The President's Power to Remove the Board of Directors of the Pennsylvania Avenue Development Corporation

• Court: Department of Justice Office of Legal Counsel
• Decided: May 18, 1983
• Status: Published

Opinion

The President’s Power to Remove the Board of Directors of the Pennsylvania Avenue Development Corporation

In the absence o f a clear legislative intent to the contrary, the President may remove his appointees at will. The Pennsylvania Avenue Developm ent Corporation Act o f 1972, 40 U.S.C. §§ 871 et seq., provides for appointm ent o f a board o f directors by the President, but is silent on rem oval.

A lthough the A ct provides for a six-year term o f office, a provision for a term , by itself, is not a restriction on the President’s rem oval authority, but rather, is a limitation on the period for which an appointee may serve w ithout reappointm ent.

N othing in the statutory scheme, legislative history, or in the nature of the Board’s functions, indicates an intent to restrict the P resident’s removal power. Therefore, the board o f directors may be rem oved by the President at will.

May 18, 1983

M em o ran d um O p in io n fo r th e C oun sel to the P r e s id e n t

This memorandum responds to your request for our opinion whether the President has the power to remove the directors of the Pennsylvania Avenue Development Corporation (PADC). We assume that your inquiry is directed to those directors who are appointed by the President pursuant to 40 U.S.C. § 872(c)(8), as opposed to those who serve ex officio. We conclude that the President does have the power to remove the directors of the PADC appointed by him under § 872(c)(8).

I. The Board

• The Board was established pursuant to the provisions of the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. No. 92-578, 86 Stat. 1266 (codified at 40 U.S.C. §§ 871 et seq. (1976)) (Act). Section 872 creates the Corporation as a wholly owned government corporation, and vests its powers and management in a Board of Directors consisting of the Secretaries of the Interior, Treasury, Housing and Urban Development, and Transporta­ tion, the Administrator of General Services, the Mayor of the District of Columbia, the Chairman of the Council of the District of Columbia, and “eight [additional members], at least four of whom shall be residents and who are registered voters of the District of Columbia, appointed by the President from private life, who shall have knowledge and experience in one or more fields of 116 history, architecture, city planning, retailing, real estate, construction, or gov­ ernment.” 40 U.S.C. § 872(c)(8). Section 872(e) provides in part that each member appointed pursuant to § 872(c)(8) “shall serve for a term of six years from the expiration of his predecessor's term.” Subsection (e) also provides for staggered terms, and for the appointment of directors to serve out the remainder of terms. Directors may continue to serve until their successors are qualified. Subsection (f) provides that the President is to designate a Chairman and Vice Chairman from among the private members. Subsection (g) provides for eight ex officio non-voting members. The Act contains no provision concerning the removal of directors.1

II. Statutory Interpretation

The determination whether the President has the power to remove a Presi­ dential appointee presents initially a question of statutory interpretation. If the statute is interpreted to reflect an intention to restrict the President’s removal power, it is then necessary to reach the constitutional question whether the Congress had the power to do so. Here, we find it unnecessary to reach the constitutional question because we conclude that there is no persuasive evi­ dence of a congressional intent to restrict the President’s power to remove the directors of the PADC.

A. Governing Law

In the absence of a provision to the contrary, the power to appoint carries with it the power to remove.2 Accordingly, if a statute provides for appoint­ ment by the President, but is silent on the subject of removal, the President may remove an appointee unless the statutory scheme and legislative history dem­ onstrate that Congress intended implicitly to limit the President’s removal power. A statute is silent on the subject of removal if it contains neither an express provision restricting removal nor other provisions relating to the appointee’s tenure in office or terms of removal which must be interpreted as intended to restrict the removal power. Provisions for a term, such as the provision for a six-year term in the PADC Act, by themselves, have not been interpreted as intended to restrict the removal power, but rather as limitations on the period for which an appointee can serve without reappointment.3 A provision for a term, coupled with a provision setting forth the bases for 1 The bylaw s o f the Corporation, which appear at 36 C.F.R. §§ 901.1-901.7 (1982), also contain no provision concerning the rem oval o f directors. 2 Jam es M adis6n announced this rule during the first session o f the First C ongress. 1 A nnals o f Cong. 479 (J. G ales ed. 1789). The courts have consistently upheld the applicability o f the rule. M atter o f Hennen, 38 U.S. (13 Pet.) 230, 2 5 9 -6 0 (1839); Blake v. U nited States, 103 U.S. 227, 231 (1880); Myers v. United States, 272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367 U.S. 886, 896-97 (1961); Sam pson v. M urray, 415 U.S. 61, 70 n.17 (1974); N ational Treasury Em ployees Union v. Reagan, 663 F.2d 239, 246-48 (D .C . Cir. 1981); Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983). >See e.g., Parsons v. U nited States, 167 U.S. 324, 338 (1897); M artin v Tobin, 451 F.2d 1335, 1336 (9th Cir. 1971).

