Common Legislative Encroachments On Executive Branch Authority
This memorandum lists and briefly discusses a variety of common provisions of legislation that are offensive to principles of separation of powers, and to executive power in par ticular, from the standpoint of policy or constitutional law.
July 27, 1989
M e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l s ’ C on su lt at iv e G r o u p *
This memorandum provides an overview of the ways Congress most often intrudes or attempts to intrude into the functions and responsibili ties assigned by the Constitution to the executive branch. It highlights ten types o f legislative provisions commonly included in proposed legislation that weaken the Presidency. It is important that all o f us be familiar with each o f these forms of encroachment on the executive’s constitutional authority. Only by consistently and forcefully resisting such congression al incursions can executive branch prerogatives be preserved. Of course, the methods o f intruding on executive power are limited only by Con gress’s imagination; thus, our ten examples are illustrative rather than exhaustive. This Office is always pleased to assist in reviewing legislation for any possible encroachments on the President’s authority.
1. Interference with the President’s Appointment Power
The Appointments Clause is an essential aspect o f separation o f pow ers. By permitting the President or his direct subordinates to appoint the officials within the executive branch, the Appointments Clause helps ensure that those who make policy are accountable to the President.
a. The Appointments, Incompatibility and Ineligibility Clauses
The Appointments Clause o f the Constitution, Article II, Section 2, Clause 2, provides that “Officers o f the United States” must be appointed by the President with the advice and consent o f the Senate, or, where
^ E d ito rs N o t e : This memorandum has been superseded See Memorandum for the General Counsels o f the Federal Governm ent from Walter Dellinger, Assistant Attorney General, O ffice o f Legal Counsel, R e - The Con stitu tion al Separation o f P o w e r s between the Pt'esident and Congress 1 n.l (May 7, 1996) (to be published).
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authorized by Congress, by the President alone, the courts, or the Heads o f Departments. These methods o f appointment are exclusive; officers of the United States therefore cannot be appointed by Congress, or by con gressional officers. Buckley v. Valeo, 424 U.S. 1, 126, 141 (1976) (per curi am). Moreover, the scope o f the term “officer” is broad: anyone who “exercis[es] significant authority pursuant to the laws o f the United States” or who performs “a significant governmental duty ... pursuant to” the laws o f the United States is an officer o f the United States, Buckley v. Valeo, 424 U.S. at 126, 141, and therefore must be appointed pursuant to the Appointments Clause.
Notwithstanding the requirements o f the Appointments Clause, Congress frequently establishes and directs commissions, agencies, boards, and other entities to perform operational responsibilities, and requires appointment o f their members in a manner incompatible with the Appointments Clause. President Reagan repeatedly had to stress, in signing bills into law, that such commissions may perform only advisory, investigative, informative, or ceremonial functions and may not perform regulatory, enforcement, or other executive responsibilities.1 Similar problems have frequently arisen in connection with commem orative commissions, where the violation o f the Appointments Clause fre quently has been compounded by making Members o f the Senate or House members o f those commissions, in violation o f the Incompatibility Clause o f the Constitution, Article I, Section 6, Clause 2. Pursuant to that Clause, no person holding any office of the United States may be a Member o f either House o f Congress.2 Members o f Congress may consti tutionally participate on such commissions only in an advisory or cere monial capacity.3 Where the members o f a commission appointed in vio lation o f the Appointments or Incompatibility Clauses constitute a majority o f the Commission, the Commission itself may perform only advisory or ceremonial functions.4 Any proposal to establish a new Commission should be reviewed carefully to determine if its duties include executive functions. If they do, the members o f the Commission must be appointed pursuant to the Appointments Clause.
1An example o f such a signing statement relates to the United States Commission on Civil Rights A ct o f Novem ber 30, 1983, 19 Weekly Comp Pres Doc. 1626, 1627 (1983).
2The appointment o f Members o f the Senate or the House to newly created positions also violates the Ineligibility Clause, that part o f Article I, Section 6, Clause 2, pursuant to which “ [njo Senator or Representative shall, dunng the Time for which he was elected, be appointed to any civil O ffice under the Authority o f the United States, which shall have been created, or the Emoluments w hereof shall have been increased dunng such time ”
3See, e g.f signing statement dated September 29,1983, relating to the establishment o f the Commission on the Bicentennial o f the United States Constitution, 19 Weekly Comp. Pres Doc. 1362 (1983).
