Office and Powers, 1787-1957 p. 76), similarly read this constitutional provision. That reading is to the effect that with respect to officers other than those specifically mentioned in article II, that is, Ambassadors, public Ministers, Consuls and Judges of the Supreme Court, the Congress may vest the power of appointment in the head of the governmental department to which the officer belongs. Since the Director and Deputy Director, OMB, are in the Executive Office of the President, Congress clearly has the power to vest the authority to appoint them in the President alone, regardless of the increased importance which those offices may have gained during the past half century. I need not address myself to the policy question whether or not Congress should continue to exercise this power, or prospectively withdraw the President's authority to appoint those two officers alone. I understand that other executive branch witnesses will testify on the question whether the special relationship between the President and these officers makes it desirable to continue the legislation which provides for their appointment by the President alone. I will limit myself to two further questions: the first, the retroactivity question, concerns the provision of all but one of the bills making the confirmation requirement applicable to persons who already have been appointed by the President as Director and Deputy Director, OMB; the second concerns the provision contained in three of the bills designed to require reconfirmation of the Director and Deputy Director every time a new President takes office. II Nine of the bills would require Senate confirmation of the Director now in office, and seven would also impose that requirement on the Deputy Director. The formulation of the bills differs slightly. Some provide that the requirement of Senate advice and consent applies to any occupant of the respective offices on or after the day of enactment of the bill. Others provide that no person shall hold either position 30 days after the effective date of the act unless he has been so appointed. There does not appear to be any substantial difference between the two provisions. Both have the effect of ousting an officer who has plainly been validly appointed by the President, by requiring the President to reappoint him by and with the advice and consent of the Senate. Under the Constitution, however, the only method by which Congress itself can remove an officer in the executive branch is by way of impeachment which requires majorities of two-thirds in both Houses of Congress. Otherwise the power of removal is vested exclusively in the President and beyond legislative control. The President's monopoly over the removal of purely executive officers has been settled by a long line of legislative and judicial decisions which go back to the very beginning of the Republic. It was established during the Great Debate of 1789 that the President's power to remove officers in the executive branch could not be limited by imposing a requirement that the Senate consent to the removal. During that debate, James Madison made the following highly pertinent observation: **** The powers relative of 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 Ann. Cong., cols. 581-582. The Tenure of Office Act of 1867, occasioned by the disputes between President Andrew Johnson and the Congress, it is true, required the advice and consent of the Senate for the removal of all officers appointed in that fashion. But when most of the act was repealed in 1887, the pertinent committee report stated: "*** the law will then stand as it stood from the foundation of the Government up to 1867, when, in a time of great party excitement, the said legislation was enacted, which, to say the least, was unusual, and tended to embarrass the President in the exercise of his constitutional prerogative." H. Rept. 3539, 49th Cong., 2d sess. The repeal of the Tenure of Office Act, however, did not affect those portions which had been codified in the legislation governing the Post Office Department. Those provisions, however, were held unconstitutional in the historic decision of the Supreme Court in Myers v. United States, 272 U.S. 52 (1926). That decision removed all doubt from the proposition that Congress cannot limit the power of the President to remove a purely executive officer. Here we are concerned with the other side of the President's monopoly over the removal of executive officers; namely, that he and he alone can remove those officers and that Congress cannot remove them by legislation. There have been relatively few attempts by Congress to accomplish that result. The pertinent discussion therefore is not as plentiful as in the more familiar field of congressional attempts to limit the President's removal power. However, whenever in the past Congress sought to remove executive officers by legislative action, the Chief Executive has successfully challenged those attempts. In 1924, in connection with the Teapot Dome matter, the Senate passed a resolution calling for the removal of the Secretary of the Navy (65 Cong. Rec. 2245), over the protests of several Senators who believed that the resolution constituted an unconstitutional interference with the Chief Executive. 65 Cong. Rec. 1719, 1730, 1734, 1981-1982, 2072-2080, 2169. President Coolidge refused to give "official recognition" to the passage of that resolution, stating: "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. 2331. 