117 removal for cause, may be interpreted as a restriction on the President’s removal power.4

1. Quasi-judicial or Quasi-legislative Functions

If it is concluded that a statute providing for Presidential appointment is silent on the subject of removal, it is necessary next to determine whether Congress intended implicitly to restrict the President’s removal power. The starting point in making this determination is an examination of the functions of the appointee’s office. For example, the performance primarily of quasi­ judicial functions will support the inference that Congress intended to restrict the President’s removal power. See W iener v. United States, 357 U.S. 349 (1958); cf. H um phrey’s Executor v. U nited States, 295 U.S. 602 (1935).5 The W iener case involved a challenge to the removal of a member of the War Claims Commission. The statute which created the Commission provided for appointment by the President with the advice and consent of the Senate, but was silent on the subject of removal. The Court said that “the most reliable factor for drawing an inference regarding the President’s power of removal in our case is the nature of the function that the Congress vested in the War Claims Commission.” 357 U.S. at 353. The Court referred to “the sharp line of cleavage” it had drawn in H um phrey’s Executor “between officials who were part of the Executive establishment. . . and those who are members of a body ‘to exercise its judgment without the leave or hindrance of any other official or any department of the government’ . . . . ” Id. at 353. In Wiener, the Court relied on the War Claims Commission’s performance of adjudicative functions to infer that Congress intended to restrict the President’s power to remove its members. 357 U.S. at 356. Because the Commission was established to adjudi­ 4 In H u m p h rey's E xecu to r v. United States, 295 U.S. 602 (1935), the provision for a term was coupled with a provision for rem oval fo r cause; the C ourt also em phasized legislative history indicating that Congress intended the Federal Trade Commission to be independent o f executive control 5 T he Suprem e C ourt cases addressing the President’s pow er to rem ove persons appointed by him consists o f the trilogy o f M yers v. United States, 272 U.S. 52 (1926); H um phrey's Executor, 295 U.S. 602 (1935); and W iener v. U nited States, 357 U.S. 349 (1958). M yers held th at C ongress cannot lim it the President’s pow er to rem ove the persons appointed by him by and w ith the advice and consent o f the Senate. H um phrey's Executor held that C ongress can lim it the P resid en t's pow er to rem ove quasi-judicial and quasi-legislative officers, restricted th e scope o f M yers to purely executive officers, and left open the question w hether and to what extent C ongress can lim it the President’s pow er to rem ove those o f his appointees who perform neither quasi- ju d icial, quasi-leg islativ e, nor purely executive functions: ‘T o the extent that, betw een the decision in the M yers case, w hich sustains the unrestrictable pow er o f the President to rem ove purely executive officers, and our present decision that such power d o es not extend to an office such as that here involved, there shall rem ain a field o f doubt, w e leave such cases as may fall w ithin it for future consideration and determ ination as they m ay arise.” 295 U .S. at 632. Finally, Wiener sustained the restriction on the President’s removal power w hich it held could be inferred from the W ar C laim s C om m issioner’s perform ance o f adjudicative functions T he M yers case is lim ited to officers appointed by the President by and with the advice and consent of the Senate. U nited States v. Perkins, 116 U .S . 483 (1886) held that where Congress vests the appointm ent power in a D epartm ent head under Article II, § 2 o f the C onstitution, it may lim it the removal power. M yers did not decide w h eth er Perkins applies where th e pow er o f appointm ent is vested in the President alone, because the issue w as not before it. It strongly suggested, however, that the question was to be answ ered in the negative. 272 U .S. at 161-62. In M artin v. Reagan, 525 F. Supp. 110 (D. Mass. 1981), the C ourt held that an officer appointed by the P resident alone may b e rem oved by the President at w ill.

