in-Chief of the armed forces. The President is of course empowered to appoint officers of the executive branch, subject to legislative provision vesting the appointment of certain officers elsewhere, but if control is to be found there one must explain the different principle of lack of control over federal judges whose appointment is authorized by the same language and over members of the independent regulatory agencies whom the President also appoints. The President is also authorized to require the written opinion of the heads of departments upon any subject relating to the duties of their respective offices, a curious authorization to include if the President had been given the more inclusive power of control.

These are the only clauses enumerating the specific powers of the President with regard to the relationship between the President and executive officers. But Article II does vest "the executive power" in the President as well as the duty to "take care that the laws be faithfully executed." From these clauses there was derived almost from the beginning from the debate in the First Congress on the President's removal powers and from Hamilton's "Pacificus" letters the argument that the vesting of "the executive power" in the first sentence of § 1 of Article II was a grant of power and that the succeeding more specific grants, except when "coupled with express restrictions or limitations," "specify the principal articles" implied in the general grant and hence serve to interpret it." Corwin, The President-Office and Powers 1787– 1957 (4th ed. 1957), 178-182, 194-195.

This latitudinarian interpretation of presidential power was fully subscribed to by Chief Justice Taft in Myers v. United States, 272 U.S. 52 (1927), who derived from the "grant" of executive power and the imposition of the obligation of the faithful execution of the laws a plenary executive power in the President which was not susceptible constitutionally of any restraint or limitation by Congress. Specifically, Myers held that the power of removal of all officers appointed by the President-executive and members of the independent regulatory commissions-save only for judges was inherently an executive function into the performance of which Congress could not intrude. The power of removal was inherent in the executive power because, to come to the immediate relevance of Myers, it is the means by which the President may control those who are responsible for carrying out his obligation to faithfully execute the laws.

...

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible." Id., 117.

It must first be said that the Court no longer appears to accept the premise that the first sentence of § 1 of Article II confers on the President all "executive" power minus only that which subsequent language excepts out. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); United States v. United States District Court, 407 U.S. 297 (1972). Secondly of course, Myers' broad dictum empowering the President to remove even the members of the independent regulatory agencies has been sharply cut back. Thus, in Humphrey's Executor v. United States, 295 U.S. 602, 631-632 (1935), the Court said:

"Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office. The Myers decision, affirming the power of the President alone to make the removal, is confirmed to purely executive officers."

The postmaster position at issue in Myers, the Humphrey Court continued, was of the "purely executive officer" category. Thus,

"[a] postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in

the theory that such an officer is merely one of the units in the executive department and hence inherently subject to the exclusive and illimitable power of removal by the chief executive, whose subordinate and aid he is. . . . [T]he necessary reach of the decision goes far enough to include all purely executive officers. It goes no further;-much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President." Id., 627–628.

In Wiener v. United States, 357 U.S. 349, 353 (1958), Justice Frankfurter for an unanimous Court defined "the essence of the decision in Humphrey's case."

"It drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President's constitutional powers, and those who are members of a body "to exercise its judgment without the leave or hinderance of any other official or any department of the government," 295 U.S. at 625-626, as to whom a power of removal exists only if Congress may fairly be said to have conferred it. This sharp differentiation derives from the difference in functions between those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference."

Wiener held that Congress had conferred upon the War Claims Commission quasi-judicial functions, to adjudicate "according to law" certain claims and had therefore set outside the President's power to control through the removal power the members of that body.

Nonetheless, both Humphrey and Wiener proceed on the premise that the President's obligation to see to the faithful execution of the laws is a basic executive function as to which the President may direct and supervise his subordinates and ultimately if necessary fulfill through the removal of certain officers and their replacement by persons more amenable to direction.

Congress has succeeded through the establishment of independent regulatory agencies in creating institutions which execute some of Congress' laws independent of presidential direction. If, however, we follow the line of thought in Humphrey, it is seen that these agencies in the first instance receive delegated legislative powers and in the second instance receive the kind of Article I judicial power which Congress can confer. Such agencies may exercise an executive function-not Article II executive power-"in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial department of the government." 295 U.S. 628. That is, Congress may delegate or confer the powers which it has but it may not confer either Article II executive power or Article III judicial power. This is the case inasmuch as while Congress can delegate power which it possesseslegislative power-it cannot delegate powers belonging to the other departments of government. And even the limited judicial power which it can confer cannot wholly displace Article III courts; that is, persons subject to Article I judicial power must at some point be permitted judicial review in Article III courts of constitutional questions. See Chicago, M. & S.P. Ry. v. Minnesota, 134 U.S. 418 (1890); Crowell v. Benson, 285 U.S. 22 (1932); Lockerty v. Phillips, 319 U.S. 182 (1943). Congress may of course confer the powers which it gives to independent commissions to executive branch officers who are subject to presidential direction and control. An example is the quasi-legislative and quasi-judicial powers conveyed by the Packers and Stockyards Act of 1921 upon the Secretary of Agriculture. See Stafford v. Wallace, 258 U.S. 495 (1922); Morgan v. United States, 298 U.S. 468 (1936); Morgan v. United States, 304 U.S. 1 (1938). The mixture of functions does not alter the President's power to remove. Morgan v. Tennessee Valley Authority, 115 F. 2d 990 (C.A. 6, 1940), cert. den., 312 U.S. 701 (1941).

