tive officials by direct action, as in H.R. 3923 and S. 518, are unconstitutional. In particular, the landmark decision of the Supreme Court in Myers v. United States, 272 U.S. 52 (1926), exhaustively reviewed the removal power and in strong language, seemingly designed to settle the issue for all time, held unconstitutional a statute providing that postmasters appointed with the advice and consent of the Senate could be removed only by that process.*

Second, since we are concerned not merely with conventional executive officials but with the inner circle of Presidential advisers, the principle of the Myers case receives strong and independent support from the separation of powers principle. The President is a constitutional officer, separately endowed with the power and responsibility to serve as Chief Executive and to take care that the laws be faithfully executed. This central constitutional principle of separation of powers necessarily implies that the President shall and must have a number of persons serving him immediately and exclusively as staff advisers. This principle of our separation of powers system would be thwarted, and even defeated, if the President were not accorded exclusive power to select, remove, and retain this inner core of personal advisers. The effect of congressional infringement on the separation-of-powers-based principle of direct and exclusive Presidential control of his immediate advisers would be to move us-without a constitutional amendment-a long way toward a parliamentary system, and it would do so without even creating a Prime Minister-thus giving us the worst of all possible worlds.

We feel it to be generally conceded that the principle of separation of powers, basic to our constitutional system of government, requires that each of the three coequal branches of our Government be permitted to function independently, without undue interference by the other branches. While such a principle is not expressly set forth in the Constitution, it is implicit in the separate and distinct establishment of the three branches of Government in Articles I, II, and III of the Constitution. See Ex Parte Grossman, 267 U.S. 87, 119 (1925).

The Constitution, of course, does not envision total separation between the branches. Thus, the Congress may appropriate funds for the operation of the executive and judicial branches, the President may veto legislation passed by the Congress, and the courts may rule on the constitutionality of legislation enacted by the Congress and enforced by the executive. With respect to the power of appointment, the Constitution also does not call for total separation, reserving to the Senate the advice and consent function. However, the Senate confirmation role should not extend into the inner circle of Presidential advisers. Thus, the President's personal advisers on matters of policy in both domestic and foreign affairs are not and should not be subject to Senate confirmation. If complete discretion of the President is not preserved in this area, the integrity of the executive as a coequal branch of the Government can no longer be maintained.

The Director and Deputy Director of the Office of Management and Budget enjoy a unique and very direct relationship with the President in aiding and advising him in managing the executive branch of the Government. In many respects, the Director is in a position comparable to the close personal advisers of the President, dealing with the entire executive branch in a manner in which no Cabinet or agency head would do. The debate on the Conference Report on the Budget and Accounting Act of 1921 shows that the House insisted on nonconfirmation of the Director of the Budget because he was to be the "President's man." See Congressman Garner's statement, 61 Congressional Record 1857 (1921), and the materials cited in appendix A to statement of March 5, 1973, submitted for the record on March 7, 1973, which is attached here for convenience.

Because the positions of Director and Deputy Director of OMB are created by statute, the Congress is theoretically in a position to lay down whatever requirement with respect to these positions it wishes, including a requirement that future

24 * The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal." 272 U.S., at 122. And in Humphrey's Executor v. United States, 295 U.S. 602, 627, the Court stated:

"The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department and, hence, subject to the exclusive and illimitable power of removal of the Chief Executive, whose subordinate he is." 295 U.S., at 627.

appointees be subject to Senate confirmation. However, the close and vital relationship between these offices and the Presidency would render such a move questionable from a policy if not a legal standpoint. Nor is the statutory basis of these positions necessarily decisive on the question of confirmation. If the Congress were by statute to create a new position for a foreign affairs adviser to the President (presently the Assistant to the President for National Security Affairs), it could then be argued that the individual currently holding such a position (Dr. Henry A. Kissinger) also is subject to Senate confirmation. If successful, the Congress could in this manner deprive the Presidency of all independent powers to appoint advisers and personal assistants, thereby rendering the President little more than a figurehead subject to an all powerful legislature. Such a European "parliamentary" system is not consistent with the American separation of powers principle and was clearly not the system envisaged by the Founding Fathers in establishing the Presidency.

As revealed by the material in appendix A, attached, Congress has respected this unique position in the past by leaving the appointment of the Director of OMB to the discretion of the President. To do otherwise, in our view, would be clearly inconsistent with the separation of powers principle.

