I. THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN THE
PRESIDENT AND CONGRESS This memorandum provides an overview of the constitutional issues that periodically arise concerning the relationship between the executive and legislative branches of the federal government. Although that relationship is shaped in part by the policy and political concerns of the President and Congress of the day, the political interaction between the President and Congress takes place within an enduring constitutional framework that confers powers and responsibilities on both elected branches. In this memorandum we discuss the general principles underlying separation of powers analysis, and we address certain specific questions that have arisen in the past. Any set of examples is necessarily illustrative rather than exhaustive, however, and the Office of Legal Counsel is always available to assist in reviewing legislation or other congressional action for potential separation of powers issues.(1)
May 7, 1996
MEMORANDUM FOR THE GENERAL COUNSELS
OF THE FEDERAL GOVERNMENT Table of Contents
I. General Principles 1
A. Express Procedures: The Bicameralism and Presentment Requirements and the Appointments Clause 5
B. The Anti-Aggrandizement Principle 7
C. The General Separation of Powers Principle 10
II. Common Separation of Powers Issues 13
A. Bicameralism/Presentment Questions 13
B. Appointments Clause and Related Questions 17
1. Who is Required to Be an Officer of the United States? 18
a. Employment by the Government: The Distinction between Appointees and Independent Contractors 19
b. The Exercise of Significant Authority 22
c. Appointment to a Position of Employment within the Federal Government 25
d. Summary 29
2. Who May Be an Inferior Officer? 30
3. Who May Appoint Inferior Officers? 32
4. Legislation Lengthening the Tenure of an Officer 35
5. Legislation Imposing Additional Duties on an Officer 39
6. The Ineligibility and Incompatibility Clauses 42
7. The Recess Appointments Clause 43
8. Acting and Interim Appointments 44
9. Other Issues of Combined, Collective, and Interbranch Authority and the Appointments Clause 48
C. Removal Power Issues 49
1. The Executive's Removal Power 49
2. Congressional Removal Power 54
D. Issues Involving the Boundaries of the Legislative Sphere 56
1. The Paradox of Congressional Agencies 56
2. Reporting Requirements 58
3. Congressional Agents in Non-Legislative Contexts 60
E. The General Separation of Powers Principle 62
F. Statutory Construction 63
III. Constitutional Requirements and Policy Concerns; 66
I. General Principles The Constitution reflects a fundamental conviction that governmental "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." The Federalist No. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961), quoted in Metropolitan Washington Airports Auth. ("MWAA") v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991). The founders, not content to rely on paper definitions of the rights secured to the people, "viewed the principle of separation of powers as a vital check against tyranny." Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam). In order to safeguard liberty, therefore, the Constitution creates three distinct branches of government -- Congress, the President, and the federal judiciary -- and assigns to them differing roles in the exercise of the government's powers. The resulting division of governmental authority is not a mere set of housekeeping rules indicating which branch presumptively performs which functions; it is, rather, a fundamental means by which the Constitution attempts to ensure free, responsible, and democratic government. See MWAA, 501 U.S. at 272 ("The ultimate purpose of this separation of powers is to protect the liberty and security of the governed."). The constitutional separation of powers advances this central purpose by "assur[ing] full, vigorous, and open debate on the great issues affecting the people";(2) by "placing both substantive and procedural limitations on each [branch]";(3) and by maintaining a "system of . . . checks and balances" among the three branches.(4)
Although the structure of the Constitution is designed to obviate the danger to liberty posed by each of the branches,(5) the founders were particularly concerned with the Congress's potential for improvident or overreaching action: "the tendency of republican governments is to an aggrandizement of the legislat[ure] at the expense of the other departments." The Federalist No. 49, at 315-16 (James Madison) (Clinton Rossiter ed., 1961), cited in United States v. Brown, 381 U.S. 437, 444 n.17 (1965). Many specific aspects of the Constitution's separation of governmental powers embody the founders' "profound conviction . . . that the powers conferred on Congress were the powers to be most carefully circumscribed" and the founders' recognition of the particular "`propensity'" of the legislative branch "`to invade the rights of the Executive.'" INS v. Chadha, 462 U.S. 919, 947 (1983) (quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). Executive branch lawyers thus have a constitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitchell put it long ago:
Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of the Executive functions unimpa[i]red by legislative encroachment, just as the legislative branch has felt bound to resist interferences with its power by the Executive. To acquiesce in legislation having a tendency to encroach upon the executive authority results in establishing dangerous precedents.Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. 56, 64 (1933).(6)
The Constitution, however, "by no means contemplates total separation of each of these three essential branches of Government." Buckley, 424 U.S. at 121. Instead, "`[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.'" Mistretta v. United States, 488 U.S. 361, 381 (1989) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). The Constitution thus guards against "the accumulation of excessive authority in a single Branch" not by providing mutually exclusive lists of executive, legislative, and judicial powers, but by imposing on each of the three branches "a degree of overlapping responsibility, a duty of interdependence as well as independence." Id. at 381.(7) The constitutional boundaries between the powers of the branches must be determined "according to common sense and the inherent necessities of the governmental co-ordination." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928).
Some general observations on the sources and methodology we employ in analyzing separation of powers questions are appropriate. We believe that the constitutional structure obligates the executive branch to adhere to settled judicial doctrine that limits executive and legislative power. While the Supreme Court's decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the law of the Constitution. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
The Supreme Court's decisions interpreting the constitutional separation of powers among Congress, the President, and the courts recognize the founders' basic concern over the "encroaching nature" of power, as well as their specific belief that Congress is potentially the most dangerous branch. "It is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and aroused our vigilance against the `hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power.'" Mistretta, 488 U.S. at 382 (citation omitted). The Court's decisions have employed three distinct principles in resolving separation of powers disputes. First, where "[e]xplicit and unambiguous provisions of the Constitution prescribe and define . . . just how [governmental] powers are to be exercised," Chadha, 462 U.S. at 945, the constitutional procedures must be followed with precision. Second, where the effect of legislation is to vest Congress itself, its members, or its agents with "`either executive power or judicial power,'" the statute is unconstitutional. MWAA, 501 U.S. at 274 (citation omitted).(8) Finally, legislation that affects the functioning of one of the other branches may be unconstitutional if it prevents the affected branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977) (legislation affecting the executive branch); accord CFTC v. Schor, 478 U.S. 833, 851, 856-57 (1986) (legislation affecting the judiciary).(9)
Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court's decisions on separation of powers. At the same time, the executive branch has an independent constitutional obligation to interpret and apply the Constitution.(10) That obligation is of particular importance in the area of separation of powers, where the issues often do not give rise to cases or controversies that can be resolved by the courts. This is due in part to the limits of jurisdiction and justiciability that Article III places on the courts. In addition there may be legislation that violates one of the three principles outlined above and yet is unlikely to reach the courts in a form or context in which the judiciary will be able to identify or remedy the constitutional problem.(11) The Attorneys General and this Office have a long tradition of carrying out this constitutional responsibility, one that dates back to Attorney General Edmund Randolph's 1791 opinions on the constitutionality of a national bank. See The Constitutionality of the Bank Bill: The Attorney General's First Constitutional Law Opinions (publication forthcoming in 18 Op. O.L.C. (1994)) (reprinting, with commentary, the bank opinions).(12) We believe therefore that it is important in addressing separation of powers matters to give careful consideration to the views of our predecessors and to what seems to us to be the import of the Constitution's text, history, and structure.(13)
To be sure, respect for the legislative branch of the government requires a degree of deference to legislative judgments.(14) However, it is also the President's "duty to pass the executive authority on to his successor, unimpaired by the adoption of dangerous precedents." Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. at 65.(15) Our constitutional analyses are informed by both of these concerns.(16)
A. Express Procedures: The Bicameralism and Presentment Requirements and the Appointments Clause While the expression "separation of powers" does not appear in the Constitution, the Constitution does require both separation and interdependence on some matters by specifying, expressly and precisely, the procedures that must be followed. Where the constitutional text is unequivocal as to the manner in which the branches are to relate, any attempt to vary from the text's prescriptions is invalid.(17) The Court has identified two such express procedures relating to the separation of executive and legislative powers: the bicameralism and presentment requirements for legislation, and the Appointments Clause.
Congress's broad authority to take action that has "the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch," INS v. Chadha, 462 U.S. 919, 952 (1983), is limited by the procedural requirements of Article I. With a few express exceptions found or rooted in the constitutional text, Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 n.21 (1991),(18) Article I requires that Congress take such action "in accord with a single, finely wrought and exhaustively considered, procedure" -- bicameral passage and presentation to the President followed by presidential signature or bicameral repassage by a two-thirds majority. Chadha, 462 U.S. at 951; see U.S. Const. art. I, §§ 1, 7. The classic and often-repeated violation of this express textual requirement is the "legislative veto" mechanism invalidated in Chadha.(19)
The Supreme Court has applied a similar analysis to the Appointments Clause of Article II, Section 2. In Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (per curiam), the Court concluded that "Congress' power under [the Necessary and Proper] Clause is inevitably bounded by the express language of Art. II, § 2, cl. 2," and that consequently Congress cannot provide for the appointment of "`Officers of the United States,'" except through a procedure that "comports with" the Appointments Clause.(20) Pursuant to the language of the Clause, principal officers must be appointed by the President with the advice and consent of the Senate, while Congress is limited in providing alternative means for the appointment of inferior officers to the "possible repositories for the appointment power." Freytag v. Commissioner, 501 U.S. 868, 884 (1991). (Those repositories are "the President alone, . . . the Courts of Law, or . . . the Heads of Departments." U.S. Const. art. II, § 2, cl. 2.)