Finally, it must be observed that under the doctrine of Kendall v. United States ex rel Stokes, 12 Pet. (37 U.S. 524 (1838), Congress many constitutionally give an executive officer a practical sort of independence from presidential control by specifying in elaborate detail the nature and scope of his duties and the methods to be followed in performing them, in making the duties, in other words, purely ministerial. Such officers are not thereby made independent in the sense of being beyond the reach of the President's discretionary power of removal, but the President cannot authorize or require them to deviate from their statutory duty.

Recognizing that the case law and the constitutional language is not clear, one can nevertheless draw some basic conclusions and tentatively apply them in analyzing the proposal here. The cases do appear to recognize an executive function or power conferred on the president to the exclusion of the other two branches of government. Whether this 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 by Myers, Humphrey, and Wiener 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 to the quasi-legislative and quasi-judicial functions which justify its independence. Of course, quasi-legislative 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 function must be performed under the direction of the President and Myers holds while Humphrey and Wiener recognize that Congress may not withdraw them from the 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.

Certainly, the faithful execution clause makes rather clear that the prosecution of offenses against the United States is an executive function. "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 interests of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed." Ponzi v. Fessenden, 258 U.S. 254, 262 (1922). The structuring of the executive branch is, of course, within the discretion of Congress acting under the necessary and proper clause. Thus, the creation of offices and the allocation 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 prosecutions, in Chief Justice Taft's phrase. But it could have placed the function elsewhere in the executive branch. Indeed, by the Judiciary Act of 1789, § 35, 1 Stat. 92, the United States Attorney in each judicial district was authorized to execute the laws of the United States and to bring actions and to represent the United States in court, a function in the performance of which they were subject to the direction of the President. 2 Op. Atty. Gen. 482 (1831). The Attorney General was merely authorized by the same section of the statute to represent the United States in the Supreme Court and not until the Act of July 31, 1861, 12 Stat. 285, was the Attorney General given supervisory power over the United States Attorney.

The discretion in structuring, however, would not run to placing an essentially executive function in another branch. Cf. United States v. Cox, 342 F. 2d 167, 190-93 (C.A. 5, 1965) (Judge Wisdom concurring), and cases cited. But as the discussion above of the validity of congressional creation of the independent agencies exercising some elements of all the formal tripartite governmental functions expressed in the separation of powers concept demonstrates, there may well be areas of overlap of functions and of shared responsibilities. Indeed, it is observable that the Constitution does not create analytically distinct categories of governmental functions which are totally separable.

II.

In the Federalist Madison was concerned not with defending the separation of powers features of the Constitution but in rebutting the contentions of those who argued that the Framers had too dangerously blended the "several departments of power." Adverting to the counsel of Montesquieu, whom everyone quoted on the subject, Madison contended that "he did not mean that these departments ought to have no partial agency in, or no control over the acts

of each other." The philosopher had rather meant that the whole power of one department must not be exercised by another department. The Framers had acted on the principle, Madison contended, "that unless these departments be so far connected and blended, as to give to each a constitutional controul over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice, be duly maintained.' "1 The necessity of combining checks and balances with a separation of powers had earlier been noted by Madison in the Convention."

"If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper."

It is unnecessary here to consider the various checks and balances which the Framers introduced by way of giving one department a partial and limited agency in the exercise of another department's powers. Sufficient it should be to note the President's veto as one instance of executive participation in lawmaking. What is relevant for our purposes is the Constitution's authorization in connection with the power of appointment and its meaning with regard to the executive function of execution of the laws.

"I conceive," said Madison in the first Congress, "that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controuling those who execute the laws." But the Constitution expressly involved the other two branches in the process. Article II, § 2, cl. 2, gives the Senate the power to advise and consent to presidential nominations and the Congress the power to establish offices not provided for by the Constitution the appointment to which may be in the President with the advice and consent of the Senate. However, the clause continues: "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 Departments."

