K FRIDAY, MAY 27, 1988

nent

Woulu Freedom
Help the National Park

Serviced

hob earty to say, whether Congress appointees are

hurting the

by PHILIP SHABECOFF

Speed The New York The WASHINGTON, May 25 - Their contention is that the National Park Service has been treated like an ideo logical soccer ball, kicked around by political appointees of both Demo cratic and Republican administrations in the last 20 years. So, some members of Congress, conservationIsts and former park officials have begun pressing to turn the service Into an Independent agency.

Political appointees in the Interior Department, including Interior Sec retary Donald P. Hodel, contend that this is an unsound Idea and that the nation's parts are being well-managed under the existing system. Legislation that would put the Park

future of many of the parts Service under the authority of an in

On Tuesday the wilderness Society. dependent three-member review

an environmental group, issued panel has been introduced in recent

Rander

port on what it considered the 10 mdat weeks by Senator Bill Bradley of New

endangered parts and sald that the Jersey and Representative Bruce F.

threaus to these partus run the game Vento of Minnesota, both Democrats Representative Bruce F. Vento,

from clear cutting and all drilling The legislation would also have the di- above, introduced bill to make the

their perimeters to low-flying helt rector of the Park Service appointed park service an independent agen- coplers and bomben." Listed were by the President, rather than the In

cy. Interior Secretary Donald P. the Everglades, Glacier, Grand C tertor Secretary, and confirmed by Hodel, right, regards the movem

yon, Great Smokie, Olympic, Rocky Conere

Mountain, Yellowstone and Yosemite While the service would remain "an old political ploy."

national parts, the Santa Monica nominalty within the Interior Depart.

Mountains National Rocrecreation ment, the proposed legislation would

Ares and the Manastas National Bank remove * from the authority of the

tlefield Part

3 Secretary of the

"This is a shabby way to treat ment. Congressional aides said it was

said George T. Frampton Jr., the will approve the legislation.

president ol the Wilderness Society, Serious Breakdown' Is Seen

Some critics who contend that the Mr. Vento, who chairman of the

park system is being compromisod House Interior Commitlee's Subcom. system.

by political meddling say the Brad mittee on National Parts and Public

ley-Vento legislation does not go far Lands, said at a hearing on the bill

enough. Paul C. Pritchard, presidest that the park service, which was es

of the National Parts and Conservatablished in 1916, had grown to be

tion Association, conservation

He also charged that William Penn "one of the most respected profes Mott Jr, the director of the part very

group, said in an interview that the sional organizations in the national

service ought to be "a truly independ ice, had been directed by the departGovernment." But he added:

ent agency" that is completely at "Unfortunately, the wide popu

ment to give politically motivated moved from the Interior Department

testimony" before the parts subcomlarity of the national park system mittee. He said Mr. Mou had testified Department officials deny uncle soon attracted the attention of the

political Interference in the manage political opportunists, and in the last

ment of the part system. They say 20 years we have seen serious breakdown of sound, long-term man

against bill to protect the Grand they are being good stewards of the Canyon from low-flying aircraft even

system and contend that the system agement, designed and built to pro lect our greatest natural and histori

though "he had personally stated on

grew so rapidly in the 1970's that it cal treasures. This breakdown has re- many occasions prior to that time quires a period of consolidation sulted in management system de

that aircraft should be prohibited

from Mying down in the canyon." signed primarily io meet short-term

'An Old Polidcal Play political goals

In a telephone interview, Mr. Mott Secretary Hodel said through Mr. Vento said that, under the Rer- confirmed that he had been required spokesman, David Prosperl, that the gan Administration, professionals in

by political leaders of the department the effort to make the part services the service had cen replaced with and the Office of Management and independent agency "Is an old polid political appointees, demotions and Budget, a White House agency, to cal ploy - If you can't force you Torced resignations had been carried give testimony on aircraft in the political views on an agency, that out for political reasons and an at- Grand Canyon and on other issues make the agency Independent. tempt had been made to "privatize" that was contrary to his own profes some part unita.

slonal judgment. But he added that' Mr. Mott told the parts subcommit Senator Bradley complained that "everybody knew where I stood." lee in his prepared testimony that he "100 often, field recommendations

"emphatically opposed to making have been revered by higher depart Political Appointees Blamed the service a separate entity. He ale ment officials in accordance with neclonal part policies that are at odds

George B. Hartzog Jr, a former di

noted that the part service and othe rector of the park service, said that in

bureaus of the Interior Departmen with the preservation of the national recent years political appointees and

were made specifically accountable resource heritage." their stats, "who more often than not

to the Secretary under reorgante "For example, " he added, "this Ad- have neither background nor expert

tion plan adopted in the Truman Ad ministration refuses to provide suge ence on their side, have taken upon

ministration in 18 nificant funding for land acquisition, themselves to usurp part manage historic acquisition or basic construc

Mr. Mott said an Independent me ment responsibilities."

view board might be just as likely tion projects within national park units

In so doing, he told the subcommit impose its own political agenda asi Howard H. Chapman, who recently

tee, they have "undermined the pro Secretary of the Interior. retired as a regional director of the fessional foundations of the service,

But Mr. Molt agreed that the part National Park Service,/clted several have demoralized its disciplined

service director should be appointed examples of how the Administra dedicated and talented carcer em Lion's appointees had Interfered with ployees and have created a manage

by the President and approved by the "prolessionalism of the National ment house divided against itself