The rules of law derived from the requirements of bicameralism/presentment and the Appointments Clause have the clear and powerful effect of invalidating any inconsistent congressional action. Congress may not employ any mode of exercising legislative power other than through bicameralism and presentment. The Appointments Clause's list of those who may appoint officers is exclusive, and Congress cannot authorize anyone else to appoint officers of the United States. The major difficulty in applying the bicameralism/presentment and Appointments Clause requirements lies in determining whether a particular action falls within the scope of the prescribed procedures. In section II of this memorandum, we discuss questions that have arisen concerning the scope of both requirements.
B. The Anti-Aggrandizement Principle Although the founders were concerned about the concentration of governmental power in any of the three branches, their primary fears were directed toward congressional self-aggrandizement,(21) and the Supreme Court's decisions call for careful scrutiny of legislation that has the purpose or effect of extending Congress's authority beyond the legislative process. Just as the textual requirement of bicameralism and presentment limits the means by which Congress may legislate, so the anti-aggrandizement principle limits the means by which Congress may influence the execution (or adjudication) of the laws.(22) The Constitution affords Congress great latitude in making policy choices through the process of bicameral passage and presentment. However, "once Congress makes its choice in enacting legislation, its participation ends," and "Congress can thereafter control the execution of its enactment only indirectly -- by passing new legislation." Bowsher v. Synar, 478 U.S. 714, 733-34 (1986). While Congress may inform itself of how legislation is being implemented through the ordinary means of legislative oversight and investigation, the anti-aggrandizement principle forbids Congress, directly or through an agent subject to removal by Congress,(23) from intervening in the decision making necessary to execute the law. See id. at 733-34; FEC v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert. dismissed, 115 S. Ct. 537 (1994).(24)
In Bowsher, the Court held that a provision of the Gramm-Rudman Deficit Reduction Act was unconstitutional because it vested in the Comptroller General (an official "removable only at the initiative of Congress," 478 U.S. at 728) the power to make post-enactment decisions about how the executive branch should implement budget reduction legislation. The Court rejected the argument that self-aggrandizing legislation can be upheld when it is as a practical matter harmless or de minimis and dismissed as beside the point Justice White's vigorous argument that "[r]ealistic consideration of the nature of the Comptroller General's relation to Congress . . . reveals that the threat to separation of powers . . . is wholly chimerical." 478 U.S. at 774 (White, J., dissenting); see also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 269 n.15 (1991) ("the likelihood that Congress" actually would exercise its authority to remove the members of the review board under consideration in MWAA was "irrelevant for separation-of-powers purposes"). In contrast, the Court upheld the validity of the laws challenged in Morrison v. Olson, 487 U.S. 654 (1988) (independent counsel provisions of Ethics in Government Act of 1978), and CFTC v. Schor, 478 U.S. 833 (1986) (regulations implementing section of the Commodity Exchange Act), in part because the Court saw no reason to view those laws as examples of legislative aggrandizement.(25)
Like the express requirements of the bicameralism/presentment process and the Appointments Clause, the anti-aggrandizement principle puts a powerful constraint on congressional power: legislative action that falls within the scope of the principle is unconstitutional.(26) The complementary limit on the principle is that, as the Court understands it, the principle applies only to congressional action that amounts to formal or direct self-aggrandizement -- for example, the placement of congressional agents on a body with prosecutorial or law enforcement powers -- no matter how limited the power thereby seized by Congress. See NRA Political Victory Fund, 6 F.3d at 826-27. The Court reviews legislation that arguably increases Congress's power indirectly by weakening the executive politically under the less stringent general separation of powers principle. See Morrison, 487 U.S. at 694. A significant difficulty in applying the anti-aggrandizement principle arises from the uncertain line between minor (but unconstitutional) aggrandizements and (constitutional) exercises of Congress's broad investigative and oversight powers.(27) In section II, we discuss some of the questions that have arisen.
C. The General Separation of Powers Principle Legislation that affects the constitutional separation of powers but is consistent with the requirements of bicameralism/presentment, the Appointments Clause, and the anti-aggrandizement principle is subject to less searching scrutiny.(28) While some older judicial opinions used language suggesting that any overlap between the powers wielded by the different branches is illegitimate,(29) the modern Supreme Court interprets the general principle of separation of powers in light of Madison's assertion that the separation necessary to free government is violated only "`where the whole power of one department is exercised by the same hands which possess the whole power of another department.'" Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 442 n.5 (1977) (quoting The Federalist No. 47, at 325-26 (James Madison) (Jacob E. Cooke ed., 1961) (emphasis in original)).(30) Therefore, "in determining whether [an] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions." Id. at 443. Cf. CFTC v. Schor, 478 U.S. 833, 856-57 (1986) ("the separation of powers question presented in this litigation is whether Congress impermissibly undermined . . . the role of the Judicial Branch"). An affirmative answer to the question of whether Congress has prevented the executive or judiciary from accomplishing its functions, furthermore, would not lead inexorably to the judicial invalidation of the statute: in that case, the Court has stated, it would proceed to "determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Administrator of Gen. Servs., 433 U.S. at 443.(31)
The Court's current understanding of the general principle of separation of powers is illustrated by Morrison v. Olson, 487 U.S. 654 (1988).(32) In Morrison, the Court concluded that the restrictions in the independent counsel statute on the executive's supervisory and removal powers did not violate the principle. While the Court acknowledged that the statute rendered the independent counsel "free from Executive supervision to a greater extent than other federal prosecutors," it was unpersuaded that the limitations placed on that supervision meant that the President would not be able "to perform his constitutionally assigned duties." Id. at 696.(33) In light of the narrow range of the independent counsel's jurisdiction, her essential insulation from any significant policy-making role, and the well-established principle that Congress can limit the removal authority of a head of department when granting that officer the power to appoint subordinates, the Court concluded that the independent counsel statute did not fundamentally undermine the executive's constitutional authority.
The Supreme Court's basic formulation of the general principle of separation of powers is consistent with the approach taken by most Attorneys General in the past, and it accords with what we find to be the most persuasive scholarship on the original understanding and early practice of the separation of powers under the United States Constitution.(34) However, given the very emphasis the general principle places on evaluating constitutional questions in light of the overall structure and functioning of the federal government, the principle's application to specific questions is unavoidably difficult, and the answers we or the courts reach ordinarily should be viewed as quite specific to context.(35) Furthermore, although the general principle marks the boundary of the law of separation of powers, it is inappropriate for the executive to regard this as defining the outer limit of proper separation of powers policy objections to legislation.(36) The Constitution's very structure suggests the importance of maintaining the hallmarks of "executive administration essential to effective action"(37) as well as the accountability to the public that stems from vesting ultimate authority in a single, politically responsible officer.(38) Several quite common types of legislation threaten the structural values protected by the general separation of powers principle even if the courts are unlikely to invalidate them. Examples of such legislation may include burdensome reporting requirements, attempts to dictate the processes of executive deliberation, and legislation that has the purpose or would have the effect of "micromanaging" executive action. Executive branch agencies should be careful to object to any legislation that unduly reduces the accountability of officials or agencies to the President, or that unnecessarily interferes with the flexibility and efficiency of executive decision making and action. Such legislation undercuts the constitutional purpose of creating an energetic and responsible executive branch.
II. Common Separation of Powers Issues A. Bicameralism/Presentment Questions The Supreme Court's holding in INS v. Chadha, 462 U.S. 919 (1983), was emphatic: Congress can exercise "the legislative power of the Federal Government" only "in accord with a single, finely wrought and exhaustively considered, procedure" -- passage by both houses and presentment to the President.(39) Id. at 951. Applying that rule, the Court struck down a statutory mechanism in the Immigration and Nationality Act by which a single house of Congress could override decisions of the Attorney General. The effect of the Court's decision was to invalidate the similar "legislative veto" provisions found in many other statutes.(40) In addition to the classic legislative veto mechanism invalidated by Chadha, we think that the requirement of bicameralism and presentment is infringed whenever a single house, committee, or agent of Congress attempts to direct the execution of the laws, to determine the "final disposition of the rights of persons outside the legislative branch" or to promulgate rules or standards intended to bind the actions of executive or administrative officials that have not been approved by both houses and presented to the President. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1108 (9th Cir. 1988), modified as to attorney fees, 893 F.2d 205 (1989) (en banc);(41) cf. Mistretta v. United States, 488 U.S. 361, 396 (1989) (distinguishing Sentencing Guidelines from political policy making on the grounds that "they do not bind or regulate the primary conduct of the public").
