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 attempted to abolish and continue the office at one and the same time, an 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, 193 Atl., at 636. (Emphasis added.)

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 commissioners 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 reorganization, 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, 132 P. (2d), at 664.7

"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 Article VI, section 4, and the act falls: Commonwealth v. Clark et al., 327 Pa. 181." Suerman v. Hadley, 327 Pa. 190, 197, 193 Atl., at 650.

The Constitution of Utah has no specific provision 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 8. 132 P. (2d), at 663.

"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 8-9, 132 P. (2d), at 663.

"But if the functions, duties and powers are substantially those of the office abolished, the abolition will be considered merely colorable and the pretended new office be considered in actuality a continuation of the old one. 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:

"*** 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, 6 A. (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 abo lition 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.

Moreover, there is no real difference in the duties of the office abolished by section 1 of the bill and the one created by section 2. According to section 3 of the

bill, the officer "established" by section 2 would be charged with the performance of the functions transferred to the President by section 101 of Reorganization Plan No. 2 of 1970 and of all functions vested by law in OMB or its Director. These are substantially the same functions which are now performed by the Director. He now discharges both the statutory functions of that office and virtually all the functions transferred to the President by Reorganization Plan No. 2 of 1970. Executive Order No. 11541, section 1(a), delegates to the Director, OMB, all the functions transferred to the President by Part I of Reorganization Plan No. 2 of 1970. The only difference between the functions of the Director whose office would be abolished by section 1 of the bill and those of the Director whose office would be created by section 2, would be that the former derived his authority from a Presidential delegation while the latter would receive statutory authority. Since the functions would be identical, the source from which they are derived, i.e., by statute or by delegation, is immaterial. Reorganization plans frequently shift the source of an officer's authority. It has never before been claimed that this difference required his reappointment.

CONCLUSION

Because the proposed bill would not accomplish a genuine "abolition" of the offices of the Director and Deputy Director of the Office of Management and Budget, the incumbents would remain in office, so that the President would not be required to reappoint them by and with the advice and consent of the Senate. In short, we reiterate, as already stated in our March 5, 1973 statement, that the attempt in H.R. 3932 and S. 518 to remove the incumbents by direct Congressional action is unconstitutional under historical usage and directly relevant judicial precedents. We also now conclude that the continued attempt to reach this unconstitutional objective by the indirect method of abolishing and then immediately recreating the offices is equally unconstitutional. The Constitution forbids all branches of Government from infringing by indirect means on constitutional principles which they are forbidden to override by direct action.

APPENDIX A

From the material set forth in this Appendix, it appears that Congress has long recognized the importance of having a Bureau of the Budget presided over by a Director selected by the President alone as a means of giving full effect to the President's constitutional role as the responsible head of the Executive Branch

1. HISTORY OF THE BUDGET AND ACCOUNTING ACT OF 1921

The legislative history of the Budget and Accounting Act of 1921 is particularly instructive in this regard. The Senate bill (S. 1084) provided that the Director of the Budget and the Assistant Director of the Budget shall be appointed by the President, with the advice and consent of the Senate. The House bill provided that they shall be appointed by the President. The bill was sent to conference on this difference of viewpoint, among others. The managers of the bill agreed on the House version, which left the appointment of these officers with the President without requiring the advice and consent of the Senate. However, in order to satisfy the Senate and as part of a compromise, the House agreed that the bill should provide that the Director of the Budget shall be "in the Treasury Department," but it was pointed out that this was "an idle phrase." 61 Cong. Rec. 1854-55, May 27, 1921. In discussing this point, Congressman Good, manager of the bill on the floor of the House, and Chairman of the Committee which had favorably reported the bill, stated the following:

"It does not mean anything, because the real meat in the section is the power granted by the section, and the only power conferred is the power we give to the President. The President is given power to appoint the director and the assistant director and he is not required even to get the confirmation of the Senate, because it was thought that for these offices that would be so peculiarly the President's

Section 3 of the bill would vest in the Director, OMB, a few functions now held by him, but which had been delegated to him until recently. The President by Executive Order No. 11609 of July 22, 1971, delegated to some officials, especially the Administrator, GSA, some of the functions transferred to him by Reorganization Plan No. 2 of 1970, which until then had been delegated to the Director. OMB. The test developed by the courts, however, requires only that the old and new offices be substantially identical.

staff, the President's force, the President, without being questioned with regard to his appointments, should appoint the men whom he believed he could trust to do his will in the preparation of the budget, so that when the budget came before him it would be a budget that reflected his sentiment and his determination with regard to economy and with regard to expenditure. Then, too, the budget is to be prepared for the President under such rules and regulations as the President shall prescribe. No power is granted to the Secretary of the Treasury." (Emphasis added.)

Congressman Good was asked whether there was any question in his mind as to whether the position of Director of the Budget was that of an "inferior office" within the meaning of the Constitution. Congressman Good started that there was no question about the fact that this was an "inferior office," pointing out that under the Constitution a Cabinet position is also an "inferior position." It was then observed that a Cabinet officer has to be confirmed by the Senate. Id., 1856. Congressman Good replied:

"Yes; and so do postmasters; but nobody has claimed that they were superior officers. I think if the gentleman will look up the history of the Constitution he will come to the conclusion that we have a great many officers who are superior in the kind of administrative work that they do and in the importance of their obligations and their offices, but under the Constitution they are not designated as superior officers and are inferior officers. In my opinion, there is no question but that all of these officers that we create here are inferior officers, yet they are very important officers. I think the director of the budget will, in fact, become the President's assistant."