118 cate according to law, and “one must take for granted” that the statute “pre­ cluded the President from influencing the Commission in passing on a particu­ lar claim, a fo rtio ri must it be inferred that Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President.” Id. In Humphrey’s Executor, the Court stated that “the very nature of the Federal Trade Commission duties” require it to “act with entire impartiality . . . . Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” 295 U.S. at 624. H umphrey’s Executor rested its conclusion that Congress intended to restrict the President’s power to remove the Commis­ sioners only in part on the Commission’s performance of those functions. The opinions in Wiener and H um phrey’s Executor do not attempt to define the terms “adjudicatory” or “quasi-judicial and quasi-legislative” with any precision. However, some functions are clearly within the scope of those terms. In Wiener, the Court characterized the War Claims Commission’s function as “adjudication] according to law,” “that is, on the merits of each claim, sup­ ported by evidence and governing legal considerations.” 357 U.S. at 355. In Humphrey's Executor, the Court pointed to the FTC’s function to “exercise the trained judgment of a body of experts ‘appointed by law and informed by experience,” ’ its “duties as a legislative or as a judicial aid,” and its responsi­ bilities for “investigations and reports thereon” to Congress. 295 U.S. at 624, 628. The Court also discusses the FTC’s adjudicative functions. Id. at 628. Thus, the assignment to an official of the performance of quasi-judicial and quasi-legislative functions, at least including “adjudication] according to law,” supports an inference that Congress intended to restrict the President’s removal power. Performance of quasi-legislative functions, including substantive rulemaking, cf. id. at 624, may not by itself support such an inference, but is some evidence of intent to restrict.

2. Presumption that Officer is Removable

If the statute is silent on removal and the officer performs neither quasi­ judicial nor quasi-legislative functions as those terms are used in Wiener and Humphrey's Executor, the presumption that the President may remove him at will controls. Only strong and unambiguous evidence of congressional intent is an adequate basis for concluding that Congress intended implicitly to restrict the President’s removal power. As the Court said in S h u rtleff\. United States, 189 U.S. 311 (1903): It cannot now be doubted that in the absence of constitutional or statutory provision the President can by virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the Senate. . . . To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appoint­ ment thereto by the President and confirmation by the Senate, 119 would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Id. at 314-15.6

Legislative history suggesting that Congress looked favorably on the con­ cept that a particular official would be “independent” of executive control ordinarily will not be enough. The concept of “independence,” in the abstract, has connotations that are appealing, and the term is often used in floor debates and legislative history without any specificity as to what precisely is intended. However, “independence” is less attractive if it comes at the cost of account­ ability. Congress presumably recognizes that an official who is not removable may act beyond the control of elected officials. Perhaps for this reason, the discussion of “independence” during legislative debates often goes no further than the abstract concept and seldom ripens into a clear specification of a legislative intent to make an appointed official non-removable. Because Congress knows how to provide expressly for restrictions on re­ moval if it chooses,7 the serious constitutional questions raised by congres­ sional attempts to restrict Presidential removal of such appointees should be avoided unless it is clear that Congress intended squarely to face the constitu­ tional issue and affirmatively desires that an official be independent of and not accountable to the President. The burden of demonstrating intent to restrict the President’s removal power is heaviest when the officer performs “purely executive” functions, and an attempt to restrict the power to remove such an officer would be unconstitutional under M yers. The burden is also heavy when an officer performs a mixture of executive and other functions, and his func­ tions cannot be described as “predominantly quasi-judicial and quasi-legisla­ tive,” or where his functions fall in the “field of doubt” between purely executive and quasi-judicial and quasi-legislative functions. A restriction on the President’s power to remove such an officer would raise serious and unsettled questions of constitutional law under Myers, Humphrey’s Executor and Wiener. See supra note 5.