For many decades, the congressional Joint Committee on Printing ("JCP") has attempted to exercise the legislative authority to promulgate rules and procedures binding on the executive branch's activities relating to printing, publication, and (more recently) data storage. In 1920, President Wilson vetoed an appropriations bill because it purported to confer on the JCP the power to promulgate regulations governing printing by executive officials or agencies: Congress has no power, he explained, to "endo[w] a committee of either House or a joint committee of both Houses with power to prescribe `regulations' under which executive departments may operate." Veto Message on Legislative, Executive and Judicial Appropriation Bill, H.R. No. 764, 66th Cong., 2d Sess. 2 (1920), reprinted in 59 Cong. Rec. 7,026 (1920); see Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. 56, 62-63, 65 (1933) (quoting and endorsing President Wilson's reasoning). In 1984, we concluded that legislation granting the JCP authority to promulgate regulations that "would require executive departments to submit annual plans outlining their intended activities and to seek advance approval of all projected goals, policies, strategies, purchases, publications, and means of distribution" with respect to printing, word processing, and data storage and retrieval was unconstitutional. Constitutionality of Proposed Regulations of Joint Committee on Printing, 8 Op. O.L.C. 42, 42 (1984). The proposed regulations would have established general rules binding the conduct of executive officials without those rules being approved by both houses of Congress and presented to the President, in plain violation of Article I's procedural requirements.(42) We have also advised that the statutory provision authorizing the JCP "unilaterally to create exceptions to the [statutory] rule that all printing must be accomplished through the GPO [Government Printing Office]" has no lawful force under Chadha. Id. at 51 & n.14; see also Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. at 58-60 (bill subjecting Treasury Department decisions on tax refunds to review and disallowance by congressional joint committee would be unconstitutional).
The requirement of bicameralism and presentment also can be violated in more convoluted ways. Section 431 of the General Education Provisions Act, for example, subjected final regulations of the Department of Education to a forty-five day report-and-wait provision(43) and provided that the final regulation would not become effective if Congress "by concurrent resolution, find[s] that the final regulation is inconsistent with the Act . . . and disapprove[s] such final regulation." 20 U.S.C. § 1232(d) (Supp. IV 1980). Concurrent resolutions are not legislation within the meaning of the Constitution, see U.S. Const. art. I, § 7, cl. 3, because they are not presented to the President. Accordingly, Attorney General Civiletti advised the Secretary of Education that the subjection of the Education Department's delegated lawmaking authority to congressional control and revision by means other than those required by Article I was unconstitutional. "[O]nce a function has been delegated to the executive branch, it must be performed there, and cannot be subjected to continuing congressional control except through the constitutional process of enacting new legislation." Constitutionality of Congress' Disapproval of Agency Regulations by Resolutions Not Presented to the President, 4A Op. O.L.C. 21, 27 (1980) (opinion of the Attorney General).
Similarly, while Congress has near-plenary authority in deciding to grant, limit or withhold appropriations, the Department of Justice has long contended that the appropriations power may not be used to circumvent the restrictions the Constitution places on the modes of legislative action. See, e.g., Authority of Congressional Committees to Disapprove Action of Executive Branch, 41 Op. Att'y Gen. 230 (1955) (opining that legislation authorizing congressional committees to disapprove Defense Department contracts is unconstitutional). Several years before Chadha, for example, this Office advised that Congress could not validly provide for the indirect implementation of a legislative "veto" by an appropriations rider that would prospectively deny funding for the implementation of any regulation disapproved in the future by such a "veto." See Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731 (1980). Our reasoning in that opinion is equally applicable to appropriations provisions that attempt to cut off funding that would otherwise be available on the basis of any future expression of disapproval by Congress that does not take the form of new legislation. The same analysis would apply, as well, to a provision prohibiting the expenditure of funds for some purpose, but allowing a future expression of approval by committee action to remove the prohibition.
In carrying out its legitimate legislative functions, Congress "enjoys ample channels to advise, coordinate, and even directly influence an executive agency [including by] direct communication with the [agency]." FEC v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C. Cir. 1993), cert. dismissed, 115 S. Ct. 537 (1994). As a practical matter, therefore, congressional committees and individual members of Congress often are able to sway the decisions of the executive officials with whom they deal. In addition, congressional committees can exercise limited but legally coercive authority over persons outside the legislative branch through the power to issue subpoenas to compel testimony.(44) In light of the capacity of Congress to extend its influence beyond the legislative sphere by informal means that are sometimes troubling although not unlawful, it is imperative that the executive branch consistently assert the rule of constitutional law that formal control of executive decision making and administration is subject to the requirements of Article I, and especially to the constitutional authority of the President to participate in the legislative process through the presentment mechanism. The executive branch has a constitutional obligation not to accede to legislative action that does not conform to Article I. Advising the Secretary of Education that she could validly implement departmental regulations despite a legislative "veto," Attorney General Civiletti wrote that "recognition of these concurrent resolutions as legally binding would constitute an abdication of the responsibility of the executive branch, as an equal and coordinate branch of government with the legislative branch, to preserve the integrity of its functions against constitutional encroachment." Congress' Disapproval of Agency Regulations, 4A Op. O.L.C. at 29.
B. Appointment Clause and Related Questions The Appointments Clause provides that
[The President,] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.U.S. Const. art. II, § 2, cl. 2.(45) In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court held that the terms of the Appointments Clause set out the only means by which Congress may provide for the appointment of "Officers of the United States."(46) Id. at 124-37. Principal officers must be appointed by the President with the advice and consent of the Senate; inferior officers will be appointed in the same manner unless Congress by statute provides for their appointment by the President, the "Head[] of [a] Department[]," or the courts. Id. at 132;(47) see also Freytag v. Commissioner, 501 U.S. 868, 878 (1991) ("the Constitution limits congressional discretion to vest power to appoint `inferior Officers' to three sources"). Despite the apparent clarity of its language, however, the Appointments Clause has provided the occasion for many opinions of the Attorneys General and of this Office.(48)
1. Who is Required to Be an "Officer of the United States"? Not everyone who performs duties for the federal government is an "officer" within the meaning of the Appointments Clause. From the early days of the Republic, this term has been understood to embrace the ideas of "tenure, duration, emolument, and duties." United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). Because Hartwell has long been taken as the leading statement of the constitutional meaning of "officer,"(49) that statement is worth repeating in full:
An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe. A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.Id. at 393.
Hartwell and the cases following it specify a number of criteria for identifying constitutional officers, and in some cases it is not entirely clear which criteria the court considered essential to its decision. Nevertheless, we believe that from the earliest reported decisions onward, the constitutional definition of officer has involved at least three necessary conditions.
a. Employment by the Government: The Distinction between Appointees and Independent Contractors. An officer's duties are permanent, continuing, and based upon responsibilities created through a chain of command rather than by contract. Underlying an officer is an "office," to which the officer must be appointed. As Chief Justice Marshall, sitting as circuit justice, wrote: "Although an office is `an employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer." United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747). Chief Justice Marshall speaks here of being "employed under a contract"; in modern terminology the type of non-officer status he is describing is usually referred to as that of independent contractor. In Hartwell, this distinction shows up in the opinion's attention to the characteristics of the defendant's employment being "continuing and permanent, not occasional or temporary," as well as to the suggestion that with respect to an officer, a superior can fix and then change the specific set of duties, rather than having those duties fixed by a contract. 73 U.S. at 393.
The distinction between employees and persons whose relationship to the government takes some other form also appears in later decisions.(50) The question in United States v. Germaine, 99 U.S. 508 (1879), concerned whether a surgeon appointed by the Commissioner of Pensions "to examine applicants for pension, where [the Commissioner] shall deem an examination . . . necessary," id. at 508 (quoting Rev. Stat. § 4777), was an officer within the meaning of the Appointments Clause. The surgeon in question was "only to act when called on by the Commissioner of Pensions in some special case"; furthermore, his only compensation from the government was a fee for each examination that he did in fact perform. Id. at 512. The Court stated that the Appointments Clause applies to "all persons who can be said to hold an office under the government" and, applying Hartwell, concluded that "the [surgeon's] duties are not continuing and permanent and they are occasional and intermittent." Id. (emphasis in original). The surgeon, therefore, was not an officer of the United States. Id.(51)
The Court employed the same reasoning in Auffmordt v. Hedden, 137 U.S. 310 (1890). Pursuant to statute, an importer dissatisfied with the government's valuation of dutiable goods was entitled to demand a reappraisement jointly conducted by a general appraiser (a government employee) and a "merchant appraiser" appointed by the collector of customs for the specific case. Despite the fact that the reappraisement decision was final and binding on both the government and the importer, id. at 329, the Court rejected the argument that the merchant appraiser was an "inferior Officer" whose appointment did not accord with the requirements of the Appointments Clause.
He is an expert, selected as such. . . . He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. . . . He has no claim or right to be designated, or to act except as he may be designated. . . . His position is without tenure, duration, continuing emolument, or continuous duties . . . . Therefore, he is not an `officer,' within the meaning of the clause.Id. at 326-27.
