Recognizing that the case law and the constitutional language is not clear, one can nevertheless draw some basic conclusions and tentatively apply them in analyzing the proposal here. The cases do appear to recognize an executive function or power conferred on the president to the exclusion of the other two branches of government. Whether this function or power be found in the nature of the executive, be conferred by the phrase "executive power" in the first sentence of § 1 of Article II, or be derived from the faithful execution clause, the execution of the laws passed by Congress is deemed by Myers, Humphrey, and Wiener to be included within the executive power exercisable by the President and delegable to his subordinates over whom he exercises control and responsibility to such a degree that he must have the sole power to remove in order to fulfill that role. Further, Humphrey and Wiener stand for the proposition that the only executive tasks which can constitutionally be removed from under the President's direction and given to an independent agency are those clearly incidental to the quasi-legislative and quasi-judicial functions which justify its independence. Of course, quasi-legislative and quasi-judicial functions can be given to an executive officer; Congress is not compelled to give them to an independent agency. But the executive function must be performed under the direction of the President and Myers holds while Humphrey and Wiener recognize that Congress may not withdraw them from the direction by limiting the President's power to remove the officers who perform them. Congress could not constitutionally give to an independent agency functions which, separately considered, could not validly be made the exclusive job of an independent agency, else it could at will remove the President's executive powers through this device.

Certainly, the faithful execution clause makes rather clear that the prosecution of offenses against the United States is an executive function. "The Attorney General is the head of the Department of Justice. He is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed." Ponzi v. Fessenden, 258 U.S. 254, 262 (1922). The structuring of the executive branch is, of course, within the discretion of Congress acting under the necessary and proper clause. Thus, the creation of offices and the allocation of functions within the executive branch is a power clearly possessed by Congress and Congress has thus made the Attorney General the "hand of the President" in prosecutions, in Chief Justice Taft's phrase. But it could have placed the function elsewhere in the executive branch. Indeed, by the Judiciary Act of 1789, § 35, 1 Stat. 92, the United States Attorney in each judicial district was authorized to execute the laws of the United States and to bring actions and to represent the United States in court, a function in the performance of which they were subject to the direction of the President. 2 Op. Atty. Gen. 482 (1831). The Attorney General was merely authorized by the same section of the statute to represent the United States in the Supreme Court and not until the Act of July 31, 1861, 12 Stat. 285, was the Attorney General given supervisory power over the United States Attorney.

The discretion in structuring, however, would not run to placing an essentially executive function in another branch. Cf. United States v. Cox, 342 F. 2d 167, 190-93 (C.A. 5, 1965) (Judge Wisdom concurring), and cases cited. But as the discussion above of the validity of congressional creation of the independent agencies exercising some elements of all the formal tripartite governmental functions expressed in the separation of powers concept demonstrates, there may well be areas of overlap of functions and of shared responsibilities. Indeed, it is observable that the Constitution does not create analytically distinct categories of governmental functions which are totally separable.

II.

In the Federalist Madison was concerned not with defending the separation of powers features of the Constitution but in rebutting the contentions of those who argued that the Framers had too dangerously blended the "several departments of power." Adverting to the counsel of Montesquieu, whom everyone quoted on the subject, Madison contended that "he did not mean that these departments ought to have no partial agency in, or no control over the acts

of each other." The philosopher had rather meant that the whole power of one department must not be exercised by another department. The Framers had acted on the principle, Madison contended, "that unless these departments be so far connected and blended, as to give to each a constitutional controul over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice, be duly maintained." The necessity of combining checks and balances with a separation of powers had earlier been noted by Madison in the Convention."

"If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper."

It is unnecessary here to consider the various checks and balances which the Framers introduced by way of giving one department a partial and limited agency in the exercise of another department's powers. Sufficient it should be to note the President's veto as one instance of executive participation in lawmaking. What is relevant for our purposes is the Constitution's authorization in connection with the power of appointment and its meaning with regard to the executive function of execution of the laws.

"I conceive," said Madison in the first Congress, "that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controuling those who execute the laws." But the Constitution expressly involved the other two branches in the process. Article II, § 2, cl. 2, gives the Senate the power to advise and consent to presidential nominations and the Congress the power to establish offices not provided for by the Constitution the appointment to which may be in the President with the advice and consent of the Senate. However, the clause continues: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

No explanation accompanied the addition of this language to the appointing clause in the final days of the Convention. It was early suggested that the power conferred was intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. Ex parte Hennen, 13 Pet. (38 U.S.) 230, 257-58 (1839). If this interpretation held, the proposal to vest the appointment of the special prosecutor in the District Court would be of doubtful validity, but this interpretation is no longer subscribed to by the Court.