In this connection also Congressman Garner stated (Id., 1857):

"It has been said by the gentleman from Illinois (Mr. Denison) that the executive budgetary man is probably an inferior officer; but let me say to you, gentlemen, he is the President's man. The President does not even have to consult the Senate about him. He pays him $10,000 a year, and he is immediately under the direction of the President of the United States. It may be an inferior office, but if he will appoint a man with courage, a man who will do his duty, he will be the second largest man in the executive department of the Government." (Emphasis added.)

For the convenience of the Committee, there is attached hereto the entire debate of the House of Representatives on the Conference Report. There was no debate in the Senate, but the Conference Report was agreed to. 61 Cong. Rec. 1783, May 25, 1921.

2. HOOVER COMMISSION REPORT

In its 1949 Report, the U.S. Commission on Organization of the Executive Branch was evidently impressed with the Government's experience in the administration of the Bureau of the Budget under a director appointed by the President without Senate confirmation. The Hoover Commission stated (p. 16):

"APPOINTMENTS IN THE PRESIDENT'S OFFICE

"The Congress, when it enacted the Budget and Accounting Act in 1921, wisely made the Director of the Bureau of the Budget a staff agent to the President, to be appointed by him without the Senate confirmation that properly goes with appointment of heads of the operating agencies. Similarly, it recently authorized the President to appoint the executive secretary of the National Security Council without Senate confirmation.

"Recommendation No. 4

"The head of each staff agency in the President's Office should be appointed by the President without confirmation by the Senate except the Civil Service Chairman." (Emphasis added.)

3. SCHOLARLY COMMENT

Distinguished political science scholars have recognized the importance of allowing the President to have free rein in selecting a director of the Bureau of the Budget who will be responsible to the President alone. Set forth below are some of their views.

(a) Fritz Morstein Marx, The Bureau of the Budget: Its Evolution and Present Role, 39 Am. Pol. Sci. Rev. 653, 656 (1945):

In discussing the main features of the Budget and Accounting Act, Marx said: "The outstanding feature of the new law lay in the fact that it supplied the chief executive with the services of a staff agency, the Bureau of the Budget, headed by an officer of his free choice. Thus, the act distinctly reversed the former trend toward departmental independence and self-determination, and helped to restore the chief executive of the nation to his constitutional role as the responsible head of the executive branch. In doing so, it established a conspicuous precedent for the line of reasoning which in 1937 found fuller expression in the report of the President's Committee on Administrative Management." [This report is set forth in S. Rept. No. 1275, 75th Cong., 1st Sess.] (Emphasis added.) (b) Joseph E. Kallenbach, The American Chief Executive (1966), 441. Describing the units that made up the Executive Office, which included the Bureau of the Budget "presided over by a Director chosen by the President alone," Professor Kallenbach said:

"The Bureau of the Budget. This agency, created originally by the Budget and Accounting Act of 1921, with a total personnel numbering 600 or more is the largest single unit in the Executive Office of the President. Loosely attached at the beginning to the Treasury Department, it was transferred to the Executive Office by President Roosevelt's reorganization plan in 1939. Presided over by a Director chosen by the President alone, its five divisions carry out activities that give meaning and substance to the President's function as general manager and controller of the operations of the national government's administrative machinery.” (Emphasis added.)

(c) Clinton Rossiter, The American Presidency (1956), 148.

In expounding the need for presidential freedom in dealing with the Executive Office of the President, including the Bureau of the Budget, Professor Rossiter has said:

"The Executive Office never will or should take on a permanent pattern of organization. Each President must feel free to tinker with it; no part of it, not even the Bureau of the Budget, should be considered too sacred to touch. The President, like the Red Queen, must run as fast as he can to stay in the same place. He must make a half-dozen adjustments in the course of his incumbency simply to keep pace with the rising tempo of his duties. The need in this vital area is for change and experiment, for an Executive Office that is not so much a perfect design as a plastic mosaic of formal and informal arrangements." (Emphasis added.)

4. THE NEED FOR PRESIDENTIAL FREEDOM IN SELECTING HIS BUDGET AND
ECONOMIC COUNSELORS AT THIS TIME

The developing needs of the Nation have required the President to continue to exercise even greater freedom than ever in setting up a staff, such as the Office of Management and Budget, and to enjoy equal freedom in selecting the members of this staff. In this way the President can be assured of assistants whose objectivity and independence are beyond question. This is made clear by Thomas Cronin of the Brookings Institution in his article, An Examination of White House-Departmental Relations, 35 Law & Contemp. Prob. 573 (1970). Cronin describes the work of the President's Budget and Economic Counselors, as follows (pp. 598–599):

"The Bureau of the Budget-now the Office of Management and Budget-has long played a central role (although with differing success) as an intermediary between White House and the departments. The Bureau has been expected to raise tough questions about program promise and performance: 'What will this program really do?'; 'Why has this program taken so long to get off the ground?', 'Why does this cost so much?', 'Why haven't you been in closer collaboration with other departments on this part of that program?'; and so forth. Not surprisingly, and in no small part intentionally, these investigative questions and the budgetary examination processes themselves beget a more or less adversary relationship with the departments. Moreover, Presidents and their senior White House staff assistants expect their budget and economic advisors to identify and bring to their attention department inconsistencies and specific program activities than run counter to the President's intentions. That conflict and heated argument result is not something that necessarily upset Presidents. One recalls John Kennedy's comment to two aides in the midst of one such heated debate: "The last thing I want around here is a mutual admiration society . . . When you people stop arguing, I'll start worrying.'