Appointment of Members of the Board of Directors of the Commission on National and Community Service

Opinion

Appointment of Members of the Board of Directors of the Commission on National and Community Service

T h e u n c o n s titu tio n a l re s tric tio n s o n th e P r e s id e n t’s a p p o in tm e n t p o w e r c o n ta in e d in th e N a tio n a l a n d C o m m u n ity S e rv ic e A c t o f 1990 a re s e v e ra b le fro m th e re m a in d e r o f the A c t.

W ith o n e e x c e p tio n , th e p ro g ra m s e sta b lis h e d u n d e r title I o f the A c t m a y n o t b e im p le m e n te d b e fo re th e P re s id e n t h a s a p p o in te d m e m b e rs o f th e B o a rd o f D ire c to rs o f the C o m m is s io n o n N a tio n a l a n d C o m m u n ity S e rv ic e .

T h e re is n o s ta tu to ry p ro h ib itio n a g a in st o ffic e rs c u rre n tly h o ld in g o th e r a d v ic e - a n d - c o n s e n t p o s itio n s s e rv in g o n th e B o a rd , so lo n g as th e p e rso n re c e iv e s o n ly o n e sala ry , th e p o s itio n s a re n o t “ in c o m p a tib le ” fro m th e s ta n d p o in t o f p u b lic p o lic y , a n d th e re is no a u g m e n ta tio n o f re le v a n t a p p ro p ria tio n s .

December 28, 1990

M e m o r a n d u m O p in io n f o r th e A s s o c ia t e C o u n s e l t o t h e P r e s id e n t

This responds to your request for an opinion concerning the appointment o f members of the Board of Directors of the newly-established Commission on National and Community Service (the “Commission”). See M emoran­ dum for John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, from Nelson Lund, Associate Counsel to the President (Dec. 14, 1990). The National and Community Service Act of 1990, Pub. L. No. 101-610, 104 Stat. 3127 (codified at 42 U.S.C. §§ 12501-12862 (Supp. II 1990)) (the “Act”), which creates the Commission, contains a number of unconstitutional restrictions on the President’s power to appoint such mem­ bers. See Statement on Signing the National and Community Service Act of 1990, Pub. Papers of George Bush 1613 (Nov. 16, 1990). You have asked whether these restrictions are severable from the remainder of the Act. In addition, you have asked whether the programs established under title I of the Act may be implemented before the President has appointed members of the Board, and whether officers currently holding other advice-and-consent positions may serve on the Board.

We believe that the unconstitutional provisions are severable from the remainder of the Act, and that, with one exception, the programs established

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by title I may not be implemented before the President appoints members of the Board. With regard to your third question, there is no problem in prin­ ciple with persons having tw o simultaneous appointments in the executive branch. Nevertheless, dual appointments must be examined on an individual basis to assure that the offices are not incompatible from the standpoint of public policy. We would be pleased to consider the legality of any particular nominations you wish us to review.

Title I of the Act establishes several grant programs to be administered by the Commission. § 190. The purpose of the grants is to enable recipients “to carry out” specified “national or community service programs.” § 102. Subtitle B authorizes the Commission, in consultation with the Secretary of Education, to make grants to States or local applicants in connection with school-aged service programs, § 111, and “to make grants to, and enter into contracts with, institutions of higher education” and other parties in connec­ tion with community service projects. § 118. Subtitle C gives the Commission power to make grants to States, local applicants, and certain federal agencies “for the creation or expansion of full-time or summer youth corps programs.” § 121. Under subtitle D, the Commission may make grants to States “for the creation of full- and part-time national and community service programs.” § 141. Finally, subtitle E authorizes the Commission to make grants to States, Indian tribes, specified federal agencies, and other parties in connection with certain “innovative” and demonstration programs. §§ 157, 160, 165-167.