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 them. After the Christmas recess, however, the Senate voted to reconsider the nominations and asked the President to return the resolution. President Hoover refused to comply on the following grounds: "I am 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." United States v. Smith, 286 U.S. 6, fn. 3, at 28-29; see also 36 Op. A.G. 382. The Supreme Court upheld the President's refusal. United States v. Smith. The Court dealt primarily with the question whether under the Senate rules the Senate had effectively given its advice and consent to the appointments. The decision necessarily assumed that once an appointment had been validly made, it is beyond legislative recall. The situation involved in United States v. Lovett, 328 U.S. 303 (1946), is highly pertinent here. Section 304 of the Urgent Deficiency Appropriation Act of 1943 provided in part that no appropriated funds could be used after November 15, 1943, to pay the salaries to any of three named Government officials whose personal integrity had been attacked "unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate." In reluctantly approving the bill, President Roosevelt made the following statement: "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 unwarranted 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. President Roosevelt refused to submit the nominations of the three officials as required by the rider, and when the disbursing officers then felt themselves precluded from paying the salaries of the officials involved, they instituted suit in the court of claims. In the Supreme Court, the Department of Justice sided with the plaintiffs, while special counsel retained by Congress argued for the validity of the provision. The principal argument advanced by the Department was that it represented an unconstitutional infringement of the executive power of removal, a position with which I agree. The Court invalidated the legislation on the ground that it constituted a bill of attainder; its reasoning, however, rested at least in part on the proposition that Congress cannot remove officers in the executive branch. See 328 U.S. at 316-317. The latest incident of this type occurred in 1965 when Sargent Shriver simultaneously held the offices of Director of the Peace Corps and Director of the Office of Economic Opportunity. Legislation introduced after he had been so appointed would have precluded the same person from occupying both positions at the same time. The proposal was defeated by Congress mainly on the ground that Mr. Shriver was capable of administering both offices efficiently. The constitutional aspects do not seem to have been discussed extensively in the congressional debate. Attorney General Katzenbach, however, submitted a memorandum to President Johnson in which he concluded that Congress could not by legislation oust an official from a position to which he had been appointed by the President. A copy of that memorandum has been attached to this Department's report on H.R. 204. A similar expression of the views of a predecessor of mine, Assistant Attorney General Norbert A. Schlei, may be found at 111 Congressional Record 17597-19598. III S. 518, H.R. 3932 and 4320 seek to provide that the Director and Deputy Director, OMB, are to be appointed for terms of 4 years to coincide with the term of the President who appointed them. A similar limitation on length of office was contained in the Tenure of Office Act of 1867,' but was promptly repealed after the peculiar political circumstance which inspired the measure had passed. As a practical matter, I wish to point out that Directors of the Bureau of the Budget seldom have served for a period of 4 years. Technically, I offer the following observations. It will be noted under the Tenure of Office Act the Department heads tenures lasted for a month beyond that of the President who appointed them. A similar provision would be desirable if Congress should insist on a 4-year limitation. It would appear most unfortunate if the offices of the Director and Deputy Director, OMB, were required to be vacant at the beginning of a new Presidential term. As a drafting matter it appears questionable whether S. 518 and H.R. 4370 would achieve the purpose of having the term of Director, OMB, terminate with that of the President who appointed him. See 119 Congressional Record (Daily Ed., Feb. 2, 1973) S. 1975. The term of the first appointee, it is true, would end on January 20, 1977. Directors appointed after that date, however, would have 4-year terms beginning on the date of their appointment, that is, normally after January 20. The formula used in H.R. 3932 seems to assure that the terms of the Director and Deputy Director expire on Inauguration Day. To conclude: The Office of Management and Budget has expressed its views as to the policy implications of the bills. This Department is strongly opposed on constitutional grounds to the applicability of the bills to the incumbents, and has pointed out the historical and other objections to the bills insofar as they would limit the terms of those officers to the original term of the President who appointed them. Hon. CHET HOLIFIELD, Chairman, Government Operations Committee, House of Representatives, DEAR MR. CHAIRMAN: The attached material is submitted as appendix A and appendix B to the statement which accompanied my testimony before your Subcommittee on Legislation and Military Operations on March 5, 1973. Appendix A contains material from the congressional discussion of the budget and accounting bill of 1921, the relevant recommendation of the first Hoover Commission, and scholarly comment supporting our view that, as a policy matter, the Director of the Bureau of the Budget, and now of the Office of Management and Budget. should be appointed by the President alone. Appendix B concerns the constitutional issue and contains case quotations concerning the exclusive vesting of the power of removal in the President in regard to purely executive officials. If appropriate, we would appreciate having these materials entered in the record as part of our statement. 1 Section 1 of that act (14 Stat. 430) provided that the heads of departments "shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for 1 month thereafter, subject to removal by and with the advice and consent of the Senate." I would like to again express my appreciation for the opportunity to appear before your subcommittee to testify on this important matter, and the courtesies extended to me by you and the members of your subcommittee. Sincerely yours, ROBERT G. DIXON, Jr., Assistant Attorney General, Office of Legal Counsel. 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 Congressional Record 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 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 stated 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. 2175, 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 |