4 See, e g , signing statement dated August 27, 1984, relating to the establishment o f a Commission on the Commemoration o f the First Legal Holiday Celebrating the Birth o f Martin Luther King, Jr., 20 Weekly Comp Pres. Doc 1192 (1984).
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b. Other Inroads on the President’s Appointment Power
Congress also frequently imposes such significant limitations on whom the President may appoint that Congress effectively makes the appoint ment itself. For example, Congress often legislatively directs the President to nominate an official from among individuals named in lists submitted by the Speaker o f the House and the President Pro Tempore of the Senate or other officers o f Congress. Such requirements are an unconstitutional attempt to share in the appointment authority which is textually commit ted to the President alone. The requirement that the President (or other executive officials) appoint persons who will exercise significant authori ty under the laws o f the United States from lists submitted by State Governors or other persons not appointed in accordance with the Appointments Clause suffers from the same constitutional defect.5 Congress also imposes impermissible qualifications requirements on principal officers. For instance, Congress will require that a fixed number of members o f certain commissions be from a particular political party. These requirements also violate the Appointments Clause. The only congressional check that the Constitution places on the President’s power to appoint “principal officers” is the advice and consent o f the Senate. As Justice Kennedy recently wrote for himself and two other members o f the Court:
By its terms, the [Appointments] Clause divides the appointment power into two separate spheres: the President’s power to ‘nominate,’ and the Senate’s power to give or withhold its ‘Advice and Consent.’ No role whatso ever is given either to the Senate or to Congress as a whole in the process o f choosing the person who will be nominat ed for [the] appointment.
Public Citizen v. Department of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring).
c. Delegation o f Federal Executive Power
One o f the gravest new threats to executive branch power is Congress’s growing penchant for assigning the executive power to persons who are not part o f the executive branch. We believe the assignment o f such pow ers poses a substantial threat to the executive branch, regardless whether the pow er is assigned to members o f the legislative branch, state officials, or private citizens. The assignment o f such powers away from the execu tive branch necessarily weakens the executive branch in relation to the
5 In fact, a person w ho is given the authonty to draft such lists from which an appointment must be made would be exercising significant authonty for purposes o f the Appointments Clause.
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legislative and judicial branches, and it raises substantial Appointments Clause and other separation o f powers questions.
One current example o f Congress assigning executive branch power can be found in the so-called “qui tam” provisions, such as those found in the False Claims Act, 31 U.S.C. §§ 3729-3733. In these qui tam provisions, Congress authorizes any person to prosecute — on behalf o f the United States and in the name o f the United States — a civil fraud action for treble damages and penalties against any person who allegedly makes a false claim to the United States Government. The qui tam plaintiff is empowered to sue on the Government’s behalf even if he has sustained no personal iryury. As a bounty for prosecuting the fraud, the qui tam plaintiff receives up to thirty percent o f any damages and penalties recov ered, with the balance paid into the United States Treasury.
We believe such provisions must be vigorously resisted. The power to litigate the claims o f the United States is committed by the Constitution to the executive branch. It is well established that “conducting civil liti gation in the courts o f the United States for vindicating public rights” is at the core o f Executive power and “may be discharged only by persons who are ‘Officers o f the United States’.” Buckley, 424 U.S. at 140 (empha sis added); see also United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888) (the Attorney General “is undoubtedly the officer who has charge o f the institution and conduct o f the pleas o f the United States, and o f the litigation which is necessary to establish the rights o f the gov ernment”); Confiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1868) ( “ [S]o far as the interests o f the United States are concerned, [all suits] are sub ject to the direction, and within the control of, the Attorney General.”).
