43-49.\n\'*See H. Rept. No. 1330, 91st Cong., 2d sess. 16 (1970) (minority views).\nI3S. Rept. No. 507, 92d Cong., 1st sess. (1971).\n\n245\n\n\x0csufficiently particular when the Act was read in the context of the legislation\ndiscussed above.\nFinally in 1974, after the expiration of the 1970 Act, as amended, Congress\nenacted legislation establishing the Council on Wage and Price Stability. In\nhearings on the legislation, the administration made clear that\n. . . we are not requesting the statutory authority to impose mandatory,\nwage and price controls or the authority to delay wage and price\nincreases. The mere existence of such authority has in our opinion an\nadverse impact on expectations. The name of the game becomes\n\xe2\x80\x9c raise prices and wages now before the Government intervenes.\xe2\x80\x9d\nStatutory authority to delay wage and price increases would lead to\nthe belief that the Government was on its way back to mandatory\ncontrols. This could result in anticipatory wage and price increases\nthat would be highly inflationary.16\nAs enacted, this legislation contained an explicit provision that nothing in it\n- \xe2\x80\x9c authorizes the continuation, imposition, or reimposition of any mandatory\neconomic controls.\xe2\x80\x9d 17\nThe history recounted above involved wage and price controls applicable to\nthe entire economy or to specific sectors of the economy. The question of\nspecial efforts to impose wage and price restraint on Government contractors as\npart of procurement policy has never been addressed. Successful defense of the\nproposed program may well turn on the Government\xe2\x80\x99s ability to show that the\nrequirement of compliance with wage and price guidelines by those doing\nbusiness with the Government does not constitute the kind of regulation of\nwages and prices in the general economy which Congress has assumed can be\nauthorized only through a specific delegation of power to the President, or\nperhaps by direct statutory regulation by Congress itself.\nThe Senate recently adopted, as an amendment to S. 3077, a \xe2\x80\x9c sense of the\nSenate\xe2\x80\x9d resolution which expressed the view that no statute, including\nspecifically the 1949 Procurement Act, was intended by prior Congresses to\nconfer on the President the authority for the program you have proposed. See\n124 Cong. Rec. S. 16781-82 (daily ed. Sept. 30. 1978). But the resolution\nmerely expresses the \xe2\x80\x9c objection\xe2\x80\x9d of the Senate to implementation of a program\nlike the one at issue here. It is not a law and it is not legally binding.\nFurthermore, the Supreme Court has indicated that \xe2\x80\x9c the views of a subsequent\nCongress form a hazardous basis for inferring the intent of an earlier one.\xe2\x80\x9d\nUnited States v. Philadelphia National Bank, 374 U.S. 321, 348-49 (1963),\nquoting United States v. Price, 361 U.S. 304, 313 (1960).\n\n\'6See, Hearings on Cost o f Living Task Force before the Senate Committee on Banking, Housing,\nand Urban Affairs, 93d Cong., 2d sess. 67 (1974).\n,7S. Rept. No. 1098, 93d Cong., 2d sess. 3 (1974). That same report had taken the position that\nthe bill \xe2\x80\x9c would grant no mandatory or standby control authority over the econom y.\xe2\x80\x9d Id., at 1.\n\n246\n\n\x0cII. Legality of the Options Under Consideration\nYou asked us to address the following two questions: (1) \xe2\x80\x9c would a directive\nby the President that federal agencies not procure from firms which are on the\nCWPS list be upheld in court,\xe2\x80\x9d and (2) \xe2\x80\x9c would a directive be upheld if it\nprecluded awards to firms which although in compliance with the standards for\nthe products which the agency was procuring, was not in compliance for its\nother products.\xe2\x80\x9d\nUnder the first type of directive, a contractor is generally barred from doing\nbusiness with the Government if its business activities as a whole are found to\nbe in noncompliance with the wage and price guidelines established by the\nCouncil. Thus, a contractor whose Government-related operations are in\ncompliance could nevertheless be barred because its overall operations are not\nin compliance. Under the second type of directive, a contractor who can\nconvincingly separate his non-Govemment from his Government operations is\nbound to adhere to the wage and price guidelines only with regard to the latter\noperations.\nWe believe that the difference between the two types of directives will\nprobably have little impact on the validity of the overall program if.the\nprinciples established in the Executive Order No. 11246 cases are applied by\nthe courts to this program. We conclude this because, under the reasoning of\nRosetti Contracting Co. v. Brennan, 508 F. (2d) 1039, at 1045, n. 18 (1975), a\nprogram will be upheld even if the relationship between prices paid by the\nGovernment and the objectives of the program itself are somewhat \xe2\x80\x9c attenuated.\xe2\x80\x9d\nSee generally, United States v. New Orleans Public Service, Inc., 553 F. (2d),\nat 467-68, n. 8 .18\nHowever, the more direct the connection between compliance with wage and\nprice guidelines and lower costs to the Government, the stronger is your\nargument that the program is in furtherance of the purpose of the 1949\nProcurement Act to procure goods and services for the Government more\neconomically and efficiently. Therefore the case with respect to goods and\nservices supplied to the Government will be stronger than for other products of\na Government contractor.19\nNext, you raised a question whether \xe2\x80\x9c a contractual requirement in a prime\ncontractor\xe2\x80\x99s contract that it require certification of compliance of its subcontrac\xc2\xad\ntors and suppliers\xe2\x80\x9d would be upheld. A similar provision is contained in \xc2\xa7 203\nof Executive Order No. 11246. We believe that such a provision would be\nupheld along with the basic program; neither provision would place any\nenforcement responsibility on the contractor himself.\n,8Under this principle, we think a court would probably accept the argument that applying wage\nand price guidelines to all phases of a corporation\xe2\x80\x99s business would, over the "long run ," id., at\n170, decrease procurement costs to the Government.\n19We note that in cases where a contractor cannot satisfactorily segregate his Government and\nnon-Govemment related operations, debarment of the contractor should be possible under the\nsecond type of directive without implicating the broader reach of the first type of directive.\n\n247\n\n\x0cYou also asked whether \xe2\x80\x9c the exclusion from this program of contracts\nawarded under formally advertised procedures significantly improves\xe2\x80\x9d the\nchances that either program would be upheld. Because there is no requirement\nthat formally advertised contracts be awarded to the lowest bidder, see 41\nU.S.C. \xc2\xa7 253(b), we believe that the inclusion of such contracts within the\nreach of the program should not significantly affect the legality of the program\none way or the other. Again, it may be that the degree to which the total\neconomy is directly affected by this program would be a factor in judicial\nconsideration of an argument that the program is in effect a general, mandatory\nwage and price system which can be imposed only pursuant to congressional\nauthorization.\nFinally, we address the implicit issue whether debarment is an appropriate\nand authorized sanction for violation of wage and price guidelines. Under\nanalogous case law, e.g., Copper Plumbing & Heating Co. v. Campbell, 290\nF. (2d) 368 (D.C. Cir. 1961), as well as those cases upholding Executive Order\nNo. 11246, we believe that debarment is an appropriate remedy. At the same\ntime, in at least one case sustaining debarment in the absence of explicit\nstatutory authority, the court added that debarment cannot occur \xe2\x80\x9c without\neither regulations establishing standards and a procedure which are both fair\nand uniform or basically fair treatment\xe2\x80\x9d of those debarred. Gonzalez v.\nFreeman, 334 F. (2d) 570, 580 (D.C. Cir. 1964). This case strongly suggested\nthat if debarment is utilized as a remedy, scrupulous attention must be given to\ninsure that the standards for exceptions are clearly established by regulation\nand that those standards are applied uniformly.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n248\n\n\x0c'