B. A pplication o f the Governing Law

The application of these principles to the PADC Board is straightforward. The Act provides for appointment by the President, but is silent on the subject of removal: there is no express restriction on removal nor is there any legisla­ tive history on the subject of removal, and the only provision relating to tenure in office is the provision for a six-year term.8 As noted, a provision for a term,

6 In S h u r tle ff the C ourt concluded that a provision for rem oval fo r cause did not constitute such language. In H u m p h re y 's Executor, the C ourt distinguished S h u rtle ff on the ground that the statute there contained no provisio n fo r a term . 295 U .S. a t 621-23. 7 See, e.g., 42 U .S.C . § 2996c(e) (Board o f th e Legal Services C orporation). 8 T he H ouse R eport, the only Committee R ep o rt subm itted w ith the 1972 legislation, makes no mention of rem oval o f m em bers o f the Board. See H.R. R ep. No. 1445, 92d C ong., 2d Sess. (1972).

120 by itself, is not a restriction on removal. Thus, nothing in the Act or its legislative history suggests an intent to restrict the removal power. Having concluded that the statute is silent on removal, we turn next to an examination of the functions of the PADC Board to determine whether it performs quasi-judicial or quasi-legislative functions. It does neither. In estab­ lishing the PADC, Congress found “that it is in the national interest that the area adjacent to Pennsylvania Avenue between the Capitol and the White House,” which has been designated a national historic site, “be developed, maintained, and used in a manner suitable to its ceremonial, physical, and historic relationship to the legislative and executive branches of the Federal Government and to the governmental buildings, monuments, memorials, and parks in or adjacent to the area.” 40 U.S.C. § 871(a). Congress further found “that to insure suitable development, maintenance, and use of the area and the elimination of blight, it is essential that there be developed and carried out as an entirety plans for this area which will specify the uses, both public and private, to which property is to be put, the programming and financing of necessary acquisitions, construction, reconstruction, and other activities.” Id. § 871(c). The two chief functions of the PADC under the statute are to develop such a plan and to carry it out. Section 874 governs the content of the redevelopment plan and the procedures for its preparation, approval and revision.9 Section 875 sets forth the powers conferred on the corporation to carry out the development plan, including the powers to acquire land by, inter alia, condemnation pro­ ceedings, id. § 875(6); to establish by covenants, regulation and otherwise “such restrictions . . . as are necessary to assure development, maintenance, and protection of the development area in accordance with the development plan,” id. § 875(8); to “borrow money from the Treasury of the United States” as authorized in appropriations acts, id. § 875(10); to “contract for and accept gifts or grants or property or other financial aid . . . from any source,” governmental or other, id. § 875(13); and “utilize or employ the services of personnel of any agency . . . of the Federal Government.” Id. § 875(21). As the foregoing review demonstrates, the functions of the Board are neither quasi-judicial nor quasi-legislative within the meaning of H um phrey’s Execu­ tor and Wiener. Because there is nothing in the statutory scheme or legislative history to overcome the presumption that the President has authority over such officials whom he appoints, and that the directors are therefore removable at will, we conclude that the President may remove the directors of the PADC.

HI. Conclusion

The Act provides for appointment of the directors of the PADC Board by the President, but is silent on the subject of removal: no provision in the Act

9 The plan must include, inter alia, the types o f uses perm itted, criteria for design o f buildings and open spaces, an estim ate o f the re-use values o f the properties to be acquired, a determ ination o f the m arketability o f the developm ent, and the procedures for insuring continuing conform ance to the developm ent plan. Id. at § 874(a).

121 expressly restricts the President’s removal power, nor is there any provision bearing on the directors’ tenure in office or terms of removal which must be interpreted as intended to restrict the President’s removal power. Moreover, because the PADC Board’s functions are neither quasi-judicial nor quasi­ legislative as those terms are used in the Supreme Court cases addressing the President’s removal power, no inference can be drawn from the functions assigned to the Board that Congress intended implicitly to restrict the removal power. In these circumstances, a presumption arises that the President may remove his appointees at will. As our discussion of the PADC Act and its legislative history have demonstrated, there is nothing in either that history or the statutory scheme to overcome this presumption. We therefore conclude that the directors of the PADC may be removed by the President at will.

Theodore B. O lson

Assistant Attorney General Office o f Legal Counsel