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2(b)). The clear purpose of the proposed legislation, then, is to insulate the operation of the NPS from presidential and secretarial control.

The Department of Justice (DOJ) has objected to the constitutionality of

the removal and direct reporting requirements. See undated letter to Chairman

Bruce F. Vento, Subcommittee on National Parks and Public Lands from Acting

Assistant Attorney General Thomas M. Boyd, office of Legislative and Intergovernmental Affairs, Department of Justice. More particularly, with respect to the for cause removal provision, DOJ contends that since the duties

of the Director are "purely executive," any limitations on removal would

"infringe on the President's responsibility to 'take care that the laws be

faithfully executed'", citing Myers v. United States, 272 U.S. 52 (1926). The direct reporting requirement is deemed infirm because "[t]he Director, as a

subordinate executive officer, is subject to the complete supervision of the

President with respect to carrying out his executive functions." Freeing the Director from any supervision and review is asserted as "an unconstitutional

impairment of the unitary powers of the executive branch."

You have asked that we comment critically on these objections in time for

your Committee's markup of the bill scheduled for the week of May 23.

In view

of the time constraints imposed, the following comments are necess

essarily brief

and summary in nature.

However, we are attaching a previously prepared

Division Report, "Congressional Control of Agency Decisions and Decisionmakers:

The Unitary Executive Theory and Separation of Powers" (CRS Report No. 87-838A,

October 19, 1987), which provides further background on many of the issues

touched upon in this memorandum.

1. Limitation on the President's Removal Power.

DOJ argues that the bill's insulation of the Director from at-will removal

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by the President impairs his constitucional duty to "take care" that the laws are faithfully executed. This content ion rests on its reading of three seminal

removal decisions by the Supreme Court--Myers v. United States, 272 U.S. 52

(1926), Humphrey's Executor v. United States, 295 U.S. 602 (1935), and Weiner

v. United States, 357 U.S. 349 (1958)--to the effect that where an officer

appointed by the President with the advice and consent of the Senate performs

only purely executive functions and "does not ad judicate cases concerning

individual rights or grants or denies claims of individuals," or is not "the

head of a 'quasi-legislative or quasi-judicial' agency, such as the one (the

Federal Trade Commission) at issue in Humphrey's Executor," that officer must

be subject to removal by the President without restriction. Assuming,

arguendo, that the Director would perform no rulemaking or adjudicatory

functions, it would appear that DOJ mi sa pprehends the import of these

precedents and understates Congress' constitutional ability to control agency

decisionmakers.

DOJ's assertion rests on a view of the executive branch as a highly

centralized bureaucratic structure.

This model of governance envisions a

unified and hierarchical executive with the President at the apex and all administrative agencies arrayed below him. It views the President, in his role as the only nationally elected official of the federal government, as the possessor of broad supervisory and managerial powers as well as an encompassing political presence in administrative agencies. The Chief Executive's

constitutional duty to see that the laws are faithfully executed under article

II, section 2 is seen as providing both the responsibility and the authority to intervene in administrative decisions in order to set priorities, allocate

limited resources, balance competing policy goals, resolve conflicting

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jurisdictions and responsibilities of agencies, and as sure that programs are

effectively and efficiently managed. Support for this proposition is founded

on language in the Supreme Court's opinion in Myers v. Unite States, supra

where it stated that "[t]he ordinary duties of officers prescribed by statute

come under the general administrative control of the President by virtue of

the general grant to him of executive power, and he may properly supervi se and

guide their construction of the statutes under which they act in order to

secure that unitary and uniform execution of the laws which Article II of the

Constitution evidently contemplated in vesting general executive power in the

President alone." Myers, supra, 272 U.S. at 135. See also in re Sealed Case,

838 F.2d 476 (D.C. Cir. 1988), probable juris. noted sub. nom. Morrison v.

Ol son, 56 U.S.L.W. 3568.