b'Nomination of Sitting Member of Congress to be Ambassador\nto Vietnam\nThe Ineligibility Clause does not bar the nomination o f Representative Pete Peterson to be Ambassador\nto the Socialist Republic of Congress, provided that the President does not make the determination\nto create the office o f ambassador to that government until after the expiration of the term for\nwhich Representative Peterson was elected.\nJu ly 26, 1996\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nYou have asked for our opinion as to whether the Ineligibility Clause of the\nConstitution, U.S. Const, art. I, \xc2\xa76, cl. 2, operates to bar the nomination of Rep\xc2\xad\nresentative Douglas (\xe2\x80\x9c Pete\xe2\x80\x9d ) Peterson to be Ambassador to the Socialist Republic\no f Vietnam. We conclude that, in the circumstances of this case, Representative\nPeterson is not ineligible, provided that the President does not make the determina\xc2\xad\ntion to create the office of ambassador to that government until after the expiration\no f the term for which Representative Peterson was elected.\nI.\nThe Ineligibility Clause (the \xe2\x80\x9c Clause\xe2\x80\x9d ), U.S. Const, art. I, \xc2\xa76, cl. 2, states,\nin part, that\nNo Senator or Representative shall, during the Time for which he\nwas elected, be appointed to any civil Office under the Authority\no f the United States, which shall have been created, or the Emolu\xc2\xad\nments whereof shall have been encreased, during such time . . . .\nRepresentative Peterson was elected on November 8, 1994, for a term that began\non January 4, 1995, and that will end at noon of January 3, 1997. The President\nnominated him as Ambassador to the Socialist Republic of Vietnam (\xe2\x80\x9c Vietnam\xe2\x80\x9d )\non May 23, 1996.\nIf the Ineligibility Clause applies to Representative Peterson\xe2\x80\x99s appointment to\nthe office o f Ambassador to Vietnam, it will apply only until the end of the term\nfor which he was elected, i.e., until January 3, 1997, but not thereafter.1 Prior\nopinions o f the Attorney General and of our Office have resolved that an ineligible\nM em ber o f Congress cannot escape the Clause by resigning from Congress before\n1 See, e.g.. Appointment o f Senator as Federal Judge , 33 O p. A tt\xe2\x80\x99y Gen. 88, 89 (1922) (Senator elected for term\nexpiring M arch 4, 1919, and re-elected fo r term beginning on same date, was eligible to be appointed as federal\njudge, notw ithstanding fact that salaries o f federal judges were increased by Act of Congress of February 25, 1919.).\n\n284\n\n\x0cNomination o f Silting Member o f Congress to be Ambassador to Vietnam\n\naccepting his or her appointment to office.2 The opinions and practice of the\nexecutive branch have also assumed that the Clause cannot be avoided if an ineli\xc2\xad\ngible Member of Congress is nominated and confirmed to an office created during\nthe term for which the Member was elected, but not commissioned by the Presi\xc2\xad\ndent until after that term expires.3\nBefore proceeding further, we note that there is a difficult and substantial ques\xc2\xad\ntion whether the ambassadorial position for which Mr. Peterson has been nomi\xc2\xad\nnated would be a \xe2\x80\x9c civil Office\xe2\x80\x9d covered by the Clause. The only precedent we\nhave identified that is directly on point assumes (without discussion) that it should\nbe considered to be such an office.4 In accordance with that precedent, we shall\nassume here, without deciding, that the Ambassadorship to Vietnam would be\na \xe2\x80\x9c civil Office\xe2\x80\x9d within the meaning of the Ineligibility C lause.5\n2 See, e.g., Appointment to Civil Office, 17 Op. Att\xe2\x80\x99y Gen. 365 (1882) (prospective appointee held ineligible despite\nhaving resigned from Congress during term for which he was elected and before appointment would have been\nmade); Memorandum for the Honorable John D. Ehrlichman, Assistant to the President for Domestic Affairs, from\nWilliam H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel, Re: Eligibility o f Members o f the 91st\nCongress to Be Appointed to the Position o f Director o f the Office o f Management and Budget at 4-5 (Mar. 31,\n1970) (reaffirming prior view), accord Memorandum to the Honorable Jesse Helms, Chairman, and the Honorable\nClaiborne Pell, Ranking Member, from Thomas B. Griffith and Jill E. Hasday, Office o f Senate Legal Counsel,\nRe: The Ineligibility Clause at 2 (July 24, 1996) ( \xe2\x80\x9c Senate M em o").\n3 See Memorandum for the Attorney General from Charles J. Cooper, Assistant Attorney General, Office o f Legal\nCounsel, Re: Ineligibility o f Sitting Congressman to Assume A Vacancy on the Supreme Court at 3 n.2 (Aug. 24,\n1987), Federal Election Commission\xe2\x80\x94 Appointment o f Members, 2 Op. O.L.C. 359, 360 (1977); Member o f Con\xc2\xad\ngress\xe2\x80\x94 Appointment to Office, 21 Op. Att\xe2\x80\x99y Gen. 211, 214 (1895); Appointment to Civil Office, 17 Op A tt\xe2\x80\x99y Gen.\n522, 523 (1883); accord Senate Memo at 2-3.\nThis construction o f the meaning o f the term \xe2\x80\x9c appointed\xe2\x80\x9d in the Ineligibility Clause originated with President\nGeorge Washington, who withdrew the nomination o f an ineligible former Senator to be an Associate Justice o f\nthe Supreme Court, and declared the act of nomination within that Senator\xe2\x80\x99s term \xe2\x80\x9c to have been null by the Constitu\xc2\xad\ntion.\xe2\x80\x9d Nomination o f George Washington in 1, The Documentary History o f the Supreme Court o f the United Stales,\n1789-1800, at 90 (M aeva Marcus et al. eds., 1985).\nAt least one later President has explicitly followed the W ashington precedent. In 1973, President Richard Nixon\ninformed the Senate that he would withhold the nomination o f Senator William Saxbe to be Attorney General until\nafter Congress had cured Senator Saxbe\xe2\x80\x99s ineligibility by enacting legislation that would reduce the compensation\nand other emoluments attached to the Office o f Attorney General to those that had been in effect before Senator\nSaxbe began his term. President Nixon stated that \xe2\x80\x9c Constitutional precedents beginning with President W ashington\nindicate that the nomination o f an individual not then eligible m ay be improper and that any subsequent appointment\nbased on such nomination might be null and void.\xe2\x80\x9d Letter from the President to the Hon. Gale W. McGee, Chairman,\nComm, on Post O ffice and Civil Service, U.S. Senate (Nov. 8, 1973), reprinted in S. Rep. No. 93-499, al 3 (1973);\nsee also To Reduce the Compensation o f the Office o f Attorney General: Hearing on S. 2673 Before the Senate\nComm, on the Judiciary, 93d Cong. 70 (1973) (the \xe2\x80\x9c Saxbe H earing\xe2\x80\x9d ) (statement of Robert G. Dixon, Jr., Assistant\nAttorney G eneral, Office o f Legal Counsel) ( \xe2\x80\x9c In light o f this constitutional practice, Senator Saxbe cannot be nomi\xc2\xad\nnated until legislation removing his disqualification has been passed.\xe2\x80\x9d ).\n4See Member o f Congress\xe2\x80\x94 Appointment to Office, 21 Op. A tt\xe2\x80\x99y Gen. at 212-13 (appointment o f Senator as\nenvoy extraordinary and minister plenipotentiary to Mexico was forbidden by Clause because emoluments o f that\noffice had been increased during term for which Senator was elected); see also Saxbe Hearing at 50 (remarks of\nProfessor van Alstyne) (finding that opinion to be \xe2\x80\x9c unquestionably sound\xe2\x80\x9d ).\n5 Accordingly, we do not rely on the view that the Office o f the Senate Legal Counsel ascribes to us, that \xe2\x80\x9c the\nClause applies only to congressionally-created offices.\xe2\x80\x9d Senate Memo at 3.\nAs we have stated, the question whether the Ineligibility Clause generally applies to ambassadorships is a difficult\none. It has been said that \xe2\x80\x9d [t]he foremost danger\xe2\x80\x9d that the Clause was intended to guard against \xe2\x80\x9c was that legislators\nwould create offices with the expectancy o f occupying them themselves.\xe2\x80\x9d Freytag v. Comm\'r, 501 U.S. 868, 904\n(1991) (Scalia, J., concurring in judgment); see also Atkins v. United States, 556 F.2d 1028, 1070 (Ct. Cl. 1977)\n(per curiam) ( \xe2\x80\x9c This provision was generated out o f a fear that corruption would result if the legislature multiplied\nthe number or increased the salaries o f public offices for the benefit o f its own members.