Removal of Members of the Advisory Council on Historic Preservation
C ongress did not intend to limit the P resident's pow er to remove m em bers o f the Advisory C ouncil on H istoric Preservation without cause prior to the expiration of their term s of office. W hile certain of the C o u n c il’s structural attributes an d substantive functions suggest that Congress intended to vest the C ouncil w ith a m easure of day-to-day independence from other federal agencies, this does not m ean that it intended the Council to operate free o f the supervision and control of the President h im self through his exercise of th e removal power.
T he prim ary functions o f the Council are executive in nature, and thus not such as would permit C ongress co nstitutionally to insulate its m em bers from the President’s removal power; it will therefore not be inferred from C ongress silence on the m atter that it intended to do so.
A legislative schem e in w hich disputes betw een executive agencies are to be settled in federal or state court w ould raise a num ber of serious constitutional problem s, under both Article II and Article III, and such an intent on Congress part will not be assum ed absent the m ost com pelling and unam biguous language.
March 11, 1982
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This memorandum addresses the question whether the members of the Adviso ry Council on Historic Preservation (Council) are removable by the President without cause prior to the expiration of their terms of office. For the reasons set forth below, we conclude that Congress did not intend the Council to operate free of the supervision and control of the President, and specifically that it did not intend to impose restraints on the President’s presumptive authority to remove his appointees to the Council. We conclude in addition that the primary functions of the Council are not such as would permit Congress, consistent with the Constitu tion, to insulate Council members from the President’s removal power.
I. The Council
The Council was created by the 1966 National Historic Preservation Act (the Act), Pub. L. No. 89-665 , 80 Stat. 915, 917, with the specific mandate of advising the President and Congress on matters relating to historic preservation, recommending measures to coordinate public and private preservation efforts, and “ reviewing” federal agency actions affecting properties listed on the Na tional Register of Historic Places. See H.R. Rep. No. 1916,86th Cong., 2d Sess.
180 1 (1966). As amended in 1980 by Pub. L. No. 96-515, 94 Stat. 2987, the Act provides that the Council should be composed of 19 members, 17 of whom are appointed by the President.1Of the 17 presidential appointees, seven are other wise officers of the United States: the Secretary of the Interior, the Secretary of Agriculture, and the Architect of the Capitol serve ex cfficio; the President appoints the heads of four other “ agencies of the United States” whose activities affect historic preservation. The remaining ten members consist of one governor, one mayor, four experts in the field of historic preservation, three at-large members from the general public, and a chairman selected from the general public, all appointed by the President. The tenure of the federal agency heads on the Council is, we believe, dependent on their continuing service as agency heads. And, with the exception of the two members whose tenure depends in part upon state or local election results, the non-federal presidential appointees serve for terms of four years. The statute and its legislative history are silent on the matter of Council members’ removal from office prior to the end of a term .2 The Council is established “ as an independent agency of the United States Government.” 16 U.S.C. § 470i. It is exempt from the Federal Advisory Com mittee Act, but is subject to the Administrative Procedure Act, 16 U.S.C. § 470g. It has an independent budget as a “ related agency” of the Department of the Interior, 16 U.S.C. § 470t, and authority to hire its own executive director and staff, 16 U.S.C. § 470m(a). Its executive director is in turn authorized to appoint a general counsel and other staff attorneys. 16 U.S.C. § 470m(b). The Council must submit an annual report to the President and Congress, 16 U.S.C. § 470j(b), and is authorized to submit legislative recommendations and testi mony directly to relevant congressional committees without prior clearance from the Office of Management and Budget. 16 U.S.C. § 470r. Because the nature of the functions performed by an entity is an important factor in determining the constitutional limits of congressional power to restrict the President’s power to remove his appointees, see Wiener v. United States, 357 U.S. 349, 353 (1958), that subject has also become a focal point in determining congressional intent concerning presidential removal power. We therefore set out the Council’s duties in full in the following paragraphs. The Council’s advisory functions are described in § 202 of the Act, 16 U.S.C. § 470j. As there directed, the Council shall:
