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CORRESPONDENCE PERTAINING TO H.R. 3932 AND RELATED BILLS
EXECUTIVE OFFICE OF THE PRESIDENT,
March 13, 1973.
Government Operations, House of Representatives, Washington, D.C. DEAR CHAIRMAN HOLIFIELD : This is in reference to my written report to you of March 1973, and my appearance, together with Assistant Attorney General Dixon, on March 5, 1973, before your subcommittee concerning a group of bills calling for the Senate confirmation of the Director and Deputy Director of the Office of Management and Budget.
During the hearing before your Subcommittee, Representative Brooks proposed a substitute bill which would abolish the Offices of Director and Deputy Director of the Office of Management and Budget and immediately reestablish those offices as positions subject to Senate confirmation. The substitute bill would also provide for the transfer to the Director of the Office of Management and Budget of all of the functions that were transferred from the Director of the Bureau of the Budget to the President by Reorganization Plan No. 2 of 1970.
During the hearing on March 5, 1973, Assistant Attorney General Dixon expressed the opinion that the substitute bill presented by Representative Brooks was Constitutionally defective because it proposed to accomplish by indirection that which cannot Constitutionally be achieved directly-namely, the legislative removal of Executive Branch officials.
Since that time, Mr. Nixon has sent you a written statement reaffirming his oral opinion that the substitute bill is Constitutionally defective. My legal staff members have advised me that they are in full accord with the views expressed by Mr. Dixon.
Aside from that Constitutional issue, the provisions of the substitute bill that would have the effect of requiring future appointments of Directors and Deputy Directors of the Office of Management and Budget to be made subject to Senate confirmation are, in effect, comparable to provisions of the bills on which I reported and testified and are objectionable to this Administration for the reasons that I expressed in connection with that group of bills. In addition, the provisions of the substitute bill that would provide for the transfer from the President to the Director of the Office of Management and Budget of functions that were transferred from the Director of the Bureau of the Budget to the President by Reorganization Plan No. 2 of 1970 are objectionable as a backward step in our effort to bring about better management and greater efficiency in the Executive Branch.
Accordingly, enactment of the substitute bill would not be in accord with the program of the President. Sincerely,
Roy L. Ash, Director.
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., March 5, 1973. Hon. CHET HOLIFIELD, Chairman, Committee on Government Operations, House of Representatives, Tashington, D.C.
DEAR VR. 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 ninety 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, 4849 (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 success. ful suit by the individuals for their salaries, the Department of Justice sided with the plaintiffs. 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 reaffirm.
As James Madison said in 1789, during the Great Debate on the President's removal 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. * * *" I Ann. Cong., Cols., 581-582.
A problem analogous to the one presented by these bills occurred in 1965 when Sargent Shriver simultaneously held the offices 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 officer 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 ninety 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.