\xe2\x80\x9d ), cert, denied, 434\nU.S. 1009 (1978); see generally Saxbe Hearing at 70-71 (statement o f Assistant Attorney General Dixon) (reviewing\nContinued\n\n285\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n11.\nThe central question, therefore, is whether the office of Ambassador to Vietnam\nhas been \xe2\x80\x9c created\xe2\x80\x9d within the proscribed tim e.6 This appears to be a case of\nfirst impression; in any event, relevant precedents are rare.7 While federal offices\nare nearly always created by Acts of Congress (or else pursuant to delegations\no f legislative authority),8 the executive branch has historically taken the position\nthat the President has the inherent, constitutional power to create diplomatic of\xc2\xad\nfices, and Congress has generally acquiesced in that view .9\nAs long ago as 1855, Attorney General Caleb Cushing opined that the Constitu\xc2\xad\ntion conferred on the President the power to appoint ambassadors and other diplo\xc2\xad\nmatic officers, subject only to the advice and consent of the Senate, in the absence\noriginal materials). If the purpose of the C lause is only to prevent self-dealing by Congress, its prohibition would\nnot extend to offices that w ere created by the President pursuant to his inherent, constitutional powers; and, as\nfurther discussed below , it has been the traditional position o f the executive branch that diplomatic offices are created\nby unilateral presidential action. On this understanding o f the Clause, it would not apply to the ambassadorial post\nfor which Mr. Peterson has been nominated.\nThe Clause does not in terms refer, how ever, to civil Offices created 4\xe2\x80\x98by Congress*\xe2\x80\x99: it refers to \xe2\x80\x9c civil O ffices\xe2\x80\x9d\nas such. M oreover, the Clause might well be understood to be addressed, not only to legislative self-dealing, but\nalso to attem pts by the Executive to exercise improper influence on Congress, including offers of appointments\nto offices that the Executive could create by virtue o f its ow n independent powers. See, e.g., Buckley v. Valeo,\n424 U.S. 1, 124 (1976) (per curiam) (concern o f Clause was with \xe2\x80\x9c maintenance o f the separation of powers\xe2\x80\x9d );\nJoseph C ooper & A nn C ooper, The Legislative Veto and the Constitution, 30 Geo. Wash. L. Rev. 467, 500 (1962)\n(\xe2\x80\x9c The framers were trying to avoid a pattern o f politics in which the executive manipulated the legislature through\nits patronage resources o r the legislature m ultiplied the number o r increased the salaries o f public officers for the\nbenefit o f its ow n m em bers.\xe2\x80\x9d ). Consistent w ith that view, it appears that many Americans in the Founding Period\nwere fearful o f the British C row n\xe2\x80\x99s power to create offices, as well as to fill them. See, e.g., The Federalist No.\n69, at 421 (A. H amilton) (Clinton Rossiter ed. 1961) ( \xe2\x80\x9c The king o f Great Britain . . . not only appoints to all\noffices, but can create offices.\xe2\x80\x9d ); Weiss v. United States, 510 U.S. 163, 187 n.2 (1994) (Souter, J., concurring);\nFreytag v. Comm\xe2\x80\x99r, 501 U.S. at 904 n.4 (Scalia, J., concurring in judgm ent); G ordon S. W ood, The Creation o f\nthe American Republic 1776-1787, at 144 (1969); Louis Fisher, Constitutional Conflicts between Congress and the\nPresident 23 (3d ed. 1991). So understood, th e Clause would reach offices that were created by the Executive acting\nalone.\nOn yet another view o f the Clause, its prim ary purpose was to discourage the wasteful multiplication of federal\noffices. In that connection, at least two delegates to the Philadelphia Convention, and one delegate to the Virginia\nRatifying Convention, specifically pointed to the danger that ambassadorships might be created unnecessarily. See\nNotes o f Debates in the Federal Convention o f 1787, Reported by James Madison 178 (Adrienne Koch ed., 1976)\n(remarks o f Mr. Sherman on June 23); id. at 452 (remarks o f Mr. G erry on August 14); see also 10 The Documentary\nHistory o f the Ratification o f the Constitution 1263-64 (John P. Kaminski et al. eds. 1993) (remarks of Mr. Grayson\nin Virginia Ratifying Convention). In light o f these comments, it might again be argued that the Clause reached\nambassadorial offices.\n6 W e note that if the office o f Ambassador to Vietnam has not been \xe2\x80\x9c created\xe2\x80\x9d during the time for which Represent\xc2\xad\native Peterson was elected, the prohibition o n increased \xe2\x80\x9c em olum ents\xe2\x80\x9d in art. I, \xc2\xa76 , cl. 2 would necessarily be\ninapplicable. The ineligibility relates to civil offices, \xe2\x80\x9c the Emoluments whereof shall have been increased\xe2\x80\x9d (emphasis\nadded). If the office does not exist within the proscribed time, no emoluments have attached to it, or could have\nbeen increased.\n1 See John F. O \'C o n n o r, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24\nHofstra L. Rev. 89, 111 (1995) ( \xe2\x80\x9c Not surprisingly, the question whether Congress has in fact created a new office\nrarely has surfaced; statutes creating new federal offices generally are clear enough to settle the m atter.\xe2\x80\x9d ).\n8 See Myers v. United States, 272 U.S. 5 2 , 128-29 (1926); Weiss v. United States, 510 U.S. at 183 (Souter, J.,\nconcurring). Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer\nFunds Under Foreign Aid Legislation, 9 Op. O.L.C. 76, 7 7 -7 8 (1985).\n9 See generally Fisher, supra note 5, at 3 9 -4 0 .\n\n286\n\n\x0cNomination o f Silling M ember o f Congress to be Ambassador to Vietnam\n\nof any legislation purporting to create offices for them to occupy. He stated that\nthe Appointments Clause of the Constitution, U.S. Const, art. 2, \xc2\xa72, cl. 2 , 10\nempowers the President to appoint [ambassadors] and other \xe2\x80\x9c public\nministers,\xe2\x80\x9d that is, any such officers as by the law of nations are\nrecognised as \xe2\x80\x9c public ministers,\xe2\x80\x9d without making the appointment\nof them subject, like, \xe2\x80\x9c other (non-enumerated) officers,\xe2\x80\x9d to the exi\xc2\xad\ngency of an authorizing act of Congress. In a word, the power to\nappoint diplomatic agents, and to select for employment any one\nout of the varieties of the class, according to his judgment of the\npublic service, is a constitutional function of the President, not de\xc2\xad\nrived from, nor limitable by, Congress, but requiring only the ulti\xc2\xad\nmate concurrence of the Senate; and so it was understood in the\nearly practice o f the Government.\nAmbassadors and other Public Ministers, 7 Op. A tt\xe2\x80\x99y Gen. 186, 193 (1855).11\n\nWith reference to early practice, Attorney General Cushing cited the case of\nPresident George Washington\xe2\x80\x99s nomination of William Short to be charge d \xe2\x80\x99af\xc2\xad\nfaires in France, during the temporary leave of Ambassador Thomas Jefferson.12\nThis nomination occurred very early in Washington\xe2\x80\x99s first term, even before the\nfirst Congress had been able to enact legislation creating the Department of For\xc2\xad\neign Affairs (later, the State Departm ent).13 As Cushing pointed out, \xe2\x80\x9c no enact\xc2\xad\nment occurs at that session, either in the act making appropriations for the service\nof the year, (1 Stat. at Large, p. 95), or in any other, to define the number or\nrank of the diplomatic agents of the United States.\xe2\x80\x9d 14 Hence, \xe2\x80\x9c the designation\nof the officer was derived from the law of nations, and the authority to appoint\nfrom the Constitution.\xe2\x80\x9d 15\n10The Appointments Clause states, in part, that the President \xe2\x80\x9c shall nominate, and by and with the Advice and\nConsent o f the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges o f the supreme Court,\nand all other Officers o f the United States, whose Appointments are not herein otherwise provided for, and which\nshall be established by L a w /\xe2\x80\x99\n11 For the background to Attorney General Cushing\'s opinion, see Graham H. Stuart, American Diplomatic and\nConsular Practice 6 (2d ed. 1952).