1 The C hairm an of the N ational Trust for H istoric Preservation and the President o f the N ational C onference o f State H istoric Preservation O fficers serve on the C ouncil ex cfficio See 16 U .S .C . § 470i(a)(7) an d (8) B ecause these tw o m em bers o f the C ouncil are not appointed by the P resident, they m ay not participate in any C o uncil functions in w hich they m ust constitutionally act as officers of the U nited States, an d m u st confine th e ir participation in the C o u n cil’s ac tivities to those areas in w hich its role is purely advisory See letter o f Dec 1, 1980, from A lan A farker, A ssistant A ttorney G eneral, to the D irector, O ffice of M anagem ent and Budget. 2 The discussion of th e P resid en ts rem oval pow er in this m em orandum applies to all o f his ap pointees w hose tenure in office j s not o therw ise subject to his control by virtue o f their positions as officers of the U nited States— a group w hich constitutes at least ten persons, and thus a m ajonty o f the Council T he P resid en ts pow er to rem ove the tw o C abinet m em bers w ho serve ex cfficio is unquestioned. The four other agency heads are likew ise su b ject to presidential rem oval, at least in their capacity as head of an Executive Branch agency. T hough the A rchitect o f the C apitol is listed as a congressional officer o r agent of C ongress in the C ongressional D irectory, and is largely su b ject to congressional direction in the perform ance of his d u ties, he is appointed and subject to rem oval by the P resident alone. See letter o f A ugust 13. 1979, from A ssistant A ttorney G eneral H arm on to Senator D o m en ici, citin g an opinion o f the O ffice o f Legal C ounsel dated June 1, 1953
181 (1) advise the President and the Congress on matters relating to historic preservation; recommend measures to coordinate ac tivities of Federal, State, and local agencies and private institu tions and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities; (2) encourage, in cooperation with the National Trust for His toric Preservation and appropriate private agencies, public inter est and participation in historic preservation; (3) recommend the conduct of studies in such areas as the adequacy of legislative and administrative statutes and regulations pertaining to historic preservation activities of State and local governments and the effects of tax policies at all levels of govern ment on historic preservation; (4) advise as to guidelines for the assistance of State and local governments in drafting legislation relating to historic preserva tion; and (5) encourage, in cooperation with appropriate public and private agencies and institutions, training and education in the field of historic preservation; (6) review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effec tiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this Subchapter; and (7) inform and educate Federal agencies, State and local gov ernments, Indian tribes, other nations and international organiza tions and private groups and individuals as to the Council’s authorized activities. 16 U .S.C . § 470j(a). In addition, under § 106 of the Act, federal agency heads are required to afford the Council “ a reasonable opportunity to comment” before approving any expenditure of federal funds on, or licensing of, an undertaking which would affect properties on the National Register of Historic Places. See 16 U.S.C. § 470f.3 Section 211 of the Act authorizes the Council to promulgate “ such rules
3 S everal c o u rts have had occasion to co n stru e the “ reasonable oppo rtu n ity to co m m en t” authority in § 106. In WATCH v. H arris, 603 F.2d 3 1 0 (2d Cir. 1979), cert, denied, 444 U .S 9 9 5 (1979), Ju d g e O akes review ed the legislative h isto ry o f § 106 an d concluded th a t C ongress intended to provide a “ m eaningful review " o f fed eral or federally assiste d projects w hich affect h isto ric properties. 603 F.2d at 324. T h e S ecretary o f H ousing an d U rban D ev elo p m en t w as found to have violated § 1 0 6 in failing to consider the im pact o f a h ousing project o n certain h isto ric p ro p e rtie s , and in failing to solicit th e C ouncil's ad v ice. T h e court o f appeals th erefore affirm ed th e district c o u rt's in ju n ctio n ag a in st proceeding with th e project. B ut see Commonwealth c f Pennsylvania v. Morton, 381 F. S u p p 2 9 3 , 2 9 9 (D .D .C . 1974). in which th e S ecretary o f th e Interior h ad initially failed to co nsult w ith and s u b se q u en tly failed to follow th e recom m endations o f th e A dvisory C ouncil in a m atter involving a land exchange a g ree m en t an d th e c o n stru c tio n o f a tower o n previously federal property n e a r G ettysburg N ational C em etery. The c o u rt found th a t th e S ecretary had “ substantially co m p lied ” w ith § 106 by referrin g the m atter to the C o u n cil fo r its c o m m en ts afte r th e land ex c h an g e agreem ent h a d been sig n ed , and that " [ i] f he deviated from its recom m endation, th e S ecretary w as authorized to d o so in his d isc re tio n by th e express term s” o f 16 U .S .C . § 4601-22(b). See 381 F. Supp. at 298 n .7 . T h e C o u n c il's reviewing a u th o rity under § 106 is enhanced by Executive O rd er 11593, 36 Fed. C o ntinued
