Constitutionality of Proposed Legislation Requiring Renomination and Reconfirmation of Executive Branch Officers Upon the Expiration of a Presidential Term

Opinion

Constitutionality of Proposed Legislation Requiring Renomination and Reconfirmation of Executive Branch Officers Upon the Expiration of a Presidential Term

A bill prohibiting the heads o f Executive and Military Departments and certain other Executive officers from remaining in their positions during a subsequent Presidential term unless renominated by the President and reconfirmed by the Senate would, if applied to officers appointed before the bill was enacted, unconstitutionally interfere with the President’s ap­ pointment and removal powers. Even were the bill limited to prospective effect, it would be subject to serious constitutional doubt as contrary to the Constitution’s placement o f the Executive power in the President.

March 6, 1987

L etter fo r th e C h a ir m a n , S e n a t e C o m m it t e e on the J u d ic ia r y

This letter presents the views of the Department of Justice on S. 318, the Senate Confirmation Act of 1987. The Department of Justice strongly opposes the enactment of this bill.

The bill would provide that the heads of the Executive and Military Depart­ ments, the United States Trade Representative, the Director of the Office of Management and Budget, the Director of the Central Intelligence Agency, and the Director of the Arms Control and Disarmament Agency who have served in that position during the last year of a Presidential term may not serve in the same position during the succeeding Presidential term unless reappointed by the President by and with the advice and consent of the Senate.1 The bill does not facially distinguish between officers appointed after its enactment and officers who are incumbent at the time of the bill’s enactment.

The application of the reconfirmation requirement to persons in office on the effective date of the bill clearly would be unconstitutional. At present, these incumbent officers serve at the pleasure of the President and could therefore remain in office after the expiration of the term of the President who appointed them, if he were re-elected or if a newly elected President should wish to retain 1 Section 2(b) o f the bill would require that all inform ation obtained in the course o f a background investigation conducted by the Federal B ureau o f Investigation w ith respect to specified nom inees w hich is transm itted to the President shall also be transm itted to the Senate. The bill does not explicitly w aive or preserve any statutory non-disclosure provisions that could apply to m aterials found in a background investigation, such as brand ju ry m aterials, fo r exam ple. W e believe that C ongress should make c le ar its intent to w aive or preserve any such provisions.

26

them.2 Under the bill, however, they could not serve during the next Presiden­ tial term unless reappointed by the President by and with the advice and consent of the Senate. Thus, the bill would purport to remove incumbent officers from their offices and in so doing would contravene the Constitution.

As the Supreme Court held in Myers v. United States, 272 U.S. 52, 122 (1926), the power to remove officers of the Executive Branch is vested exclu­ sively in the President with the exception of impeachment or the bona fide abolition of their office. Indeed, the exclusivity of the President’s removal power cannot be circumvented by an attempt of the Senate to withdraw a confirmation; 36 Op. Att’y Gen. 382 (1931); United States v. Smith, 286 U.S. 6 (1932); by cutting off of the salaries of incumbent officials, United States v. Lovett, 382 U.S. 303 (1946); by making new, limiting qualifications for an office applicable to an incumbent, 111 Cong. Rec. 17597-98 (1965) (statement of Assistant Attorney General Schlei); or by “ripper” legislation which pur­ ports to abolish an office and immediately recreate it. Veto Message re; S. 518, 93rd Cong., 1st Sess., 9 Weekly Comp. Pres. Doc. 681 (1973).

The proposal raises constitutional concerns, even as to officers who are appointed after the enactment of the bill. The United States Constitution explicitly states: “The executive Power shall be vested in a President of the United States of America.” U.S. Const, art. II, §1. In addition, §3 of the same article provides that the President “shall take Care that the Laws be faithfully executed.” A law which has the effect of subjecting executive officers to renomination and reconfirmation by the Senate is in tension with the placement of the executive power in the President. If the Congress sets a duration for the service of executive officers, those officers will naturally be responsive to the concerns of the Senate in executing the laws; otherwise, those officers would run the risk that the Senate would not reconfirm them at the end of their term.3 Such a sharing of the responsibility for the execution of the laws is at odds with separation of powers principles.4

