[From the Library of Congress, Congressional Research Service, Mar. 25, 1974] CONSTITUTIONAL ISSUES RAISED BY S. 2803, 93D CONGRESS-TO ESTABLISH AN INDEPENDENT DEPARTMENT OF JUSTICE (Prepared by Robert L. Tienken, American Law Division, Senior Specialist in American Public Law) The purpose of S. 2803, 93rd Congress, is to establish an independent Department of Justice as an independent agency by dismantling the existing Department, removing it from the Executive Branch, and recreating it as an agency imbued with executive and quasi-judicial powers thus, presumably fashioning it like examples of independent regulatory agencies (i.e., the Federal Trade Commission (15 U.S.C. § 41), see Humphrey's Executor v. U.S., 295 U.S. 602 (1935). It is not necessary here to analogize the proposal with independent bodies such as the War Claims Commission which exercised quasi-judicial powers (Wiener v. U.S., 357 U.S. 349 (1958), or the General Accounting Office which exercises executive and quasi-legislative functions (U.S. ex rel. Brookfield Construction Co. v. Stewart, (D.C.D.C.), 234 F. Supp. 94 (1964), except as constitutional principles relative thereto may be applicable to this memorandum. There is serious question that the bill would be held constitutional since the creation of the Department would arguably be an infringement upon the executive power vested in the President by Article II, Section 1 of the Constitution. That power was described generally by the Supreme Court in Springer v. Philippine Islands, 277 U.S. 189, 201 (1928): "legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions". The bill is not a constitutional amendment providing for the creation of a Department of Justice outside of the control of the Executive power. It does not invoke the appointment of inferior officers by heads of departments or courts of law (Article II, Section 2, clause 2) the removal of whom may be governed and restricted by Congress by law (U.S. v. Perkins, 116 U.S. 483 (1886); Myers v. U.S., 272 U.S. 52, 161 (1926)). Nor does it provide for an agency made up of existing civil service employees whose authority to administer and to hire and fire is fully controlled by law (see, Title 5, U.S. Code). Instead, the bill grants to the new Justice Department substantially all the powers, duties and responsibilities possessed by the present Department with a few omissions. The operative clauses for a separation from the Executive Branch are findings of fact and declaration by Congress in Section 1 of the bill. The new Department would be established as an independent establishment by dropping the Department from the list of Executive Departments in 5 U.S.C., § 101 (sec. 7(a) of the bill) and by repealing section 501-510 of Title 28 U.S.C. (501-Executive Department, 502-Seal, 503-Attorney General, 504-Deputy Attorney General, 505-Solicitor General, 506-Assistant Attorneys for Administration, 508-Vacancies, 509-Functions of the Attorney General, and 510-Delegation of Authority (of Attorney General) and replacing them with the following: SEC. 2. (a) Sections 501 through 510 of title 28, United States Code, are amended to read as follows: "S 501. Independent establishment "(a) There is established as an independent establishment of the United States Government, the Department of Justice. "(b) The Department shall be headed by an Attorney General who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of six years. There shall be in the Department"(1) a Deputy Attorney General, and "(2) a Solicitor General each of whom shall be appointed by the President, by and with the advice and consent of the Senate, for a term of six years. The Deputy Director shall perform such functions as the Attorney General may prescribe and shall be the acting Attorney General during the absence or disability of the Congress thus has, under this power, authorized U.S. Courts to appoint inferior officers who are, by statute, authorized to exercise executive law enforcement functions (Ex parte Siebold, supra, Hobson v. Hansen, supra, and also, to appoint temporarily, officers to prosecute for violations of the federal criminal laws (U.S. v. Solomon, supra). In the case of inferior officers appointed by heads of departments, or the courts of law (Article II, § 2, cl. 2), Congress may limit and restrict the power of removal as it deems best for the public interests (see, for example, U.S. v. Perkins, 116 U.S. 483 (1886)). Thus Congress could provide that an officer carrying out executive functions and appointed by a head of a department or a court of law could only be removed for cause. In general, as well, the power of removal of inferior officers is an incident of the power of appointment (Ex parte Hennen, 38 U.S. 230 (1838). In the case of a special prosecutor appointed by the Attorney General, for instance, the power of removal would be by the Attorney General, but since the latter is directly responsible to the President, the President would have substantial influence over such a removal. This would not be the case where an inferior officer who is carrying out executive duties is appointed by a court. However, a special situation would seem to arise where a prosecutor who is to carry out his executive duties before a court is appointed by said court. In such an instance a problem of due process could be present. This was discussed by the court in U.S. v. Solomon, supra, at p. 843, as follows: "Lastly, the defendant contends that should Section 506 (now Section 546) be found to be valid under Article 2, Sec. 2, Clause, 