182 and regulations as it deems necessary to govern the implementation” of § 106 of the Act. 16 U.S.C. § 470s. As previously noted, the Council’s executive director is authorized to appoint a General Counsel and other staff attorneys, who in turn are authorized: to assist the General Counsel, represent the Council in courts of law whenever appropriate, including enforcement of agreements with Federal agencies to which the Council is a party, assist the Department of Justice in handling litigation concerning the Coun cil in courts of law, and perform such other legal duties and functions as the Executive Director and the Council may direct. 16 U.S.C. § 470m(b). The Council would appear, therefore, to be authorized to bring lawsuits under some circumstances against at least some other federal agencies.4 The 1980 Amendments to the Historic Preservation Act expanded the Coun cil’s authority in a new § 214, under which the Council is authorized to make rules for exempting certain federal actions from the requirements of the Act: The Council, with the concurrence of the Secretary, shall promul gate regulations or guidelines, as appropriate, under which Federal programs or undertakings may be exempted from any or all of the requirements of this Act when such exemption is determined to be consistent with the purposes of this Act, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties. 16 U.S.C. § 470v.5 R eg. 8921 (1971), w hich requires thal an agency proposing to “ sell, dem olish o r substantially alter” an y federally ow ned p roperty w h ich “ m ight q u alify ” fo r nom ination to the N ational Register, m ay take n o action until the A dvisory C ouncil has been provided “ an opportunity to com m ent.” E xecutive O rd er 11593 also requires that federal agencies consult w ith th e C ouncil in adopting procedures to assure that th e ir policies and program s contribute to the preservation o f both federally and non-federally ow ned properties o f h isto n c significance See WATCH v H a m s, 603 F.2d at 325 U nder the 1980 A m endm ents to the A ct, a sim ilar “ opportunity to co m m en t” m ust be afforded the C ouncil un d er § 1 1 0 (0 of the A ct w henever federal agency actions “ m ay directly and adversely affect” any d esignated N ational H istoric L andm ark. See § 206 o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. 2987, 2996. 4 T he phrase “ including en forcem ent o f agreem ents w ith Federal agencies to w hich the C ouncil is a p arty ” was added to th e statute in 1980 See § 301(i) o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. at 2999. W hile no referen ce to them appears elsew here in the A ct, the legislative history of the 1980 A m endm ents suggests that the referenced “ agreem ents” are those described in the C o u n c il’s regulations in fc rt 800 o f Title 36, C o d e o f Federal Regulations See 36 C .F .R . § 8 0 0 .6 (c) (M em orandum o f A greem ent). See also H .R Rep. N o. 1457, 96 th C o n g ., 2d Sess. 42 (1980) (1 980 H ouse Report) (“ specifically added is language that refers to the enforcem ent o f agreem ents w ith Federal agencies u n d er S ection 106, other authorities contained in this A ct and im plem enting regulations” ). T he agreem ents are en tered into by parties to the “ consultation process” by w hich the C ouncil carries o u t its com m enting function under § 106 o f the A ct, w henever it is determ ined that a federal undertaking w ill have an adverse effect on an historic property. T h e agreem ent m ust “ detail[] the actions agreed upon by the consulting parties to be taken to avoid, satisfactorily m itigate, o r accept the adverse effects o n the property.” 3 6 C .F .R . § 8 00.6(c)(1). “ T h e consulting parties” include the head of the federal agency having responsibility fo r the undertaking, the H istoric P reservation O fficer o f the State involved, and the executive d irecto r o f th e C o u n cil. O th er public and private “ parties in in terest” m ay b e invited by the consulting parties to p articipate in the consultation process. 3 T h e term s o f § 2 1 4 are am biguous w ith respect to the nature o f the authority co n ferred , and have not y et b een interpreted by e ith e r th e C ouncil o r th e co u rts. T h e rulem aking authority und er § 214 clearly cannot b e exercised absent prio r secretarial “ co n c u rre n ce.” O n ce exercised w ith th e S ecretary’s con cu rren ce, however, th a t authority, unlike the “ o p p o rtu n ity to co m m en t” requirem ent o f § 106, appears to co ntem plate the estab lish m en t an d enforcem ent o f a substantive standard o f co n d u c t w hich w ill be binding on “ Federal program s o r u n d ertak in g s” having an im pact o n historic properties
183 Finally, § 202(b) directs the Council to submit an annual report on its activities to the President and Congress, as well as any additional periodic reports that it deems advisable: Each report shall propose such legislative enactments and other actions as, in the judgment of the Council, are necessary and appropriate to carry out its recommendations and shall provide the Council’s assessment of current and emerging problems in the field of historic preservation and an evaluation of the effectiveness of the programs of Federal agencies, State and local governments, and the private sector in carrying out the purposes of this Act.