2 The opinion o f the A ttorney General in 36 Op. A tt’y Gen. 12 (1929) dealt with that situation. 3 M aking executive officers accountable in this m anner to the Legislative Branch is contrary to our constitu tio n al schem e. As the Supreme C o u rt has explicitly recognized, the pow er to remove is “an indispens­ able a id ” to the “effective enforcement o f the law .” Myers v. United States, 272 U.S. 52, 132 (1926). The C ourt, therefore, found this power to be an incident o f the President's pow er to take care that the law s be faithfu lly executed. Last Term , in Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme C ourt recognized the logical corollary to this principle'

T o perm it an o fficer controlled by C ongress to execute the laws w ould be, in essence, to perm it a congressional veto. Congress could sim ply remove, o r threaten to remove, an officer for execut­ ing the law s in any fashion found to unsatisfactory to Congress. This kind o f congressional control over the execution of the law s . . . is constitutionally imperm issible.

Id. at 7 2 6 -2 7 (em phasis added). Though th e encroachm ent on executive pow er posed by this bill is different in degree from that presented in Bowsher, in which Congress had the sole authonty to remove the C om ptrol­ le r G eneral, the principle is the same. L egislation giving Congress the effective pow er of removal over execu tiv e officers, even w hen applied prospectively, is questionable in view of the C onstitution’s exclusive vestin g o f the executive pow er in the P resident and his constitutional duty to take care that the law s be faithfu lly executed.

4 T he C onstitution specifies the role o f th e C ongress in the rem oval o f executive officers: the House has the sole pow er o f im peachm ent, U.S. C onst, art. 1, §2, cl. 5, and the S enate has the sole power to try all im peachm ents. Id., art. 1, §3, cl. 6.

27

Although the Tenure of Office Act of 1867 furnishes an historical example of legislation purporting to limit the terms of the Heads of Departments, that precedent hardly resolves our constitutional concerns.5 The Tenure of Office Act led to a constitutional crisis of immense proportions and was repealed once the turmoil of the Reconstruction Period had subsided. While other issues were also involved, we believe that this prompt repeal is some evidence of the suspect nature of such limitations.

On policy grounds, we believe that history demonstrates the inadvisability of this legislation in light of the existing power of Congress to call high govern­ ment officials to account for their conduct in office. Similarly, an electorate dissatisfied with a President’s direction of his subordinate officers has not hesitated to express its view through the Presidential ballot. So too, the electorate’s satisfaction with such direction is expressed through the re-election of a President. The Constitution’s mechanism for democratic, electoral expression should not be thwarted or made dependent upon idiosyncratic reasons which may determine the fate of an individual reconfirmation.

We are also concerned about the disruption to the operations of the govern­ ment that would be occasioned by this proposal. The present disruption which occurs when a new President takes office, selects new administrators and secures their confirmation by the Senate is an adjunct to the President’s constitutional responsibility for the execution of the laws. He must be able to select those who shall assist him in his constitutionally assigned task. There is, however, no corresponding constitutional justification for the interference with the operations of the government when a President seeks to retain officials who are in office.

We conclude, therefore, that S. 318 would be unconstitutional if applied to persons holding any of the offices covered by it on the effective date of the bill. Furthermore, in our judgment, the bill would be subject to serious constitu­ tional doubt even if it had only a prospective effect. For these reasons, the Department of Justice strongly recommends against enactment of the legisla­ tion and will urge its veto should it be enacted.

The Office of Management and Budget has advised this Department that the submission of this report is in accord with the Administration’s program.

John R. B olton

Assistant Attorney General Office o f Legislative Affairs* 5 Section 1 o f the T enure o f O ffice Act o f 1867, 14 Stat. 430, provided in pertinent part [t]hat the Secretaries o f the Treasury, o f W ar, o f the Navy, and o f the Interior, the Postm aster- G eneral, and the A ttorney-G eneral, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to rem oval by and with the advice and consent o f the Senate.

This provision was enacted during the struggle betw een C ongress and President Andrew Johnson and was repealed im m ediately after President G rant assum ed the Presidency Act o f Apr. 5, 1869, § 1 ,1 6 Stat. 9. The position o f the Postm aster General was not covered by this repeal because the limitation o f the Postm aster G eneral’s term had been incorporated in the legislation codifying the laws governing the Post O ffice D epartment. This lim itation on the tenure o f the Postm aster General lasted until the recent establishm ent o f the U S Postal Service.

•NOTE* This letter was drafted by the O ffice o f Legal Counsel for the signature o f the A ssistant Attorney G eneral for the O ffice o f L egislative Affairs