2, United States Constitution, it would then provide a nexus between court and prosecutor too close to comport with due process of law. "The defendant makes no contention that there was such a nexus in this case. Rather, he contends that the court, possessing the appointive power, likewise possesses removal power and it is the combination that provides an alleged nexus too close to comport with due process. Even assuming that such a nexus would prove violative of due process (cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)), the contention rests on an unfounded premise. While the normal appointive power carries with it the power of removal (In re Hennen, 13 Pet. 230, 10 L. Ed. 138 (1839)), the power in this instance is in no wise equivalent. As has already been pointed out, the President may, at any time, remove the judicially appointed United States Attorney, pursuant to 28 U.S.C. § 504. The language of subsection (b), "[e]ach United States attorney shall be subject to removal by the President ***," clearly authorizes the executive to remove any Unit States Attorney, regardless of the nature of his appointment. The statut scheme for the temporary appointment by the judiciary of the United St Attorney comports in all respects with due process of law." The court raised the question of the impropriety of too close a nes tween court and prosecutor but went on to consider the point raised defendant respecting the removal power and stated that the quest not at issue because the President, by statute still possessed the removal along with the court (incidentally, control over such torney would also still be vested in the Attorney General by Hobson v. Hansen, supra, the court, in dicta, observed that th would not be a due process problem in such an appointment by In any event, considering that prosecution of violators of the ly an executive power, and that unresolved questions of d well exist where removal power in the President over su stripped away, it is arguable that placing the appointme of such an officer in the Judiciary might well violate process. The existing statute, 28 U.S.C. § 546 relates, of cour Courts' temporarily appointing U.S. Attorneys for the proposal would be for a national office, and for it pointing power would probably have to be lodged w Putting aside questions of policy in this matter, t process could arise if the Prosecutor were to h cases in the Supreme Court. 1 1 CONSTITUTIONAL ISSUES RAISED BY S. 2803, 93D CONGRESS-I) Esta (Prepared by Robert L. Tienken, American Law Dyson, Sezar Nami The purpose of S. 2803, 93rd Congress, is to estatuak 2 T >mpensated r diem, as ry out his ral departices, equip, estimates, sistent with actions. as sections lieu thereof 234 F. Supp. 94 (1964), except as constitutional principes misth There is serious question that the bill would be held at The bill is not a constitutional amendment providing e Nor does it provide for an agency made up of e Instead, the bill grants to the new Justice Dep The new Department would be established aa "g 501. Independent establishment "(a) There is established as an ladai Congress thus has, under this power, authorized U.S. Courts to appoint inferior officers who are, by statute, authorized to exercise executive law enforcement functions (Ex parte Siebold, supra, Hobson v. Hansen, supra, and also, to appoint temporarily, officers to prosecute for violations of the federal criminal laws (U.S. v. Solomon, supra). In the case of inferior officers appointed by heads of departments, or the courts of law (Article II, § 2, cl. 2), Congress may limit and restrict the power of removal as it deems best for the public interests (see, for example, U.S. v. Perkins, 116 U.S. 483 (1886)). Thus Congress could provide that an officer carrying out executive functions and appointed by a head of a department or a court of law could only be removed for cause. In general, as well, the power of removal of inferior officers is an incident of the power of appointment (Ex parte Hennen, 38 U.S. 230 (1838). In the case of a special prosecutor appointed by the Attorney General, for instance, the power of removal would be by the Attorney General, but since the latter is directly responsible to the President, the President would have substantial influence over such a removal. This would not be the case where an inferior officer who is carrying out executive duties is appointed by a court. However, a special situation would seem to arise where a prosecutor who is to carry out his executive duties before a court is appointed by said court. In such an instance a problem of due process could be present. This was discussed by the court in U.S. v. Solomon, supra, at p. 843, as follows: "Lastly, the defendant contends that should Section 506 (now Section 546) be found to be valid under Article 2, Sec. 2, Clause, 2, United States Constitution, it would then provide a nexus between court and prosecutor too close to comport with due process of law. "The defendant makes no contention that there was such a nexus in this case. Rather, he contends that the court, possessing the appointive power, likewise possesses removal power and it is the combination that provides an alleged nexus too close to comport with due process. Even assuming that such a nexus would prove violative of due process (cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)), the contention rests on an unfounded premise. While the normal appointive power carries with it the power of removal (In re Hennen, 13 Pet. 230, 10 L. Ed. 138 (1839)), the power in