\n12 See Ambassadors and other Public Ministers, 7 Op. A tt\'y Gen. at 193-94; see also 1 Messages and Papers\no f the Presidents 58 (James D. Richardson ed. 1896) (letter from President George W ashington to the Senate, dated\nJune 15, 1789, nominating Short).\nMoreover, President W ashington reported a conversation with James Madison, in which Madison concurred in\nthe opinion, given also by John Jay and Thomas Jefferson to Washington, that the Senate had \xe2\x80\x9c no Constitutional\nright\xe2\x80\x99\xe2\x80\x99 to \xe2\x80\x9c interfere\xe2\x80\x99\xe2\x80\x99 with the President\xe2\x80\x99s decision \xe2\x80\x9c on the places to which it would be necessary to send persons\nin the Diplomatic line,\xe2\x80\x99\xe2\x80\x99 or on the \xe2\x80\x9c grade\xe2\x80\x9d o f such persons. The Diary o f George Washington, From 1789 to\n1791 (Benson J. Lessing ed., photo, reprint 1978) (1860).\n>3 See Act of July 27, 1789, ch. 4, 1 Stat. 28.\n14Ambassadors and other Public Ministers, 1 Op. A tt\xe2\x80\x99y Gen. at 193.\n15 Id. at 194. Similarly, James M adison advised President Monroe on M ay 6, 1822, that it was his belief that\n\xe2\x80\x9c the practice of the Government had from the beginning been regulated by the idea that the places or offices of\npublic ministers and consuls existed under the law and usages o f nations, and were always open to receive appoint\xc2\xad\nments as they might be made under competent authorities.\xe2\x80\x99\xe2\x80\x99 1 A Digest o f the International Law o f the United\nContinued\n\n287\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nIt appears that the practice of the political branches thereafter generally accorded\nwith the Executive\xe2\x80\x99s conception of its constitutional power. In Francis v. United\nStates, 22 Ct. Cl. 403, 405 (1887) (emphasis added), the court said:\nM ost offices of the Government are established by general laws,\nexcept in the diplom atic service, and all salaries are fixed in like\nmanner . . . . In the diplomatic service, Congress seems to have\npractically conceded, whether on constitutional grounds rightly or\nwrongly taken or otherwise, the duty, power, or right of the Execu\xc2\xad\ntive to appoint diplomatic agents, of any rank or title, at any time\nand at any place, subject to such compensation, or none at all, as\nthe legislative branch o f the Government should in its wisdom see\nfit to provide . . . .\nIn another opinion from the same time, the court again pointed out that the\nExecutive had consistently taken this view of its power, and that Congress had\nlong acceded to it:\nIt has been claimed by the Executive, in accordance with the opin\xc2\xad\nion of Attorney General Cushing, that by the Constitution to the\nExecutive alone is granted the power to appoint diplomatic agents\nof any rank or title, at any time, and at any place, and upon the\nexercise of this power Congress can place no extension or limita\xc2\xad\ntion, by undertaking either to create, abolish, or change the char\xc2\xad\nacter, title, or rank of officers. On the other hand, to the legislative\nbranch of the Government alone is granted the power to provide\nfor the compensation o f those, as well as of all other public officers,\nand this it may do in such manner as it deems best, or may withhold\nall compensation whenever it sees fit to do so. During the whole\nStates \xc2\xa7 7 8 at 583 (Francis Wharton ed. 1886). (M adison therefore rejected the idea that every tim e an ambassador\nwas sent to a particular country, the office o f ambassador to that country was created anew. Id.\nAccording to an authoritative treatise from the period o f the framing o f the Constitution, the law o f nations taught\nthat \xe2\x80\x9c each N ation possesses both the rig h t to negotiate and have intercourse with the others, and the reciprocal\nobligation to lend itself to such intercourse as far as circumstances will permit it to do so.\xe2\x80\x9d 3 Emmerich de Vattel,\nThe Law o f Nations or The Principles o f Natural Law 362 (Charles G. Fenwick trans., 1916) (1758). Accordingly,\nbecause \xe2\x80\x9c Nations o r sovereign States d o not treat with one another directly as corporate entities; nor can their\nrulers o r sovereigns readily meet one another personally in order to negotiate their affairs,\xe2\x80\x9d they communicate\n\xe2\x80\x9c through the mediation o f public ministers. This expression . . . is particularly applied to those who are appointed\nto fulfill [public] duties at a foreign c o u rt . . . . Every sovereign State has, therefore, the right to send and to\nreceive public ministers. For they are the necessary agents in the negotiation of the affairs which sovereigns have\nw ith one another, and in the maintenance o f the intercourse which sovereigns have a right to keep up.\xe2\x80\x9d Id; see\nalso Henry W heaton, Elements o f International Law \xc2\xa7207, at 243 (photo, reprint 1936) (1866) ( \xe2\x80\x9c Every independent\nState has a right to send public ministers to, and receive ministers from, any other sovereign State with which\nit desires to maintain the relations of peace and amity. No State, strictly speaking, is obliged, by the positive law\no f nations, to send or receive public m inisters, although the usage and comity o f nations seem to have established\na sort o f reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation,\nand m ust be modified by the nature and importance o f the relations to be maintained between different States by\nmeans o f diplomatic intercourse.\xe2\x80\x9d ).\n\n288\n\n\x0cNomination o f Sitting Member o f Congress to be Ambassador to Vietnam\n\nof the administration of President Jefferson, and part of the terms\nof other early Presidents, Congress annually appropriated a sum in\ngross \xe2\x80\x9c for the expenses of intercourse with foreign nations,\xe2\x80\x9d leav\xc2\xad\ning it to the Executive to fix the salaries of its several appointees.\nByers v. United States, 22 Ct. Cl. 59, 63-64 (1887). \'6\n\nAccordingly, we believe that the President has the inherent, constitutional power\nto create diplomatic offices such as ambassadorships, without any need for statu\xc2\xad\ntory authorization.17 The question then becomes that of identifying the time at\nwhich the President acts to create such offices.\nParticularly instructive is a controversy over the Recess Appointments Clause,\nU.S. Const, art. II, \xc2\xa72, cl. 3, that arose during the War of 1812, under the Presi\xc2\xad\ndency of James M adison.18 The Czar of Russia had unexpectedly offered to medi\xc2\xad\nate between the United States and Great Britain, who were then at war. President\nMadison was eager to grasp the opportunity, and in 1813 gave recess appointments\nto Albert Gallatin, John Quincy Adams and James A. Bayard to negotiate a peace\ntreaty. Madison also sought the Senate\xe2\x80\x99s advice and consent to their appointment\nas Envoys Extraordinary and Ministers Plenipotentiary. The Senate confirmed\nAdams\xe2\x80\x99 and Bayard\xe2\x80\x99s nominations, but rejected Gallatin\xe2\x80\x99s. Senator Gore intro\xc2\xad\nduced a motion to censure Madison, on the grounds that the recess appointments\nhad been unconstitutional. The principal argument was that because these offices\nhad not been established by statutory law, no vacancies existed to which the Presi\xc2\xad\ndent could make recess appointments. Madison\xe2\x80\x99s defenders in the Senate argued\nthat the recess appointments were constitutional, maintaining that the President\nhad the inherent power to create diplomatic offices when and as, in his judgment,\ninternational circumstances so required \xe2\x80\x94 and thus, if need be, during a recess\n16 There have, however, been instances in which Congress has apparently asserted the authority to create diplomatic\noffices. For example, the Act o f March 2, 1909, provided that \xe2\x80\x9c hereafter no new ambassadorship shall be created\nunless the same shall be provided for by an Act o f Congress.\xe2\x80\x9d 35 Stat. 672. Notwithstanding that Act, \xe2\x80\x9c President\nWilson appointed an ambassador to Peru in 1919 without any authorization from the Congress other than that found\nin the appropriation bill for the Department o f State.\xe2\x80\x9d Graham H. Stuart, American Diplomatic and Consular Practice\nat 137.\n17 The Foreign Service Act, codified in relevant part as 22 U.S.C. \xc2\xa7 3942(a)(1), states that \xe2\x80\x9c (t]he President may,\nby and with the advice and consent o f the Senate, appoint an individual . . . as an ambassador at large, as an\nambassador, [or] as a m inister.