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Mr. HORTON. Apparently we do not have a copy of that. I think we ought to have a copy of the report. Could you supply us a copy real quick, please?
Mr. Dixon. Very quickly.
Mr. Horton. Especially since Mr. Brooks has such a high regard for Mr. Katzenbach.
Mr. Dixon. I do not have a copy in my possession. I regret I don't have a copy with me, but we can provide one very quickly. (The information referred to follows:) OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C. Hon. CHET HOLIFIELD, Chairman, Committee on Government Operations, House of Representatives,
Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request that the Department of Justice comment on H.R. 204, H.R. 3065, and H.R. 3932, bills to amend the Budget and Accounting Act, 1921, to require the advice and consent of the Senate for appointments to Director of the Office of Management and Budget. Our comments as to the unconstitutionality of the bills also apply to S. 518, which passed the Senate on February 5, 1973.
Section 207 of the Budget and Accounting Act, 1921, as amended, 31 U.S.C. 16, provides that the Director and the Deputy Director of the Office of Management and Budget shall be appointed by the President, and that the Deputy Director shall act as Director during the absence or incapacity of the Director or during a vacancy in the office of the Director.
All of the bills under consideration would provide that the Director, including any occupant of that office on or after the date of the enactment of the bill, shall be appointed by the President by and with the advice and consent of the Senate, and H.R. 204 that the President shall submit an "appointment" of a Director within 90 days of the occurrence of a vacancy.
Article II. section 2, clause 2, of the Constitution provides that the officers of the United States shall be appointed by the President by and with the advice and consent of the Senate; with respect to inferior officers; however, Congress may vest the power of appointment in the President alone, the courts of law, or the heads of departments. Section 207, as it stands now, constitutes an exercise of the congressional authority to vest the power of appointing the Director, OMB, in the President alone.
To the extent that present bills refer to future appointments, it would have the effect of reverting to the basic constitutional provision for the appointment of officers. The question whether future appointments of inferior officers are to be made by the President, by and with the advice and consent of the Senate, or by the President alone, depends to some extent on the specific confidential relationship between the President and that officer.
It is our view, however, that the bills are unconstitutional to the extent that they seek to impose the requirement of senatorial advice and consent on any occupant of the office of the Director at the time of their enactment. That requirement would have the effect of a legislative removal of an officer who had been validly appointed by the President in accord with legislation effective at the time of the appointment.
Under the Constitution, an officer appointed by the President can be removed only by the President. Myers v. United States, 272 U.S. 52 (1926). The only constitutional method by which Congress can oust an officer is the impeachment process which requires majorities of two-thirds in both Houses; removal cannot be achieved by simple legislation. Once an appointment has been perfected, it is beyond legislative recall and control. See United States v. Smith, 286 U.S. 6, 48-49 (1932).
United States v. Lovett, 328 U.S. 303 (1946) is relevant by analogy. The Supreme Court held unconstitutional as a bill of attainder an appropriation rider requiring the President to submit for Senate confirmation the names of three individuals as a condition of their remaining in Federal service. In the successful suit by the individuals for their salaries, the Department of Justice sided with the plantiffs. The principal argument advanced by the Department in the Supreme Court was that the rider amounted to an unconstitutional infringement of the Executive power of removal, a position which we reailirm.
As James Madison said in 1789, during the Great Debate on the President's reinoval power:
** * * The powers relative to offices are partly legislative and partly executive. The legislative creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the legislative power ceases. * * *" (1 Am. Cong., cols. 581-582.)
A problem analogous to the one presented by these bills occurred in 1965 when Sargent Shriver simultaneously held the oflices of Director of the Peace Corps and Director of the Office of Economic Opportunity. Thereafter legislation was introduced which would have precluded the same person from occupying both positions at the same time. On that occasion Attorney General Katzenbach submitted to President Johnson a memorandum in which he concluded that such legislation would be unconstitutional if it applied to the incumbent, since it would amount to a legislative removal of an ofiicer appointed by the President. A copy of that memorandum is attached."