Third, we further believe, as developed in our statement and testimony of March 5, 1973, that because of the seemingly direct and personal focus of H.R. 3932 and S. 518 on the incumbent Director and Deputy Director of OMB, the legislation would be unconstitutional for the additional independent reason that it trenches on the bill of attainder clause. In the highly significant case of United States v. Lovett, 328 U.S. 303 (1946), the Supreme Court invoked this clause to hold unconstitutional a statute which attempted to remove specified incumbents in Federal office by direct congressional action rather than Presidential action. Congress has seldom attempted to step directly into the President's shoes regarding the removal power of a purely executive officer. The high-water marks in the past were primarily attempts to limit the conditions of Presidential action-as in the ill-fated Tenure of Office Act of 1867 whose principle was finally invalidated in Myers v. United States, supra-and not to remove such an officer by direct congressional action.

II. DEPARTMENT OF JUSTICE POSITION ON PROPOSED SUBSTITUTE OF CONGRESSMAN BROOKS FOR H.R. 3932 AND S. 518

The foundation from which we approach the question of the constitutionality of Congressman Brooks' proposed substitute for H.R. 3932 and S. 518 is that the President has the exclusive discretion to remove or retain duly appointed executive branch officers, most especially, when they are members of the President's intimate official family, safeguarded by the principle of separation of powers which distinguishes us from a parliamentary system.

Approaching the proposed Brooks' substitute from the perception that, as demonstrated above, the original proposal for direct congressional removal of the incumbent Director and Deputy Director of OMB is unconstitutional, the question now before us is:

Does the device of nominally "abolishing" the positions of OMB Director and Deputy Director and immediately "reestablishing" them subject to the requirement of senatorial confirmation avoid an unconstitutional invasion of the President's exclusive power of removal?

Our response is that the new method of seeking to achieve the congressional objective is an equally unconstitutional infringement on the President's exclusive power to remove or to retain the officers of the executive branch of the Government.

The Brooks bill may be summarized as follows:

Section 1 would "abolish" the offices of Director and Deputy Director of the Office of Management and Budget provided for in section 207 of the Budget and Accounting Act of 1921, and redesignated by section 102(b) of Reorganization Plan No. 2 of 1970.

Section 2 would "establish" the offices of Director and Deputy Director, OMB, and provide that they are to be filled by and with the advice and consent of the Senate.

Section 3 would transfer to the office of the Director, OMB, created by section 2 the functions transferred to the President by section 101 of Reorganization Plan No. 2 of 1970, and all functions vested by law in OMB or the Director of

OMB. The section would also authorize the President to assign to "such office" from time to time such additional functions as he may deem necessary, and authorize the Director to assign to the office of the Deputy Director such functions as he may deem necessary.

Section 4 would provide that the Director and Deputy Director serve at the pleasure of the President.

Section 5 would amend 5 U.S.C. 5313 (11) (not 5315) and 5314 (34) to conform with the changes in the titles of the Director and Deputy Director, Bureau of the Budget, to Director and Deputy Director, Office of Management and Budget.

Section 6 would provide that the legislation would become effective on the 31st day following its enactment.

The bill concededly attempts to meet our objection that Congress cannot require the reappointment of officers who have been validly appointed since this would in effect amount to a legislative removal, a power which the Supreme Court says Congress lacks, except by the process of impeachment. It seeks to overcome this hurdle by resort to the power of Congress to totally and finally abolish any office which it has created.

The bill raises the question whether Congress can utilize one power (really only a shadow of a power because total abolition is not here involved) in order to achieve by indirection what it cannot do directly. The answer is that it cannot. "It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted.” And in Lane v. Wilson, 307 U.S. 268, 275 (1939), the Court held.

"The [15th] amendment nullifies sophisticated as well as simple-minded modes of discrimination."

Similarly, it may be said here that the Constitution prohibits sophisticated as well as direct legislative attempts to interfere with the exclusive removal power of the President.

We are not aware of any decision of the Federal courts involving an attempt of Congress to remove an officer through the partial exercise of its power to totally "abolish" his office accompanied by immediate "reestablishment" of the office. In the States, however, this type of legislation (frequently called ripper bills), has not been uncommon. Where the legislature lacked the power to remove the officials whose offices were abolished, either because the incumbents held office during good behavior, or had tenure under the civil service laws, or because, as here, the power of removal was vested in the appointing authority, State courts have held that the abolition of the office had to be genuine and not merely colorable, otherwise as here, "it will be considered a device to unseat the incumbents." State ex rel. Hammond v. Maxfield, 103 Utah, 1, 7-8, 132 P.2d 660, 663 (1942). As early as 1800 the Court of Chancery of South Carolina ruled that where a person held his office during good behavior a mere change of name of the office without a change of its duties could not deprive the incumbent of his office; "the legislature thus might get rid of any officer thereby rendering the clause in the constitution respecting impeachment a mere nullity." Case of Wm. Hazel Gibbes, 1 Desaussure 581 (S.C. 1800).

