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(d). Because both these provisions unconstitutionally infringe on the President's constitutional authority, the Department will recommend that the President vęto the bill unless it is amended to cure these viola

tions.

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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, 418 U.S. 683 (1974).

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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. II, section 3. The functions of the Director of the National Park Service are pure 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 guarantee that neither the Director o 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(d).

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. II, 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 constitutional 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 interference," 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(d)'s guarantee of independence to the Director in providing 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), we emphasize that Congress cannot require an executive branch officer to provide materials to Congress, or to the Board, Sec. 1(g), that are protected by executive privilege. See supra note 1.

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.

Sincerely,

Th1 and

Thomas M. Boyd

Acting Assistant Attorney General

Mr. MARLENEE. The bill calls for a staff of not less than 18 people and this staff, these 18 people for the board would have dual jurisdiction to do the very things that the National Park Service is now doing.

Mr. VENTO. Is the gentleman asking a question? I'm sorry? The 18 people that are working with the board in terms of-

Mr. MARLENEE. The legislation provides for a staff for the board of not less than 18 people.

Now, will this board, this staff of 18 people, be doing the same things that the National Park Service is now doing?

Mr. VENTO. No. They will not.

Mr. MARLENEE. Why does the board need 18 people?

Mr. VENTO. They would be performing oversight, making recommendations. They would be obviously autonomous in terms of dealing with a variety of issues. They would be holding some hearings. So we do not anticipate an increase in personnel with regard to the legislation, I might add.

Mr. MARLENEE. If it creates an additional 18 people, where are these 18 people going to come from?

Mr. VENTO. From the Department of the Interior. Very often, the Assistant Secretaries have had people assigned to them that deal with park matters which we think are inappropriate.

Mr. MARLENEE. You are going to take it out of the area of the professional National Park Service personnel and give it to the board?

Mr. VENTO. No. If the gentleman would yield-with regard to how many political appointees Mr. Mott excluded himself, which I think is debatable-we might think he is a fine fellow, but I think he is appointed by the Secretary.

Mr. MARLENEE. Oftentimes, I have questioned that. But I've got to concede he is a nice guy. He is a fine fellow.

Mr. VENTO. There are a number of other nonranking members that are political appointees and serve within the National Park Service.

So it is possible, I think, to create and to attain the personnel requirements from those types of appointees.

Mr. MARLENEE. A final question.

Would you like to comment on the-Mr. Horn-on the 18-the board having a staff of 18 and where these might come from, et cetera? How it might affect the professional management?

Mr. HORN. Interestingly enough, the number of professionals on my staff, including myself, is seven right now. That staff oversees both the Fish, Wildlife Service and the National Park Service. So I suspect, if the decision is to go ahead and do this, we are doing the job in terms of oversight with seven professionals.

I suspect the board can get by with a lot less than 18.

Mr. MARLENEE. Let me say in closing that, Mr. Mott, we welcome you to the committee and I do think you are a fine fellow. I have always enjoyed visiting with you and likewise, Bill Horn.

Thank you very much.

Mr. VENTO. Mr. Lewis.

Mr. LEWIS. Thank you, Mr. Chairman.

Mr. Chairman, for the record, I would like to submit four editorials from four well-known newspapers in support of H.R. 3964. And I may just cite these newspapers.

These are recent editorials from the Hunter, West Virginia Herald Dispatch, editorial entitled "National Park System Needs Attention Now."

From the Denver Rocky Mountain News, editorial, March 7 of this year, "National Parks should be managed for the long term," From the St. Paul Pioneer Press Dispatch, "Bill could help stop National Park decline."

Mr. Chairman, I would like to read excerpts from this editorial, if I may:

While record crowds are expected to visit our national parks this summer, the National Park Service is $2 billion behind in critical maintenance projects. Our visitor lines grow longer, hundreds of miles of park roads and hiking trails have been closed for safety reasons. Visitor centers and related buildings continue to crumble at accelerated rates. Water systems are unable to meet rising demand.

If I might continue from the St. Paul Pioneer Press Dispatch:

While it is true that Mr. Vento's bill would not resolve the Park Service critical funding shortage, it would provide direction professionalism agency needs if it is to perform at a level that millions of Americans have a right to expect.

And from the Christian Science Monitor's paper today, Tuesday, May 10:

Time to rescue the Park. The time is right to rethink the way the natural heritage of the United States is managed. Places like the Everglades, Yellowstone and the Grand Canyon are too precious to be left adrift in the wind of budgetary politics.

Thank you very much, Mr. Chairman.

[EDITOR'S NOTE.-Mr. Lewis subsequently supplied the following editorials:]