When in the Force Act of 1871, 16 Stat. 433, Congress authorized the circuit courts of the United States to appoint supervisors of elections to enforce the right to vote in federal elections, inferior executive officers certainly, the Supreme Court experienced no difficulty in upholding the Act. Ex parte Siebold, 100 U.S. 371, 397-98 (1880). Recognizing that the officers were performing essentially executive functions, the Court said:

"It is, no doubt, usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officer appertain. But there is no absolute requirement to this effect in the Constitution; "But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. [T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void."

To be sure, the courts have usually been given the power to appoint officers who perform judicial functions, such as clerks, commissioners, referees and registers in bankruptcy, but there are exceptions beside the office concerned in Siebold. Thus, Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967), utilized the language of Article 2, § 2, cl. 2, as an alternative basis for upholding the

1 The Federalist, Nos. 47, 48 J. Cooke ed. (1961), 323, 325-26, 332 (emphasis in original). 2 M. Farrand. The Records of the Federal Convention of 1787 (rev. ed. 1937), 77. 31 Annals of Congress 481-82 (1789).

Farrand, op. cit., 627-28.

power long vested in the District Court of the District of Columbia to appoint members of the school board, the other alternative holding being on the line of authority giving Congress power to vest in the federal courts of the District of Columbia certain non-article III functions. Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); O'Donoghue v. United States, 289 U.S. 516 (1933).5

Pertinent here is the fact that Congress has empowered district courts when the United States Attorney's office in a district is vacant to fill the office temporarily until the President appoints someone. 28 U.S.C. § 546. The only case in which it appears that such an appointment was attacked is United States v. Solomon, 216 F. Supp. 835 (D.C.S.D.N.Y. 1963), in which the power was upheld. Relying on the language of Article II and of Siebold, the court could see no separation of powers problem. It should be noted that the court did suggest as additional reasons for sustaining the authorization that the appointment was temporary and that it did not bind the President, he having the power to displace the judicial appointee with his own nominee at any time. Id., 842-43.

It seems clear, therefore, that Congress could authorize the District Court to appoint a special prosecutor. The basic question which remains, however, is how much freedom from presidential direction Congress will be constitutionally capable of conferring on him. In other words, does the President's obligation to see to the faithful execution of the laws, as construed in Myers, give him power to superintend law enforcement by inferior officers appointed in the alternative manner allowed by Article II, § 2, cl. 2.

Again, the removal power provides the touchstone, inasmuch as Myers, Humphrey and Wiener view it as the foundation of the President's power to direct and control his subordinates. Of course, all three cases dealt with persons appointed by the President with the advice and consent of the Senate and the holdings are so expressly limited to that situation. But it is the rationale which is relevant here.

The ordinary rule would seem to be that the power to remove in the absence of a contrary provision accompanies the power to appoint. Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839), so held in connection with the legality of the removal from office by a District Court of its clerk, appointed by it. More important, it has been held that when Congress provides for the appointment of inferior officers in the alternative, by the heads of departments, it has "the power to limit and regulate removal of such inferior officers. . . ." Myers v. United States, 272 U.S. 52, 127 (1927). In United States v. Perkins, 116 U.S. 483 (1886), the Court upheld a provision of law restricting the power of a head of a department in removing one appointed by him except under certain circumstances. The Court expressly adopted the words of the Court of Claims ruling below.

"We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit. restrict and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.

"The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress; and by such legis

It would not appear that this District of Columbia rationale would be any support for the proposal inasmuch as the question is not as to the judicial nature of the fune tion of appointing but where the Constitution says Congress may place the power, although the rationale may have a subsequent use.

It is not within the purview of this memorandum to consider the due process as partial tribunal problem raised by vesting the appointment of a prosecutor in the judge who is to preside over the trials. Cf. In re Murchison, 349 U.S. 133 (1955). It wi contended in Solomon, 216 F. Supp., 843, that the combination of the power to appoint and the concomitant power to remove the prosecutor provided a nexus between court and prosecutor too close to comport with due process. The court rejected the argument on the basis that the removal power was in the President and not in the court.

Quaere, whether the reference to "Courts of Law" permits Congress to specifi a member of the District Court, the Chief Judge, rather than the court as an institution The question was raised when Congress in the Bankruptcy Act of 1867, 14 Stat 517 518, gave to the Chief Justice of the United States the power to nominate registers is bankruptcy for the district judges to appoint. Cong. Globe 39th Cong., 2d sess. (1867) 1011.

lation he must be governed, not only in making appointments but in all that is incident thereto." If., 485.