16 U .S.C . § 470j(b). In sum, the Council’s role under the statute is primarily that of an advocate, advisor, and educator in matters relating to historic preservation, with certain ancillary responsibilities as “ watchdog” over federal agencies whose activities affect historic properties.
II. Statutory Restraints on the President’s Power to Remove Council Members
At no time since the Council’s establishment has Congress expressed any intent to limit presidential control over the tenure of its members. It is true that certain of the structural attributes and substantive functions described in the foregoing section suggest that Congress intended to vest the Council with a measure of day-to-day independence from other federal agencies. This does not mean, however, that Congress intended the Council to operate free of the supervision and control of the President himself through the exercise of the removal power. With respect to the Council’s structure, we do not regard a statutory description of an entity as “ independent” as dispositive of the question of the President’s power to remove its members. In this case, the legislative history of the Act confirms the limited sort of “ independence” Congress intended for the Council. Under the 1966 Act, the Council was organizationally part of the Department of the Interior, with its budget and staff integrated into those of the National Park Service. By 1976, dissatisfaction with the limits this arrangement placed on the Council’s ability to function “ on an equal and independent basis,” particularly in reviewing actions of the Department of the Interior under § 106 of the Act, gave rise to the amendments which reorganized the Council “ as an independent agency in the Executive Branch.” See § 201(5) of Pub. L. 94—422 as described in S. Rep. No. 367, 94th Cong., 1st Sess. 11 (1975) (“ 1975 Senate Report”). In Committee Reports and in Hearings, the Council’s need for “ equal and inde pendent” status is discussed in terms of the conflicts arising from its admin istrative involvement with the Department of the Interior, and the resulting day- to-day pressures which had hampered the efficiency and impaired the objectivity of the Council. The change in status was effectuated, however, by nothing more
184 than modifying arrangements for the Council’s budget and staff. See 1975 Senate Report at 11; Hearings on S. 327 before the Subcommittee on Parks and Recreation cf the Senate Committee on Interior and Insular Affairs (Part 3), 94th Cong., 1st Sess. 301-05(1975) (Statement of Clement M. Silvestro, Chairman, Advisory Council on Historic Preservation) (1975 Senate Hearings). There is no suggestion in the 1976 Amendments or their legislative history that Congress intended that the Council be insulated from the ultimate control of the President, or, in particular, that its members should no longer be subject to his power to remove them.6 Indeed, the Council’s new “ independence” enhances its ability to perform its duty of advising the President apart from influence from the Depart ment of the Interior, and strengthens the Council’s difect relationship and respon siveness to the President rather than weaken them. The statute’s provisions dealing with the Council’s relationship with Congress are more problematic. As noted above, the Council has since its creation been explicitly charged with advising Congress as well as the President. In addition, since § 210 was added to the Act in 1976, the Council is relieved of any requirement to submit its legislative recommendations or testimony to any “ officer or agency” in the Executive Branch prior to their submission to Con gress. Because this direct reporting authority may have an important bearing on the removal power of the President, it is worth quoting in full: No officer or agency of the United States shall have any authority to require the Council to submit its legislative recom mendations, or testimony, or comments on legislation to any officer or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testi mony, or comments to the Congress. In instances in which the Council voluntarily seeks to obtain the comments or review of any officer or agency of the United States, the Council shall include a description of such actions in its legislative recommendations, testimony, or comments on legislation which it transmits to the Congress. 