\xe2\x80\x9d The relevant question here is whether the statute should be understood to be a\nlegislative act creating the office o f ambassador (and, inter alia, the office o f ambassador to Vietnam). Assuming\nthat it could be so read, Mr. Peterson would not be ineligible for the office to which he has been nominated, because\nthat office would have been created before the beginning o f the 104th Congress. (Section 3942(a) was last amended\nby the Foreign Relations Authorization Act, Fiscal Year 1992 and 1993, Pub. L. No. 102-138, \xc2\xa7141, 105 Stat.\n647, 667 (1991)). In our opinion, however, the section is better understood as merely declaratory of what the constitu\xc2\xad\ntional procedure for appointing ambassadors is, rather than as a legislative creation of such offices. Thus, the fact\nthat it was enacted before the cunent Congress would have no bearing on Mr. Peterson\xe2\x80\x99s eligibility. Alternatively,\nthe section might conceivably be construed, not as itself creating ambassadorships, but as authorizing the President\nto do so. That reading would also fail to resolve the question at issue, however, because the time at which the\nPresident exercised such a statutory grant o f authority would be identical with the time at which he exercised his\nconstitutional authority to create the office o f ambassador to Vietnam.\n18The Recess Appointments Clause states that the President \xe2\x80\x9c shall have Power to fill up all Vacancies that may\nhappen during the Recess o f the Senate, by granting Commissions which shall expire at the End o f their next Ses\xc2\xad\nsion.\xe2\x80\x9d\n\n289\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nof the S en ate.19 Senator Bibb, an ally of M adison\xe2\x80\x99s, reasoned that it was essential\nto recognize\ntwo descriptions of offices altogether different in their nature, au\xc2\xad\nthorized by the Constitution\xe2\x80\x94 one to be created by law, and the\nother depending for their existence and continuance upon contin\xc2\xad\ngencies. O f the first kind, are judicial, revenue, and similar offices.\nO f the second, are Ambassadors, other Public Ministers and Con\xc2\xad\nsuls. The first description organize the Government and give it effi\xc2\xad\ncacy. They form the internal system, and are susceptible of precise\nenumeration. When and how they are created, and when and how\nthey become vacant, may always be ascertained with perfect preci\xc2\xad\nsion. Not so with the second description. They depend for their\noriginal existence upon no law, bu t are the offspring o f the state\no f our relations with foreign nations , and m ust necessarily be gov\xc2\xad\nerned by distinct rules. A s an independent Power, the United States\nhave relations with all other independent Powers; and the manage\xc2\xad\nment o f those relations is vested in the Executive.\n22 Annals o f Cong. 699 (1814) (emphasis added).\nWith respect to the disputed recess appointments, Bibb argued\nthat the office could not exist until the Russian mediation was pro\xc2\xad\nposed, and that it was proposed during the recess of the Senate.\nUntil, therefore, the office was created, it could not be said to have\nbeen either full or vacant; but the moment it commenced its exist\xc2\xad\nence, it was necessarily full or vacant. It was vacant until filled\nby the President. The office itself, like that o f all foreign missions,\nwas the offspring of circumstances, and the happening o f the va\xc2\xad\ncancy w as contemporaneous with the commencement o f the office.\nThey w ere both created by the occasion; the occasion occurred;\nthe office began its existence\', the vacancy happened during the re\xc2\xad\n\ncess of the Senate; and as the Executive is authorized \xe2\x80\x9c to fill up\nall vacancies which may happen during the recess,\xe2\x80\x9d it was his Con\xc2\xad\nstitutional right to fill this.\n26 Annals of Cong. 702-03 (1812) (emphasis added).20\n19 For the circum stances o f Madison\'s recess appointments and the ensuing controversy, see 6 Irving Brant, James\n\nMadison 155-57, 2 4 2 -4 3 (1961).\n20 Senator Bibb also articulated a distinct defense o f President M adison\'s action. According to this alternative\ntheory, \xe2\x80\x9c the office com m enced with every independent Power from the moment the United States became inde\xc2\xad\npendent, and authorized the appointment o f foreign M inisters, and it w ill continue to exist so long as we and they\n\n290\n\n\x0cNomination o f Sitting Member o f Congress to be Ambassador to Vietnam\n\nSenator Horsey (a Federalist, and so not of Madison\xe2\x80\x99s party), also defended\nthe President\xe2\x80\x99s recess appointments, arguing that\n[t]he office then of a public Minister is the medium through which\nthe Executive is enabled to manage our foreign relations, and par\xc2\xad\nticularly to conduct negotiations. It is an office wholly different\nfrom the ordinary offices created by the Constitution or by\nlaw. . . . [I]t is an office not created by the Constitution, nor by\nany municipal law, but emanates from the laws of nations and is\ncommon to all civilized Governments. . . . It is an office, if it may\nbe so called, sui generis. The number may be multiplied to any\nextent, or diminished. It is brought forth with the occasion, and\ndisappears when the occasion ceases. When not filled, if it exists\nat all, it is only in contemplation. . . . The office of a public Min\xc2\xad\n\nister, therefore, depends upon events, upon the state of foreign af\xc2\xad\nfairs, and is authorized by the laws of nations. . . . The office in\ntruth attaches whenever the occasion arises to use it, and the act\no f appointment is the consummation o f the law.\nId. at 711-12 (emphasis added).21\n\nReview of this controversy suggests that, at the very least, diplomatic offices\nmay be created by the President at whatever time, in his judgment, the interests\nof the United States in its dealings with foreign nations require them to be m ade.22\ncontinue independent, unless destroyed by the termination o f the relations which created it. The period at which\nit should be filled is left by the Constitution to the discretion o f the President.\xe2\x80\x9d Id. at 699. On this account, it\nappears that the office o f ambassador exists as a necessary incident to sovereignty, and thus has existed since the\nUnited States became independent in 1776. Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316\xe2\x80\x94\n18 (1936) (power to maintain diplomatic relations was vested in United States as an incident o f external sovereignty\nupon separation from Great Britain). Were that theory correct, it would appear to follow that the office for which\nRepresentative Peterson was nominated \xe2\x80\x94 the Ambassadorship to Vietnam\xe2\x80\x94 existed since (at least) the tim e that\ndiplomatic relations between the United States and Vietnam became possible, and thus that the office had not been\n\xe2\x80\x9c created\xe2\x80\x9d during the term for which he was elected.\n21 As Senator Horsey explained his view, the \xe2\x80\x9c Occasion\xe2\x80\x9d for instituting the mission to Russia was the Russian\nGovernment\xe2\x80\x99s offer o f M arch 8, 1813, to mediate between the United States and Great Britain, and the acceptance\no f that offer by the Secretary o f State on March 11, 1813. This occasion \xe2\x80\x9c happened in the recess o f the Senate.\nThe office then attached, and with it the vacancy, which was filled and the office perfected by issuing the commis\xc2\xad\nsions . . . .\xe2\x80\x9d Id. at 713.\n22 See Memorandum o f Law, Re: Appointment o f Deputy Special Representative fo r Trade Negotiations at 5, ac\xc2\xad\ncompanying Letter for A rthur B. Focke, General Counsel, Bureau o f the Budget, from Norbert A. Schlei, Assistant\nAttorney General, O ffice o f Legal Counsel (Dec. 19, 1962) ( \xe2\x80\x9c [T]he office is created whenever the President deter\xc2\xad\nmines that the interests o f the United States require diplomatic representation or negotiation\xe2\x80\x9d ). Madison himself\nmay subsequently have taken a different view o f the matter from that o f his defenders in the Senate. In a memorandum\nof 1834\xe2\x80\x94 twenty years after the controversy over the recess appointments\xe2\x80\x94 he expressed the opinion that the \xe2\x80\x9c place\nof a foreign minister o r consul is not an office in the constitutional sense o f the term ,\xe2\x80\x9d basing that conclusion\nin part on the premise that \xe2\x80\x9c [i]t cannot, as an office, be created by the mere appointment for it, made by the\nPresident and Senate, who are to fill, not create offices.