In Ponzi v. Fessenden, 258 U.S. 254, 262 (1922), the Supreme Court declared that under the "faithful execution of the laws" clause in Article II, Section 3, "the Attorney General is the head of the Department of Justice. . . . He is the hand of the President in taking care that the laws of the United States in protection of the interest of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed."

In Pugach v. Klein, (D.C.N.Y.) 193 F. Supp. 630, 634-35 (1961), a case involving discretionary authority in a U.S. Attorney to prosecute, the court stated:

"Article II, Section 3 of the Constitution provides that '(The President) shall take care that the laws (shall) be faithfully executed.' The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the courts, nor in private citizens, but squarely in the executive arm of the government. . . ."

The fact that the power of law enforcement is vested in the executive and judiciary branches of the government (Quinn v. U.S., 349 U.S. 155 (1955); I.C.C. v. Chatsworth Coop. Marketing Assoc., (C.A. Ill.) 347 F. 2d 821, cert. den. 382 U.S. 938, rehearing denied 382 U.S. 1000 (1965)), does not endow the Department with responsibility for judicial functions. It is merely a truism that both the executive and judicial branches must participate in the enforcement of the law.

Nor does that fact that the attorneys in the Department are officers of the courts lend any judicial status to the Department. They are officers of the court as are all attorneys, members of the bar, but the attorneys within the Department do not have absolute freedom from executive interference. (See, for instance, 28 U.S.C., §§ 505, 506, 516, 517, 518, 519, and Ponzi v. Fessenden, supra; see, also, U.S. v. Cox, (C.A. 5th) 342 F. 2d 167 (1965), cert. den. 381 U.S. 935).

Nor, as will be discussed subsequently, can Congress remove from executive control persons substantially carrying out executive duties without changing the nature of those duties.

2. What are the President's constitutional powers with regard to persons performing the functions of the Department of Justice?

The President is vested with the executive power (Article I, Section I, clause 1), and with the responsibility that the laws be faithfully executed (Article II, Section 3). Furthermore, "He shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of department" (Article II, Section 2, clause 2).

66

Myers v. U.S., 272 U.S. 52 (1927), Humphrey's Executor v. U.S., 295 U.S. 602 (1935), and Wiener v. U.S., 357 U.S. 349 (1958), appear to recognize an executive function as power conferred on the President to the exclusion of the other two branches of government. Whether the function or power be found in the nature of the executive, be conferred by the phrase, 'executive power' in the first sentence of $1 of Article II, or be derived from the faithful execution clause, the execution of the laws passed by Congress is deemed to be included within the executive power exercisable by the President and delegable to his subordinates over whom he exercises control and responsibility to such a degree that he must have the sole power to remove in order to fulfill that role. Further, Humphrey and Wiener stand for the proposition that the only executive tasks which can constitutionally be removed from under the President's direction and given to an independent agency are those clearly incidental in the quasi-legislative and quasi-judicial functions which justify its independence. Of course, quasilegislative and quasi-judicial functions can be given to an executive officer; Congress is not compelled to give them to an independent agency. [But the executive must be performed under the direction of the President] and Myers holds while Humphrey and Wiener recognize that Congress may not withdraw them from that direction by limiting the President's power to remove the officers who perform them. Congress could not constitutionally

give to an independent agency functions which, separately considered, could not validly be made the exclusive job of an independent agency, else it could at will remove the President's executive powers through this device.

"The structuring of the executive branch is, of course, within the discretion of Congress acting under the 'necessary and proper' clause (Article I, Section 8, clause 18), thus, the creation of officers and allocations of functions within the executive branch is a power clearly possessed by Congress and Congress has thus made the Attorney General the 'hand of the President' in litigation, (Ponzi v. Fessenden, supra). But it could have placed the function elsewhere in the executive branch. The discretion

in structuring, however, would not run to placing an essentially executive function in another branch." ("Establishing An Independent Federal Prosecutor, A Preliminary Analysis of the Constitution Issues," Johnny H. Killian, Assistant-Chief, American Law Division, October 29, 1973, pp. 11-13). (In U.S. v. Solomon, (D.C.S.D.N.Y.) 216 F. Supp. 835 (1963)), the court sustained the temporary appointment of U.S. Attorneys by U.S. District Courts pursuant to 28 U.S.C., § 546, until the President appointed one permanently because control over such attorneys remained with the President). Accepting the thesis that the duties and powers of the Department of Justice are essentially executive in action and that it is questionable that they can be removed from the control of the President by Congress, can Congress place conditions on the removal of the Attorney General, the Deputy Attorney General, and the Solicitor General as proposed in S. 2803?

The ordinary rule is that the power to remove officers appointed by the President by and with the consent of the Senate is exercisable by the President alone if the duties of the office are executive (Myers v. U.S., supra; Humphrey's Executor v. U.S., supra, Shurtleff v. U.S., 189 U.S. 314 (1902)). When Congress provides for the appointment of inferior officers by the heads of departments, however, it has the power to limit and regulate removal of such inferior officers (Myers v. U.S., supra; U.S. v. Perkins, 116 U.S. 483 (1886); Nader v. Bork, (D.C.D.C.) Civil Action No. 1954-73, November 14, 1973).