We believe that under its best reading, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), reflects and endorses this distinction, and that suggestions to the contrary misread the opinion. First, Buckley cites both Germaine and Auffmordt approvingly. See id. at 125-26 & n.162. Second, in several of its statements of the definition of "officers," Buckley, sometimes citing Germaine explicitly, says that the term applies to appointees or appointed officials who exercise significant authority under federal law, thus recognizing the possibility that non-appointees might sometimes exercise authority under federal law. See, e.g., 424 U.S. at 131 ("Officers" are "all appointed officials exercising responsibility under the public laws"). It is true that at other points in its opinion, the Buckley Court used language that, taken in isolation, might suggest that the Appointments Clause applies to persons who, although they do not hold positions in the public service of the United States, exercise significant authority pursuant to federal law. See id. at 141. However, we think such a reading of Buckley is unwarranted. So understood, Buckley must be taken to have overruled, sub silentio, Germaine and Auffmordt -- cases upon which it expressly relies in its analysis, see id. at 125-26 & n.162 -- and its repeated quotation of the Germaine definition of "officer" as "all persons who can be said to hold an office under the government" would make no sense. The apparently unlimited language of some passages has a simpler explanation: there was no question that the officials at issue in Buckley held "employment[s]," Maurice, 26 F. Cas. at 1214, under the federal government, and thus the question of the inapplicability of the Appointments Clause to persons not employed by the federal government was not before the Court.(52) The Supreme Court's decision in Buckley, we conclude, did not modify the long-settled principle that a person who is not an officer under Hartwell need not be appointed pursuant to the Appointments Clause.(53)
b. The Exercise of Significant Authority. Chief Justice Marshall's observation that "[a]lthough an office is `an employment,' it does not follow that every employment is an office," United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, Circuit Justice), points to a second distinction as well -- although not one that was at issue in Maurice itself. An officer is distinguished from other full-time employees of the federal government by the extent of authority he or she can properly exercise. As the Court expressed this in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam):
We think that the term "Officers of the United States" as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, [means] that any appointee exercising significant authority pursuant to the laws of the United States . . . must . . . be appointed in the manner prescribed by [the Appointments Clause].Id. at 125-26 (emphasis added).(54) In contrast, "[e]mployees are lesser functionaries subordinate to officers of the United States." Id. at 126 n.162.
The distinction between constitutional officers and other employees is a long-standing one. See, e.g., Burnap v. United States, 252 U.S. 512, 516-19 (1920) (landscape architect in the Office of Public Buildings and Grounds was an employee, not an officer); Second Deputy Comptroller of the Currency -- Appointment, 26 Op. Att'y Gen. 627, 628 (1908) (Deputy Comptroller of the Currency was "manifestly an officer of the United States" rather than an employee). At an early point, the Court noted the importance of this distinction for Appointments Clause analysis. See Germaine, 99 U.S. at 509.(55)
The Supreme Court relied on the officer/employee distinction in its recent decision in Freytag v. Commissioner, 501 U.S. 868 (1991). In Freytag, the Court rejected the argument that special trial judges of the Tax Court are employees rather than officers because "they lack authority to enter a final decision" and thus arguably are mere subordinates of the regular Tax Court judges.(56) Id. at 881. The Court put some weight on the fact that the position of special trial judge, as well as its duties, salary, and mode of appointment, are specifically established by statute;(57) the Court also emphasized that special trial judges "exercise significant discretion" in carrying out various important functions relating to litigation in the Tax Court. Id. at 881-82.
Applying the same understanding of the distinction between officers and employees, this Office has concluded that the members of a commission that has purely advisory functions "need not be officers of the United States" because they "possess no enforcement authority or power to bind the Government." Proposed Commission on Deregulation of International Ocean Shipping, 7 Op. O.L.C. 202, 202-03 (1983). For that reason, the creation by Congress of presidential advisory committees composed, in whole or in part, of congressional nominees or even of members of Congress does not raise Appointments Clause concerns.
Since employees do not wield independent discretion and act only at the direction of officers, they do not in their own right "exercis[e] responsibility under the public laws of the Nation," Buckley, 424 U.S. at 131.(58) As a constitutional matter, therefore, an employee may be selected in whatever manner Congress directs. Conversely, "any appointee" in federal service who "exercis[es] significant authority pursuant to the laws of the United States" must be an officer in the constitutional sense and must be appointed in a manner consistent with the Appointments Clause.(59) 424 U.S. at 126. Congress and the President may not avoid the strictures of the Clause by vesting federal employees with the independent or discretionary responsibility to perform any "significant governmental duty." Id. at 141.(60)
c. Appointment to a Position of Employment within the Federal Government. Finally, United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1868), and the other major decisions defining "Officers of the United States" all reflect the historical understanding that a constitutional officer is an individual who is appointed to his or her office by the federal government. The Appointments Clause simply is not implicated when significant authority is devolved upon non-federal actors.(61) In Hartwell the Court stated, "[a]n office is a public station, or employment, conferred by the appointment of government. . . . The employment of the defendant was in the public service of the United States." Id. at 393; see also United States v. Germaine, 99 U.S. 508, 510 (1879) (founders intended appointment pursuant to the Appointments Clause only for "persons who can be said to hold an office under the government about to be established under the Constitution"). It is a conceptual confusion to argue that federal laws delegating authority to state officials create federal "offices," which are then filled by (improperly appointed) state officials. Rather, the "public station, or employment" has been created by state law; the federal statute simply adds federal authority to a pre-existing state office. Accordingly, the substantiality of the delegated authority is immaterial to the Appointments Clause conclusion.(62) An analogous point applies to delegations made to private individuals: the simple assignment of some duties under federal law, even significant ones, does not by itself pose an Appointments Clause problem.(63)
In our view, therefore, the lower federal courts have been correct in rejecting Appointments Clause challenges to the exercise of federally derived authority by state officials,(64) the District of Columbia City Council,(65) qui tam relators under the False Claims Act,(66) and plaintiffs under the citizen suit provisions of the Clean Water Act.(67) The same conclusion should apply to the members of multinational or international entities who are not appointed to represent the United States.(68) We believe that the Appointments Clause doubts sometimes voiced about legislation requiring the concurrence of state or local officials, Indian tribes, or private persons as a condition precedent to federal action are equally without merit.(69)
Determining whether an individual occupies a position of private employment or federal employment can pose difficult questions. The Supreme Court recently set forth rules for making this determination in Lebron v. National Railroad Passenger Corp., 115 S. Ct. 961 (1995). There, the Court found itself faced with the question of whether Amtrak is a private corporation or an agency of the government. Amtrak is chartered by Congress and incorporated under the District of Columbia Business Corporation Act. Id. at 967. The organic statute expressly provides that Amtrak "shall be operated and managed as a for-profit corporation, and is not a department, agency, or instrumentality of the United States Government." 49 U.S.C. § 24301(a)(2)-(3). The Court ruled that this provision "is assuredly dispositive of Amtrak's status as a Government entity for purposes of matters that are within Congress' control . . . . But it is not for Congress to make the final determination of Amtrak's status as a government entity for purposes of determining the constitutional rights of citizens affected by its actions." 115 S. Ct. at 971.
However, the Court held that an entity is "what the Constitution regards as the Government," if the entity is government-created and government-controlled. Id. at 971. Because Amtrak was created "by special law for the furtherance of governmental objectives," it is government-created.(70) Id. at 974. Because federally appointed members of Amtrak's governing board hold "voting control" and there is no provision for this government control to sunset, Amtrak is government-controlled. The Court contrasted Conrail, which it determined is not what the Constitution regards as the government. By statute the federal government appoints a voting majority of Conrail's board of directors. Nevertheless, the Court held that Conrail is not part of the government, because the government's voting control will shift to the private shareholders if Conrail's debt to the federal government falls below half of its total indebtedness and because "`[t]he responsibilities of the federal directors are not different from those of the other directors -- to operate Conrail at a profit for the benefit of its shareholders' -- which contrasts with the public-interest `goals' set forth in Amtrak's charter." Id. (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 152 (1974)).(71)
d. Summary. An appointee (1) to a position of employment (2) within the federal government (3) that carries significant authority pursuant to the laws of the United States is required to be an "Officer of the United States." Each of these three conditions is independent, and all three must be met in order for the position to be subject to the requirements of the Appointments Clause.