\xe2\x80\x9d Power o f the President to appoint Public Ministers and\nConsuls in the recess o f the Senate, in 4 Letters and Other Writings o f James Madison 350 (1865). On this theory,\n\xe2\x80\x9c [t]he place o f a foreign minister o r consul is to be viewed as created by the law o f nations.\xe2\x80\x9d Id. W ere Madison\ncorrect in denying that an ambassadorship is an \xe2\x80\x9c office\xe2\x80\x9d in the constitutional sense, no Ineligibility Clause issue\nwould arise.\n\n291\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nTo be sure, the President\xe2\x80\x99s decisionmaking may unfold over a period of time,\nand he will ordinarily take various preparatory steps relating to the creation of\na diplomatic office before he unequivocally determines to do so. The remarks\no f M adison\xe2\x80\x99s defenders in the Senate debate suggest that, if it becomes necessary\nto pinpoint the precise time at which the President creates such an office (as,\nfor instance, in determining the validity of a recess appointment), then that time\nshould be identified as the moment at which he fills the office. While the 1814\ndebate was directed to the interpretation of the Recess Appointments Clause, we\nbelieve that it also illuminates the meaning of the Ineligibility Clause.\n\nIII.\nWe think it fair to say that the patterns of constitutional practice that we have\ndescribed do not conclusively answer the question when the office of an ambas\xc2\xad\nsadorship is created. Nonetheless, we think that the legal and historical materials\nstrongly point toward a particular answer, and we find that answer to be consider\xc2\xad\nably more persuasive than any of the alternatives. Based on our survey of the\nmaterials, including the 1814 debate, we believe that the following tests are appro\xc2\xad\npriate in determining when, for purposes of the Ineligibility Clause, the President\nhas created the office o f ambassador to a particular foreign State, in cases where\nsuch an ambassadorship has not existed before or (as in the case o f Vietnam)\nhas lapsed or been terminated:\n1. In the usual course, the office is created at the time of appointment of the\nfirst ambassador to a foreign State once the President establishes diplomatic rela\xc2\xad\ntions with that State. All that precedes the appointment\xe2\x80\x94 offering to establish\nnormal diplomatic relations, receiving the foreign State\xe2\x80\x99s agreement to receive\na particular person as the United States\xe2\x80\x99 ambassador, nominating and confirming\nthat individual as ambassador\xe2\x80\x94 are all steps preparatory to the creation of the\noffice.23 If the President ultimately declines to appoint an ambassador, the \xe2\x80\x9c of\xc2\xad\nfice\xe2\x80\x9d is never created.\n2. The President, nonetheless, retains the power to alter the ordinary course\nof events, and to create the office at some other time \xe2\x80\x94 or not at all. The act\no f creating the office must be distinguished from the preparatory steps leading\nto its creation. The preparatory acts indicate that the President intends to create\nthe office; they do not in themselves constitute its creation. Indeed, in the ordinary\ncourse, the President should be understood to intend to create the office of ambas\xc2\xad\n23 The preparations leading up to the creation o f the office can be analogized to the legislative process. Congress\nholds hearings on legislative proposals, conducts debates on them, considers amendments, casts votes on a final\nbill and presents that bill to the President. All o f these activities are designed to culminate in the enactment of\na bill into law. N onetheless, exceptional cases aside, a bill does not actually become law until the moment that\nthe President signs it. See INS v. Chadha, 462 U.S. 919 (1983).\n\n292\n\n\x0cNomination o f Sitting Member o f Congress to be Ambassador to Vietnam\n\nsador upon the appointment of the individual as the first ambassador to the receiv\xc2\xad\ning State.24\nWe turn now to the application of these tests to the ambassadorship to Vietnam.\n\nIV.\nThe process by which the United States has been normalizing its relations with\nVietnam has been underway for several years.25 The Republic of Vietnam\n(\xe2\x80\x9c RVN\xe2\x80\x9d ) was constituted as an independent State within the French Union in\n1950, and the United States sent a Minister to that State. The United States did\nnot recognize the Democratic Republic of Vietnam (\xe2\x80\x9c DRVN\xe2\x80\x9d ), which had earlier\ndeclared itself to be an independent State. Thereafter, on June, 25, 1952, the\nUnited States appointed an Ambassador to the RVN, and upgraded the United\nStates Legation in Saigon to Embassy status. In 1954, Vietnam was partitioned\ninto what came commonly to be called \xe2\x80\x9c North\xe2\x80\x9d and \xe2\x80\x9c South\xe2\x80\x9d Vietnam. Despite\nan international agreement calling for the reunification of Vietnam, that did not\noccur; instead, the RVN, functionally, became South Vietnam, and the DRVN,\nfunctionally, North Vietnam. The United States maintained an ambassadorial post\nin the RVN from 1952 onwards. The last United States Ambassador left his post\nin Saigon on April 29, 1975.26\nAfter the Communist victory over South Vietnam in April, 1975, it became\nthe position of the United States that \xe2\x80\x9c \xe2\x80\x98[t]he Government of South Vietnam has\nceased to exist and therefore the United States no longer recognizes it as the sov\xc2\xad\nereign authority in the territory of South Vietnam. The United States has not rec\xc2\xad\nognized any other government as constituting such authority.\xe2\x80\x99 \xe2\x80\x9d Republic o f Viet\xc2\xad\nnam v. Pfizer, Inc., 556 F.2d 892, 895 n.4 (8th Cir. 1977) (quoting Letter for\nthe Department of Justice from the Department of State (June 9, 1975)).\nDuring the present administration, several successive and carefully measured\nsteps were taken with a view to improving, and perhaps normalizing, relations\nbetween the United States and Vietnam. On July 2, 1993, President Clinton an\xc2\xad\nnounced that the United States would no longer oppose the resumption of aid\nto Vietnam by international financial institutions. On February 3, 1994, the Presi\xc2\xad\ndent announced the lifting of the United States\xe2\x80\x99 embargo against Vietnam. He\nalso announced an intent to open a liaison office in Hanoi in order to promote\nfurther progress on issues of concern to both countries, including the status of\nAmerican prisoners o f war and Americans missing in action. His statement empha\xc2\xad\nsized, however, that \xe2\x80\x98 \xe2\x80\x98 [t]hese actions do not constitute a normalization o f our rela\xc2\xad\n34 In unusual circumstances, the President might depart from this procedure. For exam ple, following the establish\xc2\xad\nment of diplomatic relations, he might by proclamation declare the office o f ambassadorship to a particular country\nto be created, even if he had not appointed a particular person to fill that office.\n25 See generally Congressional Research Service, Report for Congress, Vietnam: Procedural and Jurisdictional\nQuestions Regarding Possible Normalization o f U.S. Diplomatic and Economic Relations (Aug. 4, 1994).\n26 See generally Office o f the Historian, Principal Officers o f the Department o f State and United States Chiefs\no f Mission: 1778-1990, D ep\xe2\x80\x99t o f State Publication 9825, at 163 (Jan. 1991).\n\n293\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\ntionships. Before that happens, we must have more progress, more cooperation\nand more answers.