And, when Congress provides for the appointment by the President, with the advice and consent of the Senate, of officers whose duties and responsibilities are not executive in nature, and thus independent of executive control, it can restrict removal of such officers to removal for cause (Humphrey's Executor v. U.S., supra, Wiener v. U.S., supra).

S. 2803 proposes to limit the power of removal of the President as respects the Attorney General, the Deputy Attorney General, and the Solicitor General, all of whom would be appointed by the President by and with the advice and consent of the Senate, to removal for cause. The bill would also provide six year terms for such officers.

In order for such a removal procedure to be valid, the three officers would have to be outside of the control of the President, and that status would depend upon the nature of the function Congress vests in the Department (See, Wiener v. U.S., supra). The material considered heretofore deals with this question.

The fact that the persons would be appointed for six year terms would not affect the President's power of removal if they were carrying out executive duties (see, Parsons v. U.S., 167 U.S. 327 (1897), U.S. Attorneys appointed for four year terms removable at will by President).

3. Is a legislative determination of the constitutionality of an Act binding on the court?

The legislature cannot ban or restrict the power of the judiciary to determine questions of law (Corpus Juris Secundum, Vol. 16, Constitutional Law, § 108, p. 497 (1956)). Thus while the legislature may, in the first instance, determine for itself whether a contemplated act is constitutional, the question of the constitutionality of a statute is not for legislative determination but is vested in the judiciary, and a statute, as against a challenge to its validity, cannot stand on legislative declaration alone (supra, § 112, p. 501; Stephenson v. Binford, (C.A. 5th) 53 F. 2d 509, affirmed 287 U.S. 251). Consequently, the provisions of Section 1 of S. 2803 are subject to judicial

scrutiny in terms of the other provisions of the bill and cannot, by themselves, determine the constitutionality of the bill.

4. What are constitutionality acceptable standards for terminating offices presently in existence and replacing them with new offices with different qualifications?

The current Attorney General, the Deputy Attorney General, and the Solicitor General will have the tenure of their offices terminated and new appointments will be made for six-year terms.

There are no federal cases on terminating existing offices and recreating them, although the law on the scope of Congressional power to create offices, prescribe qualifications for offices, etc., is vast, (see, for instance, "A Commentary on the Constitution of the United States," Bernard Schwartz, (1963), Vol. I, p. 110 et seq.).

One of the most recent expositions of the general rule was by the New York Court of Appeals in Lanza v. Wagner, 229 N.Y.S. 2d 380, 11 N.Y. 2d 317, 183 N.Y. 2d 670 (1962). This case involved the constitutionality of a state statute under which New York City's Board of Education was to be reorganized and reconstituted bringing the term of office of the Members to an end at an earlier specified date. The statute was upheld on the theory that the office was created by the legislative and there was no constitutional inhibition against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than at its incumbent. Absent any express consitutional limitation, the legislature has the full and unquestionable power to abolish an office of its creation or to modify its term, or other incidents attending it in the public interest, even though the effect may be to curtail an incumbent's unexpired term (see, 183 N.E. 2d, at 683).

Applying the principles to S. 2803, the provisions of that bill would seem to be valid since there is no intention to enact a bill of attainder against present incumbents.

As to a possible conflict with the President's removal power when terms are shortened by legislation, this problem appears to have been resolved through section 10(b) of the bill which permits appointment as soon as the bill is enacted although its provisions do not go into effect until 90 days after enactment, (section 10(a)). The appointment and confirmation of a new Attorney General within that time span would constitutionally displace the existing Attorney General, for instance (see, Blake v. United States, 103 U.S. 227 (1881)).

ROBERT L. TIENKEN,

Senior Specialist In American Public Law.

[From the Library of Congress, Congressional Research Service, Oct. 29, 1973] ESTABLISHING AN INDEPENDENT FEDERAL PROSECUTOR-A PRELIMINARY ANALYSIS OF THE CONSTITUTIONAL ISSUES

(Prepared by Johnny H. Killian, Legislative Attorney, American Law Division)

Arising out of the controversy over the investigation into and the prosecution of offenses connected with the Watergate matter is the proposal in Congress to provide for the creation of an office of prosecutor which would be independent of control and direction of the President and not subject to removal by the President. The constitutional issues raised by this proposal are the subject of this memorandum. Because of the necessity of dealing with the matter in such a short time, it is not claimed that the treatment here is definitive.

This analysis proceeds in three sections. First it is considered whether the prosecutorial function is necessarily an executive one so that under the concept of separation of powers undergirding the constitutional allocation of functions in the Federal Government the office of prosecutor is an executive branch office. Determination that the inquiry must be answered in the affirmative requires an exploration of the President's constitutional powers with regard to persons performing the prosecutorial function. Second, the

power of Congress to vest the appointment of inferior offices in the courts pursuant to Article II, § 2, is dealt with along with the question whether the exercise of this power involves any exception to the general rule of presidential supervision of executive officers. Third, an alternative approach to the appointment of a special prosecutor by the courts is considered wherein it is inquired whether Congress could by imposing particularized duties upon an executive officer effectively insulate him from substantial presidential control.