The Act provides that the Commission is to be administered by a Board of Directors (the “Board”) consisting of twenty-one members appointed by the President with the advice and consent of the Senate. § 190(a), (b)(1)(A).1 Section 190(b) imposes several restrictions upon the President’s authority to make such appointments. It provides, for instance, that the Board must “be balanced according to the race, ethnicity[,] age and gender of its members,” § 190(b)(1)(A); must contain “ [n]ot more than [eleven] members of . . . the same political party,” § 190(b)(2); and must include seven members chosen from among persons nominated by the Speaker of the House of Representa­ tives, and seven from among persons nominated by the Majority Leader of the Senate. § 190(b)(3).

As the President explained in signing the Act, requirements such as these are unconstitutional restrictions on his authority to appoint officers of the United States. See Pub. Papers of George Bush at 1613-14. See also Public Citizen v. United States D ep’t o f Justice, 491 U.S. 440, 482 (1989) (Kennedy, J., concurring); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). We believe, however, that these unconstitutional provisions may be severed from the remainder of the Act.

The Act contains no severability clause. Nonetheless, even in the absence

1In a d d itio n , th e S e c re ta ry o f Education, the S ecretary o f H ealth and H um an S ervices, the S e c re ta ry o f L a b o r, th e S e c re ta ry o f th e Interior, th e Secretary o f A g ricu lture, and the D ire c to r o f th e A C T IO N a g e n c y serv e as e x -o fficio mem bers o f th e Board. § 19 0 (b )( 1)(B).

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of such a clause, there exists a presumption in favor of the severability of unconstitutional provisions so long as what remains of the statute is capable of functioning independently. See Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion); Alaska Airlines v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir. 1985), aff'd sub nom. Alaska Airlines v. Brock, 480 U.S. 678 (1987). As the Supreme Court has explained on numerous occasions, “ ‘[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently o f that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley, 424 U.S. at 108). This presumption may be overcome by evidence that, absent the unconstitutional provisions, the statute will not function “in a m anner consistent with the intent of Congress,” id. at 685, that is, by evidence that Congress would not have enacted the statute without the unconstitutional provisions. Such evidence may be gleaned from the language and structure of the statute as well as its legislative history. Id. at 687.

We do not believe that the presumption of severability may be overcome in this case. The Commission and the grant programs it administers would remain fully operative in the absence of the unconstitutional provisions. In addition, the Act does not suggest that the provisions were so important to Congress that it would not have passed the Act without them. Manifestly, Congress thought it necessary to have a federal entity administer the title I programs. There is no evidence, however, that the precise composition of the board administering that entity was also essential to Congress’ plan. Indeed, in order to assure that the Commission would administer the various grant programs in accordance with congressional intent, Congress placed substantive limitations on the Commission’s discretion.2 In comparison with these substantive limitations, restrictions on the composition o f the Board are of only minor significance. There is nothing in the legislative history of the Act to support a different conclusion.3

‘ See, e.g , § 115(a), (b ) (sp ecify in g priorities fo r certain grants under su b title B); § 122 (sp ecify in g requirem en ts fo r allo catio n o f funds for grants un d er subtitle C ); § 129 (d irec tin g that th e C om m issio n give p referen ce to c ertain program s under subtitle C); § 142 (specifying c rite ria for a w ard in g o f g ra n ts under su b title D); § 157 (sp ecify in g criteria fo r aw arding o f g rants for certa in program s under su b title E); § 171 (placing lim it on num ber o f grants to be m ade by the C om m ission during e ac h fiscal y e a r); § 179 (sp ecify in g criteria fo r ev alu atio n o f program s by the C om m ission).