No explanation accompanied the addition of this language to the appointing clause in the final days of the Convention. It was early suggested that the power conferred was intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. Ex parte Hennen, 13 Pet. (38 U.S.) 230, 257-58 (1839). If this interpretation held, the proposal to vest the appointment of the special prosecutor in the District Court would be of doubtful validity, but this interpretation is no longer subscribed to by the Court.

When in the Force Act of 1871, 16 Stat. 433, Congress authorized the circuit courts of the United States to appoint supervisors of elections to enforce the right to vote in federal elections, inferior executive officers certainly, the Supreme Court experienced no difficulty in upholding the Act. Ex parte Siebold, 100 U.S. 371, 397-98 (1880). Recognizing that the officers were performing essentially executive functions, the Court said:

"It is, no doubt, usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officer appertain. But there is no absolute requirement to this effect in the Constitution;

...

"But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. . . [T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void."

To be sure, the courts have usually been given the power to appoint officers who perform judicial functions, such as clerks, commissioners, referees and registers in bankruptcy, but there are exceptions beside the office concerned in Siebold. Thus, Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967), utilized the language of Article 2, § 2, cl. 2, as an alternative basis for upholding the

1 The Federalist, Nos. 47, 48 J. Cooke ed. (1961), 323, 325-26, 332 (emphasis in original).

2 M. Farrand, The Records of the Federal Convention of 1787 (rev. ed. 1937), 77. 31 Annals of Congress 481-82 (1789).

Farrand, op. cit., 627-28.

power long vested in the District Court of the District of Columbia to appoint members of the school board, the other alternative holding being on the line of authority giving Congress power to vest in the federal courts of the District of Columbia certain non-article III functions. Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); O'Donoghue v. United States, 289 U.S. 516 (1933).

Pertinent here is the fact that Congress has empowered district courts when the United States Attorney's office in a district is vacant to fill the office temporarily until the President appoints someone. 28 U.S.C. § 546. The only case in which it appears that such an appointment was attacked is United States v. Solomon, 216 F. Supp. 835 (D.C.S.D.N.Y. 1963), in which the power was upheld. Relying on the language of Article II and of Siebold, the court could see no separation of powers problem. It should be noted that the court did suggest as additional reasons for sustaining the authorization that the appointment was temporary and that it did not bind the President, he having the power to displace the judicial appointee with his own nominee at any time. Id., 842-43.

It seems clear, therefore, that Congress could authorize the District Court to appoint a special prosecutor. The basic question which remains, however, is how much freedom from presidential direction Congress will be constitutionally capable of conferring on him. In other words, does the President's obligation to see to the faithful execution of the laws, as construed in Myers, give him power to superintend law enforcement by inferior officers appointed in the alternative manner allowed by Article II, § 2, cl. 2.

Again, the removal power provides the touchstone, inasmuch as Myers, Humphrey and Wiener view it as the foundation of the President's power to direct and control his subordinates. Of course, all three cases dealt with persons appointed by the President with the advice and consent of the Senate and the holdings are so expressly limited to that situation. But it is the rationale which is relevant here.

The ordinary rule would seem to be that the power to remove in the absence of a contrary provision accompanies the power to appoint. Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839), so held in connection with the legality of the removal from office by a District Court of its clerk, appointed by it. More important, it has been held that when Congress provides for the appointment of inferior officers in the alternative, by the heads of departments, it has "the power to limit and regulate removal of such inferior officers . Myers v. United States, 272 U.S. 52, 127 (1927). In United States v. Perkins, 116 U.S. 483 (1886), the Court upheld a provision of law restricting the power of a head of a department in removing one appointed by him except under certain circumstances. The Court expressly adopted the words of the Court of Claims ruling below.

"We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.

"The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress; and by such legis

5 It would not appear that this District of Columbia rationale would be any support for the proposal inasmuch as the question is not as to the judicial nature of the function of appointing but where the Constitution says Congress may place the power, although the rationale may have a subsequent use.

It is not within the purview of this memorandum to consider the due process-impartial tribunal problem raised by vesting the appointment of a prosecutor in the judge who is to preside over the trials. Cf. In re Murchison, 349 U.S. 133 (1955). It was contended in Solomon, 216 F. Supp., 843, that the combination of the power to appoint and the concomitant power to remove the prosecutor provided a nexus between court and prosecutor too close to comport with due process. The court rejected the argument on the basis that the removal power was in the President and not in the court.

7 Quaere, whether the reference to "Courts of Law" permits Congress to specify a member of the District Court, the Chief Judge, rather than the court as an institution. The question was raised when Congress in the Bankruptcy Act of 1867, 14 Stat. 517, 518, gave to the Chief Justice of the United States the power to nominate registers in bankruptcy for the district judges to appoint. Cong. Globe 39th Cong., 2d sess. (1867). 1011.