We recently applied this principle in determining whether the Appointments Clause represents a blanket proscription against participation by the federal government in binding arbitration. Typically, arbitrators are private individuals chosen by the parties to the dispute. In a binding arbitration, the decision of the arbitrators is mandatory upon the parties, subject only to limited judicial review. The view that the Appointments Clause prohibits federal government participation in binding arbitration proceeds from the misinterpretation of Buckley discussed above. We reasoned that although it is "beyond dispute that arbitrators exercise significant authority, at least in the context of binding arbitration involving the federal government,"(72) the standard binding arbitration mechanism does not implicate the Appointments Clause. Arbitrators
are manifestly private actors who are, at most, independent contractors to, rather than employees of, the federal government. Arbitrators are retained for a single matter, their service expires at the resolution of that matter, and they fix their own compensation. Hence, their service does not bear the hallmarks of a constitutional office -- tenure, duration, emoluments, and continuing duties. Consequently, arbitrators do not occupy a position of employment within the federal government, and it cannot be said that they are officers of the United States. Because arbitrators are not officers, the Appointments Clause does not place any requirements or restrictions on the manner in which they are chosen.Memorandum for John Schmidt, Associate Attorney General, from Walter Dellinger, Assistant Attorney General, re: Constitutional Limitations on Federal Government Participation in Binding Arbitration, at 10 (Sept. 7, 1995).(73) The only case that to our knowledge addresses this question agreed with our analysis and conclusion, and held that the Appointments Clause does not prohibit the federal government from entering into binding arbitration. See Tenaska Washington Partners v. United States, 34 F. Cl. 434, 440 (1995) ("the OLC Memorandum is a thorough and persuasive analysis").
2. Who May Be an Inferior Officer? Since all officers of the United States may be appointed by the President with the advice and consent of the Senate, the only Appointments Clause significance to the distinction between principal and inferior officers lies in Congress's ability to provide for the appointment of inferior officers by one of the alternative means listed in the Clause. The Supreme Court has observed that "[t]he line between `inferior' and `principal' officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn." Morrison v. Olson, 487 U.S. 654, 671 (1988). Unfortunately, the Court's own decisions provide only modest additional guidance. In Morrison, the Court declined to "attempt . . . to decide exactly where the line falls" because it found that the independent counsel "clearly falls on the `inferior officer' side of that line." Id. at 671. The Court advanced several factors that pointed to that conclusion: (1) The counsel was removable by the Attorney General, thus making her "to some degree `inferior' in rank and authority." Id. (2) The counsel's duties were limited, particularly with respect to policy making and administration. (3) The counsel's tenure was limited to the particular "mission that she was appointed for." Id. at 672.(74) The Court's other recent Appointments Clause decisions shed little additional light on the subject.(75)
We agree with the court of appeals in Silver v. United States Postal Service, 951 F.2d 1033 (9th Cir. 1991), that the particular factors Morrison discussed do not constitute an exhaustive or exclusive list. See id. at 1040 ("The nature of each government position must be assessed on its own merits."). The Silver court noted that the official at issue in that case, the Postmaster General, "performs many tasks and has many responsibilities," but determined the office to be an inferior one because the Postmaster General "does not have `control'" and "serv[es] at the pleasure of the" Board of Governors of the Postal Service. Id. This approach is consistent with the one we have taken in the past. For example, in concluding that United States Attorneys are inferior officers whose appointment could be vested in the Attorney General, we rejected the argument that the constitutional term "inferior" means "`petty or unimportant'"; instead, we concluded that the term connotes amenability to supervision by the superior "in whom the power of appointment is vested." United States Attorneys -- Suggested Appointment Power of the Attorney General -- Constitutional Law (Article 2, § 2, cl. 2), 2 Op. O.L.C. 58, 58-59 (1978) (quoting Collins v. United States, 14 Ct. Cl. 568, 574 (1878)); see also Department of Housing and Urban Development -- Delegations of Authority -- 42 U.S.C. § 3533, 3535, 2 Op. O.L.C. 87, 89 (1978) (deputy assistant secretary, who is subject to direction by an assistant secretary, is "unquestionably" an inferior officer). In determining whether an officer may properly be characterized as inferior, we believe that the most important issues are the extent of the officer's discretion to make autonomous policy choices and the location of the powers to supervise and to remove the officer. While an officer responsible only to the President for the exercise of significant discretion in decision making is probably a principal officer, an officer who is subject to control and removal by an officer other than the President should be deemed presumptively inferior.
3. Who May Appoint Inferior Officers? The Appointments Clause does not define "Heads of Departments" or "Courts of Law," and questions have arisen about which entities are included by these terms within the "possible repositories for the appointment power." Freytag v. Commissioner, 501 U.S. 868, 884 (1991). Earlier Attorneys General have accorded these terms a broad construction. See, e.g., Authority of Civil Service Commission to Appoint a Chief Examiner, 37 Op. Att'y Gen. 227 (1933). The same is true of the courts,(76) which have held that the Tax Court,(77) a special division of a court of appeals created primarily for the purpose of appointing independent counsels,(78) and the Governors of the Postal Service (as a collective head of department),(79) can be vested with appointments power. The interpretive difficulties lie in determining exactly how broadly the term "Department" should be read.
We think that the "Departments" to which the Appointments Clause refers are not limited to those major divisions of the executive branch that are headed by members of the President's cabinet.(80) In 1933, Acting Attorney General Biggs opined that Congress could authorize the Civil Service Commission to appoint an inferior officer. Authority of Civil Service Commission to Appoint a Chief Examiner, 37 Op. Att'y Gen. 227 (1933). His opinion noted that the Commission "ha[d] certain independent executive duties to perform," was "responsible only to the Chief Executive," id. at 229, and was "not a subordinate Commission attached to one of the so-called executive departments," id. at 231. As "an independent division of the Executive Branch," he concluded, the Commission was a "Department" for Appointments Clause purposes and its three commissioners, collectively, "the `head of a Department' in the constitutional sense." Id. The fact that the commissioners were not members of the Cabinet was not controlling, the Acting Attorney General concluded, because the Cabinet itself is not a creation of the Constitution. Id.(81) We find this opinion persuasive and note that the Court's opinion in Freytag ultimately reserved the question of whether the heads of entities other than cabinet-level departments can be vested with the power to appoint inferior officers. See Freytag, 501 U.S. at 887 n.4.(82) Cf. United States v. Germaine, 99 U.S. 508 (1879) (Commissioner of Pensions, as head of a bureau within the Interior Department, was not a "Head of Department").(83)
We would apply the reasoning of the 1933 opinion in concluding that it is constitutional for Congress to vest the power to appoint inferior officers in the heads of the so-called independent agencies -- those agencies whose heads are not subject to removal at will by the President and that conventionally are understood to be substantially free of policy direction by the President. Except for the attenuated nature of the President's supervisory authority, most of the independent agencies are clearly analogous to major executive agencies. They exercise governmental authority without being subordinated to any broader unit within the executive branch, and Congress has implicitly characterized them as "Departments" for Appointments Clause purposes by permitting their heads to appoint officials who plainly are inferior officers.(84) Nothing in the original history of the Clause suggests any intention to exclude from the scope of the Clause separate establishments that are not subject to plenary presidential control.(85) Finally, in reserving the question of appointments by "the head of one of the principal agencies," the Freytag Court itself included as examples of those agencies the "independent" FTC and the SEC as well as the clearly executive CIA, which suggests that the Court did not perceive a difference between the two types of agencies, at least in the Appointments Clause context. 501 U.S. at 887 n.4. We see no reason to exclude the independent regulatory agencies from the class of entities that are "Departments" for Appointments Clause purposes.
We note that, even accepting the reasoning of the 1933 Justice Department opinion, some entities may exercise governmental authority in so limited a manner that they need not be viewed as "Departments" even though their heads are responsible only to the President. For example, the Committee for Purchase from People Who Are Blind or Severely Disabled, the members of which are appointed by the President alone, 41 U.S.C. § 46(a), appears to exercise significant authority but is subordinate to no larger executive agency. Id. §§ 46-48c. Given the narrow scope of the Committee's powers, however, we do not think that the Committee necessarily should be analyzed as a collective head of a department for Appointments Clause purposes.
4. Legislation Lengthening the Tenure of an Officer. As the Court held in Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam), the Appointments Clause by its terms and its structure prohibits Congress from itself exercising the power to appoint "Officers of the United States." The text and structure of the Clause reflect a deliberate constitutional choice to deny to the legislature the power to select the individuals who exercise significant governing authority as non-legislative officers of the federal government. See id. at 129-31 (reviewing the debates in the Philadelphia convention).(86) This choice to exclude Congress as such from the appointments process can be set at naught by means other than legislation overtly vesting in Congress the power of appointment. Accordingly, the executive branch has traditionally viewed statutes that constitute an effective exercise by Congress of the power to appoint as violations of the Appointments Clause.