’ The relev an t leg islativ e history m ay be su m m arized b riefly as follow s. A s in tro d u ce d by S e n a to r K ennedy, the Act in itially provided for a nonprofit ‘“ C orp o ratio n for N atio n al S e rv ic e '” to be d ire c te d by an e le v en -m em b e r “N ational S erv ice B oard" appointed by the P resident w ith the a d v ic e and c o n se n t o f the Senate. S. 1430, 101st C ong., 1st Sess. §§ 402(a), 40 3 (a), 135 C ong. R ec. 16,708 (1989). T h is version o f the A ct a lso co n tain ed u n constitutional restrictions on the P re sid e n t’s a u th o rity to a p p o in t officers o f the U nited States. Id. See also S. R ep. No. 176, 101st C ong., 1st S ess 64 (1 9 8 9 ) (d iscussing m em bersh ip o f the p ro p o sed N ational Service B oard). On the S enate floor, Senator K e nnedy s u b sti­ tuted a n o th e r version o f the Act th at replaced the C orp o ratio n w ith the C om m ission, ex p la in in g that the su bstitu te co n tain ed “ som e tech n ical changes” m ade at the b eh est o f the A d m inistration. 136 C ong. R ec. 2731 (1990) (statem en t o f Sen. K ennedy). See also id. at 2732 (statem en ts o f S e n s. H atch and K ennedy). Section 190 took its final form in conference; the only relevant statem ent in the C o n feren ce R eport in d icates that the H ouse in sisted on a provision adding the secretaries o f certa in d ep artm en ts and the D irecto r o f A C T IO N to the B oard as ex-officio m em bers. See H .R . C onf. R ep. N o. 893, 101st C ong., 2d Sess. 69 (1990).

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You also ask whether the grant programs established by title I may be implemented before the President appoints members of the Board. We do not believe so. Section 190 makes clear that the Commission, or more pre­ cisely the Board, is responsible for administering such programs, or for delegating that responsibility to other federal agencies. See § 190(c)(2), (4). In addition, section 190 provides that the Board must appoint an “Executive Director,” who in turn may appoint up to ten “technical employees to admin­ ister the Committee [sic].” § 190(d)(1), (e). Until the President appoints members of the Board, then, the Commission is inoperative, and the grant programs cannot be implemented.4 Finally, you ask whether the President may appoint as Board members persons who currently serve as full-time federal employees. As we have explained in the past, there is no statutory prohibition against a person hold­ ing two offices within the executive branch, so long as the person receives only one salary, the positions are not “incompatible” from the standpoint of public policy,3 and there is no augmentation of relevant appropriations. See D ual Office o f C hief Judge o f Court o f Veterans Appeals and D irector o f the Office o f G overnm ent Ethics, 13 Op. O.L.C. 241 (1989); Intrater Memoran­ dum. Nonetheless, determinations of the legality of dual appointments must be made on an individual basis. Of course, we would be pleased to consider the propriety of any specific nominations you wish us to review.

JOHN O. McGINNIS

D eputy Assistant Attorney General Office o f Legal Counsel

'T h e r e is an e x ce p tio n . Section 182(a) provides that “ [tjh e head o f each F ederal agency and d e p a rt­ m e n t sh all d e sig n a n d im plem ent a co m p reh en siv e strateg y to involve em ployees o f such ag en cies and d e p a rtm e n ts in p a rtn e rsh ip program s w ith elem entary sch o o ls and secondary sch o o ls." T hese “ P a rtn e r­ s h ip s W ith S c h o o ls” p ro g ram s may be im p lem en ted a b se n t the appointm ent o f B oard m em bers.

5 "T h e o p e ra tiv e p rin c ip le is that tw o o ffic e s are in co m p atib le if pub lic policy w ou ld m ake it im proper fo r o n e p e rso n to p e rfo rm b o th functions. E xam ples o f in c o m p atibility are w here the official interests o f th e p o s itio n s c o n flic t, w h ere one o ffice adjudicates m a tte rs in w hich the o th e r is a party, o r w here C o n g re ss in te n d e d th a t o n e office se rv e as a ch eck on th e other. A pplication o f this stan d a rd thus d e p e n d s on th e statu to ry o r constitutional duties o f th e offices in v o lv e d .” M em orandum fo r A rnold In tra te r, G e n eral C o u n se l, O ffice o f W h ite H ouse A d m in istration, from John O . M cG innis, D eputy A ss is ta n t A tto rn e y G e n eral, Office o f L e g a l C ounsel at 3 -4 (M arch 1, 1988) (citatio n om itted) (“ Intrater M e m o ra n d u m ” ).