Congress was aware of these constitutional principles when it enacted section 1101 of the Omnibus Crime Control and Safe Streets Act of 1968. That section, which modified the method of appointment of the Director, FBI, from “by the Attorney General" to "by the President by and with the advice and consent of the Senate” provided that this change would take effect only after the termination of the services of the incumbent.
H.R. 204 would also provide that the President shall submit an “appointment” of a Director within 90 days of the occurrence of a vacancy. The selection of an officer is a matter entrusted to the President and it appears to be inconsistent with the proper relationship between President and Congress to specify the time within which the President shall perform such a delicate responsibility. We assume that the word “appointment” has been erroneously selected and that the word "nomination" shall be substituted for it.
For the above reasons the Department of Justice recommends against the enactment of H.R. 204, H.R. 3065, H.R. 3932, and S. 518.
The Office of Management and Budget has advised that enactment of these bills would not be in accord with the program of the President. Sincerely,
JOSEPH T. SNEED, Deputy Attorney General.
JUNE 3, 1965.
MEMORANDUM FOR THE PRESIDENT
Re Constitutionality of attempt by Congress to prohibit an officer in the executive executive branch in a manner not authorized by the Constitution. Under the Constitution, the power to remove an officer of the executive branch is vested exclusively in the President. Congress can oust such an officer only by the process of impeachment. And while Congress can impose reasonable qualifications for civil offices, it may not impose such qualifications retroactively so that its action has the effect of removing the incumbent from office.
branch from continuing to hold one of two offices to which he was appointed
by and with the advice and consent of the Senate. In 1961, Sargent Shriver was appointed Director of the Peace Corps by President Kennedy, by and with the advice and consent of the Senate; in 1964, he was appointed by you, by and with the advice and consent of the Senate, to be Director of the Office of Economic Opportunity. The Senate, when it approved his second nomination, was fully aware of the fact that Mr. Shriver would hold both offices at the same time. (Nomination hearings before the Senate Cominittee on Labor and Public Welfare, 88th Congress, second session, on Robert Sargent Shriver, Jr., to be Director of the Office of Economic Opportunity.) Title III of the Dual Compensation Act of August 19, 1964, Public Law 88_448, 78 Stat. 488, permits the appointment of one person to more than one office, but provides in effect that he can receive compensation only for one position.
Legislation has been introduced which would have the effect of prohibiting the sa me person from occunying the office of Director of the Peace Corps and of Director of the Office of Economic Opportunity. In my view such legislation, if construed as applicable to Mr. Shrirer, the incumbent. would be invalid because it would constitute an attempt by Congress to remove from office an officer of the
1 A similar expression of the views of Assistant Attorney General Schlei of the Omce of Legal Counsel may be found at 111 Congressional Recorn 17597-17598. For the Senate debate on the pronosal. including Senator Proxmire's opposition to it, see 111 Congressional Record 12495-12501 ; 20869-20874.
The Constitution provides that the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint the officers of the United States, except those inferior officers whose appointments the Congress may vest in the President alone, in the courts of law, or in the heads of departments. The Congress, during a famous debate of 1789, recognized that the power of removing the officers of the executive branch was vested in the President alone and that the Congress could not limit this power by providing that removal, like appointment, required senatorial advice and consent. The constitutional principle that the power of removal of executive officers is vested in the President alone was judicially recognized in Myers v. United States, 272 U.S. 52 (1926). The only constitutional way in which Congress can bring about the removal of an executive officer, without abolishing his office, is by way of impeachment-a process which involves a trial by the Senate and conviction by two-thirds of the Senators present.