\xe2\x80\x9d 27 On May, 26, 1994, the United States and Vietnam formally\nentered into consular relations within the framework of the Vienna Convention\non Consular Relations, done Apr. 18, 1961, 21 U.S.T. 77, 596 U.N.T.S. 261, to\nwhich both States were party. T he United States, however, continued to condition\ndiplomatic relations on progress in areas o f concern to it. On January 28, 1995,\nthe United States and Vietnam signed an agreement relating to the restoration\no f diplomatic properties and another agreement relating to the settlement of private\nclaims. On July 11, 1995, the President announced an offer to establish diplomatic\nrelations with Vietnam under the Vienna Convention on Diplomatic Relations,\ndone Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 \xe2\x80\x94 an offer that Vietnam\naccepted on the following day. In announcing that offer, the President stated that\nfrom the beginning of his Administration, \xe2\x80\x9c any improvement in relationships be\xc2\xad\ntween America and Vietnam has depended upon making progress on the issue\no f Americans who were missing in action or held as prisoners of war.\xe2\x80\x9d 28 Soon\nthereafter, the United States Liaison Office in Hanoi was upgraded to a Diplomatic\nPost.\nOn May 8, 1996, the Government of Vietnam gave its agreement (\xe2\x80\x9c agrement \xe2\x80\x9d )\nto the United States\xe2\x80\x99 proposal that Representative Peterson be Ambassador Ex\xc2\xad\ntraordinary and Plenipotentiary o f the United States to Vietnam.29 On May 23,\n1996, the President submitted Mr. Peterson\xe2\x80\x99s name to the United States Senate\nfor its advice and consent to that appointment.\nIn our judgment, while this pattern of activity demonstrates that the President\nfully intends and expects to create the office of ambassador to Vietnam, it does\nnot establish that he has, in fact, yet done so. The establishment of diplomatic\nrelations does not entail the establishment of a diplomatic mission or the creation\no f the office of an ambassador. See Vienna Convention on Diplomatic Relations,\nart. 2, 23 U.S.T. at 3231, 500 U.N.T.S. at 98. Moreover, the existence of diplo\xc2\xad\nmatic relations with Vietnam does not require (although it may normally assume)\nan exchange o f ambassadors, since relations may be conducted at a lower diplo\xc2\xad\nmatic level. Further, we do not think that Vietnam\xe2\x80\x99s agrement to receive Mr.\nPeterson as ambassador establishes that that office exists for constitutional pur\xc2\xad\np o ses.30 Nor (although the question is closer) does the President\xe2\x80\x99s decision to\nsubmit Mr. Peterson\xe2\x80\x99s name to the Senate for confirmation. Even if Mr. Peterson\n27 Remarks on Lifting the Trade Embargo on Vietnam and an Exchange With Reporters, Pub. Papers o f William\nJ. C linton 178, 179 (Feb. 3, 1994).\n28 Remarks Announcing the Normalization o f Diplomatic Relations with Vietnam, 2 Pub. Papers o f William J.\nClinton 1073. 1073 (July 11. 1995).\n29 \xe2\x80\x9c In Older to avoid the unfriendly feeling which m ight arise through the refusal o f a state to receive a foreign\nrepresentative it is custom ary for the sending state to subm it in advance the name o f its envoy to the government\no f the state to whom he is to be accredited. The procedure o f determining in advance as to whether the envoy\nwill be persona grata is called agreation an d the approval agrement.\xe2\x80\x9d Stuart, supra note 16, at 139-40.\n30 Indeed, as a m atter o f international law, it may be that the office of ambassador to Vietnam will not begin\nto exist until o u r representative is \xe2\x80\x9c duly accredited and received" as ambassador by the Government o f Vietnam.\nHollander v. Bail, 41 F. 732, 735 (S.D.N. Y .), prohibition denied fry 135 U.S. 403 (1890).\n\n294\n\n\x0cNomination o f Silting Member o f Congress to be Ambassador to Vietnam\n\nis confirmed, the President would retain the discretion not to send an ambassador\nto Vietnam, or otherwise not to create that office. In view of the facts that the\nUnited States has not had an ambassador to Vietnam since 1975 (and has never\nhad an ambassador to the present government), that the process of normalizing\nrelations between the United States and Vietnam has been a complex and pro\xc2\xad\ntracted one, and that contingencies, however unlikely, may yet arise that would\nlead the President to conclude that it was not in the United States\xe2\x80\x99 best interests\nto appoint and send an ambassador, we do not think that the office of ambassador\nto Vietnam can be said to exist unless and until the President actually completes\nthe process by appointing an officer to that position. Accordingly, if the President\ndecides not to appoint Mr. Peterson to that office until after the expiration of\nthe present term of Congress on January 3, 1997, we do not think that Mr. Peter\xc2\xad\nson is constitutionally ineligible for that appointment.\nIn the interests of clarity, we repeat that we are not maintaining that an \xe2\x80\x9c ap\xc2\xad\npointment\xe2\x80\x9d within the meaning of the Ineligibility Clause does not occur until\nthe appointee is actually commissioned by the President. Whatever the merits of\nthat view as an original proposition (and they are substantial),31 we are not writing\non a clean slate. Accordingly, we follow the centuries-old teaching and practice\nof the executive branch in assuming that the nomination of an ineligible individual\nis itself a constitutional nullity, even if the commissioning of that individual were\nto occur after the term of his or her ineligibility. Our position is that, in the sin\xc2\xad\ngular circumstances of this case, the relevant office \xe2\x80\x94 the Ambassadorship to Viet\xc2\xad\nnam \xe2\x80\x94 has not yet been \xe2\x80\x9c created,\xe2\x80\x9d so that no ineligibility exists. Thus, both the\nPresident\xe2\x80\x99s act of nominating Mr. Peterson, and the Senate\xe2\x80\x99s act of confirming\nhim (if it does), are constitutionally valid.\nV.\nIt could be argued that our analysis gives insufficient weight to the policy of\nthe Ineligibility Clause, inasmuch as it makes it possible, by the President\xe2\x80\x99s deci\xc2\xad\nsion to withhold creating a diplomatic post until after the expiration of a congres\xc2\xad\nsional term, to appoint an otherwise ineligible Member of Congress to that posi\xc2\xad\ntion. We would disagree. The tradition of interpreting the Clause has been \xe2\x80\x9c for\xc2\xad\nmalistic\xe2\x80\x9d rather than \xe2\x80\x9c functional,\xe2\x80\x9d and our analysis comports fully with the literal\nmeaning o f the text. Furthermore, it is important to bear in mind that the Clause\nwas a compromise that reflected policy disagreements at the Philadelphia Conven\xc2\xad\ntion: to some extent, at least, the Clause was designed to perm it Members of\nCongress, in appropriate circumstances, to hold office in the executive branch.32\n31 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (appointment not effective until commissioning\nby President); Appointments to Office\xe2\x80\x94 Case o f Lieutenant Coxe, 4 Op. Att\xe2\x80\x99y Gen. 217, 219 (1843).\n32See Saxbe Hearing at 67 (emphasis added) (testimony o f Assistant Attorney General Dixon) ( \xe2\x80\x9c There was a\ndisagreement in the convention concerning this issue and that was because there was a competition in values. The\nContinued\n\n295\n\n\x0cO pinions o f the Office o f Legal Counsel in Volume 20\n\nMoreover, even at the time of the Framing, it was understood that the Clause\nwas a highly imperfect safeguard against the danger that the prospect of appoint\xc2\xad\nment to office would improperly influence Members of Congress. Luther Martin,\na delegate from Maryland to the Philadelphia Convention, provided his State legis\xc2\xad\nlature with a critical report on the Convention\xe2\x80\x99s work. As to the Ineligibility\nClause, he wrote:\nAs to the exception that [Members of Congress] cannot be ap\xc2\xad\npointed to offices created by themselves, or the emoluments of\nwhich are by themselves increased, it is certainly of little con\xc2\xad\nsequence, since they may easily evade it by creating new offices,\nto which may be appointed the persons who fill the offices before\ncreated, and thereby vacancies will be made, which may be filled\nby the members who for that purpose have created the new of\xc2\xad\nfices. 