lation he must be governed, not only in making appointments but in all that is incident thereto." If., 485. Chief Justice Taft in Myers, supra, 161, wrote: "The power to remove inferior executive officers, like that to remove superior executive officers, is an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the exempting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. It has been the practice of Congress to do so and this Court has recognized that power. The Court also has recognized in the Perkins case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal." Does this language with regard to the heads of departments extend to the courts? May a judge with authority to appoint someone in the excutive branch be similarly empowered to remove him and concomitantly to supervise him? The characterization of the power to remove inferior executive officers as in its nature an executive power is not necessarily dispositive. The appointment of inferior executive officers is in its nature an executive power as well; yet the Constitution permits the vesting of such a power in the courts. However, it is one of the lines of reasoning of Myers that exceptions from the vesting of executive power in the executive branch, as well as of the vesting of legislative and judicial powers in each of the other two branches, are to be strictly construed and the blending of the three departments carried no further than the Constitution expressly provides. Thus, Myers held, the joining of the Senate in the appointing process, through its power to confirm or reject presidential appointments, carried with it no inference that the Senate could be constitutionally joined with the President in removing such officers, for the reasons considered in the first part of this memorandum. To approach the question from the constitutional side of the judicial power, it should be noted that federal courts may not be vested with non-Article III powers. Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792); Glidden Co. v. Zdanok, 370 U.S. 530 (1962). If the power to remove executive officers is an executive power, it would appear that in the absence of an express constitutional authorization akin to the power to receive appointing authority no Article III court could be empowered to remove an executive officer. As we have noted above, in certain cases the Supreme Court has treated federal courts in the District of Columbia somewhat differently than it has treated federal courts elsewhere, on the assumption that because of Congress' plenary jurisdiction over the District of Columbia it can invest federal courts in the District with certain non-Article III powers. This might arguably afford a basis for so vesting the removal power. However, the 1970 District of Columbia Court Reorganization Act by clearly denominating two separate court systems, the federal courts created pursuant to Article III and District Courts created pursuant to Article I, D. C. Code, § 11-101, may have removed a great deal of the basis for this rationale. Aside from these problems there remains the effect of the President's obligation to see to the faithful execution of the laws upon any proposal to vest more than the appointing power in the courts. As we have noted in the discussion of Myers above the faithful execution clause was a major factor in the determination of the Court that the President must have the power to remove officers appointed by him in order to meet this obligation, in order to have the power to supervise and direct his subordinates. The "reasonable implication" is "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." Myers v. United States, supra, 117. How then is it possible to reconcile the authority of Perkins, reaffirmed in Myers, that Congress can limit the removal power of the heads of departments when the appointing power is vested in the heads rather than in the President? Is it not a limitation upon the faithful execution obligation if inferior officers who do the execution by delegation from the department heads are not subject to removal and therefore somewhat free of direction and control? If that is the effect of Perkins, then it must be admitted that the result follows. It should be noted, however, that the language of both Perkins and of Myers in this 33-875-74- -29 regard are expressly authority only for the validity of congressional limitation upon the removal power of the department heads; no reference is made to the possible power of the President himself to remove or to cause the removal of such inferior officers. A tension obviously exists here between one of the principle rationales of Myers, confirmed in Humphrey and Wiener, and the result of Perkins and the confirmatory language of Myers. The authority to resolve the matter is lacking; however, if we follow the analysis of part one of this memorandum the balance would seem to tilt somewhat against a conclusion that Congress could invest a special prosecutor appointed by the court with independence of the President. III. Under the separation of powers concept and under the scheme of government established in the Constitution, the law which the executive executes is in the main that enacted by Congress; the Constitution itself and treaties entered into pursuant to the Constitution are the only other sources of law recognized. Article VI, cl. 2. The relevance of this point in this instance is illustrated by Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838), which grew out of President Jackson's instructions to his Postmaster General to refuse to comply with a congressional mandate to pay a sum of money to Stokes. "The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed." "The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not, and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Id., 610. "It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice. "To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible." Id., 612-613. The meaning of the principle of this case, as Chief Justice Taft recognized in Myers, supra, 135, is that Congress may structure the obligations and duties of an executive officer in such detail that he is effectively rendered free of administrative and supervisory direction of the President, although he may remain ultimately subject to removal by the President for carrying out the will of Congress, a matter over which Congress is not without remedy. Thus, should Congress devolve upon an executive officer already in