this instance is in no wise equivalent. As has already been pointed out, the President may, at any time, remove the judicially appointed United States Attorney, pursuant to 28 U.S.C. $504. The language of subsection (b), "[e]ach United States attorney shall be subject to removal by the President ***," clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment. The statutory scheme for the temporary appointment by the judiciary of the United States Attorney comports in all respects with due process of law." The court raised the question of the impropriety of too close a nexus between court and prosecutor but went on to consider the point raised by the defendant respecting the removal power and stated that the question was not at issue because the President, by statute still possessed the power of removal along with the court (incidentally, control over such a U.S. Attorney would also still be vested in the Attorney General by statute). In Hobson v. Hansen, supra, the court, in dicta, observed that there probably would not be a due process problem in such an appointment by the judiciary. In any event, considering that prosecution of violators of the law is uniquely an executive power, and that unresolved questions of due process may well exist where removal power in the President over such an officer is stripped away, it is arguable that placing the appointment and dismissal of such an officer in the Judiciary might well violate the norms of due process. The existing statute, 28 U.S.C. § 546 relates, of course, to U.S. District Courts' temporarily appointing U.S. Attorneys for their own districts. The proposal would be for a national office, and for it to be feasible, the appointing power would probably have to be lodged with the Supreme Court. Putting aside questions of policy in this matter, the same problem of due process could arise if the Prosecutor were to handle appeals of criminal cases in the Supreme Court. [From the Library of Congress, Congressional Research Service, Mar. 25, 1974] CONSTITUTIONAL ISSUES RAISED BY S. 2803, 93D CONGRESS-TO ESTABLISH AN INDEPENDENT DEPARTMENT OF JUSTICE (Prepared by Robert L. Tienken, American Law Division, Senior Specialist in American Public Law) The purpose of S. 2803, 93rd Congress, is to establish an independent Department of Justice as an independent agency by dismantling the existing Department, removing it from the Executive Branch, and recreating it as an agency imbued with executive and quasi-judicial powers thus, presumably fashioning it like examples of independent regulatory agencies (i.e., the Federal Trade Commission (15 U.S.C. § 41), see Humphrey's Executor v. U.S., 295 U.S. 602 (1935). It is not necessary here to analogize the proposal with independent bodies such as the War Claims Commission which exercised quasi-judicial powers (Wiener v. U.S., 357 U.S. 349 (1958), or the General Accounting Office which exercises executive and quasi-legislative functions (U.S. ex rel. Brookfield Construction Co. v. Stewart, (D.C.D.C.), 234 F. Supp. 94 (1964), except as constitutional principles relative thereto may be applicable to this memorandum. There is serious question that the bill would be held constitutional since the creation of the Department would arguably be an infringement upon the executive power vested in the President by Article II, Section 1 of the Constitution. That power was described generally by the Supreme Court in Springer v. Philippine Islands, 277 U.S. 189, 201 (1928): "legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions". The bill is not a constitutional amendment providing for the creation of a Department of Justice outside of the control of the Executive power. It does not invoke the appointment of inferior officers by heads of departments or courts of law (Article II, Section 2, clause 2) the removal of whom may be governed and restricted by Congress by law (U.S. v. Perkins, 116 U.S. 483 (1886); Myers v. U.S., 272 U.S. 52, 161 (1926)). Nor does it provide for an agency made up of existing civil service employees whose authority to administer and to hire and fire is fully controlled by law (see, Title 5, U.S. Code). Instead, the bill grants to the new Justice Department substantially all the powers, duties and responsibilities possessed by the present Department with a few omissions. The operative clauses for a separation from the Executive Branch are findings of fact and declaration by Congress in Section 1 of the bill. The new Department would be established as an independent establishment by dropping the Department from the list of Executive Departments in 5 U.S.C., § 101 (sec. 7(a) of the bill) and by repealing section 501-510 of Title 28 U.S.C. (501-Executive Department, 502-Seal, 503-Attorney General, 504-Deputy Attorney General, 505-Solicitor General, 506-Assistant Attorneys for Administration, 508-Vacancies, 509-Functions of the Attorney General, and 510-Delegation of Authority (of Attorney General) and replacing them with the following: SEC. 2. (a) Sections 501 through 510 of title 28, United States Code, are amended to read as follows: "8 501. Independent establishment "(a) There is established as an independent establishment of the United States Government, the Department of Justice. (b) The Department shall be headed by an Attorney General who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of s. There shall be in the Departmenteral, and the President, by and with the advice of six years. The Deputy Director ttorney General may prescribe and ing the absence or disability of the |