16 U.S.C. § 470r. On the one hand, the Council’s direct access to Congress suggests a legislative intent to have its own lines of communication with the Council kept free from political or policy influence from elsewhere in the Executive Branch. On the other hand, this reporting scheme need not necessarily interfere with the Presi dent’s general administrative control over the Council’s activities, and as far as we are aware, it has never done so.7 In this regard, it is significant that the 1980 6 N one of the structural attributes and substantive functions of the Council w hich m ight suggest a legislative intent to make its m em bers “ independent” of the P resident’s rem oval pow er w ere part o f the statute u n d er the 1966 A ct P rior to 1976, therefore, there can have been no doubt that its m em bers were rem ovable by the President. 7 In deed, we question w hether the statutory classification “ officer or ag en cy ” in § 470r m ust n ecessarily be co n strued to include the President h im se lf C om pare the definition o f “ officer” in § 2104 o f T itle 5 o f the U nited States C ode, w hich on its face w ould appear not to include the P resident. To the extent that a b ro ad co n struction o f this perm issive bypass provision in the legislative reporting area w ould itself raise constitutional separation o f pow ers issues, we w ould be inclined to read it narrow ly to perm it the President h im self a continued supervisory ro le. See Congress Construction Corp v. United States, 314 F 2 d 527, 5 3 0 -3 2 (C t C l. 1963) (P resid en t’s p o w er o f control includes the right to supervise and coordinate all replies and com m ents from the E x ecutive B ranch to C ongress)
185 Amendments to the Act repealed what had been the first sentence of § 210, which directed the Council’s concurrent submission to Congress of any and all of its legislative recommendations to the President.8 The present reporting scheme thus leaves the Council free to communicate with Congress directly and inde pendently if it chooses, but does not obligate the Council to share simultaneously with Congress all or indeed any of its advice to the President. The result is a potentially strengthened tie between the Council and the President, one freed of the congressional oversight im posed by the 1976 Amendments. Congress’ willingness in 1980 to give up the mandatory features of its own direct access to the Council and restore some measure of privacy to the relationship between the Council and the President, is scarcely consistent with an intention that the Council should not be subject to the President’s supervision and control, and in particular its members to his removal power. In summary, we find nothing in any of the structural aspects of the Council that establish an intent on the part of Congress to insulate the Council’s membership from the President’s removal power.9 Indeed, the most recent amendments to the Act suggest an intent to strengthen, rather than attenuate, the Council’s rela tionship with the President, to the point that Congress has actually relinquished some of the control it asserted in 1976. An examination of the Council’s functions leads us to the same basic con clusion. The Council’s advisory and reviewing roles under §§ 106 and 202 of the Act are primarily executive in nature, and, on a constitutional spectrum, locate the Council squarely within “ the Executive Branch.” While its “ watchdog” functions suggest the desirability of the Council’s maintaining a certain inde pendence from other Executive Branch agencies, this need for independence does not extend to the President himself. Indeed, it is likely that the Council would find it useful in fulfilling its statutory tasks to be able to call upon the President for support and assistance in its dealing with other federal agencies whose heads are subject to his removal power. A power to make rules and grant exemptions from them does not distinguish the Council from a number of other
8 T h e d eleted sentence provided:
W henever th e C ouncil transmits an y legislative recom m endatio n s, o r testim ony, o r com m ents on legislation to the P resident or the O ffice o f M anagem ent and B udget, it shall con cu rren tly transm it c o p ies th ereo f to the H o u se Com m ittee o n Intenor and In su lar A ffairs an d the Senate C om m ittee on In te rio r and In su lar A ffairs
T h e 1980 H o u se R eport co m m en ts on the requirem ent as having
proven to h in d e r the C ouncil in its p ro v isio n of independent advice to both the P resident and the C o n g ress.