This issue sometimes arises in connection with statutes that attempt to extend the tenure of an officer with a set term, thus potentially denying the President the power he or she would otherwise have to reappoint the officer or select someone else. In 1951, for example, the President requested the Justice Department's views on the validity of a statute extending the terms of the members of a commission. See Displaced Persons Commission -- Terms of Members, 41 Op. Att'y Gen. 88 (1951). According to the original legislation creating the commission, the terms were to expire in June 1951, but prior to that date Congress amended the legislation to extend the commissioners' tenure to August 1952. Acting Attorney General Perlman advised the President that, while he did not think "there can be any question as to the power of the Congress to extend the terms of offices which it has created," this legislative power is subject "to the President's constitutional power of appointment and removal." Id. at 90. However, because the legislation did not attempt to restrict the President's authority to remove the commissioners at will, it was constitutionally harmless: the President remained free to exercise his appointment power simply by removing the incumbents from office at any time. See id. ("As so construed, the [extension legislation] presents no constitutional difficulties."); see also Pension Agents and Agencies, 14 Op. Att'y Gen. 147, 148-49 (1872) (discussing President's power to remove officer serving a term extended by statute).(87)
We think that the Department's 1951 opinion adopted the correct approach to this issue: while the power to lengthen the tenure of an incumbent officer is incident to Congress's general power to create, determine the duties of, and abolish offices,(88) that power cannot legitimately be employed to produce a result that is, practically speaking, a congressional reappointment to office. On this reasoning, the extension of tenure of officers serving at will raises no Appointments Clause problem, but lengthening the term of an officer who may be removed only for cause would be constitutionally questionable.(89) However, this conclusion, which we think sound in principle, has been rejected by the courts in at least one context. The Bankruptcy Amendments and Federal Judgeship Act of 1984 extended the tenure of bankruptcy judges, who can be removed only for cause, and that provision has been sustained repeatedly against constitutional challenge. The leading case, In re Benny, 812 F.2d 1133 (9th Cir. 1987), held that a statutory extension of tenure "becomes similar to an appointment" only "when it extends the office for a very long time." Id. at 1141; see also In re Investment Bankers, Inc., 4 F.3d 1556, 1562 (10th Cir. 1993) (agreeing with Benny and noting that the contrary Appointment Clause argument "has been rejected by every court that has considered it"), cert. denied, 114 S. Ct. 1061 (1994). We do not find especially persuasive the reasoning of Benny,(90) and it is possible that the doctrine of Benny is limited to its factual context.(91) However, the reasoning set forth in Benny and the cases that follow it is susceptible to general application, and it is unclear that the courts could repudiate Benny's conclusion with respect to other officers without undercutting the legitimacy of those cases.
The relevant precedents contemplate a continuum. At the one end is constitutionally harmless legislation that extends the term of an officer who is subject to removal at will. At the other end is legislation, constitutionally objectionable even under Benny, that enacts a lengthy extension to a term of office from which the incumbent may be removed only for cause. Legislation along this continuum must be addressed with a functional analysis. Such legislation does not represent a formal appointment by Congress and, absent a usurpation of the President's appointing authority, such legislation falls within Congress's acknowledged authority -- incidental to its power to create, define, and abolish offices -- to extend the term of an office. As indicated, constitutional harm follows only from legislation that has the practical effect of frustrating the President's appointing authority or amounts to a congressional appointment.
Our recent opinion on legislation extending the terms of members of the United States Sentencing Commission is illustrative of this functional approach. After the Sentencing Commission had been appointed, Congress enacted legislation "to provide [that] a member of the United States Sentencing Commission may continue to serve until a successor is appointed or until the expiration of the next session of Congress." Pub. L. No. 102-349, 106 Stat. 933 (1992). Commissioners may be removed only for cause. 28 U.S.C. § 991(a). We concluded that the statute did not function to violate the President's appointment power. See Whether Members of the Sentencing Commission Who Were Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute (Apr. 5, 1994) (publication forthcoming in 18 Op. O.L.C. (1994)). The statute left the President free to "nominate whomever he want[ed] at precisely the same time as he could before [the statute was enacted]." Id. at 10. We noted that the effect of the legislation could actually be to augment the President's power by giving him "the option of retaining the holdover officer until he chooses to nominate a successor." Id.
We acknowledged the argument that the statute might give Congress the opportunity to appoint, in effect, an incumbent to a new term because the President's removal authority is statutorily restricted and the Senate might refuse to confirm any presidential nominee in order to retain a congressionally favored incumbent. Id. But this argument was unavailing for two reasons. First, the argument is unduly speculative insofar as it hypothesizes contumacious conduct on the part of the Congress, and whatever danger such a possibility might entail was mitigated by the limitation on the period for which a holdover may continue to serve. Second, we noted that the holdover provision is unarguably valid as applied to Sentencing Commissioners who took office after the statute's enactment. We concluded that "[i]t is simply not persuasive to argue that the President's appointment power is effectively frustrated when incumbent commissioners hold over but not when subsequent commissioners hold over." Id.
We also found it significant that the holdover statute was neutral in its application. We reserved the question of whether a holdover statute "might amount to a prohibited congressional designation, even if the holdover period is for a short time," if the statute "would create or repeal holdover provisions for selective members of the same commission or for classes of members on the same commission, e.g., those appointed on a certain date or those from a particular political party." Id. at 14 n.8.
5. Legislation Imposing Additional Duties on an Officer. The executive branch has consistently maintained that a statute creating a new office and conferring it and its duties on the incumbent of an existing office would be unconstitutional under the Appointments Clause.(92) Congress's recognized authority to alter the duties and powers of existing offices could be employed to achieve substantially the same result if the legislature were unconstrained in the duties it could add to an office.(93)
The Supreme Court accordingly has interpreted the Constitution to limit the legislature's discretion. The leading case, Shoemaker v. United States, 147 U.S. 282 (1893), concerned a statute that created a commission to select the land for Rock Creek Park in the District of Columbia. Three of the five members were to be appointed by the President and confirmed by the Senate; the persons holding two existing federal offices, the chief of engineers of the Army and the engineer commissioner of the District, were declared members ex officio. The Court rejected an Appointments Clause challenge to the assignment of the two engineers to the new commission:
[W]e do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.Id. at 301. The legislation at issue was valid, the Court concluded, because the new duties assigned to the engineers "cannot fairly be said to have been dissimilar to, or outside of the sphere of," the engineers' existing responsibilities. Id.
The Shoemaker rule ensures "that Congress [is] not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office." Weiss v. United States, 114 S. Ct. 752, 759 (1994). For the imposition of new duties on an officer to be valid under Shoemaker, two requirements must be met. First, as in Shoemaker itself, the legislation must confer new duties on "offices, . . . [not] on any particular officer." Olympic Fed. Sav. & Loan Ass'n v. Director, Office of Thrift Supervision, 732 F. Supp. 1183, 1192 (D.D.C.) (emphasis in original), appeal dismissed as moot, 903 F.2d 837 (D.C. Cir. 1990). "Had the Chief of Engineers of the United States Army or the Engineer Commissioner of the District of Columbia resigned from office after the commission was established, he would no longer have served on the commission -- the new Chief of Engineers or Engineer Commissioner would have taken over those duties." Id. at 1192-93 (discussing facts in Shoemaker). The statute at issue in Olympic Federal, in contrast, abolished certain offices (the three-person Federal Home Loan Bank Board) while simultaneously defining the duties of a new office (the Director of OTS) and designating as the first Director the holder of one of the abolished offices (the chair of the Federal Home Loan Bank Board). See id. at 1186. The Olympic Federal court correctly determined that by doing so the statute in effect appointed the particular individual who was chair of the old board to a new position. Id. at 1193.(94)
The second facet of the Shoemaker rule is the requirement that the new duties be "germane to the offices already held by" the affected officers. 147 U.S. at 301. This inquiry is necessarily case-specific. In Weiss, the Court examined closely the specific duties of military judges and the general responsibilities of military and naval officers and concluded that they are so intertwined that the selection by the Judges Advocate General of certain military and naval officers to serve for a time as military judges is consistent with the germaneness requirement. 114 S. Ct. at 759-60. In giving advice on this issue, we also have looked at the reasonableness of assigning the new duties "in terms of efficiency and institutional continuity," and we have asked whether "it could be said that [the officers'] functions . . . [with the additional duties] were within the contemplation of those who were in the first place responsible for their appointment and confirmation." Legislation Authorizing the Transfer of Federal Judges from One District to Another, 4B Op. O.L.C. 538, 541 (1980).
The Weiss decision may have weakened judicial enforcement of Shoemaker's germaneness requirement by suggesting that some legislation that adds new duties is valid regardless of whether it satisfies the requirement. The opinion of the Court stressed the fact that "[i]n Shoemaker, Congress assigned new duties to two existing offices, each of which was held by a single officer. This no doubt prompted the [Shoemaker] Court's description of the argument as being that `while Congress may create an office, it cannot appoint the officer.' . . . But here the statute authorized an indefinite number of military judges, who could be designated from among hundreds or perhaps thousands of qualified commissioned officers." 114 S. Ct. at 759. For that reason, the Court concluded, there was "no ground for suspicion here that Congress was trying to both create an office and also select a particular individual to fill the office." Id. The Court nevertheless went on to consider the germaneness issue and concluded that the duties of military judges are adequately related to the duties of the commissioned officers from whom the judges are selected. Id. at 760.
In a separate opinion, Justice Scalia argued that "`germaneness' is relevant whenever Congress gives power to confer new duties to anyone other than the few potential recipients of the appointment power specified in the Appointments Clause," because "taking on . . . nongermane duties . . . would amount to assuming a new `Offic[e]' within the meaning of Article II, and the appointment to that office would have to comply with the strictures of Article II." Id. at 770 (Scalia, J., concurring in part and concurring in the judgment). We find Justice Scalia's reasoning persuasive and believe that in an appropriate setting the executive branch should urge the Court expressly to accept it. In light of the Weiss Court's detailed examination of the germaneness issue, this may not require the Court in fact to modify the doctrine of that case because it is unclear to us that the Court actually intended to hold germaneness constitutionally irrelevant in Weiss-type circumstances. The Court may instead simply have been emphasizing the fact that assignment of new and nongermane duties to a few specific officers not only violates the Appointments Clause per se, but also fails under the more general anti-aggrandizement principle of its decisions. We believe that it is appropriate, therefore, to review proposed new-duties legislation for germaneness even where the new duties are assigned to large or indefinite groups.