The Presidents have on several occasions successfully defended from congressional encroachment their exclusive power to remove executive officers. When, in 1924, in connection with the Teapot Dome scandal, the Senate passed a resolution calling for the removal of Secretary of the Navy Denby (65 Congresresolution calling for the removal of Secretary of the Navy Denby (65 Cong. Rec. 2245), the President declined to comply with that request. He stated :
"The dismissal of an officer of the Government, such as is involved in this case, other than by impeachment, is exclusively an executive function. I regard this as a vital principle of our Government.” (65 Cong. Rec. 2335.)
In December 1930, the Senate confirmed the nomination of three members of the Federal Power Commission and ordered that the resolution of confirmation be forwarded to the President, who thereupon appointed those officers. After the Christmas recess, the Senate voted to reconsider the nomination and asked the President to return the resolution of nomination. President Hoover refused to comply with that request. He said:
"I an advised that these appointments were constitutionally made, with the consent of the Senate formally communicated to me, and that the return of the documents by me and reconsideration by the Senate would be ineffective to disturb the appointees in their offices. I cannot admit the power in the Senate to encroach upon the Executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination."
The Supreme Court upheld the President's refusal to permit the removal by the Senate of validly appointed officers.?
Section 304 of the Urgent Deficiency Appropriation Act of 1943 (57 Stat. 431, 450) provided that no funds could be used to pay the salaries of three named Government officials. When President Roosevelt signed the bill, he stated :
“The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional.
"This rider is an unwarrented encroachment upon the authority of both the executive and the judicial branches under our Constitution. It is not, in my judgment, binding upon them." (89 Cong. Rec. 7521.)
In United States v. Lovett, 328 U.S. 303, the Supreme Court held that this attempt to remove the three officials by cutting off their salaries was uncon
I Congress can llmit the President's power to remove quasi-legislative or quasi-judicial officers. Wiener v. United States, 357 U.S. 349: Humphrey's Erecutor v. United States, 29.5. U.S. 602. The offices of the Director of the Peace Corps and of the Office of Economic Opportunity do not, however, fall into those categories.
united States v. Smith, 286 U.S. 6. fn. 3 at 28-29 ; see also 36 Op. A.G. 382. The opinion of the Court deals primarily with interpretation of the Senate rules rather than with the question here involved.
stitutional. While the Court relied on the bill-of-attainder clause of the Constitution, which would probably not be applicable in the present case, its reasoning rested in part on the proposition that the legislative branch has available to it only one procedure; namely, impeachment, for the removal of officers of the executive branch.
When the Economic Opportunity Act was before Congress last year it was generally known that Mr. Shriver would be appointed to administer that act; when Mr. Shriver was appointed Director of the Office of Economic Opportunity it was known to the Senate that he would hold the two offices. Had it wished to do so at that time, Congress could have provided in the legislation that the Director of the Office of Economic Opportunity could not be Director of the Peace Corps, or the Senate could have refused confirmation for that reason. For Congress may impose reasonable qualifications, applicable prospectively, upon those who would hold executive posts it has created. But if Congress could impose qualifications retroactively, thereby ousting the incumbent, it could remove any officer whose performance, however satisfactory to the President, was unsatisfactory to it. The Constitution is certainly not susceptible of any such interpretation.
In view of the fact that Mr. Shriver has been appointed, by and with the advice and consent of the Senate, to both of the offices which he now holds, the Congress may not constitutionally undo either appointment by legislation. So long as both posts continue to exist, the incumbent can be removed only by Presidential action or by impeachment.
ATTORNEY GENERAL, Mr. Dixon. The full statement, as I said, contains some comments on the provisions of three of the bills providing that the Deputy and Director of OMB are to be appointed for terms of 4 years to coincide with the term of the President who has appointed them. I believe that is handled quite adequately in my statement. It may not be of interest for our discussion here.
In conclusion, I would like to state that the Director of OMB has expressed his views and the views of OMB on the policy implications of the bills. He has strongly opposed on constitutional grounds the applicability of these bills to the incumbents, which is a separate issue from retroactivity.