See 1980 H ouse R ep o rt at 42 . We would in an y event question th e constitutionality of a legislative requirem ent that th e C o u n c il’s reports and recom m endations b e transm itted to C ongress w ith o u t affording it the oppo rtu n ity to co m m u n icate them first to th e President See note 7 , supra, an d Feb. 21, 1977, M em orandum O pinion fo r the A ttorney G en eral on “ In sp ecto r General L e g is la tio n ,” 1 Op. O .L .C . 16, 1 7 (1 9 7 7 ) C fB u c k le y \ Valeo, 424 U .S . 1, 1 3 7 -3 8 (1976) 9 C o n g ress m ay, o f c o u rse, utilize its ow n com m ittees for th e gathering o f inform ation o r appoint advisory co m m ittees to assist in its o w n legislative fu nctions. W here C ongress places the pow er o f appointm ent in the P resid en t, how ever, it m ust b e assum ed to have been aware that as a practical m atter presidential appointees w ill be d ep e n d en t upon th e P resident and not on C o n g re ss, and that a s a constitutional m atter the pow er to rem ove will follow fro m and be dictated by the structure chosen.
186 similarly charged Executive Branch agencies whose heads are clearly subject to the President’s removal power. See, e.g., 42 U.S.C. § 7418 (federal facilities must comply with EPA emissions rules under Clean Air Act); 42 U .S.C . § 2000e-16 (federal employers are subject to rules and regulations of Equal Employment Opportunity Commission). Authority in the Council to bring lawsuits against other Executive Branch agencies to enforce the provisions of the Act is somewhat more difficult to reconcile with a congressional intent that its members be subject to the Presi dent’s removal power. We therefore must examine closely the provisions in § 205(b) of the Act purporting to.give the Council authority to seek judicial “ enforcement of [its] agreements with Federal agencies.” As noted in the preceding section, § 205(b) of the Act authorizes the Council’s legal staff to “ represent the Council in courts of law whenever appropriate, including enforcement of agreements with Federal agencies to which the Council is a party,” and to “ assist the Department ofMustice in handling litigation concerning the council. . . .” 16 U.S.C. § 470m(b). Our understanding of this ambiguous mandate is not enhanced by reference to the legislative history of the provision. As originally enacted in 1976, this provision appears to have been intended to deal with the “jurisdictional conflicts” generated by the Council’s close administrative association with the Department of the Interior, and in particular the provision of day-to-day legal services to, the Council by the Solicitor of the Interior. See 1975 Senate Report at 12, 32; 1975 Senate Hearings at 303-04. It did not include the phrase referring to the enforcement of agree ments with other federal agencies. While the legislative history does not explain what Congress considered “ appropriate” representation of the Council in court by its own attorneys, it is possible that Congress had in mind some situation in which the Department of Justice was unwilling or unable for some reason to represent the United States in connection with a violation of the Act. Whatever litigating authority was intended for the Council in 1976, the addition in 1980 of the phrase referring to the enforcement of the Council’s agreements with other agencies suggests that Congress may by that time have been thinking of a situation in which the Department of Justice might be obligated to represent some other federal agency whose position as a party to one of the “ agreements” described in the Council’s regulations conflicted with that asserted by the Council itself.10
10 T hus the 1980 H o u se R eport states: S ection 301(i) clarifies the existing authority o f the C ouncil to institute legal p ro ceedings on its ow n b eh a if to en su re com pliance w ith the A ct. Specifically added is language that refers to the enforcem ent o f agreem ents w ith Federal agencies under S ection 106, o th er authorities contained in this A ct and im plem enting regulations. In m ost instances it is expected th at the C ouncil w ill utilize the services o f the D epartm ent o f Justice w ith regard to litigation However, it is reco g n ized that situations may arise where a Federal agency may violate the provisions c f this Act a nd the only recourse is initiation c f legal proceedings by the Council in its own name. 1980 H ouse R eport at 42 (em phasis supplied). We know o f no situation in w hich the Council has asserted fo r itse lf a litigating authority independent of the Justice D epartm ent, m uch less an authority to take an o p posing p o sitio n in litigation.