2. Hybrid Commissions
Congress often creates commissions composed o f members or appointees o f the legislative and executive branches. These commissions are not clearly a part o f either branch. As noted above, if the Commission is to exercise significant authority, the Constitution requires that its mem bers be appointed pursuant to the Appointments Clause. Even if its func tions are merely advisory, however, we believe that the establishment o f such hybrid commissions is inconsistent with the tripartite system o f gov ernment established by the framers o f our Constitution. Thus, the Department o f Justice has frequently included in its bill comments the following:
The creation o f a Commission that is not clearly legislative, judicial, or executive, tends to erode the structural separa tion o f powers. As established by this bill, the Commission could not be considered to be a part o f any o f the three Branches and would be in the difficult position o f having to
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serve two masters. Although the Branches o f Government are not “hermetically sealed” from one another, ( Immigra tion and Naturalization Service v. Chadha, 462 U.S. 921 (1983)), the separation o f powers suggests that each branch maintain its separate identity, and that functions be clearly assigned among the separate branches. The Commission does not mesh with this constitutional structure.
In many instances, the problems created by a hybrid commission are aggravated by the fact that the commission’s membership is to contain more representatives of the legislative branch than o f the executive branch. In such cases, the Department has to the imbalance, made an additional objection in our bill comments to the following effect:
In any event, the representation on the Commission o f the Executive and Legislative Branches lacks the proper balance. According to the bill, the Commission would comprise one member o f the Executive branch, twelve Members of Congress, and five members from the private sector. In our view, the proper relationship between the two co-equal Branches would require that they be equally represented on a Commission o f this type in terms o f numbers as well as rank.
3. Attempts to Constrain the Removal Power
The President, as the head o f a unitary executive branch, has a duty to “take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, to coordinate and supervise his subordinates, and to ensure that the execu tive branch speaks with one voice. See generally Myers v. United States, 272 U.S. 52, 163-64 (1926). The President’s power to remove subordinates is essential to carrying out these responsibilities. The constitutional limi tations on congressional restrictions on the President’s removal authori ty “ensure that Congress does not interfere with the President’s exercise o f the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.” Morrison v. Olson, 487 U.S. 654, 690-91 (1988).
A recent example o f Congress considering a bill that would severely undermine the President’s ability to faithfully execute the laws is the pro posal to make the Social Security Administration an independent agency by limiting the President’s removal powers with respect to its officers. There are literally hundreds o f other examples and variations on the theme o f restrictions on the President’s removal power. Because the pow er to remove is the power to control, restrictions on removal power strike at the heart o f the President’s power to direct the executive branch and perform his constitutional duties. In particular, the inability to
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remove officers erodes significantly the President’s responsibility to “take Care that the Laws be faithfully executed.”
We recognize that the Court upheld restrictions on the executive branch’s authority to remove an Independent Counsel in Morrison v. Olson. The Court stated that the constitutionality o f a “for cause” removal provision turns on whether the removal restrictions “impede the President’s ability to perform his constitutional duty” and that the func tions o f the officer whose removal is limited must be analyzed in that light. Id. at 691. The Court relied upon three primary points in upholding the “for cause” removal restrictions on the Independent Counsel. The Court reasoned that the “for cause” removal provision was constitution al because the Independent Counsel: (1) is an inferior officer under the Appointments Clause; (2) enjoys only limited jurisdiction and tenure; and (3) lacks policy making or significant administrative authority.
A comparison o f the status and functions of the independent counsel, and the status and functions o f the officers proposed to be subject to removal restrictions will often show the proposed restriction to be distin guishable from Morrison. Moreover, the Independent Counsel was per forming a function — the prosecution o f high level government officials — where there was perceived to be a conflict o f interest within the executive branch. Whether distinguishable or not, the power o f the executive branch will be best preserved by vigorous opposition to such restrictions.
4. Micromanagement of the Executive Branch
There has recently been an unabashed willingness by Congress to micromanage foreign affairs and executive branch internal deliberations. For example, S.J. Res. 113, concerning the FSX aircraft, contained detailed provisions intruding into internal executive branch deliberations, including specific directives to a particular executive agency to solicit and consider comments or recommendations from another agency and to make certain recommendations to the President. It also required that the President consider these recommendations. Such provisions clearly con stitute an inappropriate intrusion by Congress into executive branch man agement and an encroachment on the President’s authority with respect to deliberations incident to the exercise of executive power. Similarly, bills that require a particular executive agency to be excluded from a policy or executive decision unconstitutionally infringe upon the unitary executive and must, therefore, be resisted. Finally, bills that prohibit executive agen cies from taking actions to reorganize or consolidate offices within their agencies or that prohibit agencies from expending funds on activities that are clearly part o f the agency’s mission constitute an indefensible inter ference with the day-to-day management o f the executive departments.
