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(The letter referred to follows:)
Cambridge, Mass., March 5, 1973.
tives, Washingon, D.C. DEAR MR. CHAIRMAN : I write to express my views on the bill which is now before your Committee which would require that the Director of the Office of Management and Budget be appointed with the advice and consent of the Senate. My views on this subject grow out of a long-standing interest in federal policy, structure, and operation, in Congressional-Executive relations, and particularly from my experience in the mid-1960's as an Assistant Director of the Office then known as the Bureau of the Budget.
This legislation, which has already passed the Senate, is one manifestation of current Congressional concern over the relationships between the Executive Branch and the Congress regarding the budget. I share this concern, since it has long been my view that the present structure and processes in the budget sphere require reexamination and revision. In particular, I hope very much that the Congress will adjust its own structure and procedures so that it can more effectively discharge the role placed on it in the Constitution in this sphere.
Having said this, I must indicate that I have serious reservations about the legislation in question. First, I do not believe requiring Senate approval of the Director of OMB gets at the underlying set of problems of current Congressional concern. Indeed, if anything this legislation directs Congressional attention away from the really significant issues. I recognize that passage of this legislation at this time will provide a symbolic act signaling to the Executive and to the general public Congressional concern and unhappiness—but I hardly think that such a signal is necessary today.
Even if favorable action on this legislation at the present time were to serve some marginal and short-run purpose, I know you and your colleagues agree that we should think carefully about longer-run consequences and implications of changes such as that proposed. Although I recognize that “the advice and consent" requirement is largely symbolic, especially for offices such as the Director of OMB, I question whether this is a desirable provision for the long run. If the President is to carry out the executive function as required by the Constitution and amplified by a long series of requirements placed on the President by the Congress, he must be served by a set of staff officers responsible solely to himand for whose actions he is solely responsible. Whatever the personal power and influence of the Director of OMB at any given time, he acts in the name of the President and is a staff official responsible to the President. His role is, or should be, sharply distinguished from the role played by cabinet officers and independent agency heads. Officials in those positions are, of course, responsible to the President, but they also have operating responsibilities, including particularly the expenditure of funds appropriated by the Congress. Senate approval of persons nominated by the President for these positions rests on a very different footing and can serve legitimate purposes. I have long held the view that all officials in the Executive Office of the President should hold their positions solely at the pleasure of the President. Thus, I think a mistake was made in 1916 when the Employment Act made the appointment of members of the Council of Economic Advisers subject to the advice and consent procedure.
One of the potential dangers of requiring Senate approval of the Director of OVB is that it will tend to confuse the relationship and role of that official and mas tend to “politicize" that office in a way which could be undesirable. Just as the President should be able to appoint to staff and advisory positions in the White House itself, so should he have that privilege with regard to the Director of OMB.
It is sometimes suggested that the proposed legislation will help the Congress in regard to the vexing problem of executive privilege. I claim no expertise in this regard with regard to the Constitutional issues involved. However, it is my view that the manner of appointment of an official and executive privilege a re distinct and separate issues. Executive privilege can be claimed by the President with regard to the testimony sought by the Congress on any given issues regardless of how that official is appointed. I see no reason to believe
that the Director of OMB will be any more or less accessible to the Congress whether or not he is appointed with the advice and consent of the Senate. I am familiar with past practice regarding the willingness of the Director of OMB (and its predecessor agency, the Bureau of the Budget) to appear before Congressional committees. I know of no case where decisions to accept invitations to appear before the Congress which came to the Director and other appointed officials in the then-BOB would have been treated differently had the Director been appointed under the proposed procedure.
In short, I question the desirability of the proposed legislation, first, because I do not believe it will accomplish what I understand to be the underlying purposes of its sponsors in the Congress and, second, because I feel it might lead to confusion and distortion with regard to the office of the Director of OMB in his role as a principal staff official to the President. Sincerely yours,
WILLIAM M. CAPRON, Associate Dean.
STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL
Chairman HOLIFIELD. Mr. Dixon, I notice that you have been doing some homework since you were here before. How much of this is reference material and how much of it is statement?
Mr. Dixon. Mr. Chairman, I deeply appreciate this opportunity to return here to present the views of the Department of Justice on the bill of Congressman Jack Brooks on the question of Senate confirmation of the Director and Deputy Director of the Office of Management and Budget. I will try to be very brief. Chairman HOLIFIELD. You are not going to read your statement ? Mr. Dixon. I am not.
With your permission, Mr. Chairman, I would like to file my lengthy prepared statement and its appendages, and then, in the course of perhaps 5 or 10 minutes, attempt to give you a short road map into it.
Chairman HOLIFIELD. Very well; go ahead. Your statement will be received, and the appendixes will be received in full for insertion in the record.
If you will summarize it as quickly as possible, we will be grateful. (Mr. Dixon's prepared statement follows:)
PREPARED STATEMENT OF ROBERT G. Dixon, JR., ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNCIL
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 constitionality 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 non-judicial precedents concerning attempted Congressional limitation of the power of the President to remove or retain purely Executive officials, and direct rulings of the Supreme Court dictate the conclusion that attempts by Congress to remove Executive 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.
1 The bills would in effect remove 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.
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 co-equal 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 Executire. 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 ont 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 co-equal 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 Cong. Rec. 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 require ment with respect to these positions it wishes, including a requirement that future 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
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 erclusive power of removal.” 272 U.S.. at 122. (Emphasis added.)
And in Humphrey's Erecutor 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. (Emphasis added.)
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 “re-establishing” 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.
In United States v. Butler, 297 U.S. 1, 68 (1936), the Supreme Court pointed out:
"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 [Fifteenth] 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 "re-establishment" 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). (Emphasis added.)
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 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 er 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
8 Article VI, section 4 (now Article 6$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.