187 A legislative scheme in which disputes between Executive Branch agencies are to be settled in some forum other than one responsible to the President— in this case federal or state court— would raise a number of serious problems under both Article II and, potentially, Article III of the Constitution.' 1Indeed we doubt that Congress could constitutionally authorize one Executive Branch agency to sue another in a context such as this one. We will, therefore, not assume that Congress intended such a scheme absent the most compelling and unambiguous statutory language.12
III. Constitutional Analysis
Aft examination of the relevant principles of constitutional law reinforces our conclusion that Congress intended Council members to be freely removable by the President. Although the Constitution does not explicitly provide for the removal of officers of the United States, it has long been the general rule that “ [i]n the absence of specific provision to the contrary, the power of removal is incident to the power of appointment.” //? re Hennen, 38U .S. (13Pet.)230, 259(1839). See also Myers v. United States at 119. The specification of a term of office does not indicate a congressional intent to preclude mid-term removal, but is merely a limitation of the period that the officer may serve without reappointment. See Parsons v. United States, 167 U .S. 324 (1897). Where the President’s appoint ment power is involved, the presumption against limiting the removal power is rooted in the “ take care” clause of the Constitution, and any limitations on it
11 A rticle II o f the C onstitution vests the ex e cu tiv e pow er of th e U nited S tates in the P resident, a pow er w hich includes general adm inistrative control over th o s e executing the law s See M yers v. United States, 272 U S 52, 16 3-64 (1926) T his pow er o f control extends to the entire E xecutive B ranch, and includes the coordination and supervision of all litigation undertaken in the nam e of the U nited States. It w as the intention o f the F ram ers, as recognized by the S uprem e C o u rt in the Myers c a se , that the executive power w ould be exercised in a “ unitary and u n ifo rm ” way. 272 U .S . at 135. T h e President th u s has a special obligation to review decisions o r actions that have given rise to conflict w ithin the Executive B ra n c h , and C o n g ress has no p o w er to p revent his exercising his su pervisory authority for the purpose of reso lv in g inter-agency disputes See discussion in Feb 2 1 , 1977, M em orandum O pinion fo r the A ttorney G en eral on “ Inspector G eneral L eg islatio n ,” 1 Op. O L C 16 (1977) Sim ilarly, C ongress m ay n ot, consistent with A rticle III o f the C onstitu tio n , d irect federal courts to ^ d ju d ic a te controversies w hich do not m eet constitutional standards of ju sticia b ility See Muskrat v United States, 219 U .S . 3 4 6 (1 9 1 1 ). I f both the C ouncil and the agency alleg ed to have violated the Act are w ithin the Executive B ranch, then the P resident has both th e pow er an d the duty to resolve any dispute between th em as to w hether a violation o f the A ct h as o cc u rre d To provide instead that the ju d ic ia ry should resolve the d isp u te w ould g o against the established p rinciple o f federal ju risd ictio n that a person c a n n o t create a ju sticia b le controversy against him self, and itself raise a separation o f pow ers issue. T h e co u rts might w ell question w hether, in light o f th e P resident’s overall authority over both agencies, sufficient ad v e rsan n e ss exists in such a situation. C f South Spring Hill Gold Mining Co. v Amador Medean G old Mining C o., 145 U .S . 300 (1892). They m ight also conclude th at legal disputes between Executive B ranch agencies are m ore properly for the P resident to resolve as p a rt o f his constitutional du ty to “ take C are that the Law s be faithfully ex ecu ted .” A rt II, § 3. See M em orandum O pinion for the A cting A ssistant A ttorney G en eral, Tax D ivision, A pril 2 2 , 1977, 1 O p. O L C . 7 9 , 83 (1977) (dispute between Internal R evenue S ervice and Postal S ervice not ju sticia b le). Compare UnitedStates v Nixon, 418 U S . 683 (1974) an d United States v. ICC, 337 U .S . 4 2 6 (1949). In this ca se it is un lik ely that the C o u n c il’s enforcem ent o f one o f its agreem ents w ith another federal agency w ould be regarded as an action taken o n b e h a lf o f a private p a rty or p arties, so as to satisfy the requirem ents o f ju sticia b ility suggested by the holding of U nited States v. ICC. 12 We express n o view s as to w hether the C o u n c il’s legal staff m ay be authorized by the A ct to bring suit against independent regulatory c o m m issio n s such as th e Federal Trade C om m ission w h o se m em bers d o not serve at the pleasure of th e P resident, or to represent the p o sitio n of the U nited States in co u rt in connection w ith a violation o f the A ct w here the Ju stice D ep artm en t is unw illing or for som e reaso n unable to d o so. N either o f these authorities w ould in any event be in c o n sisten t with C o u n cil m em bers’ being subject to the President's rem oval pow er