While Congress has a free hand in determining what laws the President is to enforce, we do not believe that Congress is constitutionally entitled
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to dictate how the executive branch is to execute the law. Congress’ recent interest in determining the precise organizational structure o f executive branch departments and the chain of command with respect to internal deliberations seriously threatens the executive branch’s ability to effectively and efficiently fulfill its obligations. If continued, this pattern would result in the executive branch being substantially controlled and administered by the legislative branch.
5. Attempts to Gain Access to Sensitive Executive Branch Information
Congress consistently attempts to obtain access to the most sensitive executive branch information and is not always receptive to arguments that the executive branch, like Congress and the courts, must er\joy some measure o f protection for confidential exchanges o f information if it is to function effectively. Last month, this Office provided you with a memo randum that focused on executive privilege. In addition to overt efforts to obtain privileged information, Congress often includes in bills language that purports to require that “all information” or “all reports” regarding a specific subject be made available to a particular congressional commit tee or other entity that is not part o f the executive branch. Such efforts should be resisted, however, as an unconstitutional encroachment on the President’s constitutional responsibility to protect certain information. Therefore, it should always be recommended that such provisions include the phrase “to the extent permitted by law.” A typical statement o f this Department’s position regarding a requirement to make available any or all information and reports is as follows:
The Department objects to the breadth o f this amendment and its failure to recognize the President’s constitutional right and duty to withhold from disclosure certain informa tion. The President must retain the authority to withhold in the public interest information whose disclosure might sig nificantly impair the conduct o f foreign relations, the national security, the deliberative processes o f the execu tive branch or the performance o f its constitutional duties. Accordingly, the Department recommends that the com mittees’ right to obtain such information be qualified by the phrase “to the extent permitted by law.”
6. Concurrent Reporting Requirements
In the past year, Congress has increased significantly its use o f con current reporting requirements in an effort to insert itself into the execu tive branch decisionmaking process. A concurrent reporting requirement requires an agency simultaneously to transmit to Congress a budget rec
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ommendation or legislative proposal that it transmits to OMB or the White House.
In some instances, a concurrent reporting requirement has even been applied within a department. For example, in 1982 Congress attempted to require the Federal Aviation Administration Administrator to transmit to Congress any budget recommendations or legislative proposals that were transmitted by the Administrator to the Secretary o f Transportation. We advised that this provision was unconstitutional.6 Concurrent reporting requirements may breach the separation o f pow ers by disrupting the chain o f command within the executive branch and preventing the President from exercising his constitutionally guaranteed right o f supervision and control over executive branch officials. Moreover, such provisions infringe upon the President’s authority as head o f a unitary executive to control the presentation o f the executive branch’s views to Congress. Accordingly, such concurrent reporting requirements should be opposed. However, if enacted, the requirement to transmit reports to Congress should be construed as applying only to “final” recommendations that have been reviewed and approved by the appropriate superiors within the executive branch, including OMB, and if necessary, the President.
7. Legislative Vetoes
In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court held that Congress may only exercise legislative power by passing a bill and present ing it to the President. Thus, the Court held unconstitutional a statutory pro vision that allowed one House to veto and overrule a decision made by the Attorney General with respect to a deportation. Congress must abide by a delegation o f authority to an executive branch official, such as whom to deport, until that delegation is legislatively altered or revoked. Attempts to make particular executive branch decisions contingent upon congressional action or to take binding actions without compliance with the constitution al requirement o f presentment are unconstitutional. Efforts to “veto” exec utive action without complying with the presentment requirement are known as “legislative vetoes.” Despite the presentment requirement, Congress has continued to include some forms o f legislative veto devices in legislation. Chadha, however, clearly stands for the proposition that Congress can only affect the obligations and duties o f others through the legislative process and that bills requiring an executive official to take, or not to take, a particular action must be presented to the President. Any leg
6 Memorandum for John Fowler, General Counsel, Department o f Transportation, from Theodore B. Olson, Assistant Attorney General, O fficc o f Legal Counsel, R e Statutory Requirem ents f o r the F A A A d m in istra tion to P rovide Certain Budget Inform ation and Legislative Recom m endations D irectly to Congress (Nov. 5, 1982)
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islation that subjects executive action to veto or approval by the Houses of Congress or their committees is unconstitutional.
