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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).
direct reporting requirement is deemed infirm because "It The 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.
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
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
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
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
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.
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
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
By the constitution of the United States, the president is
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.