188 must be strictly and narrowly construed. See Myers v. United States at 161, 164. Therefore Congress may constitutionally restrict the President’s removal power only if the officer serves on an “ independent” body whose tasks are primarily quasi-legislative or quasi-judicial, and which tasks “ require absolute freedom from Executive interference.” Wiener v. United States, 357 U.S. 349, 353 (1958). See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). If an agency’s primary functions are “ purely executive,” the President’s power to remove its members must under the Constitution be unfettered. Id. at 631-32.13 As discussed in the preceding section, the Council is structured in such a way as to make it administratively “ independent” within the Executive Branch. In particular, we have noted the statutory provisions which purport to prohibit its being required to channel its reports to Congress through the Executive Office of the President. None of its structural features is, however, necessarily incompati ble or inconsistent with its also being ultimately subject to the authority and supervision of the President himself. More importantly, as the Court noted in Wiener, “ the most reliable factor for drawing an inference regarding the Presi dent’s power of removal . . . is the nature of the function that Congress vested in the [Council].” 357 U.S. at 353. An examination of the Council’s functions leaves no doubt that they are primarily executive in nature. The Council’s advisory and reviewing roles under §§ 106 and 202 of the Act suggest the desirability of its maintaining a certain independence of other Executive Branch agencies, but these are “ purely executive” functions which do not require “ absolute freedom from Executive interference” under the standards set forth in Humphrey’s Executor and Wiener.14 While the rulemaking and exemption- granting authorities arguably conferred on the Council by §§ 211 and 214 of the Act are closer to the quasi-legislative or quasi-adjudicative functions which may constitutionally be insulated from the threat of removal, these are not its primary tasks. Finally, even if one assumes some limited authority in the Council to litigate in the name of the United States, this is the prototype of a “ purely executive” function.15 In sum, the primary functions of the Council, as interpreted in light of the relevant constitutional principles, are not such as to permit its members’ insula
13 In Humphrey's Executor the C o u rt ruled that m em bers of the Federal Trade C om m ission needed secu rity against m id-term rem oval in order to “ exercise [their] jud g m en t w ithout the leave o r hindrance o f an y o th er official or any departm ent o f the governm ent ” 295 U S . at 6 2 5 -2 6 Specifically, its quasi-legislative an d q u asi-judicial functions required that it be free of executive control. See 295 U .S at 628. Sim ilarly, in Wiener, the ad judicative functions o f the War C laim s C om m ission w ere held to require freedom from “ control o r coercive in flu en ce” by the Executive. 357 U S at 355, quoting from 295 U .S at 629. 14 In the context of exam ining the nature o f the functions of another advisory body created to ad v ise an E xecutive Branch D epartm ent, the D istrict C ourt for the D istrict of M assachusetts recently recognized that g iv in g advice and m aking recom m endations “ fall into the category of ‘purely executive Martin v Reagan, 525 F S u p p 110, 1 13 (D . M ass. 1981) (N ational Institute o f Justice A dvisory Board) See also Patino v Reagan, C ivil N o . S - 8 1 -4 6 9 M LS (E .D C al S ept 29, 1981). T hose cases involved removal by the President o f his appointees to ad v iso ry boards w hich advised the National Institute of Justice (N IJ) The N IJ, as the C ouncil here, has been expressly endow ed by C ongress w ith a m easure o f independence from the A ttorney G eneral in its day-to-day decisio n m ak in g : its director, however, serves at the pleasure of the President 15 We doubt that C ongress could constitutionally authorize the C o u n cil’s legal staff to sue other Executive B ranch agencies if those agencies w ere, like the C ouncil, subject to direction and supervision by the P resident. See note 11, supra
189 tion from the President’s authority and control. We will not, therefore, infer from Congress’ silence on the matter that it intended to impose any restrictions on his power to remove his appointees to the Council whenever he wishes to do so, and for whatever reason he chooses.
T h eo d o r e B. O lson Assistant Attorney General Office of Legal Counsel