place the additional responsibilities of a special prosecutor, empowering him for example to utilize judicial process to obtain documents and other materials as to which the President may claim executive privilege, instructing him, for instance, to challenge claims of executive privilege, such an officer might very well have as much independence as could in effect be wished. Congress may designate officers in place to perform additional duties without requiring their reappointment or any further action by the President. Shoemaker v. United States, 147 U.S. 282 (1893). Proceeding this way would avoid the difficulty to be associated with attempting to compel the President to name a new officer. Additionally, if Congress were to select an officer appointed by the head of a department, it could take advantage of the holding in Perkins and the confirmatory language in Myers, set out above, approving the congressional power to limit and to regulate the removal of such an officer by the department head. Of course, the problem raised above whether this limitation and regulation would bind the President would still be present, but even if it should be thought that the President's power would be left uncurbed the other consequences of its exercise would no doubt constitute a deterrent of no little force. IV. To summarize: It appears that the separation of powers concept which is embodied in our constitutional structure, and especially the vesting of the executive power to see to the faithful execution of the laws, places upon any proposal for an independent office substantial obstacles to achievement. First, the office seems necessarily to be located in the executive branch. Second, there would necessarily be a range of presidential power to direct and control which could not be avoided. Third, a special prosecutor could no doubt be appointed by a court pursuant to congressional authorization, but it remains doubtful that through such a device independence of the President could be achieved. Fourth, a large measure of independent discretion could seemingly be conferred upon an executive branch officer through statutory vesting of obligations which the President could not override, although it is impossible to determine how far Congress could carry this; probably it could not exercise its power in any plenary fashion, inasmuch as to do so would be to wholly undermine one of the President's independent powers. [From the Library of Congress, Congressional Research Service, Feb. 19, 1974] (Prepared by Richard Ehlke, Legislative Attorney) Reform proposals regarding the structure of the Department of Justice have come from many quarters over the years since the creation of the Department in 1870. The most concerted efforts for reform have occurred following the scandals which have periodically plagued the Department, most notably in 1924, 1953 and 1973. Only in the Watergate scandal, though, as far as we have been able to determine, have far-reaching legislative proposals such as Senator Ervin's Independent Justice Department Act been seriously considered. Such proposals are attempts to not only work administrative and management reforms but also to restructure the political influences upon the Department with an eye towards eliminating any partisan enforcement of the laws. In 1924 charges of corruption were levelled against Attorney General Harry Daugherty and other officials of the Department of Justice. During the hearings of the Senate Select Committee on Investigation of the Attorney General, John Crim, an assistant to the Attorney General, recommended that the United States attorneys and the Attorney General be appointed on the basis of merit and taken out of politics. He also suggested that the Attorney General be taken out of the Cabinet. Hearings Before the Senate Select Committee on Investigation of the Attorney General, 68th Cong., 1st Sess. (1924) at 2565, 2583, 2590. These proposals were only briefly discussed and we have been unable to locate any legislative proposals patterned after these suggestions which were introduced in the wake of the Daugherty era. Similar proposals were echoed after the scandals in the Justice Department during the Truman administration. Attorney General McGranery in 1953 recom mended that the Attorney General appoint the United States Attorneys and that they should be under Civil Service and free to move from one district to another. He also instituted the recruitment by the Department of honor law graduates solely on the basis of ability and not politics or cronyism. The program is still operating today. In 1931, the National Commission on Law Observance and Enforcement (Wickersham Commission) recommended "[e]limination, so far as may be possible in our system of government, of political considerations in the selection and appointment of Federal district attorneys and prosecuting officers and of appointments based upon political activity or service." Wickersham Commission Reports No. 4, Report on Prosecution 37 (1931). The Commission criticized the practice of Senatorial courtesy where Senators dictate the appointment of United States Attorneys for their states. However, it approved of the four-year term for United States Attorneys because, in its view, "it is important to have the Federal prosecuting officers responsible to the policies of the executive whose duty it is for the time being to see that the laws are enforced." Id., at 9. Proposals concerning the political independence of United States Attorneys have been suggested by former Attorney General Ramsey Clark in his book, Crime in America and federal judges before whom such attorneys practice. See 5 National Journal, No. 16, p. 584 (1973). Both recommended the replacement of the present system of political patronage selections with a Civil Service type system. The United States Attorneys Advisory Committee also views the Senatorial courtesy aspect of appointments as a handicap in selecting competent United States Attorneys. The Advisory Committee is also studying the entire relationship of the United States Attorneys with the Justice Department in an effort to increase their voice in the setting of law enforcement policy. Proposals which are being studied include the establishment of a permanent cadre of lawyers in the United States Attorneys' offices directly responsible to the Justice Department and a pool of professional prosecutors selected on the basis of examination. See 5 National Journal, No. 