Chief Justice Taft in Myers, supra, 161, wrote:

"The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the exempting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. It has been the practice of Congress to do so and this Court has recognized that power. The Court also has recognized in the Perkins case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal." Does this language with regard to the heads of departments extend to the courts? May a judge with authority to appoint someone in the excutive branch be similarly empowered to remove him and concomitantly to supervise him? The characterization of the power to remove inferior executive officers as in its nature an executive power is not necessarily dispositive. The appointment of inferior executive officers is in its nature an executive power as well; yet the Constitution permits the vesting of such a power in the courts. However, it is one of the lines of reasoning of Myers that exceptions from the vesting of executive power in the executive branch, as well as of the vesting of legislative and judicial powers in each of the other two branches, are to be strictly construed and the blending of the three departments carried no further than the Constitution expressly provides. Thus, Myers held, the joining of the Senate in the appointing process, through its power to confirm or reject presidential appointments, carried with it no inference that the Senate could be constitutionally joined with the President in removing such officers, for the reasons considered in the first part of this memorandum.

To approach the question from the constitutional side of the judicial power, it should be noted that federal courts may not be vested with non-Article III powers. Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792); Glidden Co. v. Zdanok, 370 U.S. 530 (1962). If the power to remove executive officers is an executive power, it would appear that in the absence of an express constitutional authorization akin to the power to receive appointing authority no Article III court could be empowered to remove an executive officer. As we have noted above, in certain cases the Supreme Court has treated federal courts in the District of Columbia somewhat differently than it has treated federal courts elsewhere, on the assumption that because of Congress' plenary jurisdiction over the District of Columbia it can invest federal courts in the District with certain non-Article III powers. This might arguably afford a basis for so vesting the removal power. However, the 1970 District of Columbia Court Reorganization Act by clearly denominating two separate court systems, the federal courts created pursuant to Article III and District Courts created pursuant to Article I, D. C. Code, § 11-101, may have removed a great deal of the basis for this rationale.

Aside from these problems there remains the effect of the President's obligation to see to the faithful execution of the laws upon any proposal to vest more than the appointing power in the courts. As we have noted in the discussion of Myers above the faithful execution clause was a major factor in the determination of the Court that the President must have the power to remove officers appointed by him in order to meet this obligation, in order to have the power to supervise and direct his subordinates. The "reasonable implication" is "that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible." Myers v. United States, supra, 117. How then is it possible to reconcile the authority of Perkins, reaffirmed in Myers, that Congress can limit the removal power of the heads of departments when the appointing power is vested in the heads rather than in the President? Is it not a limitation upon the faithful execution obligation if inferior officers who do the execution by delegation from the department heads are not subject to removal and therefore somewhat free of direction and control? If that is the effect of Perkins, then it must be admitted that the result follows. It should be noted, however, that the language of both Perkins and of Myers in this

33-875-74 -29

regard are expressly authority only for the validity of congressional limitation upon the removal power of the department heads; no reference is made to the possible power of the President himself to remove or to cause the removal of such inferior officers.

A tension obviously exists here between one of the principle rationales of Myers, confirmed in Humphrey and Wiener, and the result of Perkins and the confirmatory language of Myers. The authority to resolve the matter is lacking; however, if we follow the analysis of part one of this memorandum the balance would seem to tilt somewhat against a conclusion that Congress could invest a special prosecutor appointed by the court with independence of the President. III.

Under the separation of powers concept and under the scheme of government established in the Constitution, the law which the executive executes is in the main that enacted by Congress; the Constitution itself and treaties entered into pursuant to the Constitution are the only other sources of law recognized. Article VI, cl. 2. The relevance of this point in this instance is illustrated by Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838), which grew out of President Jackson's instructions to his Postmaster General to refuse to comply with a congressional mandate to pay a sum of money to Stokes.

"The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed."

"The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not, and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Id., 610.

"It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispens ing power, which has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice.

"To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible." Id., 612-613.

The meaning of the principle of this case, as Chief Justice Taft recognized in Myers, supra, 135, is that Congress may structure the obligations and duties of an executive officer in such detail that he is effectively rendered free of administrative and supervisory direction of the President, although he may remain ultimately subject to removal by the President for carrying out the will of Congress, a matter over which Congress is not without remedy. Thus, should Congress devolve upon an executive officer already in place the additional responsibilities of a special prosecutor, empowering him for example to utilize judicial process to obtain documents and other materials as to which