In Pennsylvania, two main cases decided by the State supreme court deal precisely with the question involved here-the scope of the power of the legislature to abolish an office where the power of removal is not vested in it, but in the authority which had appointed the officer. Commonwealth ex rel. Kelley v. Clark, 327 Pa. 181, 193 Atl. 634 (1937), and Suerman v. Hadley, 327 Pa. 180, 193 Atl. 645 (1937).

The Kelley case involved State legislation which abolished a city civil service commission appointed by the city council and replaced it with one appointed by the mayor which had substantially the same functions as the one which had been abolished. The Supreme Court of Pennsylvania held that the statute violated article VI, section 4 of the State constitution which had been interpreted to vest the authority to remove an officer exclusively in the power which had appointed him. The court pointed out that the intention of the legislation was to oust the incumbent, but not

3 Art. VI, sec. 4 (now art. 6. sec. 7) of the Constitution of Pennsylvania provides that "appointed civil officers other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed." The courts have interpreted this method of removal to be exclusive. 327 Pa., at 188, 193 Atl., at 637, supra, and the authorities cited there.

92-416-73-8

** to abolish the office; language in the Act of May 19, 1937, supra, that it [the office] is abolished is mere subterfuge. The intention to the contrary is too obvious. The best that can be said is that the legislature attemtped to abolish and continue the office at one and the same time, and impossible thing. Such a device cannot succeed, and while the question is a new one for this court, various other courts have so declared." 327 Pa., at 186, 192 Atl., at 636.

The court then quoted at length from State ex rel. Birdsey v. Baldwin, 45 Conn. 134, 144 (1877), which held that a legislature cannot in the same act abolish and reestablish the same agency. Such legislation contains the "elements of self-destruction. It attempts to kill and make alive at the same instant, an impossibility."

The court in the Kelley case continued that while an office created by the legislature could be abolished at any time by the legislature, it did not follow that the legislature "can by direct or indirect means continue the office and remove an incumbent whom it has not appointed *** It follows, since there was no real abolishment of the office, that the attempted removal of the then existing commissioner was beyond the power of the legislature." 327 Pa., at 188, 193 Atl. at 637.

Suerman v. Hadley, supra, decided on the same day as Kelley, involved a similar situation. The court started with the proposition that even where the legislature does not have the power to remove officers, it still has the power to abolish the office and thereby put an end to the incumbent's tenure. This, however, requires a genuine, permanent abolition of the office. But where the legislature in the same act abolishes an office and recreates it or a substantially similar one, it is merely attempting to remove the official in violation of constitutional provisions denying removal power to the legislature.“

In Utah the case of State ex rel. Hammond v. Maxfield, 103 Utah 1, 132 P. (2d) 660 (1942), supra, also involved a situation in which a legislature which lacked the power of removal abolished a State commission and substituted another. While the court found that the action did constitute a legitimate reorganiation, it carefully outlined the circumstances in which such action is permissible. It held that the power of the legislature to abolish and recreate offices may not be utilized "to circumvent by indirection the Governor's power to remove," and that the courts therefore may scrutinize the new office set up in place of the one which has been abolished. The legislature acts within its powers when the old office is completely abolished, or if the new office has such substantially new, different, or additional functions that in fact creates an office different from the one abolished." On the other hand, when the functions and powers of the new office are substantially identical with those of the office which has been abolished, it will be implied that the purpose "was to abolish the officer and not the office." 103 Utah, at 9-10, at 9-10, 132 P. (2d), at 664."

"Abolishment of office carries with it the idea of doing away with the identical office perpetually; this is not accomplished by stating in one act that the office is abolished, and in another or the same act providing for the recreation of the same office or one substantially similar. When the legislature so acts it is simply attempting a removal from office in violation of art. VI, sec. 4, and the act falls: Commonwealth v. Clark et al., 327 Pa. 181." Suerman v. Hadley, 327 Pa. 190, 197, 193 Atl.. at 650.

5 The Constitution of Utah has no specific provison relating to the power to remove an officer without cause. As in the case of the United States the courts have held that the power to appoint embraces the power to remove (Skeen v. Browning, 32 Utah 164. 168, 89 Pac. 642 (1907)), and that this power of removal is exclusive. Hanchett v. Burbidge, 59 Utah 127, 202 Pac. 377 (1921); State ex rel. Hammond v. Maxfield, supra, 103 Utah, at S. 132 P. (2d) at 663.

6"In order that the legislature may not circumvent by indirection the Governor's power to remove, the courts have scrutinized the new office set up in the place of the one abolished. If the office is completely abolished and no substitute created nor its duties distributed among other offices, it may be so abolished whatever the motive.