33\nMore recent commentators have also pointed out the inadequacy of the Clause\nas a device for controlling the abuses at which it is apparently aimed. Thus, former\nAssistant Attorney General Antonin Scalia rejected a policy-based interpretation\no f the Clause, writing:\nthe constitutional provision does not avoid some degree of absurdity\nin any event, no matter what imaginatively constructed extensions\nare devised; and . . . therefore it is best to restrict the provision\nto its clear, literal meaning . . . . As for a means o f easy evasion,\nnothing could be easier than having the Congress create a new post,\nto be filled by an existing appointee, and then appointing the fa\xc2\xad\nvored M ember to the vacated office. In light o f the essential\nincohesivesness of the constitutional provision, I do not regard the\npolicy a r gument . . . as persuasive.\nMemorandum for Hugh M. Durham, Chief, Legislative & Legal Section, Office\nof Legislative Affairs, from Antonin Scalia, Assistant Attorney General, Office\nm atter was not viewed as being simple o r mechanistic. As M adison said at one point: \'Som e gentlemen give too\nmuch weight and others too little to this subject.\xe2\x80\x99 There was a fear that unless the Constitution did include an\nineligibility clause o f this sort, that there would be undue inroads on the independence o f the legislature by the\nExecutive m enticements and appointments to the executive branch and that also there might be self-interest in\nthe m em bers\xe2\x80\x99 approach toward salaiy increases o r toward creation o f new offices. Al the same time there was also\na recurrent concern shared by Madison who was a primary mover o f the clause and also Pinkney, that a total\n\nbar would be a disservice to the public and indeed to the executive branch and judicial branch.").\n33 The Genuine Information Delivered to the Legislature o f the State o f Maryland Relative to the Proceedings\no f the General Convention Lately Held at Philadelphia, By Luther Martin, Esquire (1788), reprinted in 2 Herbert\nJ. Storing, The Com plete Anti-Federalist 19, 52 (198L).\n\n296\n\n\x0cNomination o f Sitting Member o f Congress to be Ambassador to Vietnam\n\nof Legal Counsel, Re: P roposed bill to increase the salary o f the A ttorney General\nat 6 (Nov. 22, 1974).34\n\nVI.\nFinally, there remains the question whether the President may nominate, and\nthe Senate confirm, an individual for an office that does not exist at the time\nof the nomination and confirmation, but is expected to come into existence later.\nThe Office of the Senate Legal Counsel raises this objection, stating that \xe2\x80\x9c we\nare aware of no prior instance in which the President appointed someone to an\noffice that did not yet exist.\xe2\x80\x9d 35 There are, however, several such precedents.\nThe practice of the political branches establishes that the President may make\na nomination, and the Senate give its advice and consent, for an office not yet\nin being. For example, the statute creating the Occupational Safety and Health\nReview Commission became effective on April 28, 1971. See Occupational Safety\nand Health Act of 1970, Pub. L. No. 91-596, \xc2\xa734, 84 Stat. 1590, 1620. President\nNixon nominated the first members of the Commission on March 19, 1971, see\n117 Cong. Rec. 7270 (1971), and the Senate confirmed the nominees on April\n14, 1971, \xe2\x80\x9c effective in accordance with the provisions of law,\xe2\x80\x9d id. at 10,458.\nSimilarly, Reorganization Plan No. 1 of 1953, 3 C.F.R. 1022 (1949-1953), re\xc2\xad\nprinted in 5 U.S.C. app. at 1488 (1994), and in 67 Stat. 631 (1953), created the\noffice of Secretary of Health, Education, and Welfare, as of April 11, 1953. On\nApril 2, 1953, President Eisenhower nominated Oveta Culp Hobby to be the first\nSecretary, effective April 11, see 99 Cong. Rec. 2716 (1953), and the Senate con\xc2\xad\nfirmed her on April 10, id. at 2958.36\n34 Similarly, Professor van Alstyne, testifying in a Senate hearing regarding the possibility o f curative legislation\nto remove Senator Saxbe\xe2\x80\x99s ineligibility to be appointed Attorney General, noted that\nthe mechanicalism of article I, section 6, clause 2, has the same virtues and the same vices as similar\nprovisions elsewhere in the document. For along with the virtue o f clear and impersonal operation, there\nis, o f course, the shortcoming that legislative technique\xe2\x80\x94 that a line drawn in a manner giving conclusive\neffect to but one or two circumstances may often fail to reach a variety of possible corrupt practices that\na more general standard would tend to reach. It is clear, for instance, . . . that a Senator or Representative\nnearing the end o f his term might be induced to vote to create a new office or to raise the emoluments\nin an existing one, expecting in return for his vote at once to be appointed to that office the instant his\nterm expires. Yet, the clause does not reach that point.\nSaxbe Hearing at 51.\n35 Senate Memo at 4.\n36 Other instances in which Presidents have made nominations for offices not yet in being include: (1) the nomina\xc2\xad\ntion on January 20, 1989, o f Edward Derwinski to be the first Secretary o f Veterans Affairs, 135 Cong. Rec. 321\n(1989), under a statute that precluded appointment until after January 21, 1989, see Department o f Veterans Affairs\nAct, Pub. L. No. 100-527, \xc2\xa7 18(b). 102 Stat. 2635, 2648 (1988) (codified as amended at 38 U.S.C. \xc2\xa7301 note);\n(2) the nomination on June 8, 1979, o f the first Federal Inspector for the Alaska Natural Gas Transportation System,\n125 Cong. Rec. 14,209 (1979), under Reorganization Plan No. 1 o f 1979, 3 C.F.R. 505 (1980), reprinted in 5\nU.S.C. app. at 1584 (1994), and in 93 Stat. 1373 (1979), which became effective on July 1, 1979; and (3) the\nnomination on November 16, 1970, o f William D. Ruckelshaus to be the first Administrator o f the Environmental\nProtection Agency, 116 Cong. Rec. 37,347 (1970), under a Reorganization Plan creating the office as o f December\n2, 1970, Reorganization Plan No. 3 o f 1970, 3 C.F.R. 199 (1971), reprinted in 5 U.S.C. app. at 1551 (1994), and\nin 84 Stat. 2086 (1970).\n\n297\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe reasoning that supports this procedure is similar to that underlying nomina\xc2\xad\ntions and confirmations for prospective vacancies in existing offices:\n[A]s a constitutional matter, nothing precludes the nomination and\nconfirmation of a successor while the incumbent still holds office.\nConfirmation does not confer any rights on the nominee; the Presi\xc2\xad\ndent remains free to decide that he does not want to make the ap\xc2\xad\npointment, which is not legally completed until the execution of\nthe commission.\nN om inations f o r Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108,\n\n109 (1986). The President and Senate have repeatedly used this procedure for\nprospective vacancies. See id. at 110-11. Just as in the case of prospective vacan\xc2\xad\ncies, nomination and confirmation for a prospective office can confer no rights\non the nominee, who must await further decisions and the President\xe2\x80\x99s appointment.\nThe Office of the Senate Legal Counsel also objects that the nomination and\nconfirmation of an individual to a position that is to be created later \xe2\x80\x9c raises seri\xc2\xad\nous separation of powers concerns because it might fundamentally reshape and\nlimit the Senate\xe2\x80\x99s constitutionally-based confirmation power. The Senate\xe2\x80\x99s advice\nand consent function requires a review not simply of the nominee, but of his\nfitness to fulfill a particular office.\xe2\x80\x9d 37 We do not find that objection forceful\nin the circumstances present here. First, the Senate\xe2\x80\x99s constitutional power to reject\na nominee for any reason, or for none, is completely unimpaired. Second, in the\nactual circumstances of this nomination, the Senate possesses all the facts that\nare needed to make an informed judgment of the nominee\xe2\x80\x99s fitness to serve as\nAmbassador to Vietnam. Even if that particular ambassadorship has yet to be cre\xc2\xad\nated, the duties and responsibilities of an ambassador are of course perfectly famil\xc2\xad\niar to the Senate.\nConclusion\nAccordingly, we conclude that Representative Peterson is not constitutionally\nineligible for appointment as Ambassador to Vietnam, provided that the President\nfinally creates that office after Representative Peterson\xe2\x80\x99s term of office as a Mem\xc2\xad\nber of Congress has expired on January 3, 1997.\nCHRISTOPHER SCHROEDER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n37 Senate M emo at 4.\n\n298\n\n\x0c'