6. The Ineligibility and Incompatibility Clauses. The Constitution places two important restrictions on the universe of persons who may be appointed to serve as officers of the United States. U.S. Const. art. I, § 6, cl. 2.(95) The Ineligibility Clause states that "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time." Id. The Clause "restricts the President's power to appoint Members of Congress," and "[i]t has long been settled within the executive branch that the President, in exercising his powers of appointment under Article II, § 2, cl. 2, will not make an appointment in violation of the . . . clause." Members of Congress Holding Reserve Commissions, 1 Op. O.L.C. 242, 244 (1977). The most common problem under the Ineligibility Clause arises from legislation that creates a commission or other entity and simultaneously requires that certain of its members be Representatives or Senators, either ex officio or by selection or nomination by the congressional leadership. Unless the congressional members participate only in advisory or ceremonial roles, or the commission itself is advisory or ceremonial, the appointment of members of Congress to the commission would violate the Ineligibility Clause.(96)
The Incompatibility Clause provides that "no Person holding any Office under the United States, shall be a Member of either House during his continuance in Office." U.S. Const. art. I, § 6, cl. 2. The Clause is primarily a restriction on Congress and its members: the Incompatibility Clause "disqualifies individuals who have already been appointed from assuming or retaining seats in Congress." Reserve Commissions, 1 Op. O.L.C. at 244; cf. Members of Congress Serving in the Armed Forces, 40 Op. Att'y Gen. 301 (1943).(97) However, the President's duty to take care that the law of the Incompatibility Clause is observed requires him or her to ensure that appointments(98) and legislation creating governmental positions are consistent with the Clause. See, e.g., Case of the Collectorship of New Orleans, 12 Op. Att'y Gen. 449, 451 (1868) ("in view of the" Incompatibility Clause, an executive officer's acceptance of a seat in Congress "must be considered as having the legal character of a resignation of the office"); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207-08 (1984) (providing advice about "various structural arrangements within the Commission that might be designed to respect the Incompatibility Clause").(99)
7. The Recess Appointments Clause. With respect to officers of the United States, the Constitution vests the President with the "Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." U.S. Const. art. II, § 2, cl. 3. "A long line of opinions of the Attorneys General, going back to 1823 . . . and which have been judicially approved . . . has firmly established that . . . [t]he President's power to make recess appointments . . . extends to all vacancies existing during the recess regardless of the time when they arose." Recess Appointments -- Compensation, 3 Op. O.L.C. 314, 314 (1979) (citations omitted); accord Executive Authority to Fill Vacancies, 1 Op. Att'y Gen. 631 (1823).(100) Although there was some early uncertainty about the President's power to make appointments under the Recess Appointments Clause during intrasession recesses, that question was settled within the executive branch by an often-cited opinion of Attorney General Daugherty concluding that the President is so authorized. Executive Power -- Recess Appointments, 33 Op. Att'y Gen. 20 (1921). The most difficult problem of interpretation under the Clause today is determining how substantial an intrasession recess must be to give rise to the President's power.(101) Attorney General Daugherty concluded that a twenty-eight-day recess was sufficient, but cautioned that "the term `recess' must be given a practical construction." Id. at 24-25. We agree with his view that the President has discretion to make a good-faith determination of whether a given recess is adequate to bring the Clause into play.(102) Giving advice on how the President may properly exercise that discretion has proven a difficult task. See Recess Appointments During the Recess of the Senate Beginning January 3, 1992, 16 Op. O.L.C. 15 (1992) (preliminary print) (eighteen-day recess a sufficient period, particularly in light of fact that except for a brief formal session on January 3 the Senate would actually be absent for fifty-four days); Recess Appointments, 3 Op. O.L.C. at 316 (President may make recess appointments "during a summer recess of the Senate of a month's duration").
8. Acting and Interim Appointments. Early Attorneys General repeatedly opined that the President enjoyed a constitutional power of appointment empowering the President to make temporary or ad interim appointments to offices in cases of need without conforming to the requirements of the Appointments or Recess Appointments Clause.(103) Their initial reaction to congressional legislation on the subject of vacancies was therefore to view it as having neither the purpose nor the effect of supplanting the President's preexisting constitutional authority. See Office and Duties of Attorney General, 6 Op. Att'y Gen. 326, 352 (1854) ("Perhaps the truer view of the question is to consider the . . . statutes as declaratory only, and to assume that the power to make such temporary appointment is a constitutional one."). After the enactment of the Vacancies Act of 1868, 15 Stat. 168, however, the Attorneys General treated the Act as providing the exclusive means of making temporary appointments to those offices covered by the statute. See, e.g., Appointments Ad Interim, 17 Op. Att'y Gen. 530 (1883); Appointments Ad Interim, 16 Op. Att'y Gen. 596, 596-97 (1880) (authority to fill vacancy in the office of Navy Secretary is "a statutory power," and when the power is exhausted, "the President is remitted to his constitutional power of appointment"). A 1904 opinion attempted to synthesize the older and the more recent views, treating as reasonable and legitimate Congress's wish to cabin presidential discretion to make interim appointments while the Senate is in session, but describing as a "fundamental right as Chief Executive" the President's authority "to make such a temporary appointment, designation, or assignment of one officer to perform the duties of another whenever the administration of the Government requires it." Temporary Recess Appointments, 25 Op. Att'y Gen. 258, 261 (1904); see also Promotion of Marine Officer, 41 Op. Att'y Gen. 291, 294 (1956) (President has constitutional authority to appoint "key military personnel to positions of high responsibility" without following statutory procedures).
There is little modern caselaw on the President's power to make temporary appointments to offices requiring Senate confirmation.(104) The "leading" judicial decision is a brief per curiam court of appeals opinion denying a motion for a stay of the district court's mandate pending appeal, Williams v. Phillips, 482 F.2d 669 (D.C. Cir. 1973) (per curiam).(105) Because of its procedural posture, Williams did not actually resolve the constitutional issue, but it suggested somewhat obliquely that what non-statutory power the President possesses to make interim appointments to offices requiring Senate confirmation can be employed only for a "reasonable time required by the President to select persons for nomination." Id. at 671. Looking to the thirty-day period that was, at the time, permitted temporary appointments under the Vacancies Act for an indication of what a reasonable period would be, Williams concluded that even if the implied power existed, a four-and-a-half-month period without any nomination was unreasonable. Id. at 670-71.(106) Since Williams was decided, the Vacancies Act has been amended to provide for an initial appointment period of 120 days. Up to two extensions, each lasting 120 days, may be made depending on the specific circumstances of the vacancy. Moreover, the Vacancies Act also tolls the running of these periods when particular conditions obtain. See 5 U.S.C. § 3348. Thus, the Vacancies Act allows temporary appointments, in appropriate circumstances, of durations well in excess of even one year. Accordingly, we would not currently view a four-and-a-half-month temporary appointment as necessarily exceeding a reasonable duration, provided that a nomination is submitted to the Senate.
On the assumption that Williams can be read to indicate that "[t]o keep the Government running calls for the designation of acting officials to fill vacancies in the absence of express statutory authority," Department of Energy -- Vacancies, 2 Op. O.L.C. 113, 117 (1978) (citing Williams), we have argued that the reasonableness of a given interim appointment should be measured not by a per se rule but by a variety of pragmatic factors. Those factors include "the difficulty of finding suitable candidates," id. at 118, "the specific functions being performed by the [interim officer]; the manner in which the vacancy was created (death, long-planned resignation) . . . and particular factors affecting the President's choice [such as] a desire to appraise the work of [the interim officer] or the President's ability to devote attention to the matter." Status of the Acting Director, Office of Management and Budget, 1 Op. O.L.C. 287, 290 (1977). However, given the ambiguity of the Williams opinion, we have urged caution, even when the relevant department head has statutory authority to designate another official to serve in an acting capacity. See Acting Officers, 6 Op. O.L.C. 119, 121-22 (1982).
We recently revisited the vacancies question in relation to the United States Commission on Civil Rights. The Commission is headed by an eight-member committee that works on a part-time basis, while its day-to-day functioning is administered by a staff director. The statute creating the position of staff director vests the authority to appoint the staff director in the President, subject to the concurrence of a majority of the members of the Commission. In keeping with the Department of Justice's long-standing position, we concluded that, when confronted with a vacancy in the position of staff director, the President has constitutional authority to appoint an acting staff director, unless Congress had statutorily limited this authority. We stated:
The President's take care authority to make temporary appointments rests in the twilight area where the President may act so long as Congress is silent, but may not act in the face of congressional prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Thus, the Vacancies Act, 5 U.S.C. §§ 3345-3348, constitutes a restriction on the President's authority, as opposed to a source of power. If it applies to a given position, the Vacancies Act constitutes the sole means by which a temporary appointment to that position may be made.Appointment of an Acting Staff Director of the United States Commission on Civil Rights, at 3 (Jan. 13, 1994) (publication forthcoming in 18 Op. O.L.C. (1994)).