Mr. Horton. Mr. Chairman, the testimony you have given here with regard to the retroactivity problem refers to the Ervin bill and to the bill that is now before us, the Brooks' bill. Now Mr. Brooks, in his testimony this morning, indicated that he was going to submit an amendment, which we haven't seen yet, but I am sure it will be forthcoming. He is going to change the rules of the game, so to speak, the bill is going to be changed. He is going to amend it to create a new oflice, as I understand it.
After we get this proposed amendment, I may ask the chairman to ask you to take a look at it and then report back to us on it.
Mr. Brooks has been asking questions with regard to the termination of the agency and this sort of thing. Now, if the Congress does terminate the agency and if they create a new agency, I would assume you. then have a different situation. But I think I will have to wait too until I see the amendment before I take a position on that. The bill before us has the 4-year term provision, and you say this would be inconsistent with all of the other appointments that are made. The Secretary of Defense, I don't think he has a 4-year term. The Secretary of HEW, and so on, none of these has 4-year terms.
I don't know of any of the Secretaries that has any fixed term. They serve at the pleasure of the President.
Now, here we have one of the closest advisers to the President, who is doing his right-hand work with regard to management and budget matters. The Congress is going to say this man has a term of 4 years; I think that is a very serious problem. You have also addressed yourself to another problem which is the incumbent OMB Director will have to be confirmed. In other words, he can serve 30 more days, and that is the end of his term.
Now, the thrust of your testimony here today is to say that when you do it that way, it violates the Constitution; that you are doing something indirectly which you are not permitted to do. In other words, the Congress can't remove Mr. Ash. He was appointed by the President, and he can serve at the pleasure of the President. There is nothing in the law which says we must confirm him. The Congress has said this is an inferior office, and we are not going to require confirmation. The President, acting on that authority which has been given him by the Congress, appointed Mr. Ash. Now the Congress comes along and says he can only serve 30 more days and then he has to be confirmed, and it makes no difference whether he submits his name or not.
The point is that the Congress is terminating his appointment and saying he has to now be confirmed. That is what you have been addressing your remarks to; isn't it?
Mr. Dixox. That is the focus of our testimony. The Department of Justice feels very strongly that an act of the sort you have just described would be an unconstitutional exercise by Congress, or an attempted exercise by Congress of the power to remove an executive official.
Mr. HORTON. I would like to have you look at this question of abolishing an agency and then immediately recreating it. Is that unconstitutional ?
Now, don't answer that question without looking at the books, but I would like you to have your answer.
Chairman HOLIFIELD. Be careful how you answer it. Mr. HORTON. But I do think we ought to have your expert judgment on that.
Mr. Dixon. After we receive the draft, we would want to study it, and would be pleased to comment on the new language.
(The information referred to follows:)
I. SUMMARY OF DEPARTMENT OF JUSTICE POSITION ON H.R. 3932 AND S. 518 AS
BASIS FOR COMMENT ON THE BROOKS' SUBSTITUTE BILL In approaching the issue of the constitutionality of the substitute of Congressman Jack Brooks for H.R. 3932 and S. 518, we believe it appropriate to summarize the considerations which dictated our conclusion that H.R. 3932 and S. 518 are unconstitutional. We concluded regretfully in our statement and testimony at the March 5, 1973, hearing that S. 518 as passed by the Senate and embodied substantially verbatim in H.R. 3932 ’ is unconstitutional for the following reasons.
First, as set forth on pages 5-8 of our statement of March 5, both nonjudicial precedents concerning attempted congressional limitation of the power of the President to remove or retain purely executive officials, and direct rulings of the Sipreme Court dictate the conclusion that attempts by Congress to remove execu
1 The bills would in effect remore from office by direct congressional action the incumbent Director and Deputy Director of the Office of Management and Budget. Because these OMB offices would nevertheless continue, the President would have the option of reappointing these officials, but only under the new condition of senatorial confirmation.