"The chief characteristics of an office are the functions, duties, and powers which appertain to it. If the newly-created office has substantially new. different, or additional functions, duties, or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one office and the creation of a new or different one." 103 Utah. at 89, 132 P. (2d). at 663.

7 "But if the functions, duties and powers are substantially those of the office abolished, the abortion will be considered merely colorable and the pretended new office be considered in actuality a continuation of the old. Consequently, where one office is purposed to be abolished and a new office purported to be set up the courts will examine the entire transaction for purpose or motive. If the function, duties or powers are substantially the same it will be a strong indication that the purpose was to abolish the officer and not the office. It is essentially a matter of good faith." 103 Utah 9-10, 132 P. (2d), at 664.

The court summarized the pertinent considerations as follows:

66

** The right to create or abolish offices and the right to shorten terms is only limited by the condition that it must not be used for the purposes of removing an officer. If it is legitimately used for purposes of reorganization, combination or merger, it is within the legislative powers and purposes and no reason exists for curtailing such use of power even though incidentally an officer may be removed from his office by it. Likewise where an office is not abolished nor its term shortened but the incumbency truncated and present incumbent removed and another substituted for him merely as incidental to an exercise of the paramount legislative power legitimately to create or abolish offices as part of a bona fide plan or reorganization, the same principle applies. * The ability of the legislature to reorganize or combine or merge offices or transfer the duties from one office to another or amalgamate duties under one officer or combine offices under one officer must remain as flexible as possible up to the point of actually using that power for the purpose of getting rid of incumbents. The legislature should be halted only where it is plain that it was using its powers for the purpose of usurping or circumventing the constitutional power of another who had in such case the only right of removal.” 103 Utah, at 13-14, 132 P. (2d), at 665. (Emphasis added.)

Decisions which deal with the power of the legislature to utilize its authority to abolish an office, to override statutes providing for fixed terms of office, or civil service employees' rights of tenure are to the same effect.

Thus it has been held in Tennessee that while the legislature has the power to abolish existing offices and to create new ones "the change in the form of government must be real, and not colorable, for the purpose of putting one set of men out of office and another set in office." Such changes are only "colorable" where the differences between the old and new offices "are confined to mere matters of detail and cannot have the effect of changing the identity of the office ***." Smith v. Sells, 156 Tenn. 539, 541, 542, 3 S.W. (2d) 660 (1928). In Hunziker v. Kent, 111 N.J.L. 565, 168 Atl. 824 (1933), which dealt with a civil service employee's tenure rights, the court pointed out:

"The abolition of an office or position must, of course, be bona fide. It must not be a mere device resorted to for the purpose of removing an officer or employee, while the office or position practically still remains in existence. Such a subterfuge would be of no avail. Cf. Evans v. Board of Chosen Freeholders, 53 N.J.L. 585. McChesney v. Trenton, 50 Id. 338. It must not be a mere colorable abolition." 111 N.J.L., at 567, 168 Atl., at 826.

A "mere colorable" abolition of the office was found in Mattia v. Newark, 122 N.J.L. 557, 559–560, 6A. (2d) 662, 663 (1939), on the basis of the following:

"There was a mere colorable abolition of the office. The ordinance provides that the duties of the office shall be performed by an 'acting receiver of taxes'; and it is stipulated that 'the duties, salary, and departments under the supervision of the acting receiver of taxes and even the office space assigned for the use of said acting receiver of taxes are identical to those of the receiver of taxes, which office the prosecutor was appointed to and held, as aforesaid, and that said duties, salary, departments, and offices will continue to be the same.' Thus it is that the office continues in existence with a minor variation of title that denotes mere impermanency of tenure without change in the nature or quantum of the duties to be performed by the incumbent. The formal assignment of the duties of the office to the departmental head is of no significance. This function was designed to be supervisory, and plainly existed before under the law. The office has not in fact been abolished; * * *"

The issue here regarding the bill of Congressman Brooks is whether the abolition of the office of Director and Deputy Director, OMB, by the proposed bill would be genuine or only colorable. It is our opinion that the latter is the case and that it therefore cannot impinge on the exclusive nature of the President's removal power. The same legislation would abolish and recreate the two offices. It has been shown above that statutes of that type suggest strongly that their purpose is not to abolish an office but to oust the incumbents. This basic purpose of the bill also appears from its title which is "to provide for the appointment by the President by and with the advice and consent of the Senate of a Director. Office of Management and Budget, and for other purposes." The title of the bill is totally devoid of any indication that the bill is designed to abolish the office or to change its status or responsibilities.