I.

Resolution of the questions presented by the proposal for a special, independent prosecutor requires the consideration of one of those abstractions which is universally recognized to be basic to the government created by the United States Constitution but upon the details of which there seems to be equally universal disagreement. Just what is it that the concept of separation of powers imposes upon Congress' powers to provide for the execution of federal criminal laws through the device of an office free of presidential direction; conversely, what are the irreducible confines of the President's executive authority to oversee and to direct the execution of the Nation's laws. The history of practice tells us much but it does not tell us that the practice is constitutionally compelled and unchangeable. There are decisions of the Supreme Court with a bearing on the issue but their relevance is largely tangential.

It is of course basic learning under out constitutional theory that the Constitution separated governmental powers into tripartite divisions. Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 46 (1825). There are opinions of the Supreme Court which ascribe to this scheme of division a rigidity which in fact it does not have. Kilbourn v. Thompson, 103 U.S. 168, 190191 (1881). Thus, in Springer v. Philippine Islands, 277 U.S. 189, 201-202 (1928), Justice Sutherland wrote:

"It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power.... "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. .

"Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection;

"[T]he Constitution," wrote Chief Justice Taft in Myers v. United States, 272 U.S. 52, 116 (1926), "was so famed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish, the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires." From this basic premise, he derived for the Court a plenary power in the president, unrestrainable by Congress, to remove all persons appointed by him, an issue to which we shall return. Most recently, the Court in United States v. Brown, 381 U.S. 437, 441-446 (1965), discussed separation of powers in the context of the constitution proscription against bills of attainder. According to the Court, Congress was forbidden to pass bills of attainder inasmuch as under the constitutional system prescribed by the Framers the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons was one reserved to the judiciary, trial by legislature being wholly contrary to our concept of separation of powers. "It is the peculiar province of the legis lature to prescribe general rules for the government of society: the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher v. Peck, 6 Cr. (10 U.S.) 87, 136 (1810).

Yet, while it is clear that the government is divided into three departments, it is equally clear that no hermetic sealing off of the performance of separate functions has ever been achieved. Thus, in Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825), Chief Justice Marshall in upholding the congressional delegation of rule-making power to the federal courts drew a distinction between that class of subjects which must be entirely regulated by the legislature and that class which may be delegated to another department under general standards by the legislature. From this principle has flowed a plethora of delegations from Congress primarily to the President to do such legislative functions as change tariff duties or to exempt some imports from duties altogether. Hampton & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1891). The "judicial power of the United States" as conveyed in Article III may only be exercised by judges having Article III prerequisites of guaranteed tenure and compensation, but Congress has been held to have power to create "Article I" legislative courts which may exercise some form of judicial power. American Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511 (1828); Palmore v. United States, 411 U.S. 389 (1973). Aside, however, from rule-making and perhaps a few closely related functions, Article III judges may only exercise Article III judicial functions. Neller v. Potomac Electric Power Co., 261 U.S. 428 (1923). But it is when the independent regulatory agencies are considered that the concept of separation of powers-tripartite departments exercising functionally disparate powers-has been most buffeted. Clearly, two classes of legislative power have been delegated to these agencies: first, every such agency is empowered to issue rules and regulations, and, second, every such agency implements a standard or principle set forth in the authorizing statute with regard to the type of regulation with which it is authorized to deal and which Congress could, though seldom easily, itself implement, fixing rail rates itself, for example, rather than directing the ICC to do it. Moreover, the agencies all exercise some form of judicial power, adjudicating disputes, resolving controversies of private or public rights, and the like. "The Federal Trade Commission," Justice Sutherland wrote for a unanimous Court in Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935).

"Is an administrative body created by Congress to carry into effect legislative policies embodied in the statute, in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. In administering the provisions of the statute in respect of "unfair methods of competition" the commission acts in part quasi-legislatively and in part quasi-judicial." Justice Sutherland's position with regard to whether the FTC can exercise executive or quasi-executive functions as well is open to considerable disagreement. At one point he observes that the Commission "exercises no part of the executive power vested by the Constitution in the President," while at another point he observes that "[t]o the extent that it exercises any executive function-as distinguished from executive power in the constitutional sense— it does so in the discharge and effectuation of its quasi-legislative or quasijudicial powers, or as an agency of the legislative or judicial department of the government." Ibid. There thus appears to be an executive function or an executive power which can only be exercised by the President or subject to his direction-an Article II function or power, much like Article III judicial power and a lower-case executive function or power which can be conferred by Congress under its necessary and proper powers upon institutions which it creates.

Obviously, then, any analysis of the proposals for an independent prosecutor in the context of separation of powers limitations upon the law enforcement powers of the office becomes difficult and necessarily somewhat imprecise because of the fuziness of the language of the Court on the critical points at issue, an imprecision which is not removed when one goes to the basic source. If one looks to the language of Article II, one cannot say with assurance that the Framers intended the President to be the administrative chief of the executive branch, clothed with a general power to control the acts of all executive officers. No explicit power of control is conferred. Such a power is clearly implied only in the clause designating the President as the Commander