48, p. 1785 (1973). In a recent symposium on the Justice Department conducted by the Committee for Public Justice, the politicization of the Department was the primary focus of discussion. The necessity for a fundamental change in the relationship between the Attorney General and the President as well as various proposals for structural change were discussed. Among the latter was an independent department in the area of criminal law enforcement. Criminal law enforcement was distinguished from such areas as civil rights or anti-trust where, it is argued, the policies of the administration should be reflected in the enforcement effort. A detailed proposal for a permanent special prosecutor was presented by Lloyd Cutler, a Washington attorney. His proposal would invest a permanent special prosecutor with jurisdiction over certain classes of so-called "political crimes." The areas of enforcement entrusted to the special prosecutor would be federal election and lobbying laws and crimes committed by elected and appointed officials. The prosecutor would be appointed by the President with the advice and consent of the Senate for a six-year term. He would be removable by the President only for stated causes. His office would be part of the Justice Department for administrative purposes and use of the Federal Bureau of Investigation, but it would be physically separated and have its own budget. It would be independent from both the Attorney General and the President in policy direction. Also suggested at the above symposium, both as an independent proposal and a means to enhance the depoliticization striven for by the Cutler proposal, was a permanent legislative committee to perform ongoing oversight of prosecutorial discretionary decisions. This committee would be comprised of a permanent, professional staff and act as a forum for citizen complaints. In this way, it is argued, continued oversight of the judgmental factor in prosecution decisions could be had and a valuable check on abuse achieved. The Committee for Public Justice, affiliated with the ACLU Foundation, will probably be printing the transcript of the proceedings of this conference. Furthermore, some of the participants would be useful witnesses in hearings designed to probe the structure of the Justice Department and proposals to change it. [From the Library of Congress, Congressional Research Service] THE PROS AND CONS OF ESTABLISHING AN INDEPENDENT JUSTICE (DEPARTMENT) AGENCY AND FEDERAL (BUREAU) AGENCY OF INVESTIGATION (Prepared by Harold C. Relyea, Government and General Research Division) In response to your request, we have prepared the following general discussion of the pros and cons of establishing independent entities to replace the current Justice Department and Federal Bureau of Investigation. Where pertinent, references have been made to historical material regarding each of these agencies. This discussion is summary in nature and does not presume to provide a detailed treatment of the question at hand. While being brief, the analysis attempts to consider the major factors involved in establishing a truly independent unit of government at the Federal level. HISTORICAL OVERVIEW Although a Justice Department was not established until shortly after the close of the Civil War, the Office of Attorney General came into existence with the Judiciary Act of 1789.1 The principal duties of the Attorney General were to prosecute cases before the Supreme Court and advise both the President and the department heads on legal matters. Although Edmund Randolph, the first incumbent of the office, suggested, to the agreement of President Washington, that the Attorney General be given supervisory control over the Federal district attorneys, the recommendation fell on deaf congressional ears. It was not until 1861 that this authority was granted.2 Thus, the Attorney General did not, initially, have many duties. "Although from the first the Attorney General was considered a member of the President's cabinet his salary was below that of the other members and he was not required to give his time exclusively to national affairs. He was permitted and, by the meagerness of his salary, required to engage in private practice, usually away from the seat of government. His salary was raised to a parity with the other cabinet salaries only in 1853. There is no provision of law today requiring the Attorney General's exclusive attention to national affairs, but since the beginning of the term of Caleb Cushing (1853), it appears that no Attorney General has engaged in any very extensive private practice, if in any at all. He never appears in court for a private party and, in recent years, he has seldom appeared even as counsel for the United States. His duties as administrative head of the Department of Justice require his entire attention, and since the creation of the office of Solicitor General, the Attorney General has not always been appointed primarily for his legal ability." 3 The thrust of the argument for creating a so-called "independent" Justice agency is to insure that the Attorney General and his subordinates would be attorneys both in name and in conduct and that they would be restricted and otherwise insulated from matters of politics. With the establishment of the Justice Department in 1870, there was no directive for the creation of an investigative unit within the new agency.* "Congress' attitude toward federal investigation was then, and for several decades remained, strikingly ambivalent. The legislators wanted violations of federal law to be brought to light. But they did not want the very department to which they had assigned the task of bringing them to light to have an investigative capability equal to this assignment-lest States' rights be infringed or police-state procedure develop and they did not want either members 'of Congress or those who financed their campaigns to be investigated."5 To meet certain investigative requirements, the Justice Department acquired the services of Treasury Department agents who were professional investiga'tors. By 1878 certain “examiners,” carrying out accounting inspections, were 1 I Statutes at Large 93, section 35. 2 XII Statutes at Large 285. 8 Albert G. Langeluttig. The Department of Justice of the United States. Baltimore: The Johns Hopkins Press, 1927, pp. 2-3. XVI Statutes at Large 162. 5 Harry and Bonaro Overstreet. The F.B.I. In Our Open Society. New York: W. W. Norton & Co., 1969, p. 14. |