We concluded that Congress had not limited the President's constitutional authority with respect to the appointment of an acting staff director of the Civil Rights Commission. The Vacancies Act does not apply to the position of staff director.(107) In addition, the statute creating the position is silent on the subject of temporarily filling a vacancy in that position. Consequently, we concluded that the President was free to exercise his constitutional authority to appoint an acting staff director. (108)
9. Other Issues of Combined, Collective, and Interbranch Authority and the Appointments Clause. The Appointments Clause prohibits Congress or the President from obscuring the lines of authority and responsibility within the federal government: the political branches cannot vest the power to perform "a significant governmental duty" of an executive, administrative, or adjudicative nature in any federal official who is not appointed in a manner consistent with the Clause. Buckley v. Valeo, 424 U.S. 1, 141 (1976) (per curiam). The Clause, however, does not prohibit creative combinations of officers and authorities as long as a person or body with legitimate appointing authority under the Clause has appointed -- and therefore is accountable for -- all federal officials with such power. Cf. Weiss v. United States, 114 S. Ct. 752, 768 (1994) (Souter, J., concurring); Silver v. United States Postal Serv., 951 F.2d 1033, 1040-41 (9th Cir. 1991).
The Appointments Clause therefore does not forbid the exercise of authority by a decision-making body with a collective head that consists of principal officers and an inferior officer removable by them. See Silver, 951 F.2d at 1040-41. Nor is the Clause offended by the delegation of concurrent authority to a Senate-confirmed officer and her deputy when the latter is appointed by a head of department. See Department of Housing and Urban Development -- Delegations of Authority, 2 Op. O.L.C. 87, 89-91 (1978). In both cases all of the officials performing significant governmental duties are validly appointed officers.
The exercise of authority by a group of principal officers, some of whom serve at the President's pleasure while others are removable by the President only for cause, presents no Appointments Clause issue: once again, the Clause's procedures for appointing federal officials so that they may wield "significant authority" have been met. The Clause's strictures are likewise satisfied by arrangements in which a head of department, pursuant to a statute, designates a subordinate to sit in his or her stead on a commission or board: if the designation by the head were authorized by statute, then it would itself be an appointment in conformity with the Clause, and even if it were not, the designee would be acting for or on behalf of the head of department, whose actions, for constitutional purposes, are the head's.
Finally, the Appointments Clause does not invalidate commissions composed of members or appointees from more than one branch of the government. Mistretta v. United States, 488 U.S. 361, 412 (1989), upheld the constitutionality of the Sentencing Commission, which includes at least three federal judges and the Attorney General as an ex officio non-voting member, while Buckley concluded that a commission consisting of a mixture of presidential appointees and members of Congress selected by the Speaker and President pro tempore can validly exercise "powers . . . essentially of an investigative and informative nature," 424 U.S. at 137. Interbranch entities are subject to constitutional review on other grounds, including the anti-aggrandizement and general separation of powers principles, but their interbranch nature does not in itself raise any Appointments Clause question.
C. Removal Power Issues 1. The Executive's Removal Power. The first great constitutional debate in the First Congress concerned the power to remove officers of the United States. A wide range of views was expressed over the respective roles -- or lack thereof -- of the President and Congress in removal matters,(109) but ultimately, as the Supreme Court has interpreted the "Decision of 1789," Congress rejected a legislative role in removal in favor of recognizing plenary presidential power over officers appointed by the President with the advice and consent of the Senate. See Bowsher v. Synar, 478 U.S. 714, 723-24 (1986); see also Myers v. United States, 272 U.S. 52, 111-44 (1926) (discussing debates and subsequent acquiescence in the legislative decision).
The nineteenth-century Justices interpreted the First Congress's actions as illustrative of a more general principle that "the power of removal [is] incident to the power of appointment." Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839). Thus, it was determined that inferior officers appointed by a department head were not removable by the President (absent statutory authorization to do so) but by the secretary who appointed them and that a new appointment by the proper officer amounted to a removal of the previous incumbent by operation of law. Id. at 260-61; accord The President and Accounting Offices, 1 Op. Att'y Gen. 624 (1823). In United States v. Perkins, 116 U.S. 483 (1886), the Court held that, "when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest." Id. at 485. Although the Court did not address any questions about presidential removal powers, its reasoning about Congress's authority to limit department heads' removal power could logically be applied to the President with respect to inferior officers whose appointment is vested by statute in the President alone.(110) The power to suspend an officer, finally, was held to be "an incident of the power of removal." Burnap v. United States, 252 U.S. 512, 515 (1920) (relying primarily on nineteenth-century precedents). The Court's conclusions in Hennen, Perkins, and Burnap remain good law.(111)
The seminal twentieth-century cases on removal, Myers and Humphrey's Executor v. United States, 295 U.S. 602 (1935), both addressed the power to remove officers appointed by the President with the advice and consent of the Senate. Myers held unconstitutional a statute requiring Senate approval of the President's decision to remove certain postmasters. The Court based its holding in part on its interpretation of the "Decision of 1789" and on its understanding of the President's constitutional role. "Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. . . . Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority." 272 U.S. at 132-33. An illimitable removal power, Myers concluded, is a necessary incident to the President's power and responsibility to take care that the laws are faithfully executed. Id. at 163-64.(112)
Any suggestion in Myers that the Supreme Court would invalidate all limitations on the President's power to remove officers appointed with the advice and consent of the Senate was firmly repudiated less than a decade later by Humphrey's Executor. The case concerned the President's power to remove a member of the Federal Trade Commission on the grounds of policy differences, despite the existence of a for-cause removal provision in the statute establishing the Commission.(113) The Court dismissed Myers as inapposite because a postmaster is "an executive officer restricted to the performance of executive functions," and "the necessary reach of the decision" only "goes far enough to include all purely executive officers [and] no farther." 295 U.S. at 627-28.(114) By contrast, the Court examined the functions of the FTC and concluded that it was "an administrative body" exercising "quasi-legislative or quasi-judicial powers," rather than an agency of the executive branch. Id. at 628. The Court reasoned that Congress possesses the authority in creating such a body "to require [it] to act in discharge of [its] duties independently of executive control." Id. at 629.(115) In Wiener v. United States, 357 U.S. 349 (1958), the Court extended the scope of Humphrey's Executor by inferring the existence of a for-cause limitation on the President's power to remove an officer with quasi-adjudicatory functions, even in the absence of an express statutory removal restriction.(116)
The rationale in Humphrey's Executor for upholding Congress's power "to forbid [the commissioners'] removal except for cause" was in fact identical to that for recognizing the President's plenary removal power over "purely executive officers." "[I]t is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." 295 U.S. at 629. The constitutionality of congressional limitations on presidential removal authority thus depended under Humphrey's Executor on the legitimacy of a legislative decision to reduce or eliminate the President's control over a particular agency or officer, and that in turn depended on the nature of the functions performed by the agency or officer.(117)
In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court upheld a provision of the Ethics in Government Act that forbids the removal of an independent counsel appointed under the Act except for cause. The Court explained that under "[t]he analysis contained in our removal cases," the constitutional question is whether Congress has "interfere[d] with the President's exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed.'" Id. at 689-90. Morrison reasoned that the Attorney General retained adequate control over the independent counsel to safeguard "the President's ability to perform his constitutional duty." Id. at 691.
Morrison's broader significance is defined by the office in question. The removal restriction upheld in Morrison concerned an inferior officer with a sharply limited and highly unusual function, the investigation of particular allegations about the conduct of high-ranking executive branch officials. In that context, although it declined to decide "exactly what is encompassed within the term `good cause,'" the Court held that "because the independent counsel may be terminated for `good cause,' the Executive . . . retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act." 487 U.S. at 692. The Morrison Court thus had no occasion to consider the validity of removal restrictions affecting principal officers, officers with broad statutory responsibilities, or officers involved in executive branch policy formulation.(118)
The Supreme Court's removal cases establish a spectrum of potential conclusions about specific removal limitations. At one end of the spectrum, restrictions on the President's power to remove officers with broad policy responsibilities in areas Congress does not or cannot shelter from presidential policy control clearly should be deemed unconstitutional. We think, for example, that a statute that attempts to limit the President's authority to discharge the Secretary of Defense would be plainly unconstitutional and that the courts would so hold.(119) As the Court stated in Morrison, Myers "was undoubtedly correct . . . in its broader suggestion that there are some `purely executive' officials who must be removable by the President at will if he is to be able to accomplish his constitutional role." 487 U.S. at 690.(120) At the other end of the spectrum, we believe that for cause and fixed term limitations on the power to remove officers with adjudicatory duties affecting the rights of private individuals will continue to meet with consistent judicial approval: the contention that the essential role of the executive branch woul