Congress, and added: "i would be Part Service." He reported that an pleting career bureacrat against

nice if we would be free to expresy

our professional judgment without in assistant spcretary had prevented political bureaucrat" him from carrying out part of a land Conservationists contend that poltt

terference by the Secretary and the protection plan for Yosemite Na kcal Interference in the management

office of Management and budget tional Part that called for buying out of the part system is threatening the

don't know if that lo ponetical, horny

ever." private landholdings inside the part, even though such purchases were au

This letter presents the views of the Department of Justice on H.R. 3964, a bill to establish a National Park System Review Board ("Board") and create a National Park Service headed by a Director. The Director, who is appointed by the President subject to Senate advise and consent, is removable by the President only for "inefficiency, neglect of duty, or malfeasance in office.' Sec. 2(a). He is also authorized to communicate with Congress "without review, clearance of approval by any other administrative authority.' Sec. 2(a). Because both these provisions unconstitutionally infringe on the President's constitutional authority, the Department will recommend that the President veto the bill unless it is amended to cure these violations.

1

The bill also provides that the Board must maintain continuing review of the programs and activities of the National Park Service and national park system units; submit annual recommendations for improved management; and transmit the annual report and the budget request "and provide any other information on the request of any committee or subcommittee of Congress : : .without review, clearance, or approval by any other administrative authority" except to the extent the Board deems such review appropriate. Sec. 1(a). Because these activities are advisory, not executive, in nature, the restriction on removal, Sec. 1(b), and the provision for independent submissions to Congress do not raise constitutional concerns. Furthermore, while Congress can authorize the Board to secure materials otherwise protected by section 552 through 552(b) of title 5, Sec. 1(g), the bill cannot be lawfully construed to authorize the Board to deliver to congress any materials independently protected by executive privilege. United States v. Nixon, 478 u.s. 683 (1974). 2

The language of sections 2(a) limiting removal of the Director to inefficiency, neglect of duty, or malfeasance in office" makes the constitutional problem unavoidable, as the phrase is precisely the same one used in Humphrey's Executor v. United States, 295 U.S. 602, 619 (1935). It must therefore be assumed

The limitations on removal infringe on the President's constitutional responsibility to take care that the Laws be faithfully executed." U.S. Const., Art. il, section 3. The functions of the Director of the National Park Service are purely executive, The bill directs the Secretary of the interior to delegate to the Director "all functions and authorities of the Secretary regarding the administration of the National Park System

sec. 2(b). The Director is guaranteed independence from any other administrative authority in submitting budgetary requests or providing any other information to congress, with the additional quarantee that neither the Director or any officer and employees of the National Park Service is *responsible to; or subject to the supervision or direction of" officers, employees, or agents of the Department of the Interior. Sec. 2(a).

Given these powers, the limitations on removal infringe on the President's constitutional responsibility to "take care that the Laws be faithfully executed.' u.s. Const., Art..!1, section 3. The functions of the Director clearly involve " !i]nterpreting a law enacted by Congress to implement the legislative mandate,' which "plainly entail(s) execution of the law in constitutionai terms." Bowsher v. Synar, 106 s. Ct. 3181, 3192 (1986). He does not adjudicate cases concerning individual rights or grants or denies claims of individuals. His functions do not: "require absolute freedom from Executive igterference, wiener v. United States, 357 U.S. 349, 353 (1958), nor is he the head of a "quasi-legislative or quasi-judicial" agency, such as the one at issue in Humphrey's Executor, 295 U.S. 602, 630 (1935). Given that the Director would be performing executive functions, the Director must be subject to removal by the President without restriction. Myers v. United States, 272 U.S. 52, 162-64, 177 (1926).

Section 2(a)'s guarantee of independence to the Director in providigg budget and other information to Congress is similarly infirm. The Director, as a subordinate Executive branch officer, is subject to the complete supervision of the President with respect to carrying out his executive functions. This power

2

(Cont.) that Congress intends to make the Director, like the Chairmen of the Federal Trade Commission or the Interstate Commerce Commission, the head of a so-called "independent agency.' 3

Unlike the war Claims Commission at issue in wiener, the National Park Service is not "established as an adjudicating body with all the paraphernalia by which legal questions are put to the test of proof." id. at 354. 4

As in the similar provision affecting the Board, Sec. 1(a), ve emphasize that Congress cannot require an executive branch officer to provide materials to Congress, or to the Board, Sec. llg), that are protected by executive privilege. See supra note 1.

- 2

includes the right to supervise and review the work of the Director, which the President can freely delegate to an administrative authority." Because the bill seeks to unconditionally free the Director to transmit information to Congress "without review, clearance, or approval by any other administrative authority," even if such review were required by the President, it is an unconstitutional impairment of the unitary powers of the executive branch.

Due to the manifest interference with the President's authority to control executive branch officers, the Department of Justice would be constrained to recommend that the President veto this legislation should it be enacted in its present form.

The office of Management and Budget has advised this Department that it has no objection to the submission of this report to Congress, and that the enactment of H.R.3964 in its current form would not be in accord with the program of the President.

SUBJECT :

Response to Justice Department Comments on the validity of the for
Cause Removal and Direct Reporting Provisions of H.R. 3964

H.R. 3964 would alter the current administrative structure of the Department of Interior by establishing the National Park Service (NPS) as a functionally and legally separate and independent entity within it. It would