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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 necessarily 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 constitutional duty to "take care" that the laws are faithfully executed. This contention 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 adjudicate 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 misapprehends 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 assure 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 supervise 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. Olson, 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.g., 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.g., Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); In re Theodore Olson, 818 F.2d 34 (D.C. Cir. 1987); National Treasure Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974); Guadamuz v. Ash, 386 F. Supp. 1233, 1247 (D.D.C. 1973). Most recently, the Court of Appeals for the Ninth Circuit, in condemning 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 of the president." Id. at 166. The court stated,

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]hen 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 distinguishing 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.