On the other hand, Congress bases its ability to insulate and direct

subordinate executive branch officials in the manner prescribed in the bill on

its view that the executive power is not hierarchical in nature or uniquely

vested in the President alone, just as the President's functions are not solely

executive (e..., the veto power). Article II is seen as clearly anticipating

the creation of an administrative bureaucracy by its mention of "Heads of

Departments," and the necessary and proper clause of article I makes it certain

that it would be Congress alone that would do the creating.

In this scheme,

Congress can assign a "Head of Department" any executive power not textually

reserved to the President in Article II.

Moreover, the "take care" clause has

not been read by the courts to vest absolute power in the President over Heads

of Departments and other subordinate officials.

That clause says only that the

President "shall take care that the laws be faithfully executed," regardless of

who executes them, a duty quite different from the claim of a single-handed

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responsibility for executing all laws.

A literal reading of the "take care"

clause confirms the President's duty to ensure that officials obey Congress' instructions; it does not create a presidential power so great that it can be

used to frustrate congressional intention.

In the words of the Supreme Court,

where a valid duty is imposed upon an executive official by Congress, "the duty

and responsibility grow out of and are subject to the control of the law, and

not the direction of the President." Kendall ex rel Stokes v. United States, 37

U.S. (12 Pet.) 524, 610 (1838). In the past, similar claims of broad

substantive authority deriving from the "take care" clause have been

consistently rejected by the courts. See, e., Youngstown Sheet and Tube Co.

v. Sawyer, 343 U.S. 579, 587 (1952); in re Theodore Ol son, 818 F.2d 34 (D.C.

Cir. 1987); National Treasure Employees Union v. Nixon, 492 F.2d 587, 604 (D.C.

Cir. 1974); Cuad amuz v. Ash, 386 F. Supp. 1233, 1247 (D.D.C. 1973).

Most

recently, the Court of Appeals for the Ninth Circuit, in condeming reliance on

the "take care" clause as a justification for ignoring the mandate of an act of

Congress, stated :

"To construe this duty to faithfully execute the laws as

implying the power to forbid their execution perverts the clear language of the

'take care' clause." Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir.

1988).

In addition, relevant judicial precedent, and the history of Federal administrative practice, appear to accord Congress virtually plenary power over the creation of the structure of the administrative bureaucracy and the power and tenure of the offices and officers who are to carry out the legislative will. Congress, by practice and judicial acceptance, has been able to

establish varying degrees of dependence on or independence from the President,

depending on its view of the situational need and in light of applicable

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constitutional constraints. Thus, the Supreme Court has recognized since Marbury v. Madison, 5 u.s. (1 Cranch) 137 (1803), that executive officers perform a range of duties and that the President's right to control these

duties varies depending upon their nature.

Some officers serve as "the

political or confidential agents of the executive, merely to execute the will

[blocks in formation]

By the constitution of the United States, the president is
invested with certain important political powers, in the
exercise of which he is to use his own discretion, and is
accountable only to his country in his political character,
and to his own conscience. To aid him in the performance
of these duties, he is authorized to appoint certain
officers, who act by his authority, and in conformity with
his orders. In such cases, their acts are his acts.

Id. at 165-66.

The Court contrasted such political duties with another

category of executive duties: "(W Jhen the legislature proceeds to impose on

that officer other duties; when he is directed peremptorily to perform certain

acts; when the rights of individuals are dependent on the performance of those

acts; he is so far the officer of the law." Id. at 166.

The nature of an officer's duty controls the officer's relationship to the

President in its performance.

Because officers performing political duties for

the President "act by his authority," ibid., the discharge of these duties "is

under the direction of the president." Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524, 610 (1838). However, the Congress may also impose upon

an officer statutory duties that "grow out of and are subject to the control of

the law, and not to the direction of the president." Ibid.

In distingui shing

between political duties and duties assigned by statute, the Court in Kendall rejected the "alarming" proposition "that every officer in every branch of (the

executive) department is under the exclusive direction of the president." Ibid.

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