8. Requirements that Legislation be Submitted to Congress
Under Article II, Section 3 of the Constitution, the President is directed to recommend for legislative consideration “such Measures as he shall judge necessary and expedient.” Despite this Clause, Congress frequently attempts by statute to control the executive’s legislative priorities by requir ing that the President or his subordinates recommend legislative measures on certain subjects. Because the President has plenary exclusive authority to determine whether and when he should propose legislation, any bill pur porting to require the submission o f recommendations is unconstitutional. If enacted, such “requirements” should be construed as only a recommen dation to the President that he submit legislative proposals.
9. Attempts to Restrict the President’s Foreign Affairs Powers
Since the 1970s, Congress has increasingly attempted to assert itself in the area o f foreign affairs at the expense o f the authority traditionally exercised by the President.7 The President has the responsibility, under the Constitution, to determine the form and manner in which the United States will maintain relations with foreign nations. E.g., U.S. Const, art. II, §§ 1-3; H aig v. Agee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369 U.S. 186, 212-13 (1962); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936). It has long been recognized that the President, both personally and through his subordinates in the executive branch, determines and articulates the Nation’s foreign policy. See Statement o f John Marshall, 10 Annals o f Cong. 613 (1800); Curtiss- Wright, 299 U.S. at 320 ( “the President [is] the sole organ o f the federal government in the field of international relations — a power which does not require as a basis for its exercise an act o f Congress”). This authority encompasses the authority to make treaties on such terms as the
7 The history o f recent congressional action in this area was succinctly summarized in the following excerpt from an article by Senator John G. Tower, Chairman o f the Senate Armed Services Committee.
Th e 1970’s w ere marked by a rash o f Congressionally initiated foreign policy legislation that limited the President’s range o f options on a number o f foreign policy issues. The thrust o f the legislation was to restrict the President’s ability to dispatch troops abroad in a cnsis, and to proscribe his authonty in arms saJes, trade, human nghts, foreign assistance and intel ligence operations. Dunng this period, over 150 separate prohibitions and restrictions w ere enacted on Executive Branch authority to formulate and implement foreign policy. Not only w as much o f this legislation ill conceived, if not actually unconstitutional, it has served in a number o f instances to be detrimental to the national secunty and foreign policy interests o f the United States.
John G. Tower, Congress Versus the P r e sid e n t • The Form u la tion and Im plem entation o f A m erica n F o reig n Policy, 60 Foreign Aff., 229, 234 (Winter, 1981-1982)
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President deems advisable and to discuss any issue with another sover eign nation and to recommend to it such courses o f action as the President believes are in our Nation’s interest.
Accordingly, provisions that would prohibit officers or employees of the United States government from soliciting funds or material assistance from foreign governments (including any instrumentality or agency thereof), foreign persons, or United States persons, for the purpose of furthering any military, foreign policy, or intelligence activity are uncon stitutional. Similarly, any provision that purports to prohibit, or to require, consultation between the United States and another sovereign nation would be unconstitutional. No limitations on the President’s authority to discuss certain issues with foreign governments, or to rec ommend or concur in courses o f action taken by other nations, should be sanctioned.
10. Restrictions on the President’s Power to Make Recess Appointments
In addition to frequent attempts to place restrictions on the power o f the President to appoint officers o f the United States under the Appointments Clause, Congress has occasionally attempted to constrain his power under Article II, Section 2, Clause 3 to “fill up all Vacancies that may happen during the Recess o f the Senate, by granting Commissions which shall expire at the End o f their next Session.” Thus, for example, a provision in an appropriations bill several years ago purported to man date continued funding for grantees o f the Legal Services Corporation unless action was taken by directors confirmed by the Senate. This pro vision interfered with the President’s recess appointment power to the extent that it purported to disable recess appointees from performing functions that could be performed by directors confirmed by the Senate. This trend is dangerous for presidential powers because the recess appointment power is an important counterbalance to the power o f the Senate. By refusing to confirm appointees, the Senate can cripple the President’s ability to enforce the law. The recess appointment power is an important resource for the President, therefore, and must be preserved.
WILLIAM P. BARR
Assistant Attorney General Office o f Legal Counsel